10th Singapore Law Review Lecture

The criminal process—The Singapore model

CHAN SEK KEONG*

PARTI

A. Introduction1

The subject of this lecture has troubled the criminal bar and thelaw teachers of the NUS Law Faculty. The criminal process is atthe heart of the criminal justice system. It is not only a subject ofgreat practical importance; it is also a reflection of our ideals andvalues as to the way in which we can accord justice to both theguilty and to the innocent.

As a result of a series of prosecutions during the last 5 years offoreigners for various offences committed in Singapore,2 ourcriminal justice system has become the focus of world attention.It has been praised and condemned at the same time for itsmerits as well as for its failings in unequal measure. For some, itis a model to follow, for others, a model to avoid. But it is amodel which I believe the Singapore public has confidence in;and which has maintained peace, security and good order in the

*

1

2

Attorney-General, Singapore (May 1992-). He writes to acknowledge hisgratitude to Toh Han Li, Deputy Public Prosecutor, for his assistance inpreparing this lecture.

This article is adapted from the 10th Singapore Law Review Lecturedelivered on 26 September 1996.

Flor Contemplation v PP [1994] 3 SLR 834; Michael Fay v PP [1994] 2SLR 154; Johannes van Damme v PP [1994] 1 SLR 246; The WilliamSafire articles; Rajan Pillai’s trial, The Spectator, 15 July 1995; PP v NickLeeson DAC 22050-60/95; AG v Christopher Lingle & 4 Ors [1995] 1SLR 696.

433

434 Singapore Law Review (1996)country. This does not make it better than others, and we shouldnot make such a claim. Each country must have a criminaljustice system which meets its own needs. If the electoratedeserves to have the politicians it elects, equally, a countrydeserves the criminal justice system it has.

Singapore is a relatively crime-free country, especially withregard to crimes of violence, including sexual offences, crimesagainst public and private probity (like corruption) and drugtrafficking. This state of affairs is usually attributed to thepolicies of the Government on crime control, as evidenced bythe laws enacted to suppress these offences and the so-called“drift-net” laws to control even minor forms of anti-socialconduct. Most Singaporeans, I believe, appreciate the safeenvironment they live in and support a criminal justice systemthat is responsible for it. But, of course, not all Singaporeans arepersuaded. Civil libertarians will say that crime control policiesmust not be implemented at the expense of weakening or evenlosing one’s civil liberties. Others even doubt that the strict lawscan achieve their social objectives.3

The Confucian doctrine that the rule of virtue is superior to therule of law is an idealistic view of human nature. It is not knownto have flourished in any society since written history began. Amodern civilised society can only exist and survive under law. InSingapore, even the great virtue of filial piety needs a safety netin legislation.4 But a sense of justice pervades every civilisedsociety, and justice requires that errant members should not bepunished for their transgressions except in accordance with law.Some civil libertarians even insist that no person should even besubjected to any risk of punishment without probable cause.

3

4

Michael Hor: “The Presumption of Innocence—A ConstitutionalDiscourse for Singapore” [1995] SJLS 365, 372 where he writes,“Whether such [statutory] presumptions actually aid the ‘war on drugs’ isquestionable...”

See the Maintenance of Parents Act (Chapter 167B).

17 Sing LR 10th Singapore Law Review Lecture 435In the context of criminal justice under the common law, one

principle stands out. In Ong Ah Chuan,5 Lord Diplock states theprinciple in this way:

One of the fundamental principles of natural justice in the fieldof criminal law is that a person should not be punished for anoffence unless it has been established to the satisfaction of anindependent and unbiased tribunal that he committed it. Thisinvolves the tribunal’s being satisfied that all the physical andmental elements of the offence with which he is charged,conduct and state of mind as well where that is relevant, werepresent on the part of the accused. To describe thisfundamental rule as the “presumption of innocence” may,however, be misleading to those familiar only with Englishcriminal procedure. ... What fundamental rules of naturaljustice do require is that there should be material before thecourt that is logically probative of facts sufficient to constitutethe offence with which he is charged.

In the last few years, beginning with the tenure of the incumbentChief Justice, the criminal process in Singapore has begun a newphase of development of its basic principles through judicialreconsideration and refinement of case law principles and the re-interpretation of statutory provisions. This came about as a resultof the large number of capital cases that have come on for trialand on appeal in the last few years and also the practice of theChief Justice himself to hear all criminal appeals from theSubordinate Courts to the High Court. More appeals mean morenovel points of law, more arguments, more dicta and moredecisions. Another contributing factor is the greaterprosecutorial awareness of the need to refine and improve thecriminal process. This awareness has been translated intoappeals and referrals of points of law by the Attorney-General tothe Court of Appeal for determination. Here, I should explainwhy there have been more frequent interventions by theAttorney-General of this nature. Where the accused is convictedfor an offence tried in the High Court, the Public Prosecutorcannot appeal and therefore has no opportunity to seek to correct

5 [1981] 1 MLJ 64.

436 Singapore Law Review (1996)any pronouncements on a point of law which, although notaffecting the decision in the case, may have adverseconsequences for prosecutions in the Subordinate Courts. Morethan 90% of criminal prosecutions are processed in these courts.The last time a district judge decided not to follow a statement oflaw made by the High Court on the ground that it was made perincuriam, he was roundly chastised by another High Court Judgeon appeal.6 As state prosecutors, we have an obligation toexercise vigilance in ensuring that the criminal process is not,through default, made more difficult for us in the successfulprosecution of the guilty accused.

Currently, it is not unfair to say that the criminal bar is lessconcerned about the needs of an efficient and effective criminalprocess than about how such a process would affect itsprofessional role. It cavils at so-called “driftnet” laws, statutorypresumptions and the effects of some judicial decisions which,undoubtedly, reduce the armoury of procedural and otherdefences available in the defence of the accused. Under ouradversarial system of trials, defence counsel are not concernedwith the factual guilt of the accused. What is relevant is whetherthe prosecution is able prove its case beyond reasonable doubt.Every law or judicial decision that weakens this principle isviewed with concern, and even despair. There was a time whensome members of the criminal bar even believed, through thepower of anecdotal evidence spreading through the Bar room,that the Chief Justice had decided to enhance sentences onappeal in order to deter appeals, and not because he decided eachcase on its merits. The empirical data actually contradicted thisbelief and showed that most of the sentences were enhanced onappeals by the prosecution and the others were enhancedbecause they were manifestly inadequate.

However, for all their concerns, the criminal bar, as a whole,has not been able to express their views through well-argued orreasoned writings, as contrasted with the measured reactions ofsome law teachers as expressed in the academic journals. Thereappears to be a growing mood among the teachers of criminal

6 Goh Cheng Chuan v PP [1990] 3 MLJ 401 per Thean J (as he then was).

17 Sing LR 10th Singapore Law Review Lecture 437law and procedure in the NUS Law School that our criminalprocess is now tilted against the accused, and that its underlyingcommon law traditions and values are being uprooted slowly butsurely in favour of a model which accepts a high risk of theinnocent accused being charged and convicted. If these concernshave substance, then we should correct this state of affairs assoon as possible. But I believe that the concerns of the criminalbar and of the law teachers are exaggerated. There is much in thecriminal process that protects the interests of the accused frombeing wrongfully convicted, especially if he is innocent.Protecting the innocent accused is a primary objective of thecriminal process and those who operate it, especially the judges.But, it has to be recognised that it is simply not practical to try toestablish a process that ensures that no innocent person will everbe convicted. In theory, such a process can be established but itwill only become a charter for murderers, rapists, robbers, andother criminals, etc to act with impunity.

B. The function of the criminal process

What is the criminal process? It is the aggregation of all theactivities “that operate to bring the substantive criminal law tobear (or to avoid bringing it to bear) on persons suspected ofhaving committed crimes.”7 It normally begins with thereporting of a crime to the police and ends with the finaldisposition of the case against the accused for the commission ofthat offence. This process covers the pre-trial investigation bythe police, the evaluation of the investigation papers by theprosecutor, the decision to proceed or not to proceed, the chargeto prefer, the arrest of the accused, his preliminary appearancesin court with or without counsel, his release on bail or furtherremand, the disclosure or discovery of prosecution evidence, theplea bargain, if any, the preliminary inquiry for offences to betried in the High Court, the trial of the accused and the post-trialprocesses of mitigation, sentencing and appeal if he is convicted.

7 Herbert Packer, “Two Models of the Criminal Process” (1964) 113 Univof Pennsylvania Law Review 1.

438 Singapore Law Review (1996)The accused is regarded as the important actor in the entireprocess. The legal process as developed is still predicated on theaccused’s rights, eg, the right to a fair trial, the right, if he isinnocent, not to be convicted, amongst his other rights.Traditionally, the victim is regarded as the unfortunate cause ofthe accused’s temporary predicament.

What is the criminal process for? It is to process crimes withinan established legal system in accordance with procedures laiddown by the law so that the guilty can be punished for theircrimes. In Winston Brown,8 Steyn LJ (as he then was) said:

The objective of the criminal justice system is the control ofcrime, but in a civilised society that objective cannot bepursued in disregard of other rules.

The process requires a trial in accordance with the fundamentalrules of natural justice. It is arguable that in principle these rulesdo not require that the criminal process must favour the accused,in whatever degree. But, as developed, they require the court togive him every consideration so that if there is a reasonabledoubt about his guilt, he is to be acquitted. It is also arguablethat the rules do not prohibit the criminal process frompreferring crime control in the larger interest of the community,so long as they are not obviously unfair to the accused.9 Whatthat balance should be, between community needs and individualrights in the criminal process, is determined by the ideologicaland social goals of the government of the day. If anything hasbeen made clear in Singapore, it is that crime control has alwaysbeen and is a high priority on the Government’s action agenda.The efficient and effective maintenance of law and order inSingapore is considered absolutely essential to its social,economic and political well-being. The criminal process plays acentral role in the criminal justice system to facilitate theachievement of those goals.

8

9[1995] 1 Cr App R 191.

Lord Diplock in Haw Tua Tau [1981] 2 MLJ 49 at 50.

17 Sing LR 10th Singapore Law Review LectureC. Detention without trial

439

Indeed, the Government’s credo that the strict maintenance oflaw and order is so vital to the welfare of its citizens that it wasprepared to discard the established trial process and itsapplication of due process norms in two areas of criminalactivities and substituting in its place detention without trial.These are (1) unlawful activities of secret societies and othercriminals under the Criminal Law (Temporary Provisions) Act,and (2) drug addiction under the Misuse of Drugs Act. Detentionwithout trial is the most efficient and most effective form ofcrime control that can be devised. It is the weapon most fearedby secret societies. That is why Hong Kong triad societies do notoperate in Singapore. If the most desired standard of proof in thecriminal process is proof beyond any doubt, that standard isachieved under the Misuse of Drugs Act because no person isdetained unless a blood test shows the presence of a controlleddrug, thereby proving drug consumption beyond any doubt. If anacceptable norm of the criminal process is that there should be atrial or hearing before an independent and unbiased tribunalbefore a person’s liberty can be taken away, the post-detentionhearing provided for criminal detainees is a fair approximationof such a hearing, as the detainee is entitled to make his defenceto a review board, consisting of practising lawyers from theprivate sector, which then recommends on the evidence placedbefore the members whether the detainee should be released ordetained. It can also be argued that the detention without trial isnot obviously unjust or unfair to criminals who have the powerand means to intimidate witnesses from testifying against themin court. The other law is arguably not unjust to drug addictssince it is intended to treat and rehabilitate them so that they canbecome useful citizens. Civil libertarians cannot accept suchlaws, whatever their practical justifications, for the reason, interalia, that such laws are open to abuse. There is a large degree ofpublic acceptance of these laws in Singapore. However,confidence in the justice of such laws can only be maintained ifthe executive uses them, and is seen to do so, for the purposescontemplated by Parliament. The Attorney-General has a vital

440 Singapore Law Review (1996)function in the proper exercise of the particular power ofdetention under the Criminal Law (Temporary Provisions) Actas he has to consent to it.

D. Is the Singapore model efficient?

In order to have a better understanding and appreciation of therole of the criminal process in Singapore and to considerwhether its existing framework is efficient to achieve itsdesignated purpose, it is useful to measure it against two modelswhich have been postulated by an American academic, ProfessorHerbert Packer, in his article entitled “Two Models of theCriminal Process”.10 He refers to them as “The Due ProcessModel” and “The Crime Control Model”. What follows are verybrief descriptions of the models.

E. Crime control model

The value system of the crime control model is:

... based on the proposition that the repression of criminalconduct is by far the most important function to be performedby the criminal process. The failure of law enforcement tobring criminal conduct under tight control is viewed as leadingto the breakdown of public order, leading to law-abidingcitizens being victimised by law-breakers.

If this happens, the citizen’s security of person and property issharply diminished, and therefore, so is his liberty to function asa member of society. The criminal process is a positiveguarantor of social freedom. Crime control demands a high rateof conviction, and places a high degree of trust in the efficiencyof administrative procedures in discovering the facts of thecrime. The successful conclusion of the crime control model isnot conviction by the adjudicative act of the court but the plea ofguilty. Cases must be processed quickly and with finality. Theapplication of administrative expertise, primarily that of thepolice and the prosecutors, should result in an early

10 Supra, n 7.

17 Sing LR 10th Singapore Law Review Lecture 441determination of probable guilt or innocence. The probablyinnocent are screened out. The probably guilty are passedquickly through the remaining stages of the process. Accordingto Packer, the key to the operation of the model is thepresumption of guilt. This is not the opposite of the presumptionof innocence which is the polestar of the due process model.Once a determination is made that there is enough evidence ofguilt, which may take place as early as the time of arrest, he is tobe treated as probably guilty.

If there is confidence in the reliability of informal,administrative fact-finding activities that take place in theearly stages of the criminal process, the remaining stages canbe relatively perfunctory.

The presumption of guilty is an expression of that confidence. Itis basically a prediction of outcome. It is descriptive and factual.In contrast, the presumption of innocence is normative and legal.It means that until the accused is found guilty by a court, he is tobe treated, for reasons which have nothing whatever to do withthe probable outcome of the case, as if his guilt is an openquestion. It is a direction to the courts to ignore the amount ofevidence amassed against the accused. The crime control modelresembles an assembly line in its disposition of cases. Its credois justice with efficiency.

F. Due process model

The due process model looks like an obstacle course. Its credo ispreventing any innocent accused person from being subject tothe process. Each of its successive stages is designed to presentformidable impediments to carrying the accused further along inthe criminal process.

Due process ... starts from the proposition that it is better to letten guilty men go free than to convict a single innocentdefendant.11

11 David Rose, “The Collapse of Criminal Justice” (1966).

Its ideology is not the opposite of the crime control model as italso recognises the desirability of repressing crime. Its ideologyis composed of a complex of ideas, but essentially it is to giveprimacy to the rights of the individual against those ofcommunity. It recognises the fact that people make mistakes.The police can and do abuse their powers and extractconfessions by various means. Witnesses can be biased. Packersays that the aim of the due process is at least as much to protectthe factually innocent as it is to protect the factually guilty. Civilliberties are emphasised and the protection of the integrity of thelegal system is accorded high priority. So, all evidence obtainedafter the initial wrongful arrest must be rejected, even if true.Any breach of procedural rules is an abuse of process whichterminates the prosecution. At the appeal stage, due processideology says convictions, even of factually guilty people, mustbe quashed if there turns out to have been what English lawterms a “material irregularity”. Proof of guilt must be beyondany doubt by the prosecution and all the essential elements of theoffence must be proved according to that standard. A convictioncan be reversed if the appellate court feels that it is not safe toconvict him.

In summary, under pure crime control the conviction ratewould be near to 100 per cent as all accused persons not weededout before trial are factually presumed to be guilty, until theyprove the contrary. Pure due process, on the other hand, requiresa system in which conviction demands proof beyond any doubtat all, rather than the less demanding test of proof beyondreasonable doubt.

G. The Singapore model—Present condition

If we could start all over again to construct a criminal processmodel, we would begin by identifying its ultimate goal. Aspresently advised, that goal would be a high rate of conviction ofthe factually guilty accused. This would require the adoption ofmany of the features of Packer’s crime control model if theSingapore model is to maintain that degree of efficiency toachieve that goal. However, no civilised government can be

442 Singapore Law Review (1996)

totally insensitive to potential miscarriages of justice in thecriminal process. Hence, the process must contain rules andprocedures which can prevent and correct such injustices.

Do we have such a model? What we have is a modelincorporating many features from both of Packer’s models. It isdifficult to say where there is a proper balancing of the twointerests, or where the scale is tilted. Is it efficient? The answeris probably yes, if the following measures are used: (a) thepercentage of cases which are disposed of through guilty pleas,(b) the insignificant number of cases where miscarriages ofjustice have been raised in public; and (c) the excellent state ofour social condition in terms of crime and punishment. However,it is only within recent memory that Singapore has been becomeand seen to be a relatively crime-free country. This might nothave been the case in the past.

H. English common law influence

In the recent past, the criminal process of has been undulyinfluenced by English common law principles applicable to acriminal trial in England, in particular jury trials. Our criminalprocess is derived from Indian statutes corresponding to 3current enactments, the Evidence Act, the Criminal ProcedureCode and the Penal Code. These Indian statutes consolidated theprinciples of evidence and procedure applicable in England,subject to certain some modifications which affected certainrights available to the accused at common law, eg the privilegeagainst self-incrimination, the principle of proof beyondreasonable doubt, etc. The criminal law and procedure ofEngland applied to Singapore by virtue of the Second Charter ofJustice 1826. Act No 74 of 9 Geo IV was enacted in 1828 toimprove the criminal procedure. In 1873 we jettisoned Englishcriminal law in favour of Indian criminal law when the PenalCode was introduced into the Straits Settlements. The firstEvidence Ordinance, based on Indian legislation, was enacted in1893. In 1900, a code of criminal procedure was enacted byOrdinance 21 of 1900 which did not come into force. It wasrepealed and re-enacted by Ordinance 10 of 1910 which did

17 Sing LR 10th Singapore Law Review Lecture 443

come into force. The existing Code is a re-enactment of thisCode as amended from time to time.

The first important change came immediately after Singaporeachieved self-government in 1959. The new government did notbelieve in the efficiency or efficacy of juries in civil andcriminal trials. Nevertheless, it acted cautiously in retaining jurytrials for capital offences. By 1969, the government becameconvinced that juries in Singapore were unable or reluctant toadminister criminal justice according to law. Accordingly, thejury trial for capital cases was abolished and replaced with atwo-judge court. The second important change came in 1960when pre-trial voluntary confessions made by an accused toinspectors of police were made admissible.12 The so-calledJudges’ Rules in the form of Schedule E was also introduced togovern police questioning of accused persons. Prior thereto, onlyconfessions made before magistrates were admissible. The thirddevelopment consisted of a group of amendments enacted in1973 and 1976 which made admissible all statements made to orin the presence of any police officer of or above the rank ofsergeant (1973) and which also allowed the courts to makeadverse inferences against the accused if he (a) during pre-trialquestioning, failed to state his defence, and (b) during the trial,failed to testify under oath after his defence is called. It isprobable that this group of amendments became the mosteffective means of crime control in Singapore. The fourthsignificant development, surprisingly, came from the combined

The judicial definition of when a statement is voluntarily made is a wideone. In Mohd Ali Bin Burut & Ors v PP [1995] 2 AC 579, an appeal to thePrivy Council from Brunei, the accused persons had given confessions topolice officers. It was not in dispute that at the time the accused personsgave the confessions they were not manacled and hooded (the “specialprocedure”), but it was also not in dispute that a few days earlier they hadbeen manacled and hooded. The Board held that this amounted tooppression as nothing was done by the police during the recording of theconfessions to dispel the implied threat of further interrogation at whichsuch special procedure would be applied to them. The Board accordinglydeclared that the confessions were not voluntary and quashed theconvictions of the accused persons.

12


effect of 3 Privy Council decisions, viz, Yuvaraj,13 Jayasena14

and culminating in Haw Tua Tau.15 These changes collectivelyhad a substantial effect in improving crime control in Singapore.There were other statutory amendments which lightened theprosecution’s burden in securing convictions, eg in 1976 whenany requirement that a trial judge had to warn himself beforeconvicting on the uncorroborated evidence of an accomplice wasabrogated. These amendments impacted on isolated cases which,unlike the 1976 amendments, impacted on all suspects andaccused persons. It is not possible to discuss here all thesedevelopments. A few are discussed below, starting with thePrivy Council decisions because there are lessons to be learnttherefrom.

I. The case of Yuvaraj

In Yuvaraj, the issue was the standard of proof required to rebutthe presumption in section 3 of the Prevention of Corruption Act1961 (Malaya) that a public officer who receives a gratificationis deemed to have received it corruptly “unless the contrary isproved”. The expressions “proved”,16 “disproved”17 and “notproved”18 have been statutorily defined since the EvidenceOrdinance was applied to Malaya. Under section 105, the burdenof proving the existence of circumstances bringing the case

[1970] AC 913.

[1970] AC 618.

[1981] 2 MLJ 49.Section 3(3) reads: “A fact is said to be ‘proved’ when, after consideringthe matters before it, the court either believes it to exist or considers itsexistence so probable that a prudent man ought, under the circumstancesof the particular case, to act upon the supposition that it exists.”

Section 3(4) reads: “A fact is said to be ‘disproved’ when, afterconsidering the matters before it, the court either believes that it does notexist or considers its non-existence so probable that a prudent man ought,under the circumstances of the particular case, to act upon the suppositionthat it does not exist.”Section 3(5) reads: “A fact is said to be ‘not proved’ when it is neitherproved nor disproved.”


13

14

15

16

17

18

within any special exception or proviso contained in any lawdefining the offence is on him who relies on thesecircumstances, and the court “shall presume the absence of suchcircumstances.” The Federal Court referred this question to thePrivy Council for consideration:

Whether in a prosecution under section 4(a) of the Preventionof Corruption Act, 1961, a presumption of corruption havingbeen raised under section 14 of the said Act the burden ofrebutting this presumption can be said to be discharged by adefence as being reasonable and probable or whether thatburden can only be rebutted by proof that the defence is onsuch fact (or facts) the existence of which is so probable that aprudent man would act on the supposition that it exists.(Section 3 Evidence Ordinance.)

The Privy Council did not think that there was any relevantdifference in practical effect between the tests stated by theFederal Court. The Malayan and Indian authorities on the issuewere conflicting and the English authorities were also not clear.In Wong Chooi,19 Azmi CJ said that the burden on the accusedwas only a slight one. Lord Diplock, delivering the PrivyCouncil’s advice, held that although the definition of “proved”did not specify the quantum of proof, common sense dictatedthat the degree of probability of the existence or non-existenceof any fact must depend on the nature of the proceedings. If thefinding of a fact results in a conviction, public policy demandsthat the degree of probability must be beyond reasonable doubt.If the finding of a fact results in an acquittal, there can be nogrounds in public policy for requiring that an exceptional degreeof certainty as excludes all reasonable doubt that the fact doesnot exist. In other words, the burden on the accused to rebut thepresumption is on the balance of probability. Prior to thisdecision, local case law was to the effect that the burden was nomore than an evidential burden.

[1967] 2 MLJ 180, 181.


19

J. The case of Jayasena

In Jayasena, an appeal from Ceylon decided 3 months afterYuvaraj, the issue was whether, in a murder charge to which theright of self-defence was pleaded, the accused had to prove thedefence on a balance of probability or on the balance ofevidence. The appellant relied on English, Indian and Malayanauthorities which had held that the accused had only to dischargethe evidential burden, and not the persuasive burden. LordDevlin, delivering the opinion of the Privy Council, held that thestandard of proof was on a balance of probability and not on thebalance of evidence because of the compelling language ofsections 3 and 105 of the Evidence Ordinance. Lord Devlin heldthat the word “proved” in section 3 meant proof as defined andnothing less. Prior to this decision, the local courts hadinterpreted these sections to refer only to the evidential burden.

K. Local reaction to statutory changes

Thus, it would appear that the draftsman of the Indian PenalCode and the Indian Evidence Act had effected revolutionarychanges to the burden of proof in the trial process with respect tocodified common law offences without the local judges realisingit. Why was the established principle of proof beyond reasonabledoubt modified for the Indian criminal justice system? It maywell be that this particular due process norm which is the goldenthread of English criminal law was found unsuitable to a societythat was not as developed as England then was, or that perhapsunlawful killings were rampant in India, as they probably were,and so had to be controlled by shifting the legal burden ofproving justification on any accused who had killed somebody.Whatever the reasons, these provisions were also found suitablefor application to the Straits Settlements.

However, the local courts did not understand these provisionsas having modified the common law. This state of affairs wouldhave continued but for the perceptive realism of the Court ofCriminal Appeal of Ceylon in Chandrasekera,20 which decision

See R v Chandrasekera (1942) 44 NLR 97.


20

the Privy Council in Jayasena found irreproachable. In Yuvaraj,the law on the point was corrected only when a wrongly-framedquestion of law was referred to the Privy Council. Thus,Singapore had for more than 100 years a modified principle ofproof which reduced the opportunities for killers literally to getaway with murder, and also in the laws creating other offences,but it was understood and applied by the courts as if it were thepure principle of proof beyond reasonable doubt. If this analysisis correct, and if you take Haw Tua Tau21 into account as well,then the record of the local judiciary in relation to crime controlwas not inspiring at all. It could be said that the guilty accusedand their counsel had the best of times, whilst the prosecutors,representing the public interest, had the worst of times. The pastmay be the past, but we should ask ourselves how this couldhave come about. I would like to suggest the combined effect oftwo probable causes.

L. Structure of English law

The first has to do with the structure of English law. The basiclaw of England, as of Singapore, is English common law.English legislation, like Singapore legislation, is drafted by thedraftsman and enacted by Parliament on the foundation of thecommon law. In consequence, legislation is invariablyinterpreted by the judges as glosses on the common law becauselegislation is only necessary when the common law is deficient.For this reason, an established canon of construction is thatstatutes are not intended to repeal or modify the common law,unless it is expressed as such or a necessary implication can beread from it. One of the most fundamental principles in thecriminal law is the principle of proof beyond reasonable doubt,which is always the burden of the prosecution to discharge. Thisis the legal or persuasive burden, which cannot be shifted to the

In Haw Tua Tau, supra, n 15, the Privy Council held that the prosecutionhad only to prove a prima facie case at the conclusion of its case in orderthat the defence be called. Prior to that, the local courts required theprosecution to prove its case beyond a reasonable doubt before the defencecould be called.


21

accused. The accused need only to show a reasonable doubt thathe is guilty. This is the evidential burden which the accused hasto discharge. It is not to prove or disprove anything but to raise areasonable doubt. It is a high standard of proof which isdescribed by Suffian J in Mat22 as follows:

The correct law for Magistrates to apply is as follows. If youaccept the explanation given by or on behalf of the accused,you must of course acquit. But this does not entitle you toconvict if you do not believe that explanation, for he is stillentitled to an acquittal if it raises in your mind a reasonabledoubt as to his guilt, as the onus of proving guilt liesthroughout on the prosecution. If upon the whole evidence youare left in a real state of doubt, the prosecution has failed tosatisfy the onus of proof which lies upon it.23

The second cause has to do with legal education and professionalexperience. The local courts did not pay much attention to thedefinition of “proved”, probably, on account of the common lawmindset of the judges, all of whom were English trained. Thiscan be seen from the many decisions on the law of principles ofproof which did not even refer to the Evidence Act. They couldnot imagine that Sir James Stephens could have modified theprinciple of proof so radically as to shift the persuasive burdento the accused to prove anything in any offence. The influence ofthe judges’ common law mindset cannot be exaggerated.Generations of judges and lawyers in Singapore and Malaya

(1963) MLJ 263.

Contrast this with Denning J’s statement in Miller v Minister of Pensions[1974] 2 All ER 372 where he commented on what the standard “beyondreasonable doubt” meant at 373:

It need not reach certainty, but it must carry a high degree ofprobability. Proof beyond a reasonable doubt does not mean proofbeyond a shadow of a doubt. The law would fail to protect thecommunity if it admitted fanciful possibilities to deflect the course ofjustice. If the evidence is so strong against a man as to leave only aremote possibility in his favour which can be dismissed with thesentence “of course it is possible, but not in the least probable,” thecase is proved beyond reasonable doubt, but nothing short of that willsuffice. [Emphasis added.]


22

23

have imbibed the traditions, ethos and values of the Englishjudiciary and of the English Bar. Law was not taught locallyuntil 1957. Even then, criminal law and procedure, as a lawsubject, was taught by lawyers from the same tradition. It istherefore not surprising that the Evidence Act and the CriminalProcedure Code were viewed as nothing more than codificationsof common law principles. The influence of English due processthinking persists until today, in the judiciary, in the criminal barand in the NUS Law School. This phenomenon was not confinedto Singapore and Malaysia. G Peiris wrote in 198024 as follows:

So pervasive was the influence of an equivalent objection [thatonly the evidential burden should be assumed by an accused inregard to defences as lawful excuse and lawful authority],deeply rooted in traditions of the English common law, that, inthe formative stage development of the case law injurisdictions governed by the codes of evidence founded onthe Indian Evidence Act, the courts of some South Asianjurisdictions showed themselves inclined to whittle down theclear effect of definitions contained in mandatory statutoryprovisions in order to make the codified system accord withthe values and attitudes of the English common law, and, inparticular, with the refusal of that system to impose on theaccused the legal burden in respect of any defence other thaninsanity. The reasoning of these courts involved, necessarily,strained and tortuous construction of the language used in theapplicable codes of evidence. The interpretation of codesbased on the Indian Evidence Act in substantial conformitywith the postulates of the English common law derivesimplicit support from some recent observations of PrivyCouncil, the setting of the Malaysian law of evidence (in PP vYuvaraj).

The attitude of the Sri Lankan courts, which have consistentlydeclined to import into the law of Sri Lanka principles ofEnglish law incompatible with:

“The Burden of Proof and Standards of Proof in Criminal Proceedings: AComparative Study of English and a Codified Asian System” (1980) 22Mal LR 66, 105-106.

24


the clear, definite and unequivocal language employed in a SriLankan enactment, presents a striking contrast. In keepingwith the premise that, in their natural role of moulding andinterpreting the law, the Sri Lankan courts must makeallowance for the complete dimension of statute law in forcein the jurisdiction without distorting it as a means of statutoryprovisions within the conceptual framework of law, the courtsof Sri Lanka, have evolved a body of largely self-containedevidentiary law which, for the most part, is cohesive and virile.

M. The abolition of the jury trial

The abolition of jury trial should have had a profound effect onthe rules of procedure and evidence relevant to trial process, asmost of the exclusionary rules of evidence were formulated forsuch trials. The accused had to be protected from the frailties ofjurors in evaluating evidence. They could not be trusted toevaluate evidence objectively and they could not determine whatweight should be given to prejudicial evidence. Hence probativeevidence was excluded from their purview if the judge thoughtthat its value was outweighed by its prejudicial effect. Thisconcern is much less important in bench trials conducted byjudges who have spent their entire professional careers in courtand who have been conditioned to evaluate facts and argumentsobjectively. Moreover, unlike jurors, judges have to give reasonsfor their findings of fact. Egregious errors in fact evaluations andfindings are generally detectable and can be corrected on appeal.

But if you read the reported judgments of the courts in the last30 years, you would have the impression that save for theabsence of the jury, nothing else in the criminal process haschanged. That is largely true. There seems to be little or noawareness that bench trials should not be subject to exclusionaryrules devised for jury trials. Surprisingly, there is also littleacademic writing locally on this subject. The state prosecutorswould also appear to have failed to take the necessary initiativesto argue for modification. The criminal bar cannot be faulted for


keeping silent. In 1981 Lord Dip lock adverted to the change inOng Ah Chuan25 when he said:

Supra, n 5 at 71.

[1995] 2 SLR 349, 363.

(1934) 38 CWN 659.

25

26

27


Observance of the rule [that the prosecution must prove itscase beyond a reasonable doubt] does not call for theperpetuation in Singapore of technical rules of evidence andpermitted modes of proof of facts precisely as they stood at thedate of the commencement of the Constitution. These arelargely a legacy of the role played by juries in theadministration of criminal justice in England as it developedover the centuries. Some of them may be inappropriate to theconduct of criminal trials in Singapore ...

This passage was not addressed to bench trials in particular, andthat perhaps explains why it has been all but forgotten. However,the passage is even more appropriate in the context of benchtrials than in the context of determining what the fundamentalrules of natural justice are. But change can now be seen, albeittentatively, and in small steps. In Lee Yuan Kwang,26 in dealingwith the issue as to whether a miscarriage of justice had occurredwhere the trial judge had read the impugned statement of one ofthe accused before the voir dire had been completed, the ChiefJustice said:

Nayeb Shana (Shahana)27 was cited by counsel to support thecontention that the trial judge had to decide on the question ofvoluntariness before proceeding with the impeachmentproceedings. It must be noted that Nayeb Shana’s case wasmade in the context of jury trials. The judge, whose soleprovince was to decided questions of law, would have had aduty to exclude inadmissible evidence from the considerationof the jury. It is less compelling to adhere to such rigiddelineations in the present day context where jury trials havelong since been abolished. The trial judge has the duty todecide on both the law and the facts. He is also expected to beable to exclude inadmissible or prejudicial evidence fromconsideration. In the prevailing climate of criminal practice of

procedure, it may have been procedurally improper for thetrial judge to have looked at the statements in their entirety inthe course of the voir dire. Nevertheless, such proceduresrequiring that the trial judge be shielded from statements, orportions of statements, the voluntariness of which may bedisputed, are relics from jury trials of days of yore. They holdno real significance in present-day trials where judges areequally competent to decide on disputes of fact as well as thelaw. Ultimately, the main question is whether, having heardthe evidence, the trial judge had properly directed himself infinding that the statements had been voluntarily made. In thepresent case, the record and the grounds of decision indicatedthat he was always mindful of the importance of the issue ofvoluntariness of the statements. There was also no indicationfrom our perusal of the record that the trial judge had allowedhimself to be unduly prejudiced by the contents of thestatements. We are satisfied that there was no materialirregularity in the conduct of the impeachment proceedingswhich would occasion a failure of justice.

[1977] 1 MLJ 171.28

Now that the reality of a bench trial has been recognised, weshould see more developments in this area either throughjudicial modification of jury related principles or legislation inareas where judges fear or refuse to tread. But a clear judicialtrend has yet to be established. I will cite a few examples of thecontinuing influence of jury principles in bench trials.

N. The trial within a trial

In a jury trial, where the accused objects to any evidence whichthe prosecution wishes to adduce against him, usually aconfession, a trial within a trial is held to determine itsadmissibility. However, until it is admitted in evidence, the juryis not allowed to know what the accused has said, as it could beprejudicial to the accused. Admissibility, being a question oflaw, is decided by the judge in the absence of the jury. Hence,the rule that evidence adduced in a trial within a trial is notrelevant to the trial on the main issue as to whether the accusedis guilty. In Lim Seng Chuan,28 the Singapore Court of Criminal


It seems to us that fairness to the accused, which is afundamental principle of the administration of justice, requiresthat a trial within a trial ought to be considered a separate orcollateral proceeding. In the course of a trial within a trial,evidence may be given which would be inadmissible evidenceon a charge against the accused but may be relevant to theissue to be decided at the trial within a trial. In such a situationit would be grossly unfair to the accused if the true principle isthat evidence called at the trial within a trial is before the courtfor all purposes.

The reasoning set out in this passage should not apply in a benchtrial where the judge has heard all the evidence. In that case, theevidence that was rejected by the court, although not relevant toadmissibility, was highly relevant to the main issue. The abovepassage does not explain the unfairness of admitting it. The truereason is found in the next passage, which reads:

Appeal upheld this rule and reversed the conviction for murderof the accused which apparently was based solely on theevidence of a prosecution witness who had testified in a voir direon a matter which was not relevant to the admissibility of theconfession in question. The Court said:

Conversely, in the course of a trial within a trial evidence maybe given which may be relevant and admissible evidence onthe charge against the accused but would not be relevant onthe issue to be decided at the trial within a trial. In such asituation the accused or his counsel might well decline tochallenge such evidence in the justifiable belief that it couldnot adversely affect the accused on the issue to be decided atthe trial within a trial.

But, of course, if the true principle were otherwise, defencecounsel would have no excuse for not cross-examining thewitness. Treating the two trials as separate would certainly makefor a tidier trial overall, but tidiness in this respect has nothing todo with the fairness of the criminal process, and in any case thesame result can be achieved by better management of the issuesat the trial.

Numerous sub-principles have been laid down by the courts todetermine the admissibility of such evidence, depending on


whether the statement is ruled admissible or otherwise: seeWong Kam-Ming.29 The complexities of the law in this area canbe seen in Goh Joon Tong.30 in that case, two voir dires wereheld in respect of the statements of A and his co-accused B. Thetrial judge postponed his determination on the admissibility ofA’s statement until he had concluded the voir dire on B’sstatement, which A gave evidence. The trial judge then took intoaccount A’s credibility in B’s voir dire and admitted A’sstatement. The Court of Appeal held (a) that postponing such adecision to the conclusion of a voir dire should not be done, if adecision could be reached, but it was not an immutable rule thatthe ruling be made immediately at that point of time; and (b)that, applying Lim Seng Chuan, one voir dire should be insulatedfrom another voir dire, and therefore evidence adduced in onewas not admissible in the other. The Court went on to hold thatthe error of the trial judge had not prejudiced A as there wasother evidence that his statement was voluntary.

One cannot help but sympathise with the trial judge. He citedauthorities which stated that a court is not to close its eyes toevidence relating to the voluntariness of a statement after it hasbeen admitted in evidence. He made the following statementwith which the Court of Appeal disagreed:

[1980] AC 247.

[1995] 3 SLR 305.[1982] Crim LR 682.

29

3031


The next question is whether such evidence should berestricted to evidence supporting inadmissibility, and notevidence to the contrary. That should not be so. Justice mustbe administered equally for the defence as for the prosecution;it is not good enough to doff one blinker and wear the other.All evidence relevant to the issue, whether in favour ofadmission or exclusion, should be considered.

The purpose of a trial within a trial should be reconsidered.Where the judge is the trier of law and of fact, treating a voirdire as a separate trial serves no purpose. In England, theDivisional Court (Lord Lane and Woolf JJ) decided in F (AnInfant) v Chief Constable of Kent31 that incidental matters

should be decided as separate issues and not as trials withintrials; and consequently there was no need for evidence to berepeated after the issue of admissibility had been determined. Inreality, a judge does not need to read an impugned statement toknow it is adverse to the accused.32 As regards the evidenceadduced at the voir dire itself, there are practical difficulties inexcluding the evidence, if it is relevant to the main issue. Firstly,the judge has heard the evidence. Secondly, what the accusedsays in the trial within a trial may be most relevant to the issueof his credibility or even guilt in the main trial. He may giveconflicting testimony on the same issue. Indeed, he may evenhave lied to render his confession inadmissible. Thirdly, itrequires the prosecution to cross-examine the accused again onthe same issues if they are relevant. We need to establish a set ofcoherent principles which conform to the realities of a benchtrial which the Chief Justice has recognised. It would increasethe efficiency of the criminal process if evidence adduced at thetrial of a collateral issue a trial is admissible in the trial of themain issue.

N. Evidence of disposition and similar fact

In a jury trial relevant evidence may be withdrawn from the juryif the judge considers that its prejudicial effect outweighs itsprobative value. There are a number of situations where thisprinciple is applicable. This principle should have little or norelevance in bench trials as the judge can simply give whateverweight is appropriate to the evidence. There is no need for ajudge to go through the formal process of declaring the evidenceinadmissible. But our courts continue to deal with such evidencein this fashion. For example, in Tan Chee Kieng,33 the trialjudge allowed the prosecution to go into the record of theaccused’s admission of previous drug transactions unconnected

See however the unique case of PP v Zeng Guoyuan, MAC 2699/96 wherethe unrepresented accused, an acupuncturist, inexplicably challenged thevoluntariness of his statements to the police even though they were notadverse to him.

[1994] 2 SLR 834.

32

33


with the offence in the trial. He made it clear in his judgmentthat he had not taken the said admission into account in decidingwhether or not the charge had been proved. He could simplyhave stated that evidence of the previous transactions hadinsufficient probative value to corroborate the other evidence.The Court of Appeal spoke in terms of admissibility when itsaid:

[1989] 2 HKLR 97.


... the evidence of general disposition occasioned no injustice.It should be remembered that, unlike a trial with a jury, ajudge trying a case without a jury is unlikely to be influencedby prejudicial evidence which for one reason or another hadbeen admitted, especially when, as here, the judge cautionedhimself against himself being influenced by it.

In Siu Yuk-Shing,34 the accused was charged with being amember of the 14K triad society. Evidence was led that a triadaltar and other related triad articles were found in the accused’spremises. It was suggested to the prosecution witnesses thatthese were commonplace items and not indicative of triadactivities. In rebuttal, the prosecution was allowed to adduceevidence to prove that the accused had been convicted of being amember of the 14K triad society. He was convicted. The HongKong Court of Appeal held that evidence of the previousconviction was not admissible. On appeal, the Privy Councilaccepted that evidence of propensity was not generallyadmissible, but held that evidence which is logically probative ofthe offence charged is not rendered inadmissible merely becauseit discloses the commission of another offence. There, theknowledge of the accused as to the purpose of the articles wasrelevant. The Privy Council said:

It is not without significance that this was a trial by judgealone. If the judge had been sitting with a jury he would havehad to weigh carefully the probative value of such a previousconviction against the prejudice to the accused that wouldlikely to arise in the minds of the jury. The risk of suchprejudice overbearing the probative value of evidence is ofinfinitely less significance when a case is tried by a judge

34

alone. The judge must of course guard against any such resultbut his whole background and training have fitted him to doso. In a trial by a judge alone the exercise of excluding theevidence on grounds of prejudice becomes somewhat unrealwhen it is remembered that the judge must be informed of thenature of the evidence in order to rule upon whether or not it isadmissible. If the judge having ruled it inadmissible is to betrusted to put the evidence out of his mind he can surely betrusted to give it only its probative, rather than its prejudicial,weight if he rules that is admissible. The trial judge in thepresent case showed an entirely correct approach to this aspectof the case when he said:

[1996] 2 SLR 422.[1894] AC 57.[1975] AC 421.

[1994] 1 SLR 135 where the Court of Appeal held that by virtue of section30 of the Evidence Act, the confession of a co-accused implicating anaccused in the commission of the offence is, in joint trial for the sameoffence, admissible against the accused as substantive evidence, and not

The evidence of previous conviction will haveprejudicial effect but as I am sitting as both judge offact and of law I can see it will be minimal comparedwith its possible effect on a jury.

Recently, in Tan Meng Jee,35 the Court of Appeal had toconsider the principles applicable to the admission of similarfact evidence. The Court, having examined the leadingauthorities beginning with Makin36 and up to Boardman,37

including local decisions, rejected the categorisation approach ofMakin and approved the balancing test laid down in Boardman.A simpler approach would be for the court to deal with suchevidence on the basis of its reliability alone, ie, the weight to begiven to it, instead of reasoning along the traditional basis ofadmissibiliry and weight.

P. Confession of co-accused and the hearsay rule

The Court of Appeal’s decision in Chin Seow Noi38 continues tocause much concern to the criminal bar and to academic lawyers,

35363738


notwithstanding the Court’s confidence in the professionalism oftrial judges in evaluating the probative value of the confession ofa co-accused implicating the accused. The decision was a bolddeparture from established authorities in admitting a special kindof hearsay evidence which, the Court declared, could besufficiently cogent, by itself, to convict the accused in anappropriate case. But to date, judicial caution has not permittedsuch a confession to be so used in a capital case. The reliabilityof such a confession must of course depend on its nature and thecircumstances in which it was made. If the co-accused hasvoluntarily confessed to a capital offence for which he has notbeen given immunity from prosecution, there should be noreason to doubt his statement implicating the accused, unlessthere is reason to believe that the statement was not true. Thereliability of such a confession can be also gauged by theconduct of the accused. Any risk of injustice can be reduced byrequiring the co-accused to make his defence first. If he testifies,he is subject to cross-examination by the accused. If he does not,there would be no reason why the accused should not testify, ifhe is innocent. No doubt his right to remain silent is affected, butno innocent accused should want to exercise this right in thecircumstances.

Any judge who is conscious and therefore concerned that ChinSeow Noi may easily result in a miscarriage of justice becausehis evaluation of the reliability of the confession of the co-accused may be faulty will no doubt decline to call for thedefence or to convict even if the accused keeps silent. But theway is open to him to require the presence of some othercorroborative evidence to support the co-accused’s confessionimplicating the accused. Such corroborative evidence need notbe of a degree that, in itself, is sufficient to convict the accused.That would be applying the previous law. But if the two, incombination and if unrebutted, would warrant the conviction of

merely as a piece of evidence to be taken into consideration with all theother evidence. The Court declined to follow a long line of authoritiesbased on the Privy Council decision in Bhuboni Sahu v Emperor AIR1949 PC 257.


the accused, then the defence may legitimately be called. Thecase of Ramachandran39 is relevant to this discussion.Ramachandran (“R”) and Krishnan (“K”) were convicted ofmurder committed with a common intention. The evidenceproved against R was as follows: R’s shoe imprint was found atthe scene of crime; four imitation precious stones which werepart of the 30 stones missing from the scene of crime wererecovered from him; the confession of K, the co-accused was asfollows:

I [Krishnan] admitted that Ramachandran and I committed themurder. I am the one who knocked the door. Both of us wentin, Ramachandran kicked the deceased and held both hishands. I then stabbed the deceased.

The Court of Appeal allowed the appeal of R on the ground thathe was convicted solely on the basis of K’s confession. This casewas decided just before Chin Seow Noi. The shoe imprint of Rand his possession of the stolen articles, when considered in thelight of K’s confession, were logically probative of hisengagement in an enterprise in which the victim was murdered.Chin Seow Noi would not have caused any injustice in this typeof case.

It is probably in the subject of hearsay evidence that thebiggest scope exists for the refinement of jury related principles.In Kearley,40 the police arrested the accused and found drugs inhis house but not in such quantities as to raise the irresistibleinference that the accused was a dealer. While the police weresearching the accused’s house, 11 telephone calls were made tothe accused’s home and answered by the police wherein thecallers were asking to be supplied with drugs. A majority of theHouse of Lords held that these 11 telephone calls wereinadmissible as hearsay and that the policeman who answeredthese calls were not allowed to give evidence of them. LordBrowne-Wilkinson dissented and took the view that the evidenceof the phone calls were firstly relevant, and secondly that the

39

40[1993] 2 SLR 671.

[1992] AC 228.


The Australian courts have rejected Kearley. In Abrahamson,41

the South Australian Supreme Court held that evidence oftelephone calls making inquiries to purchase drugs areadmissible and relevant as tending to prove the existence of abusiness or activity of selling drugs, although it cannot be usedto prove the truth of any statements made by the callers. In thecontext of drug offences in Singapore, we are not troubled byKearley because the legislature has considered it more effectiveto deal with this kind of evidential problem by using rebuttablepresumptions of trafficking, but the specific problems arisingfrom the rules against all hearsay evidence remain in other areasof the law.

A non-jury trial does not demand that all the exclusionary rulesapplicable in a jury trial should be jettisoned. Judges are alsohuman beings and subject to the frailties of other human beings.But, they are less likely to be influenced by prejudicial evidenceand are able to consciously guard against it. What we need is tosubject every exclusionary rule to a critical analysis as to itspossible effects in a non-jury trial. For example, many accusedpersons who have been acquitted of sexual offences wouldcertainly have been convicted if their previous criminal records(antecedents) had been introduced in evidence. As a result, manyfactually guilty accused persons have been able to avoidpunishment because their antecedents were not made known tothe courts. This may be an area of law where the academics can

[1994] 63 SASR 139.

phone calls were not hearsay since they were used not to provethe truth of what was said but rather only to explain the caller’spurpose in making the calls. His Lordship noted at p 287 that:

... there may well be a good case for the legislature to reviewthe hearsay rule in criminal law. In cases such as the present ithampers effective prosecution by excluding evidence whichyour Lordships all agree is highly probative, and since itcomes from the unprompted actions of the callers, is verycreditworthy. ... A reform of the operation of the hearsay rulein criminal cases is long overdue.


41

devote their time and intellectual efforts in developing acoherent set of fair procedural and evidential rules appropriate tobench trials.

The time is ripe for us to take a fresh look at the criminalprocess in the light of what is appropriate to our circumstances.There is a case for arguing that the fundamental tenet of thecriminal justice system of Singapore should simply be that thefactually guilty accused should suffer punishment according tolaw and that therefore the criminal process should primarily bedirected to this end. The innocent accused will also have to besafeguarded, but the continuing use of exclusionary rules ofevidence is not necessarily the only or the best means to achievethis goal. What is perhaps more important is the integrity of thepeople who operate the system, ie, the investigative and theprosecutorial agencies, and the ultimate supervisor of thecriminal process, the judiciary. In other words, it is people whomake a system fair and just, and not the reverse.

PART II

A. A Fair Trial

In 1964, AL Goodhart wrote:

This idea of a fair trial has been the greatest contribution madeto civilisation by our Anglo-American polity.42

In our legal system, this idea is manifested in a form ofadversarial trial conducted before an independent and unbiasedtribunal according to procedural and evidential rules primarilydesigned to ensure as far as possible than an innocent accusedwill not be convicted. In Winston Brown, Steyn LJ (as he thenwas) said:

That everybody who comes before our courts is entitled to afair trial is axiomatic.43

“Fair Trial and Contempt of Court” (1964) 1 NYLJ 1.

[1995] 1 Crim App R 191, 198.

42

43


Arad

In Haw Tua Tau,44 counsel for the appellant argued that theconcept of fair trial included the following features:

It is fundamental that a person charged with a criminal offenceshall have a fair trial. It is settled that that is best secured byadherence to certain basic rights and privileges which include(1) that a defendant shall be presumed innocent until provenguilty according to law; (2) that the burden of proving his guiltshall throughout be on the prosecution; (3) that the defendantshall be under no obligation to give evidence; and (4) that theevidence adduced must prove guilt beyond a reasonable doubt.

Outside the trial itself, the criminal process has incorporatedmany procedural and evidential rules to ensure that onlyuntainted, direct and probative evidence obtained independentlyof the accused’s co-operation is admissible in evidence. Thus,section 121 of the Code allows a suspect or accused to refuse toanswer any question put to him by the police if it mayincriminate him, and hearsay evidence, however reliable, is notadmissible. The mere deprivation of any relevant evidence to theaccused by the prosecution may be treated as having denied theaccused a fair trial and the prosecution may be stayed.

In Haw Tua Tau, Lord Diplock also explained the scope ofsection 180 of the Code in terms of unfairness to the accused:

For reasons that are inherent in the adversarial character ofcriminal trials under the common law system, it does not placeupon the court a positive obligation to make up its mind at thatstage of the proceedings whether the evidence adduced by theprosecution has by then satisfied it beyond reasonable doubtthat the accused is guilty. Indeed it would run counter to theconcept of what is a fair trial under that system to require thecourt to do so.45

[1982] AC 136, 141

In State v Van den Berg [1995] 2 LRC 619, O’Linn J, in the context ofNamibia, said at page 631:

A perception exists in some circles that the fundamental right to a fairtrial focuses exclusively on the rights and privileges of accusedpersons. These rights, however, must be interpreted and given effect toin the context of the rights and interests of the law-abiding persons in

44

45


Arad

Arad

Arad

In contrast, it is rather unusual to find a judicial statement thatthe prosecution is also entitled to a fair trial, even though theelements of fairness to the prosecution may be difficult toidentify. In R v Derby Crown Court, Ex Parte Brooks, Sir RogerOmrod said:

The ultimate objective of this discretionary power (to stop aprosecution for abuse of process of the court) is to ensure thatthere should be a fair trial according to law, which involvesfairness to both the defendant and the prosecution.46

[Emphasis added.]

If, as Lord Diplock says, the making of premature findings offact against an accused is unfair to the accused, the making ofpremature findings of fact against the prosecution must equallybe unfair to the prosecution. Any rule or practice which permitsthe court to do this is equally unfair. The trial is accepted as acivilised means of determining the guilt or otherwise of theaccused. Premature findings of facts leading to an acquittal willshut out the prosecution’s case unjustifiably.47

In any prosecution, the integrity of the criminal process itself ison trial as much as the accused is on trial. Prosecutors do notprosecute any person for any offence unless there is sufficientevidence to show that he has committed that offence.Accordingly, assuming the integrity of the process, a trialprocedure which allows the judge to acquit summarily an

society and particularly the persons who are victims of crime, many ofwhom may be unable to protect themselves or their interests becausethey are dead or otherwise incapacitated in the course of crimescommitted against them.

(1984) 80 CR APP R 164, 168-169.

Lord Parker’s Practice Note [1962] 1 All ER 448 supports the idea of afair trial for the prosecution. The Note reads:

Those of us who sit in the Divisional Court have the distinctimpression that justices today are being persuaded all too often touphold a submission of no case. In the result, this court has had onmany occasions to send the case back to the justices for the hearing tobe continued with inevitable delay and increased expenditure.

46

47


Arad

Arad

accused person, especially on a serious charge, on a prematureevaluation of the evidence, is not in the public interest.

B. Haw Tua Tau—The continuing debate

It is in the context of a fair trial to the prosecution that one canappreciate the divergence between Singapore law and Malaysianlaw on the test which a court should apply in deciding whether acase is made out against the accused at the intermediate stage ofthe trial, ie, at the end of the prosecution’s case. Haw Tua Tauhas decided that the prima facie test is applicable. The courts inSingapore and in Brunei have accepted Haw Tua Tau. TheMalaysian courts initially accepted Haw Tua Tau, but changeddirection in Khoo Hi Chiang48 when the Supreme Court decidedthat the defence should not be called unless, at the end of itscase, the prosecution had proved its case beyond a reasonabledoubt. This test is referred to as the maximum evaluation test incontrast to the prima facie test which is called the minimumevaluation test. The Court of Appeal declined to follow Khoo HiChiang, but in Arulpragasan49 the Federal Court (by a majorityof 4:3) held in favour of the maximum evaluation test.

As the law in Singapore is settled, it may be thought pointlessto discuss the subject further. However, there is some merit indoing so, if only because the Malaysian approach is seen bymany as giving greater protection, and therefore fairer to theaccused. The Malaysian approach is not bereft of judicial andacademic support, for somewhat different reasons. Academicopinion in Singapore appears to supports it,50 which prima faciemay reinforce its soundness in law. However, it is my thesis thatthe Singapore approach is not only correct in law (ie, as a matterof statutory interpretation) but also upholds the principle that an

[1994] 1 MLJ 265.

SC Cr A No 05-237-92.

See Tan Yock Lin, Criminal Procedure (1996 Ed) where the authorcomments at p 705 that “the reasons for [Khoo Hi Chiang] rejecting HawTua Tau’s case are sound” and also Michael Hor, “The Privilege AgainstSelf-Incrimination and Fairness to the Accused” [1993] SJLS 35.

48

49

50


innocent person accused of an offence (“innocent accused”)should not be subject to a higher risk of conviction than a guiltyaccused. It is consistent with the idea of a fair trial for theaccused as well as for the prosecution and it rests on a strongerfoundation than what is apparent in Lord Diplock’s reasoning inHaw Tua Tau. What follows is an outline of a conceptual and astatutory analysis in support of the prima facie test.

In Haw Tua Tau, Lord Diplock referred to the analogy of a jurytrial to show the separate functions of law finding and factfinding in an adversarial trial conducted before a judge who isvested with both functions. He said:


... the same principle [as in a jury trial] applies to criminaltrials where the combined roles of decider of law and deciderof fact are vested in a single judge (or in two judges tryingcapital cases). At the conclusion of the prosecution’s case whathas to be decided remains a question of law only. As deciderof law, the judge must consider whether there is someevidence (not inherently incredible) which, if he were toaccept it as accurate, would establish each essential element inthe alleged offence. If such evidence as respects any of thoseessential elements is lacking, then, and then only, is hejustified in finding “that no case against the accused has beenmade out which if unrebutted would warrant his conviction,”within the meaning of section 188(1). Where he has not sofound, he must call upon the accused to enter upon hisdefence, and as decider of fact must keep an open mind as tothe accuracy of any of the prosecution’s witnesses until thedefence has tendered such evidence, if any, by the accused orother witnesses as it may want to call and counsel on bothsides have addressed to the judge such arguments andcomments on the evidence as they may wish to advance.

The Singapore courts and the Malaysian courts disagree on theinterpretation of the corresponding provisions, and in particular,the effect of the words “if unrebutted would warrant aconviction”. Haw Tua Tau says that these words mean that if thedefence fails to adduce any rebuttable evidence, it could lead tohis conviction. Khoo Hi Chiang and Arulpragasan say that thesewords demand a conviction. However, the disagreement oninterpretation can be disregarded for the purpose of the present

Arad

Arad

that it is highly “artificial” for the judge in a bench trial, tosuspend judgment on the evidence (where he cannot believeit), to call for the defence on the assumption that theevidence is true; and then not to believe it if the accusedkeeps silent (where the judge decides that it is unsafe toconvict);

that Haw Tua Tau forbids the judge in a bench trial at theintermediate stage of the trial to determine whether theprosecution witnesses are telling the truth; this is contrary tothe law as stated in Archbold;51

that the maximum evaluation test is not unfair to theaccused, but the prima facie test is unfair to the accusedbecause it allows the prosecution to repair any deficienciesin its case and to subject the accused to self-incriminationthrough cross-examination; the greater the burden on theprosecution to establish a case, the greater the protectionoffered to the accused;

Archbold’s Criminal Pleading, Evidence and Practice (1993 Ed) at 4-307.The relevant passage in Archbold’s reads:

In their summary jurisdiction magistrates are judges both of facts andlaw. It is therefore submitted that even where at the close of theprosecution case, or later, there is some evidence which, if accepted,would entitle a reasonable tribunal to convict, they nevertheless havethe same right as a jury to acquit if they do not accept the evidence,whether because it is conflicting, or has been contradicted or for anyother reason. It is submitted that the practice note reported in [1962] 1ALL E.R. 448 must be read in this light. In any event, there appears tobe no authority as to the issue of practice directions in criminal mattersrelating to questions of law as opposed to practice.

17 Sing LR 10th Singapore Law Review Lecture 467discussion, even though it is this that is the ostensible reason forthe divergence. What is relevant is which result is moreacceptable to the criminal process. In Arulpragasan, thefollowing points have been made in relation to bench trials ascontrasted with jury trials:

(a)

(b)

(c)

51

It is arguable that any incongruity in a judge having to performmental gymnastics in applying the prima facie test to a casewhich results in an acquittal if the accused keeps silent appliesequally in a case where the maximum evaluation test is appliedand the judge, after hearing the defence, backtracks and decidesthat the case has not been proved beyond a reasonable doubt. Sothis is not a valid argument in favour of one or other of the twotests. Indeed, it is arguable that the prima facie test is simpler toapply because it merely requires the judge to suspend hisjudgment on the evidence (which judges often do with respect toother factual issues) whereas the maximum evaluation test mayrequire the judge to make two opposite judgments at differenttimes on the same facts.

The second point misunderstands the judgment of LordDiplock in Haw Tua Tau. He did not decide that the judge mustnot perform any evaluation exercise in all cases. At page 150, hesaid:

Section 214(i) reads: “When the case for the prosecution is concluded theCourt, if it considers that there is no evidence that the accused committedthe offence, shall direct the jury to return a verdict of not guilty.”

Section 190 reads: “When the case for the prosecution is concluded theCourt, if it finds that no case against the accused had been made out whichif unrebutted would warrant his conviction shall record an order ofacquittal, or, if it does not so find, shall call on the accused to enter on hisdefence.”

52

53

For reasons that are inherent in the adversarial character ofcriminal trials under the common law system, it does not placeupon the a positive obligation to make up its mind at that stageof the proceedings whether the evidence adduced by theprosecution has by then already satisfied it beyond reasonabledoubt that the accused is guilty ... [Emphasis added.]

Similarly at page 155, Lord Diplock also said:

(d) that jury trials in Malaysia are regulated under a provision,viz, section 214(i)52 of the Code (M) which is differentlyworded from section 19053 applicable to bench trials,indicating that legislature has provided different tests forjury trials and summary trials.


Lord Diplock was not unfamiliar with bench trials. Summarytrials before magistrates have existed for a long time in England.But, he insisted that the judge in a bench trial must consciouslyseparate his dual functions because the issue whether the defenceshould be called is a question of law, and to answer a question oflaw, you must assume the facts so long as there is some evidenceon which those facts can be justified.54 In Yeo Tse Soon,55 theCourt of Appeal of Brunei accepted that the principle that issuesof fact should not be decided (even provisionally) until thewhole of the evidence in the case has been heard is fundamentalto the adversarial procedure. The Court suggested that seriousconsequences would follow if the principle is abandoned, evenin a bench trial.

The principle that the judge should not perform his dualfunctions at the same time at the intermediate stage of the trialmakes good practical sense. The question of usurping thefunction of the jury does not arise, that being logicallyimpossible in a bench trial. The crucial question is whether it isfair for him to make a finding of fact at that stage. The answer isgenerally “No”, because it would have to be based on, inter alia,his impressions on the credibility of the witnesses. A judge maynot find the prosecution’s witnesses convincing at that stage ofthe process, but that does not mean that the witnesses are nottelling the truth. What the judge believes as not credible mayturn out to be true, in the light of other evidence. This accordswith human experienced.56 The point is not that he should find on

Lord Diplock did not refer to the standard of proof in his judgment,because it was not necessary to. But it can be conceded that if the judgehad to find the facts at that intermediate stage, the standard of proof wouldnecessarily have been beyond a reasonable doubt.

[1994] 2 LRC 610.As was said by Hamlet (Hamlet Act 1, Scene 5, 166-7):

54

5556

If this be so [ie if the trial judge had made his evaluation onthe wrong test] the only effect can be that the judges applied tothe prosecution’s evidence a more rigorous test of credibilitythan they need have done before deciding to call on Haw TuaTau to give evidence.


What constitutes a prima facie case in a criminal trial inBrunei is neither more nor less than the Code provides. Whatis required of a prosecutor if he is to surmount the hurdle of“no case” is that he must make out a case which if unrebuttedwould warrant a conviction. To read the words of the section“if it finds that no case had been made out which if unrebuttedwould warrant a conviction” as though they meant “if it findsthat no case been found beyond reasonable doubt which ifunrebutted” etc would be to eliminate from further scrutinycases in which the evidence may be distinctly questionable insome respects but in which nevertheless the magistrate orjudge is not yet prepared to say that he finds it so inherentlyincredible that the accused should not be called upon toanswer to the charge. In short, to “make out” a case is not thesame thing as to prove it beyond all reasonable doubt.57

[Emphasis added.]

There are more things in heaven and earth, Horatio,Than are dreamt of in your philosophy.

See also the account of a fantastic but true story recorded by Wigmore,and referred to by Sir Thomas Bingham MR (as he then was) in his lectureat University College London and reported in Current Legal Problems(1985) at 13.

At pp 621–622.57

the facts at that stage because he can do it, or even do it easily,but because he has not heard all the evidence. Convenience isnot sufficient.

In Yeo Tse Soon, the Bruneian Court of Appeal dealt with thispoint in these words:


A criminal trial should be an integrated trial. The fact that ajudge who is vested with both functions is able to perform bothof them at the same time at the intermediate stage of the trial isnot a sufficient reason for exercising both functions at that stage.If it can be demonstrated that doing it will result in a fair trial,that would be a good reason for the approach. Arulpragasanrelies on this justification: that the maximum evaluation test isfair to the accused as it gives him greater protection than theprima facie test. It gives him greater protection because

otherwise the accused would be subjected to the risk of self-incrimination. The validity of this proposition is now examined.

C. Conceptual considerations—Fairness and justice

We must consider what the proposition actually entails. It isdifficult to rebut the proposition without denying the principlethat the accused is entitled to a fair trial. However, it is herecontended that this statement is misleading and should not beaccepted at face value because its underlying assumption is thatevery accused is innocent of the charge he faces. It is based onthe well known, but still misunderstood, statement that a personis presumed to be innocent until proven guilty. This assumptionis contrary to reality. An accused person is charged for anoffence only if there is sufficient provable and admissibleevidence against him on which there is a reasonable prospect ofsecuring a conviction. The reality is that many, if not most,accused persons are factually guilty, ie, they have done what thecharges allege they have done. The truth of this proposition inSingapore, as in England, is demonstrated by the fact mostaccused persons plead guilty to the offences for which they havebeen charged. A large number of factually guilty accused wouldno doubt claim trial in the hope of being acquitted. They are notguilty only because they have not yet been convicted accordingto law. On the other hand, the factually innocent accused wouldwant to defend themselves because they are innocent and do notwish to be convicted for offences they have not committed.

The presumption of innocence is regarded as being offundamental importance in the criminal law. But this is not apresumption that an accused person is factually innocent. It is apresumption that he is legally innocent, ie innocent until provenguilty. The presumption expresses nothing more than that in acriminal trial, the prosecution must prove its case against theaccused beyond reasonable doubt. Guilt in the criminal processis a legal concept. Innocence is a fact. An acquitted accused maynot be factually innocent. The reason is that the adversarial trialis not designed to prove factual innocence but legal guilt. If webear this distinction in mind, and it is a real distinction, then it

17 Sing LR I0th Singapore Law Review Lecture 471

can be demonstrated that the claim that the application of themaximum evaluation test gives better protection to the accusedis true only if he is “factually guilty” but not if he is “factuallyinnocent”. This proposition can be demonstrated by taking thecase of a factually guilty accused and a factually innocentaccused and applying the prima facie test and the beyondreasonable doubt test to each of them.

1. Prima facie test

(a) If the accused is factually guilty and his defence is called, aconviction consequent upon his failure to testify or consequentupon his having testified, does him no injustice. No injustice isdone to him even if he has incriminated himself, as he isfactually guilty. On the other hand, because he is factuallyguilty, he may choose not to testify in the hope that he canpersuade the judge that the charge has not been proved beyondreasonable doubt. If the court acquits him in that situation, amiscarriage of justice has occurred in that a factually guiltyaccused has been found not legally guilty. Likewise amiscarriage of justice has occurred, if he is acquitted after he hasgiven evidence.

(b) If the accused is factually innocent and his defence is called,he runs the risk of a conviction if he refuses to testify. But thereis no reason for him not to testify if he is factually innocent. Noquestion of self-incrimination can or should arise as he isfactually innocent. At the very least, a factually innocent accusedshould have no difficulty in showing a reasonable doubt.

2. Beyond reasonable doubt test

(a) If the accused is factually guilty and his defence is called, aconviction must follow if he refuses to testify. But if he isfactually guilty, he would want to testify anyway in the hope thathe might be able to create a reasonable doubt. If he is convicted,no injustice is done to him in either situation. If he is acquitted,there would be a miscarriage of justice.


(b) If the accused is factually innocent and his defence is called,he has no choice but to enter his defence if he seeks an acquittal.This is a case where an innocent accused is being compelled todefend himself, but not with the same degree of ease if the primafacie test is applied. The reason is that the judge has alreadydecided that a case beyond a reasonable doubt has been provedagainst him before his defence was called.

The above analysis shows that the maximum evaluation testprovides greater protection to the factually guilty accused than itdoes to the factually innocent accused. On the other hand, theprima facie test gives greater protection to the factually innocentaccused that it does to the factually guilty accused. It isimpossible to justify a rule which favours the guilty accusedagainst the innocent accused. Accordingly, the prima facie testshould be preferred. The just administration of the criminal lawprefers that the guilty should be convicted and the innocentshould be acquitted.

Precisely for this reason, the right of silence should not beallowed to be used as a justification for the maximum valuationtest. There is no virtue in preventing a guilty accused fromincriminating himself in cross-examination. An innocentaccused would not stand in that position. In Zanetti v Hill,58

Kitto J observed:

[1962] 108 CLR 433 at 442.58


The ultimate question of fact must be decided on the whole ofthe evidence; and on a charge under section 65(1) there is nomore reason than there is in any other case why a weakness inthe prosecution’s case may not be eked out by something inthe case for the defence, or why a prima facie inference whichby itself would not be strong enough to exclude a reasonabledoubt may not hardened into satisfaction beyond reasonabledoubt by the failure of the defendant to provide satisfactoryevidence in answer to it when he is in a position to do so.

D. Statutory interpretation

It is now argued that as a matter of statutory interpretation,section 180(f) of the Code can only refer to the prima facie test.The meaning of paragraph (f) can be readily appreciated whenread together with paragraphs (g) and (h). They read:

180(f) If upon taking all the evidence referred to in paragraph(c) and paragraph (d), (if any) the court finds that no caseagainst the accused has been made out which, if unrebutted,would warrant his conviction, the court shall record an orderof acquittal;

(g) Nothing in paragraph (f) shall be deemed to prevent thecourt from acquitting the accused at any previous stage of thecase if, for reasons to be recorded by the court, it considers thecharge to be groundless;

(h) If when such evidence has been taken the court is ofopinion that there are grounds for presuming that the accusedhas committed the offence charged or some other offencewhich that court is competent to try and which in its opinion itought to try, it shall consider the charge recorded against theaccused and decide whether it is sufficient and, if necessary,shall amend it.

The word “groundless” in section 180(g) obviously refers to acase where at the end of the prosecution’s case there is noevidence, if uncontradicted, on which a reasonable judge couldconvict. The words “grounds for presuming” in section 180(h)are apt to refer to Lord Diplock’s hypothetical question of law.The court is directed to satisfy itself that there are grounds forpresuming that an offence has been committed. Section 180(g)and (h) were not examined in Haw Tua Tau because it wasconcerned with the corresponding provision applicable to HighCourt trials, section 188, which does not have provisionscorresponding to section 180(g) and (h). But, the principlesshould be the same for Subordinate Court trials as for HighCourt trials.


The Malaysian Code has provisions which correspond tosection 180(f) to (h) of the Code.59 They provide anotherargument that the rulings in Khoo Hi Chiang and Arulpragasanare contrary to the express wording of section 180(f) to (h).

It is also arguable that the maximum evaluation test is alsocontrary the provisions in the Malaysian Code applicable tosummary trials and to High Court trials, with assessors or jury orwithout a jury. When Khoo Hi Chiang was decided, there werein existence 4 forms of trials under the Malaysian Code: (1)summary or bench trials under section 173; (2) High Court trialswithout assessors under sections 178–183; (3) High Court trialswith assessors under sections 189–199 and (4) jury trials undersections 200–235. In each of these modes of trial, the accusedmay elect not to give evidence after his defence is called. Inother words, the Code protects his right of silence.60 Now, if theaccused is called upon to enter his defence on the application ofthe maximum evaluation test, his statutory right of silence iseffectively destroyed as he is compelled to testify if he wishes toavoid a conviction.

Thus, paradoxically, any attempt to give the accused greaterprotection may actually result in depriving him of another formof protection in the criminal process. Whichever is morebeneficial to the accused need not be considered. What followsfrom this is that Arulpragasan has interpreted section 190 of theMalaysian Code to conflict with another provision therein whichprotects the accused’s right of silence. There are only two waysto resolve such a conflict: to treat one provision as being thedominant provision or to harmonise them. It is an acceptedprinciple of statutory interpretation that the court should notinterpret one statutory principle to contradict another but toharmonise them.

The argument that the differences in the wordings of theprovisions relating to jury and non-jury trials in the MalaysianCode show that different principles of trial are applicable cannot

Sections 188(f) to (h).This right is found in ss 174(ii), 181(i), 191 and 215 respectively.

59

60


There does not appear to be any rational policy reasons to justifythe distinction. If anything, a jury trial is supposedly to providebetter protection for the innocent accused.

E. The maximum evaluation test—Constitutional?

The maximum evaluation test also raises constitutional questionsunder the Malaysian Constitution which have not been argued inany of the Malaysian cases. There are two issues. The first is thatraised in Haw Tua Tau itself under the corresponding Article9(1) of the Singapore Constitutional.61 It will be recalled thatcounsel for Haw argued that the Court of Criminal Appeal’sdecision in Ong Kiang Kek, in so far as it applied the maximumevaluation test, had the effect of compelling the accused totestify and therefore infringed Article 9(1) of the Constitutionwhich protected the privilege against self-incrimination as afundamental rule of natural justice. To avoid this issue, thePublic Prosecutor conceded that Ong Kiang Kek was wronglydecided, if it decided that the prosecution’s case has to be provedbeyond a reasonable doubt at the intermediate stage. But, thePublic Prosecutor further contended that section 188 of the Codeonly required a prima facie case to be made out and that section195 thereof did not compel the accused to give evidence. ThePrivy Council agreed, and held that section 188 read with section195 did not create a genuine compulsion but merely aninducement to the defendant to submit himself to cross-examination. The constitutional point was left undecided.

The corresponding Article in the Malaysian Constitution is Art 5(1).61


(1)

(2)

Why would the legislature make a distinction between a trialwith assessors and a trial with jury?

Why would the legislature give more protection to theaccused when tried by a judge with assessors but lessprotection when tried by jury?

be demonstrated by that circumstance alone. What should beasked are two basic questions:

The right of silence is the privilege against self-incrimination.It cannot be doubted that the maximum evaluation test has theeffect of compelling the accused to testify, thus destroying hisright of silence. It would be interesting to know how thisquestion would be answered by the Malaysian courts.

The second constitutional question relates to the equalprotection of the law. An accused person in Malaysia is subjectto different principles of trial, depending on whether it is a benchtrial or a jury trial.62 If there is no rational basis for thedistinction, it raises a very complex constitutional issue: Whichtest is unconstitutional? This conundrum would not arise if theprima facie test is adopted.

Haw Tua Tau makes good sense and accords with commonexperience. The prima facie test also gives greater protection tothe innocent accused more than to the guilty accused. The publicis entitled to have a criminal justice system which makes it lessdifficult for the accused to be acquitted. The maximumevaluation test, on the other hand, requires the judge to makefindings of fact (a) finally, with respect to the prosecution but (b)provisionally, with respect to the accused. This is a denial of afair trial, in varying degrees, to both the accused and theprosecution. In Haw Tua Tau, counsel for Haw stated theunfairness to the accused in these words:

Jury trials were abolished in Malaysia in 1994. But the argument holdstrue since Arulpragasan merely follows Khoo Hi Chiang.

The argument of counsel for Low Hong Eng on appeal to the PrivyCouncil which was heard together with Haw Tua Tau’s appeal at [1982]AC 136 at 142.


The unfairness [to the accused] stems from a determinationbeing reached before all the evidence has been heard, from theconviction of the defendant before he has been heard and fromthe imposition of the burden to establish innocence.63

The unfairness to the prosecution is that it may result in theaccused being acquitted upon a premature evaluation of theprosecution’s case. This would be a miscarriage of justice. Acriminal process which allows guilty persons to be acquitted atthis stage of the proceedings has serious consequences for the

62

63

PART III

A. The Fundamental Rules of Natural Justice in theCriminal Justice System

Article 9(1) of the Constitution declares that “no person may bedeprived of his life or liberty save in accordance with law”. Sub-articles (2), (3) and (4) spell out the specific rights of everyperson who has been arrested or charged for any offence. Everyperson who is detained and who claims that he has beenunlawfully detained is entitled to be brought before the HighCourt or any judge thereof to determine whether his detention islawful.64 Every person who is arrested shall be informed of thegrounds of his arrest and be allowed to consult and be defendedby counsel of his choice,65 and every person who is detained

This Article incorporates the right of an accused to habeas corpus underthe UK Habeas Corpus Acts of 1679 and 1816. The procedure is providedfor in O 54 of the Rules of Supreme Court for applications in civil mattersand under s 327 CPC for applications in criminal matters: see Karmal JitSingh v Minister for Home Affairs & Ors [1993] 1 SLR 24 and Chng SuanTze v Minister of Home Affairs & Ors [1989] 1 MLJ 69.This right is the right to counsel who is available and not to be madeavailable: Balasubramanian v PP [1996] 2 SLR 331. The right to consultcounsel upon arrest is not the right to consult immediately but only withina reasonable time: Jasbir Singh v PP [1994] 2 SLR 18. The courts havetried to balance the substance of these two interests with the competinginterests of efficient law enforcement, viz, the need for immediateinvestigation which may be hindered by a right to immediate legalconsultation. Likewise, the trial process may be impeded unnecessarily ifthe right amounts to the right to choose counsel who is not free torepresent him at the trial. It has not been argued that a person charged withan offence has a constitutional right to charge the public purse for hisdefence.However, state-assisted counsel are provided to an accused in a capitalcase as a matter of policy. They are provided with two counsel for theirdefence. It is important not to underestimate the importance of this policy.It is as much to assist the accused in his defence as it is to improve legal

64

65

criminal justice system. We should not be burdened with such acriminal process.


Arad

pursuant to an arrest must be produced before a magistratewithin 48 hours and shall not be further detained in custodywithout the magistrate’s authority. Article 11 of the Constitutionprohibits any person from punishment in a greater degree by anyretrospective law66 and also against double jeopardy. Article 12guarantees all persons equality before the law and the equalprotection of the law.

However, Article 9(3) and (4) do not apply to arrests anddetention made under to two specific laws67 and to any arrestfor contempt of Parliament.68 Save for these specific rights, theConstitution does not specify any other rights in the criminalprocess which a witness, suspect or an accused person is entitledto. As the expression “according to law” in Article 9(1) isambiguous, the existence of such other rights, if any, is for thecourts to determine. Whether or not and to what extent ourcourts should imply constitutional rights from the existingpolitical system of a “democratic69 ... nation, founded upon theprinciples of liberty and justice and ever seeking the welfare and

representation in all capital cases. The two-counsel policy ensures thatevery person charged with a capital offence can be defended by counselwith proven experience and skills.

See the discussion of the Court of Appeal’s decision in PP v Tan MengKhin & 24 ors [1995] 2 SLR 505 in the light of Art 11 of the Constitutionand retrospectivity, also Daniel Seng, “Of Retrospective Criminal Lawsand Prospective Overruling: Revisiting Public Prosecutor v Tan MengKhin & 24 Ors” 8 S Ac LJ 1; which was referred to by the Court ofAppeal in its recent decision of PP v Manogaran s/o P Ramu, CriminalAppeal No 27 of 1996, where it discussed Art 11 and applied the principleof nullum crimen nulla peona sine lege.

Article 9(6) which allows detention and arrest by (a) any law authorisingthe arrest and detention of any person in the interests of public safety,peace and good order, and (b) any law relating to the misuse of drugs orintoxicating substances which authorities the arrest and detention of anyperson for the purpose of treatment and rehabilitation.

Article 9(5).

See Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104;Prof PH Lane, “The Changing Role of the High Court” (1996) 70 ALJ246; McGinty v Western Australia [1996] 134 ALR 189 and comment in[1996] 18 Sydney LR 372.

66

67

68

69


happiness of her people in a more just and equal society”70 is aquestion which will challenge the fertile minds of academics.

The first occasion a question of this nature came on for judicialdetermination was at the hearing of an appeal before the PrivyCouncil in Ong Ah Chuan71 where it was argued that (1) therebuttable presumption in section 15 of the Misuse of Drugs Act(proved possession above x quantity = possession for thepurpose of trafficking) was unconstitutional because it conflictedwith the presumption of innocence, a fundamental human rightprotected by the Constitution; and (2) the mandatory deathsentence in the Misuse of Drugs Act was unconstitutionalbecause (a) the offence was so broadly drawn that it rendered thepunishment arbitrary in that the court had no discretion to punishoffenders according to their individual blameworthiness, and (b)the punishment was contrary to the requirement of equalprotection of the law as it compels the court to impose the deathpenalty where the amount of heroin trafficked by an addict was15 gms or more, but a lesser penalty where the amount traffickedby a professional dealer was 14.99 gms or less. The PrivyCouncil held that both the statutory presumption and theallocation of the mandatory death penalty were constitutional:the presumption was not of a nature that could be said to becontrary to any fundamental principle of natural justice; theallocation of the death penalty could not be said to bediscriminatory or arbitrary.

The Privy Council also rejected the argument of the PublicProsecutor that the words “in accordance with law” in Article9(1) referred to any law, however arbitrary or contrary to thefundamental rules of natural justice, provided that it was appliedequally to all persons, and held that any provisions of any Act ofParliament passed after 16 September 1963 which wereinconsistent with Article 9(1) would be void. However it is notclear from Lord Diplock’s judgment what types of provisionswould not satisfy the requirements of Article 9(1), other thanthat (if it could be implied from the rejected arguments of the

Proclamation of Independence dated 9 August 1965.

[1981] AC 648.

70

71


In a Constitution founded on the Westminster model andparticularly in that part of it that purports to assure to allindividual citizens the continued enjoyment of fundamentalliberties or rights, references to “law” in such contexts as “inaccordance with law”, “equality before the law”, “protectionof the law” and the like ... refer to a system of law whichincorporates those fundamental rules of natural justice thathad formed part and parcel of the common law of Englandthat was in operation at the commencement of theConstitution. It would have been taken for granted by themakers of the Constitution that the “law” to which the citizenscould have recourse for the protection of fundamental rightsassured to them by the Constitution would be a system that didnot flout those fundamental rules. If it were otherwise it wouldbe a misuse of language to speak of law as something whichaffords “protection” for the individual in the enjoyment of hisfundamental liberties, and the purported entrenchment (byarticle 5) of articles 9(1) and 12(1) would be little better than amockery. [Emphasis added.]

One of the fundamental rules of natural justice in the field ofcriminal law is that a person should not be punished for anoffence unless it has been established to the satisfaction of anindependent and unbiased tribunal that he committed it. Thisinvolves the tribunal being satisfied that all the physical andmental elements of the offence with which he is charged ...were present on the part of the accused. To describe thisfundamental rule as the “presumption of innocence” may,however, be misleading to those who are familiar only withEnglish criminal procedure ...

What fundamental rules of natural justice do require is thatthere should be material before the court that is logicallyprobative of facts sufficient to constitute the offence withwhich the accused is charged.

17 Sing LR 10th Singapore Law Review Lecture 481Public Prosecutor) they must not be arbitrary or contrary to thefundamental rules of natural justice. Lord Diplock said:

The above passage covers two aspects of constitutionality: thatrelating to a substantive law and that relating to a procedurallaw. The test in relation to the constitutional validity of

Arad

Arad

substantive law is not easy to apply because its ambit isdetermined by a prevailing value system. The language ofArticles 10, 11 and 12 is sufficiently clear as to what laws areprotected thereunder. But the language of Article 9(1) is open-textured, as is the language of Lord Diplock. However, the testin relation to procedural laws seems to be clearer, although hedid not adopt the formula used in the appellant’s argument thatArticle 9(1) requires the provisions of any law to be “fair, justand reasonable both as to procedure and to substance.” Thedifficulty with Article 9(1) is apparent from the decision of theCourt of Appeal in Jabar72 where the Court rejected theargument that any delay in the execution of the death sentencecould render the sentence unconstitutional.

It is difficult to envisage any absurd, arbitrary or oppressivelaw which contravenes Article 9(1) but which does not at thesame time contravene any other Article protecting fundamentalrights. It is also difficult to imagine the circumstances in whichthe legislature of a state with a parliamentary system ofgovernment would enact an absurd or oppressive law which itwould not apply equally to all, including the legislatorsthemselves. It may well be that Article 9(1) is operative only interms of procedural laws. It is worth recalling that in Ong AhChuan, the Public Prosecutor argued that the words “inaccordance with law” were directed against arbitrary executionor arrest at the discretion of the executive. Although LordDiplock dismissed this argument in no uncertain terms, it shouldbe noted that Article 9(6)73 provides that nothing in Article 9

[1995] 1 SLR 617.Art 9(6) was added to the Constitution vide Act 5 of 1978. As the Ministerof Law stated at the Second Reading: “Part V of the Criminal Law(Temporary Provisions) Act which authorises the arrest and detention ofany person in the interest of public safety, peace and good order, wasenacted in the year 1955. When Singapore became a state within theFederation of Malaysia in 1963, the fundamental liberties clauses(including Art 5 [now our Art 9]) of the Malaysian Constitution becameapplicable to us. These clauses were retained in our Constitution when weseparated from Malaysia in August 1965, It may be arguable that Part V ofthe Criminal Law (Temporary Provisions) Act infringes Art 5 [our Art 9]of the Constitution. The Bill before this House will ensure the


72

73

shall invalidate the two laws specified therein “by reason of suchlaw being inconsistent with clause 9(3) and (4).” Article 9(6)does not contemplate any possible inconsistency between thesetwo laws and Article 9(1). The question may be asked whetherany law providing for executive detention without trial isconsistent with the principles of natural justice protected byArticle 9(1). In Part 1 I have discussed the public policy reasonsfor these laws and the justifications in terms of fairness andjustice to detainees under these laws. But, whatever the answeris, it can be reasonably gleaned from the Minister’s speech at theSecond Reading of the Bill that Parliament, in introducing theamendment bill in 1978 that he did not regard detention withouttrial as being contrary to Article 9(1). The words “according tolaw” in Article 9(1) were taken to refer to existing law, and inthe context of criminal law, any Act of Parliament in force at therelevant time.74

There are other problems in relation to procedural laws. LordDiplock has applied a cut-off date to the reception of thefundamental rules of natural justice of English common lawunder Article 9(1). Only those incorporated into the legal systemof Singapore as at 16 September 1963 qualify for protection. Itwould appear that these rules are now frozen in a time capsule.All new procedural rules have to be tested against thesefundamental rules. Furthermore, Haw Tua Tau was concernedonly with the procedural rules during the trial process.Presumably, the rationale applies to the fairness of the pre-trial

constitutional validity of Part V. In all the circumstances, which I haverelated, it is necessary to make this Bill both prospective andretrospective.”See Jabbar where the Court of Appeal said:

We respectfully agree that art 9(1) is different from art 21 in India.Any law which provides for the deprivation of a person’s life orliberty, is valid and binding so long as it is validly passed byParliament. The court is not concerned with whether it is also fair, justand reasonable as well.

However, it is not conceivable that Parliament will enact laws which areso arbitrary and oppressive and contrary to the moral sense of theelectorate as to invite a wholesale disobedience of those laws.

74


process? The problems of identifying these rules are formidable.In England, as in Singapore, the right to a fair trial is accepted asa fundamental or basic right of an accused person.75 This rightimplies an unimpeded access to the courts. In England, the rightof an accused to fair disclosure is regarded as “an inseparablepart of his right to a fair trial”.76 However, the substance of fairdisclosure may not be the same in Singapore;77 at least not tothe same extent. Hence, the nature and extent of the impedimentmay not be the same for both jurisdictions, on or before 16September 1963. Therefore, the determination of what arefundamental principles of natural justice which are part andparcel of the common law of England incorporated into theSingapore legal system as at 16 September 1963 is a herculeantask. It is not surprising that even after 15 years there is little orno advance in the jurisprudence on Article 9(1).

Ong Ah Chuan has approved, on the ground of fairness to theaccused, the constitutionality of a statutory presumption in theMisuse of Drugs Act based on the purpose of an act peculiarlywithin the knowledge of an accused in the context of drugtrafficking. That decision has also prescribed the characteristicsof a fair trial: the tribunal trying the case must be independentand unbiased, and the evidence must be logically probative offacts sufficient to constitute the offence. Lord Diplock hadanother opportunity to elaborate on the criteria laid down in OngAh Chuan in Haw Tua Tau. There, the question was whether theamendments made to the Code in 1976 nullified the privilegeagainst self-incrimination (or the right of silence) which, it wascontended, was a fundamental rule of natural justice protectedby Article 9(1).78

Per Wee CJ in Lim Seng Chuan v PP [1977] 1 MLJ 171 where heobserved that “fairness to the accused ... is a fundamental principle of theadministration of justice ...”

Winston Brown [1995] 1 Cr App R 191, 198.

Kulwant Singh [1986] 2 MLJ 10.In 1963, the Code gave the accused an option of either making an unswornstatement from the dock from which he could not be cross-examined orgiving evidence on oath or affirmation and thereby submitting himself tocross-examination. This option had been enjoyed in England since the

75

76

7778


So no amendment to the Constitution is needed to empowerthe legislature of Singapore (the President and Parliament) toenact whatever laws it thinks appropriate to regulate theprocedure to be followed at the trial of criminal offences ofcourts in Singapore; subject only to the limitation that so longas Article 9(1) remains unamended such procedure does notoffend against some fundamental rule of natural justice. Itmust not be obviously unfair. So the question for theirLordships is not whether Act No 10 of 1976 made asignificant alteration to the disadvantage of accused persons inthe procedure previously followed in criminal trials inSingapore (as indisputably it does), but whether theconsequence of the alteration is a procedure for the trial ofcriminal offences that is contrary to some fundamental rule ofnatural justice.

It would be imprudent of their Lordships to attempt to make acomprehensive list of what constitute fundamental rules ofnatural justice applicable to procedure for determining theguilt of a person charged with a criminal offence. Nor is thisnecessary in order to dispose of these three appeals. The onlyrule alleged to be the fundamental rule of natural justice,against which the appellants claim Act No 10 of 1976 offends,is the so called privilege against self incrimination asexpressed in the latin maxim nemo debet se ipsum prodere.

Criminal Evidence Act 1898 first made persons accused of felonycompetent, though not compellable, witnesses in their own defence. The1972 Criminal Law Revision Committee recommended its abolition inEngland. In 1976, Singapore adopted the recommendation and abolishedthis option by Act No 10 of 1976. In its place was substituted a provisionthat if the accused, when called upon to enter his defence, elects not to doso, or fails to do so when under oath or affirmation, the court could drawsuch inferences from his refusal as appeared proper.

The Privy Council did not find it necessary to decide thisquestion on the ground that the 1976 amendments did notimpinge on the privilege against self-incrimination. They createdno compulsion on the accused to testify but only a stronginducement on him to do so. Lord Diplock said:


Lord Diplock’s language in Ong Ah Chuan is sufficientlyunclear to have raised the concern of an academic in the NUSLaw Faculty79 that the second requirement of the fundamentalrules of natural justice, ie, that relating to logically probativefacts, “is a complete and utter destruction of the presumption ofinnocence” which, to him, is one of the most fundamental of therules of natural justice. In Haw Tua Tau, Lord Diplock appearedto have made “confusion worse confounded” when he elaboratedthat any procedural law would be constitutional provided it wasnot obviously unfair. What is obviously unfair? This is likeBacon’s Pilate, who asked “What is truth?” and would not stayfor an answer.

B. The privilege against self-incrimination

It could be said that the Privy Council displayed its wisdom andsensitivity to local conditions in not deciding for Singapore, inthe absence of the views of the Court of Criminal Appeal, thestatus of the privilege against self-incrimination.80 In Mazlan,the High Court decided to answer it. There, the accusedincriminated himself in the course of questioning by a policeofficer. He had not been told that he was duty bound to tell thetruth and that he need not incriminate himself.81 The High Court

Michael Hor, “The Burden of Proof in Criminal Justice” [1992] 4 S Ac LJ267, 302.As Lord Diplock had stated in Haw Tua Tau at 53: “... if their Lordshipshad been of the opinion that there was any substance in the argument thatthe effect of the amendments made to the Criminal Procedure Code by ActNo 10 of 1976 was to create a genuine compulsion on the accused tosubmit himself at his trial to cross-examination by the prosecution, asdistinguished from creating a strong inducement to him to do so at anyrate if he were innocent, their Lordships, before making up their ownminds, would have felt it incumbent on them to seek the views of the Courtof Criminal Appeal as to whether the practice of treating the accused asnot compellable to give evidence on his own behalf had become so firmlybased on the criminal procedure of Singapore that it would be regardedthere as lawyers as having evolved into a fundamental rule of naturaljustice by 1963 when the Constitution came into force.” [Emphasis added.]

Section 121(2) CPC reads: “Such person shall be bound to state truly thefacts and circumstances with which he is acquainted concerning the case


79

80

81

held that the privilege was a constitutional right, and that thefailure to warn the accused was a breach of such a right whichrendered the statement inadmissible. The Attorney-Generalreferred the question to the Court of Appeal for consideration.82

The Court of Appeal held that the privilege was not afundamental rule of natural justice protected by theConstitution.83

In the meantime, in Chin Seow Noi,84 Amarjeet Singh JC (thetrial judge at first instance) had independently reached the sameconclusion on different grounds: (a) there were many existinglegislative qualifications to the privilege;85 (b) prior to 1960, theCPC had contained a provision forbidding the administration ofthe warning to a witness or suspect who was being questioned;86

(c) dicta in the Privy Council decision of Coote87 suggested thatthe accused had no right to be informed of the privilege asignorance of the law was no excuse.

These two decisions are deprecated in an article “The PrivilegeAgainst Self-Incrimination and Fairness to the Accused”.88 Theauthor, Michael Hor, regards the privilege as “the one organisingprinciple in the criminal process [which] is the right to resist anyeffort to force [the accused] to assist in his own prosecution. Itprovides substance to the common law ideal of a fair trialthrough an adversarial... process,” and that it is “the guardian of

except only that he may decline to make with regard to any fact orcircumstance a statement which would have a tendency to expose him to acriminal charge or to a penalty or forfeiture.”

[1993] 1 SLR 512. The accused was convicted on other evidence.If the Court of Appeal had declared that the privilege was constitutionallyprotected, s 27 of the Corruption Act and s 10 of the Official Secrets Actwould have been held unconstitutional.

Criminal Case No 6 of 1990, unreported.

Supra, n 83 and see also s 134 of the Bankruptcy Act and s 236(5) of theCompanies Act.Section 122 of the Criminal Procedure Code, Straits Settlement Ordinance(X of 1910).

(1873) 4 LRPC 599.

[1993] SJLS 35.


82

83

84

85

86

87

88

more fundamental aims of criminal justice: the protection of theinnocent from conviction and the protection of the accused fromimproper conduct by law enforcement officials.” “To encouragethe decline of privilege ... is a dangerous course. If we see therole of the privilege in the entire criminal process, and not as anisolated concept, removing or constricting it without theintroduction of counter-balancing safeguards may seriouslyaffect the fairness of the proceedings against the accused.”

The argument against withdrawing the privilege at any stage ofthe criminal process is that it is unfair to the accused. It isdifficult to see why it is unfair to the suspect if he volunteers thetruth before or after he is charged. Section 29 of the EvidenceAct allows voluntary confessions obtained by deception to beadmitted in evidence. Even assuming that the privilege is afundamental rule of natural justice, it does not follow that afailure to exercise it by reason of the suspect not having beeninformed of such right, is in itself unconstitutional. The privilegecan exist as a constitutional right without a separate duty toinform. The right to counsel exists as a constitutional right, butno one has suggested that this right is infringed if the police failsto inform an arrestee of such a right. Indeed, section 29 providesthat a confession if relevant does not become irrelevant merelybecause he has not been warned that he was not bound to makesuch an answer. If the High Court’s decision were correct,section 29 would be pro tanto unconstitutional. Section 29 is notobviously unfair.

The history of the development of the privilege in English lawnegates the claim that “the privilege is an organising principle inthe criminal process.” The most recent American research89 onthe subject shows that the privilege was developed in criminal

See William J Stuntz, “The Substantive Origins of Criminal Procedure”,(1995) Yale LJ 393, John H Langbein (March 1994) Michigan LawReview 1047, Eben Moglen (March 1994) Michigan Law Review 1086,RH Helmholz, “Origins of the Privilege Against Self-Incrimination”, 65NYUL Rev 962, 982 (1990) and Michael RT MacNair, “The EarlyDevelopment of the Privilege Against Self-Incrimination”, 10 Oxford JLegal Stud 66 (1990) and Lewis Mayers, Shall We Amend the FifthAmendment? (1959).

89


trials at the beginning of the 18th century when the common lawjudges began to allow the accused to be defended by counsel.Previously at common law trials, the accused was interrogatedby the prosecutor at trial, supplemented by interchanges betweenthe accused and the judges and prosecutor as the accused had todefend himself. The idea that the accused could not bequestioned at his trial was unknown to English law in the 17thcentury. As Justice Frank observed in St Pierre v US (1942) 132F 2nd, 837 at 842:

No one in those days dreamed of saying that self-incriminationwas wrongful at common law.

There were also pre-trial interrogations conducted bymagistrates (there was no police force then), but the answers ofthe accused (including his refusal to answer) would beintroduced in evidence at his trial, often by the magistratetestifying in person90 as to what the accused had told him.

Together with the development of the principle that theprosecution had to prove its case beyond reasonable doubt, thisprocedural right was then elevated into a principle of law(chiefly through the efforts of defence counsel who silencedtheir clients and spoke on their behalf) and attributed an ancientlineage by linking it with the Latin maxim nemo tenetur seipsum prodere. In fact, that maxim was derived fromproceedings in the ecclesiastical courts in trials of heretics andoriginated within the European tradition as a sub-principle of theinquisitorial procedure, centuries before the integration oflawyers into the criminal trial made possible the development ofthe distinctive Anglo-American adversarial system of criminalprocedure in the later eighteenth century.

That this was probably how the privilege developed isdemonstrated by its incorporation in the 5th Amendment of theUS Constitution in these words “No person shall ... becompelled in any criminal case to be a witness against himself.”There was no such privilege outside the trial itself until the

Ibid, Mayers at p 10.90


Supreme Court decided91 that it was protected by the dueprocess clause. In Twining v New Jersey,92 the Supreme Courtsaid:

In Miranda v Arizona 384 US 436 (1966).

(1956) 350 US 422, 428.In England, the notion that there was no such privilege in pre-trialinvestigations by the police was simply because the police force was onlycreated in 1829. With the growth of the police force, the judges developeda set of rules known as the Judge’s Rules, specifically to deal withquestioning by the police. The Judge’s Rules were subsequentlysuperseded by the Police and Criminal Evidence Act 1984. Recently, theprivilege has been eroded by ss 34-37 of the UK Criminal Justice andPublic Order Act 1994 which implemented the Eleventh Report of theCriminal Law Revision Committee allowing the court or jury to draw thenecessary inferences from the silence of the accused on questioning by thepolice as well from as his refusal at trial to give evidence.

9192

93

Singapore Law Review490 (1996)

This survey does not tend to show that it was then in thiscountry the universal or even general belief that the privilegeranked among the fundamental and inalienable rights ofmankind.

The privilege is now constitutionally protected in USA.93 In hisbook, Shall We Amend The Fifth Amendment? (1959), ProfLewis Mayers wrote:

Reviewing this history, it seems accurate to say that theprivilege did not acquire constitutional status because it wasdeemed a palladium of individual liberty, it has come to bedeemed a palladium of individual liberty because it hasacquired constitutional status.

Indeed, the privilege is not necessarily a shield against injusticeas it can be used as a sword to cause injustice to anotheraccused. For example, the guilty accused may rely on his right ofsilence to jeopardise the life or liberty an innocent co-accused ina joint trial in the hope of securing his own acquittal. Theprivilege rests on a very insecure foundation in history, in reasonand in justice. It may better accord with justice under law thatthe fundamental principle ought to be that in its search forneeded information in crime control, the state is entitled to every

man’s testimony. Every rule of evidence or procedure thatsuppresses relevant evidence creates a significant obstruction tothe efficient operation of the criminal process. However,abolishing the privilege94 does not necessarily assist theinvestigators or the court to compel hostile witnesses orunwilling accused persons to tell the truth. If a defence witnessor an accused refuses to answer certain questions in cross-examination, there is a limit to the court’s coercive powers. Thecontempt power cannot be used too drastically or too oftenwithout causing public disquiet or bringing the judiciary intodisrepute. The solution is to provide a strong inducement tosuspects to explain their conduct and the accused not to keepsilent. Section 122(6) of the Code has provided a practical andfair solution. Haw Tua Tau has sanctioned it. The generalprinciple should be that if an accused refuses to answerquestions put to him, the court should have the discretion todraw such adverse inference against him as may appear proper.

C. The presumption of innocence—Proof beyondreasonable doubt

The presumption of innocence is not something different fromthe onus of proof of all the elements of an offence beyondreasonable doubt. In Joseph Constantine Steamship Line Ltd vImperial Smelting Corp Ltd,95 Lord Wright said:

See ss 121, 122(6), 180(k), 190(5) and 290 of the Code and s 134(2) ofthe Evidence Act.

[1942] AC 192.

(1990 Ed) at 125.

94

95

96


... the ordinary rule is that a man is not held guilty of faultunless fault is established and found by the court. This rule,which is sometimes described as the presumption ofinnocence, is no doubt peculiarly important in criminal casesor matters, but it is also true in civil disputes.

Cross on Evidence96 states as follows:

When it is said that an accused person is presumed to beinnocent, all that is meant is that the prosecution is obliged to

prove the case against him beyond reasonable doubt. This isthe fundamental rule of our criminal procedure, and it isexpressed in terms of a presumption of innocence sofrequently as to render criticism somewhat pointless.

[1992] 4 S Ac LJ 267.

At 270.

97

98


In Ong Ah Chuan, the Public Prosecutor conceded that the words“in accordance with law” required fair procedures, including thepresumption of innocence. Lord Diplock accepted that theprinciple of proof of all the elements of an offence supported bylogically probative facts is a fundamental rule of natural justice.But he warned that calling this rule as “the presumption ofinnocence” could be misleading. What he presumably meant wasthat one might read into the presumption more than what itreally was. Surprisingly, nowhere in both his judgments in OngAh Chuan and Haw Tua Tau did Lord Diplock expressly equatethe presumption of innocence with the principle of proof beyondreasonable doubt nor did he expressly say that both werefundamental principles of natural justice.

Assuming that the principle of proof beyond reasonable doubtis a fundamental principle of natural justice, what is its scope? Inhis article “The Burden of Proof in Criminal Justice”,97 Hormakes the claim98 that in Singapore, the presumption ofinnocence

has been severely “eroded” and is in danger of being crippledbeyond recognition by what may sometimes appear to be aconcerted action of both the Legislature and the Judiciary. Themakers and interpreters of our law seem bent on the creationof exceptions to the principle of proof beyond reasonabledoubt for a host of insubstantial and unsubstantiated reasons.

This is a very serious charge if it means what it says. On furtherexamination, it means a lot less. Hor’s premise is that thepresumption of innocence not only requires that all the essentialingredients of the offence be proved by the prosecution, but italso implies that the elements of an offence do not change,however it is defined. As, logically speaking, there is no

difference between an element of an offence as contained in thedefinition of the offence and an element of an offence ascontained in an exception to the offence, both the element andthe exception should have the same effect, because they have thesame function. Therefore the prosecution must bear the burdenof proving the elements of an offence and whatever exceptionsthe legislature may have used in defining the offence. Thus allgeneral and special exceptions, provisos and statutorypresumptions with which we are so familiar under our lawsshould be regarded as elements of the offences where they apply.It is on this premise that the charge is made.

Proof of this, it is argued, is the decision of the Privy Councilin Yuvaraj where it was held that a statutory presumption in thePrevention of Corruption Act cast a persuasive burden on theaccused to discharge the presumption on the balance ofprobability, and in Jayasena where the Privy Council heldlikewise with respect to a special exception to murder (the rightof self-defence). It is argued that in both cases, the Privy Councilshould have required the accused to discharge merely theevidential burden. After Jayasena, the local courts failed to stopthis erosion when they followed these non-binding decisions,when they could have done what the local courts had previouslydone, which was to cast only an evidential burden on theaccused.

I do not propose to discuss the detailed arguments marshalledin support of the charge. But it is worth restating that as a matterof statutory interpretation, the decisions in Yuvaraj and Jayasenacannot be faulted. It was not for the Privy Council to ignore theclear meaning of the definition of “proved” in section 399 andthe meaning of the clear words of section 107100 because they

Section 3(3) reads: “A fact is said to be ‘proved’ when, after consideringthe matters before it, the court either believes it to exist or considers itsexistence so probable that a prudent man ought, under the circumstancesof the particular case, to act upon the supposition that it exists.”

Section 107 reads: “When a person is accused of any offence, the burdenof proving the existence of circumstances bringing the case within any ofthe general exceptions in the Penal Code, or within any special exceptionor proviso contained in any other part of the same Code, or in any law


99

100

detract from the principle that the prosecution must prove all theelements of the offence.

D. Burden of proving lawful excuse

The characterisation by Hor of the Court of Criminal Appeal’sdecision in Tan Ah Tee101 as “arbitrary” is not justified simplybecause the Court chose to read the statutory exception to cast apersuasive burden on the accused rather than an evidentialburden. It was again a question of ascertaining the legislativeintent. There, two accused were charged with trafficking ofdiamorphine. Section 3 of the Misuse of Drugs Act provided that“except as authorised by this Act ... it shall be an offence for aperson ... to traffic in a controlled drug.” No evidence of lack ofauthorisation was adduced by the prosecution. The defence wasthat an essential element of the offence had not been proved, vizlack of authorisation. The Court of Criminal Appeal held that thewords “except as authorised”, as a matter of construction, castthe burden on the accused to prove they had authorisation. Thisis seen as a crushing blow on the presumption of innocence,because no known rationale exists which differentiates offencefrom exception for the purposes of allocating the persuasiveburden. The case of Iris Tan102 has also been criticised by Horalong similar lines in a later article.103

defining the offence, is upon him, and the court shall presume the absenceof such circumstances.”

Supra, n 97 at p 282. Tan Ah Tee followed the approach of the EnglishCourt of Criminal Appeal R v Edwards [1975] QB 27, which wassubsequently approved by the House of Lords in R v Hunt [1987] AC 352.The English decisions are also criticised on the ground that the outcomesof such forms of legislative words depend on how the courts read themand this creates an intolerable degree of uncertainty for the operation ofthe principle of proof beyond reasonable doubt.

[1995] 2 SLR 63 (HC).

“The Presumption of Innocence—A Constitutional Discourse forSingapore” [1995] SJLS 365, 385. The criticism is not justified. In thatcase, the charge was that the accused had provided public entertainmentwithout a licence under the Public Entertainments Act. The accused hadobtained a licence under the Act but a performer proceeded to perform an

101

102

103


In my view, the entire argument in this area of the law ismisguided. It requires an overly suspicious mind to read an issueof statutory interpretation as a constitutional issue impinging onthe fundamentality of the criminal process. There are soundpolicy reasons why the accused should be made to bear theburden of proof in cases of this nature, even where the law isunclear. In Singapore, licensing laws can be divided into twocategories: those providing for centralised licensing, eg the RoadTraffic Act, relating to driving licences; and those providing forthe devolution of such responsibility, eg prescribing poisonsunder the Poisons Act or authorising the use of controlled drugsunder the Misuse of Drugs Act. In the case of central licensing,the Registrar of Vehicles has records of subsisting licences, andso where an accused person is charged with the offence ofdriving without a licence, the prosecution has no difficulty inproving the absence of a licence. But the accused would alsoknow that he has no licence. The reality is that he would neverbe charged for such an offence if he has a licence.

In the case of controlled drugs, the reality in Singapore is thatthe accused is invariably arrested in circumstances whichsuggest that he has no authorisation to deal in the quantity ofdrugs found on him. Investigations would determine whether heis an authorised dealer. The reality is also that he would never becharged if his possession is authorised. Accordingly, apart fromthe unreality of the situation, there is insufficient justification torequire the police to check this fact with every hospital, doctor,dentist, pharmacist and any other person authorised to keeprecords of controlled drugs. In Singapore, people in the streetsare not arrested and detained arbitrarily or randomly and chargedin court. The law does not operate in a vacuum. There is nojustification in a principle of law that the accused should beacquitted if he shows that there is a reasonable doubt that he has


act of public entertainment after the licence had expired. This issue wasdecided in an earlier prosecution which made the point res judicata. Theonly issue before the court was whether the accused had mistakenlybelieved that her licence covered the time of the relevant performance.The question of who had to prove the existence of a valid licence wastotally irrelevant.

a licence. This is a black and white question without a shade ofgrey. Whether or not a person has a licence to do something(without which would be an offence) is a pure question of fact.The courts cannot and should not be criticised for recognisingreality. Criticisms of the kind that Hor has referred to are aboutbad drafting, not about bad laws. Defining the offence to shiftthe persuasive burden on the accused to prove lawful excuse insuch cases cannot, by any stretch of the imagination, underminethe presumption of innocence, whether or not it is a fundamentalprinciple of natural justice. There are good policy reasons forusing statutory exceptions. The law in this area can and shouldbe simpler and more efficient by amending the Evidence Act toprovide that in any such type of case, the accused has the burdenof proof.

Therefore, when Hor disagrees with the use of exceptions orpresumptions or deeming provisions which shift the persuasiveburden on the accused to prove that his act is not unlawful, he isreally disagreeing with the underlying policy and not itsimplementation. These are differences about what kind ofinterests or values our society should protect. In the absence ofempirical proof, such differences cannot justify the charge thatthese exceptions and presumptions have no basis or that thebasis cannot be substantiated.

E. Legitimate policy considerations

Hor argues against the use of statutory presumptions because hebelieves that no derogation from the principle of proof beyondreasonable doubt can ever be justified by a legitimate socialpolicy. This appears to mean that there is no social policy thatcan justify any derogation from the principle. This is startling.Again, it means much less than what it appears to say. This iswhat he actually says:

This brings us to the issue of whether derogations from theprinciple of proof beyond a reasonable doubt can ever bejustified by a legitimate social policy. It will be argued that itcannot.


It is important to rephrase the issue to emphasise what is atstake: when is it a legitimate social policy to increase theprobability of convicting the innocent in order to achieve acorresponding decrease in the probability of acquitting theguilty? Placing persuasive burdens on the accused will mean thathe is to be convicted and punished, occasionally with theultimate penalty of death, notwithstanding that he is able toprovide a reasonable explanation and notwithstanding that hisdefence is likely to be true as the prosecution’s case.104

The answer is, of course, “Never”. Such a policy cannot bedefended without undermining public confidence in the criminaljustice system. No such equilibrium is relevant because noresponsible government would adopt a policy of proscribing anycriminal conduct, however heinous, with a view to increasing,directly or indirectly, the probability of convicting the innocent,whatever its policy may be with regard to those who are guilty.The principle of proof beyond reasonable doubt is a fair andreasonable safeguard against the conviction of the innocent. Butfor offences which cause great harm to the community, it can bea hindrance to the successful conviction of the guilty. Making itless difficult for the guilty accused to be acquitted in such casesby the use of presumptions is a legitimate social policy and hasbeen commonly adopted in many Commonwealth countries.

Recently, the Misuse of Drugs Act was amended to providethat the offence of trafficking is committed by mere possessionof a controlled drug beyond a prescribed quantity. The offencearises from the presumption of trafficking from provedpossession. This can be justified on policy considerations.Heroin and other addictive drugs are one of great social evils inmodern society. They destroy people and profit the destroyers.Hence, drug trafficking is subject to the most severepunishments under the law. If the prosecution has to prove theact of trafficking, as ordinarily understood, in every case, therewill be very few convictions for trafficking and a resultant lossof public confidence in the criminal justice system. Hence theneed for a broad definition of “trafficking” and also for

At pp 300–301 of “The Burden Of Proof”.104


Hence, any government which is serious about and determinedto suppress drug trafficking would want to target the suppliers inorder to stop the flow of drugs into the community. If this is notpossible, and it is not possible in Singapore, a less effective wayis to target the suppliers lower down in the chain of supply.Hence, the proscription of possession beyond a prescribedamount and deeming it to be possessed for the purpose oftrafficking.

F. The search for fundamental rules of natural justice

In his article “The Presumption of Innocence—A ConstitutionalDiscourse”,107 Hor attempts to reinforce his arguments in hisearlier article that Ong Ah Chuan, in so far as it decided that thestatutory presumption was constitutional, was “unsupportable

At p 71.

At p 71.

[1995] SLJS 365.

105

106

107

presumptions. A person possesses drugs either for his ownconsumption or for someone else’s consumption. As LordDiplock said in Ong Ah Chuan of this presumption:

It is not disputed that these minimum quantities are manytimes greater than the daily dose taken by a typical heroinaddicts in Singapore; so, as a matter of common sense, thelikelihood is that if it is being transported in such quantitiesthis is for the purpose of trafficking.105

If he has more drugs than he can consume within a reasonableperiod, it is a fair presumption that the excess is meant for otherpeople to consume, a presumption he can rebut. As Lord Diplockobserved in Ong Ah Chuan:

All that is suggested to the contrary is that there may beexceptional addicts whose daily consumption much exceedsthe normal; but these abnormal addicts, if such there be, areprotected by the facts that the inference that possession wasfor the purpose of trafficking is rebuttable.106


and clearly out of favour”,10 8 when seen in the light of Sin Yau-Ming, a Privy Council appeal from Hong Kong, and Oakes, adecision of the Canadian Supreme Court. He now finds furthersupport for this argument in two more recent Privy Councildecisions.109 He suggests that our courts should now hold bothYuvaraj and Jayasena unconstitutional and restore thepresumption of innocence to its proper place in the criminal lawaccording to the law of the Constitution.110

Again, it is not necessary to discuss in detail the arguments, butHor is a long way from making good his case. The recent PrivyCouncil decisions relied on were decided under constitutions11 1

which expressly protect, unlike Article 9(1), “the presumption ofinnocence”. As admitted by Hor, the Privy Council did not evenconsider the purist position that no deviations or exceptionswhatever to the principle are to be tolerated. They eventuallyapplied a balancing principle based on proportionality and

At page 305.

In Vasquez, the Privy Council decided that a provision in the BelizeCriminal Code which places the burden of proving provocation on theaccused in a charge for murder was inconsistent with the BelizeConstitution which expressly protects “the presumption of innocence” inthose words. Hor argues that if Vasquez is good law, then Jayasena is notand must be unconstitutional in both Singapore and Malaysia. He alsorefers to Oakes where the Canadian Supreme Court struck down forunconstitutionality the very presumption that was upheld in Ong AhChuan. He also argues that Lee Kwong-Kut, a Privy Council decision fromHong Kong, marks the demise of Ong Ah Chuan when it struck down astatutory presumption that was logically probative of guilt.

Hor also relies on Singapore’s agreement to the ASEAN Inter-Parliamentary Organisation Declaration of Human Rights, which containsan express provision for the protection of the “right to be presumedinnocent until proven otherwise,” as Singapore’s acceptance that thepresumption of innocence is a fundamental rule of natural justice. See alsoAndrew Ashworth and Meredith Blake, “The Presumption of Innocence inEnglish Criminal Law” [1996] Cr LR 306 for a survey of the number ofoffences in England which have qualified the operation of the presumptionof innocence.The Belize Constitution, the Canadian Charter of Rights and the HongKong Bill of Rights Ordinance.

108

109

110

111


reasonableness.112 In Haw Tua Tau, Lord Diplock ruled thatwhat is contemplated by the words “according to law”, inrelation to a procedural law, is that the law must not be“obviously unfair”. The presumption of innocence, as it appliesin the context of statutory presumptions and exceptions etc, isnot obviously unfair where the social objectives justify their use.Thirdly, in Oakes, Dickson CJ distinguished Ong Ah Chuan onthe ground that Lord Diplock did not read the presumption ofinnocence into Article 9(1).

Lord Diplock’s omission to state expressly that the principle ofproof beyond reasonable doubt is a fundamental rule of naturaljustice could even have been deliberate, since he specificallycautioned that to call the burden of proof as the presumption ofinnocence could be misleading. He may be wiser than he hasbeen credited for. It was not for him to say, that in the case ofSingapore, which particular model of the criminal process wasappropriate to its circumstances. He did not limit his analysis tothe adversarial system of justice. He referred to other systems ofcriminal justice which do not make a clear distinction betweenproof in criminal cases and proof in civil cases. He referred tosystems where the judge is also the interrogator. The commonlaw has developed and evolved in a special way, and one of itsfundamental principles in the criminal process is the principle ofproof beyond reasonable doubt. But this does not mean that theprinciple is fundamental to a system of justice in the sense that ifit is absent, as in continental systems of justice, there is nojustice in the system. Unlike other constitutions whichspecifically protect “fundamental principles of law”, Article 9(1)has been interpreted to refer to fundamental rules of naturaljustice. They may or may not refer to the same things. Forinstance, it could be argued that introducing proceduralprinciples based on the inquisitorial system may not necessarilyconflict with Article 9(1).

So, the way is open for a constitutional discourse on what isthe best model of the criminal process within the limitations ofArticle 9(1) we should strive for. This does not necessarily call

At pp 389-403.112


for the perpetuation of the principle of proof beyond reasonabledoubt for all offences. The principle was developed by thecommon law at a time when punishments were harsh and severeeven for minor offences.113 A high degree of certainty wasrequired by the common law judges. The principle is notsacrosanct, although it is true that a conviction for an offencegenerally attracts greater disabilities than a judgment in a civilsuit. But there are offences and offences. Murder is a far moreserious violation of the law than jaywalking or littering. Yet theburden and standard of proof applies to all equally. In the civillaw, the judges have been able to lay down different standards ofproof for different civil wrongs. As Singapore develops as aregional commercial and business hub, simpler and better lawsmay have to be considered to regulate and improve theefficiency of this sector of our economy. In theory, it can beargued that less serious commercial crimes and many regulatoryoffences could made punishable on proof on a balance ofprobabilities. At least, this burden is, in law, more onerous forthe prosecution than in strict liability offences. An argument hasyet to be made that strict liability offences contravene Article9(1), presumably because it would be extremely difficult todemonstrate their obvious unfairness. In Australia and USA, theburden of the principle of proof beyond reasonable doubt hasmade it necessary for these countries to create civil offences.11 4

For example, grand larceny was a capital offence from the time of HenryII but in favour of life, petty larceny was treated less harshly; as suchjuries developed the habit of assessing the stolen article at a very lowvalue in order to classify it as petty larceny to save the thief from thegallows.

Some provisions of Australian Corporations Law are designated civilpenalty provisions (see s 1317DA, being some statutory duties of directors(s 232), rules governing financial benefits to related parties (s 243ZE),duties to maintain proper accounting records and to prepare financialstatements (s 318(1)) and the duty to prevent insolvent trading (s 588G).The Australian Securities Commission (“ASC”) may apply for a civilpenalty order under s 1317EB. If the contravention is serious, the Courtmay order the defendant to pay a pecuniary penalty (s 1317EA(3)(b)). Itshould be noted that if the ASC applies for a civil penalty order, then


113

114

These “offences” are normally settled upon payment of a civilpenalty and do not carry the stigma of criminal convictions. Butthe pecuniary penalties can be much heavier than fines for minoroffences. So, perhaps it may not be a heresy to suggest that thecriminal law may be able to accommodate two standards ofproof,115 the heavier one for serious offences, the lighter forminor offences. The criminal law is not static; neither is thecriminal process.

Hor believes that the time is ripe for a reconsideration of theapproach the courts of Singapore should take when called uponto review legislation or cases which adversely affect thepresumption of innocence. He says that “in the provisions of ourConstitution is to be found the seeds of a new discourse on theburden of proof based on considerations of principle and policyrather than on the purely formal, linguistic and historicalapproaches which characterise most of the judicial decisions inthe past.” However, any reconsideration with a view tobolstering the role the principle of proof beyond reasonabledoubt and immunising it under Article 9(1) is not necessarily thebest way to develop an efficient and effective, but fair, criminalprocess. It is not likely to be better than what we now have if itcripples crime control.

Any model of the criminal process we should strive for shouldhave the following features: firstly, it must be simple to operateand easy for the public to understand and appreciate; secondly, itmust be fair to both the prosecution and the accused; thirdly, themanagers of the process, the prosecutors, defence counsel andthe courts should regard it as an instrument of truth finding;

regardless of its outcome, criminal proceedings cannot be brought for thesame contravention (ss 1317FB, 1317JB).

Cross on Evidence refers to Morgan, Problems of Proof in the Anglo-American System of Trials and notes at page 156 that “Three standards ofproof appear to be recognised in the United States, proof by ‘clear, strongand cogent’ evidence lying midway between proof on a preponderance ofprobability and proof beyond reasonable doubt.” In R v Askeland [1983]Tas NC 224, the court took the view that in Australia the standard of proofof the voluntariness of a confession is an intermediate one between theusual two standards.

115


fourthly, it must be efficient, ie, it should be able to speedily“apprehend, try, convict and dispose of a high proportion ofcriminal offenders whose offences become known”;11 6 finally,it should be parsimonious in the sense that it must be worth theeconomic resources to allocate to operate it. The search for thefundamental rules of natural justice in the criminal process inthis context promises to be an exciting endeavour for those whoare concerned with and about criminal justice in Singapore.

Herbert Packer, “Two Models of the Criminal Process” (1964) 113 Univof Pennsylvania Law Review 1, 10.

116


10th Singapore Law Review Lecture

Documents