Author Archives: CHEAH Wui Ling

Interesting write-up on the National University of Singapore’s Innocence Project

For an interesting student write-up on the National University of Singapore’s student-run Innocence Project see here. Way to go!

Singapore: A Need to Reconsider the Accused Person’s Constitutional Right to Counsel

The Singapore High Court recently considered the right of an accused to counsel in the case of James Raj s/o Aroliasamy v PP [2014] SGHC 10 (available here). Article 9 (3) of the Singapore Constitution recognises the right of an arrested person to consult counsel, but does not expressly state the point of time at which the person can do so. Singapore Courts have consistently held that an accused does not have an immediate right to consult counsel. Rather the right to counsel is to be exercised within “reasonable time”. Case law has interpreted such “reasonable time” to include the time needed for police investigations, which would otherwise be hampered by permitting the accused access to counsel.

What is interesting about the High Court’s judgement in James Raj s/o Aroliasamy v PP is that the Judge voiced some doubt about how previous case law had narrowly interpreted the right to counsel. The Judge nevertheless stated that he was bound to follow precedent. Even so, the Judge affirmed that the Prosecution bore the burden of showing why permitting access to counsel would jeopardise investigations in a particular case. It was not enough for the Prosecution to point to, inter alia, the complex or cross-border nature of the case. Rather, the Prosecution had to specifically explain why permitting access to counsel would jeopardise investigations in that case.

The High Court’s judgement reflects the increased willingness of Singapore Courts to closely supervise the work of the Prosecution and other criminal justice agencies. However, it is perhaps time for the Court of Appeal to reconsider its interpretation of the constitutional right to counsel in light of the High Court’s assessment of previous case law in James Raj s/o Aroliasamy v PP.

Victor Nealon’s conviction overturned by UK Court of Appeal after his spending 17 years in jail

Carole McCartney previously blogged about Victor Nealon’s case here and the set-backs he and his lawyer had encountered trying to get his conviction referred to the UK Court of Appeal via the UK Criminal Cases Review Commission (CCRC), the latter which had repeatedly refused Nealon’s request for DNA testing. Subsequently, independent DNA testing commissioned by Nealon’s lawyer found new DNA evidence belonging to another unknown man on the victim’s clothes. The Court of Appeal finally heard Nealon’s case today and ordered his release. Nealon has spent 17 years in jail. Read the Guardian’s write-up of the case here.

Note to Yong Vui Kong post: death penalty reprieve for Chum Tat Suan (Singapore)

Prior to Yong Vui Kong (blog post here), there was another drug trafficking case where the Singapore High Court exercised its discretion under legislative amendments for drug trafficking during the sentencing hearing. The decision explains the manner by which this discretion is exercised and highlights the judge’s concerns. This was in the case of Chum Tat Suan (24 October 2013).

One of the conditions that an accused convicted of drug trafficking has to meet to benefit from this judicial discretion is that he/she must be found to be a mere drug “courier”. Recognising, among others, that this issue was “a matter of life and death” for the accused, the judge decided to give the “benefit of doubt” to the accused of being a mere “courier”, though no new evidence about this was introduced at that stage and evidence earlier adduced during trial on this point was found to be “not unequivocal”.

Ps: Thanks to CHEN Siyuan and Jack LEE from the Singapore Management University for highlighting important facts about the Chum Tat Suan case

Singapore courts review death penalty convictions under amended legislation: Yong Vui Kong

I previously blogged on the 2012 legislative amendments to Singapore’s Penal Code and Misuse of Drugs Act, which give Singapore judges some discretion over imposing the death penalty in cases of murder and drug trafficking – offences that previously carried the mandatory death penalty. Singapore Courts have been reviewing cases and deciding which convicted persons may have their death sentences replaced under these amendments.

Among the cases reviewed so far is the high profile case of Yong Vui Kong. Since his 2008 conviction, locally-based activists in Singapore have ceaselessly campaigned for the reconsideration of Yong’s case based on his circumstances. On 14 November 2013, the Singapore High Court reduced Yong’s death sentence to life imprisonment and 15 strokes of the cane.

As mentioned in my earlier post, these 2012 legislative amendments, by circumscribing the application of the death penalty, will positively impact investigations into possible wrongful convictions. The only independent organisation specialising in such investigations in Singapore is the Singapore Innocence Project, which was established by students from the National University of Singapore and formally launched in May 2013. Though an imprisonment based on a wrongful conviction can seldom be truly compensated, at least, in cases of imprisonment, those found to be wrongfully convicted will be alive to experience relief and vindication.

Convictions quashed on application of Singapore Attorney General’s Chambers

An interesting case was heard by the Singapore High Court in October, 2013. The Singapore Attorney General’s Chambers (AGC) made an application to the High Court to review and set aside the conviction of Thomas Tay, who had been sentenced six years ago under the Securities and Futures Act. The High Court quashed Tay’s convictions and returned him the $240 000 fine he had paid.

The AGC had applied for a review of Tay’s case based on the acquittals of other individuals linked to Tay’s case.

This is an interesting case of criminal revision being initiated by the Singapore AGC, instead of by the Court or the accused. Based on Singapore’s written laws (as opposed to common law), a criminal case that has exhausted the appeals process can presently only be revisited based on S. 400 (1) of Singapore’s Criminal Procedure Code. This provision allows the High Court to study the record of criminal proceedings brought before any Subordinate Court to satisfy itself of “the correctness, legality or propriety of any judgment, sentence or order recorded or passed and as to the regularity of those proceedings.” Note that under S. 400 (1), this ability to review cases is limited to the High Court and only applies to cases previously heard before Subordinate Courts. S. 400 (1) therefore does not cover many serious offences which carry severe penalties and fall within the High Court’s original jurisdiction. It was fortunate that Tay’s case fell within the narrow limits of S. 400.

Though it is encouraging that the AGC took the initiative to apply for a review in the Tay case, and though the Singapore Court of Appeal has recognised the possibility that it may review cases to prevent wrongful convictions, the Tay case shows that there is need for legislature to be passed in Singapore that clearly recognises the ability Singapore Courts to review criminal cases to prevent wrongful convictions or serious injustices, regardless of the court before which the case was first heard and regardless of the lapsing of appeal timelines.

BBC report on malleable memories

The BBC has published a short but interesting media report on malleable memories here, which recognises the work done by Innocence Projects (“Why does the human brain create false memories?”, by Melissa Hogenboom, 29 September 2013).

Singapore courts review death penalty convictions under amended legislation: implications for investigations into possible wrongful convictions

Singapore courts have recently reviewed two death penalty convictions in July and August 2013, replacing these with a combination of life imprisonment and judicial caning (see below for more details on sentences). These reviews were undertaken pursuant to 2012 legislative amendments which give Singapore judges some discretion over imposing the death penalty in cases of murder and drug trafficking, offences that previously carried the mandatory death penalty. The two reviewed death penalty convictions had been handed down prior to the 2012 legislative amendments. Altogether, 34 death penalty convictions are expected to be reviewed by Singapore courts.

Public debate in Singapore has focused on how these legislative and judicial developments permit a more circumscribed use of the death penalty and the tailoring of sentences to each individual case. These developments will also positively impact investigations into possible wrongful convictions. Such investigations usually take many years, and the Singapore Innocence Project was just formally launched in May 2013. Singapore prides itself on its efficient legal system, and it is commonly believed that those sentenced to the death penalty are not on the “death row” for long – though detailed official statistics on this is not publicly available.

Avoiding the death sentence will allow cases of wrongful conviction to be remedied while the wrongfully convicted person is still alive.

Note: In both reviewed cases, the convicted persons had their death sentences reduced to sentences of life imprisonment with 24 strokes of the cane. Judicial caning is a permitted form of legal punishment under Singapore’s Criminal Procedure Code, and a convicted person may be sentenced to a maximum of 24 strokes of the cane.

Interview with Timothy Langdale QC on Birmingham Six Case

Daniel Chen, a recently graduated student leader of the Singapore Innocence Project, has published an interview he conducted with Timothy Langdale on the Birmingham Six Case (click here). The students of the Singapore Innocence Project have written and compiled some interesting commentaries and articles relevant to the prevention of wrongful conviction in Singapore on their website (click here).

The inherent jurisdiction/power of Singapore courts to rehear cases of wrongful conviction: Interpreting Re Nalpon Zero Geraldo Mario

In April 2013, the Singapore Court of Appeal in the case of Re Nalpon Zero Geraldo Mario [2013] SGCA 28 took the opportunity to clarify the nature, existence, and scope of the court’s inherent jurisdiction and powers. This case is highly relevant to the question of whether Singapore courts have the ability to reopen a case that has completed the appeals process to prevent wrongful convictions. This is because there is currently no statute in Singapore that expressly gives courts the ability to do so. Therefore, such ability would have to rest on a court’s exercise of its inherent powers. Though a number of convictions have been overturned by the Singapore High Court exercising its powers of criminal revision, the High Court can only apply its criminal revision powers to cases heard at first instance by lower courts. Cases that are more serious, and that are heard at the first instance by the High Court in Singapore, are not subject to the High Court’s power of criminal revision.

The Singapore Court of Appeal in Re Nalpon Zero Geraldo Mario held that as a general rule, a court’s jurisdiction and powers are determined by statute. It adopted the general definition of jurisdiction as the court’s authority ‘to hear and determine a dispute that is brought before it’, and power as its ‘capacity to give effect to its determination by making or granting the orders or reliefs […]’ (para 13 & 31). The Court then discussed its inherent jurisdiction and powers, as opposed to its statute-based jurisdiction and powers. Here, it adopted a narrow definition equating “inherent” jurisdiction with “inherent” powers, stating that inherent jurisdiction refers to ‘no more than the exercise by the court of its fund of powers conferred on it by virtue of its institutional role to dispense justice, rather than an inherent “authority” to hear and determine a matter’ (para 34).

Concerns about the court’s narrow definition of its inherent jurisdiction/powers have been raised (CHEN Siyuan, “Jurisdiction, power, inherent jurisdiction, and inherent power: Re Nalpon Zero Geraldo Mario [2013] SGCA 28, SLW Commentary, Issue 3/April 2013; CHEN, “Is the Invocation of Inherent Jurisdiction the Same as the Exercise of Inherent Powers? Re Nalpon Zero Geraldo Mario”, forthcoming in International Journal of Evidence and Proof). There is also the question of whether this narrow definition of a court’s inherent jurisdiction/powers excludes the judicial ability to reopen cases of wrongful conviction, especially since this ability is not expressly provided for by statute in Singapore. However, it should be noted that the Court of Appeal in Re Nalpon Zero Geraldo Mario did not set out a closed or exhaustive list of a court’s inherent jurisdiction/powers. The Court also referred a previous case where the Singapore court had reopened and reheard an issue decided in breach of natural justice as one in which the court concerned had ‘invoked an inherent “power”’ (para. 36).

As such, the Court of Appeal may still decide in a future case that it has the inherent “power” to reopen cases of wrongful conviction. This would be in line with the Court of Appeal’s 2010 observations in Yong Vui Kong v PP [2010] 2 SLR, where it noted that to prevent miscarriages of justice, a future court may reconsider “the rationale of those decisions where we have an actual situation where new evidence is discovered, e.g. DNA or other evidence, which shows, or may show, that the conviction is demonstrably wrong in law or that there is reasonable doubt that the conviction was wrong. In such a case, this court will have to consider or reconsider whether it has any inherent jurisdiction to review its own decision in order to correct any miscarriage of justice” (para 13 & 15). Such an interpretation of Re Nalpon Zero Geraldo Mario would ensure jurisprudential consistency and ensure that Singapore courts are able to take action in cases of wrongful convictions.

To clarify matters, the Singapore Parliament should consider passing legislation that expressly authorises Singapore courts to reopen cases of wrongful conviction that have nevertheless exhausted the appeals process.

Singapore: Official launch of Innocence Project by law students of the National University of Singapore

On 17 May 2012, the Innocence Project run by law students at the National University of Singapore organised their official launch! The project has been up and running for some time, and the students have been engaged in reviewing a number of cases.

Please take a look at their public website (still in progress) here.

Some media reports here and here.

BBC Video: Franky Carrillo’s Story after 20 years of False Imprisonment

See here for a BBC’s just released video on Franky Carrillo’s story after 20 years of false imprisonment. Carrillo was released after eyewitnesses in his case admitted that they had lied.

 

BBC article: Problem with using “snitches”

The BBC has put out an interesting article (by Rob Walker) on the problems of using accused/convicted persons as police informants. It focuses on US practice, specifically the plea bargain process and the cutting of prosecutorial deals. However, the article’s observations are also relevant for countries where accused persons may be “incentivised” to provide the police or prosecution with apparently useful information in exchange for a lower sentence.  For example,  2012 amendments to Singapore’s Misuse of Drugs Act, which used to impose a mandatory death sentence for drug trafficking, now gives judges the discretion to impose life imprisonment instead of the death penalty if certain conditions are fulfilled. One of these conditions is that the Public Prosecutor “certifies to any court” that “in his determination” the accused person has “substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore”.  In such situations, the accused person has an incentive to provide the police or prosecution with information even if he/she does not have any. To avoid wrongful convictions based on the manufacture of false information by accused persons, there needs to be clear regulations and an oversight system put in place. These should be accessible to those who may be wrongly accused, so as to enable their defence or requests for review, as well as the general public to ensure continued confidence in the system.

Singapore: DNA results (among others) leads to the quashing of death row inmate’s conviction by the Singapore Court of Appeal

On 11 March 2013, the Singapore Court of Appeal quashed the conviction of a death row inmate. Mervin Singh had been sentenced to death for drug trafficking by the lower court.

Singapore’s Misuse of Drugs Act presumes that a person is possesses a drug for the purpose of trafficking if he or she is found with certain drugs above specified amounts. The said person is then required to rebut this presumption. Singh argued that he had not known that the package he had been found with contained drugs. Rather, he believed that the package held contraband cigarettes. The Court of Appeal accepted Singh’s argument. Among others, the Court of Appeal cast doubt on the narcotics officer’s claims that he had seen Singh opening and looking into the package, highlighting inconsistencies between the officer’s earlier statement and his testimony at trial.

The court also noted that Singh’s DNA had not been found on the box, the newspaper sheets, or the plastic bags containing the drugs.

The important role played by DNA testing in this case is noteworthy. Many studies show how the practice of DNA testing has led to the prevention and overturning of wrongful convictions in many countries. Singh was fortunate on many counts. He was lucky that there was evidence that could be subjected to DNA testing. He was lucky that DNA analysis was conducted. And he was lucky that the Court of Appeal gave sufficient weight to the results of this analysis. This raises a number of points: 1. Sometimes a piece of evidence that could be submitted for DNA analysis may not be available at the time of trial or the said evidence, though available, may not have been tested due to unintentional oversight or mistakes made in good faith; 2. It is necessary to ensure that there are laws or regulations in place that provide for the preservation of evidence, access to evidence, and DNA testing; 3. There should be accessible and transparent procedures that enable convicted persons and their legal representatives to request access to preserved evidence or submit new evidence for DNA testing at a post-conviction stage.

Time: Why Innocent Men Make False Confessions

From Time:

Following ongoing debates on the Daniel Taylor case, a write-up in Time by Adam Cohen (“Why Innocent Men Make False Confessions”, 11 February 2013) observes how false confessions are not an “strange anomaly”. Refers to recent studies confirming that they are among the common causes of wrongful convictions and usually involve young, uneducated, or mentally disabled accused persons who are frightened, unfamiliar with the criminal justice system, and often subject to police manipulation or pressure. Refers to documentaries on false confessions and wrongful convictions: West of Memphis and Central Park Five.

Japan: Write-up in The Economist about False Confessions, Police Interrogations, Imprisonment in Japan

There is an interesting write-up in The Economist (“Japan’s Prisons: Eastern Porridge”, 23 February 2013) that examines the role of confessions and police interrogations in Japan’s criminal justice system, among others. Here is an excerpt:

“Criminal courts in Japan have long relied heavily on confessions for proof of guilt. Though the accused have a right to silence, failure to admit a crime is considered bad sport. Besides, police have strong incentives to extract a confession and, with up to 23 days to interrogate a suspect, the blunt tools to do so, as a stream of disturbing incidents has shown. Detectives tracking down an anonymous hacker extracted separate confessions from four innocent people before being forced in December into a humiliating apology. Court conviction rates are over 99%.”

2012 Exonerations involving Brooklyn District Attorney’s Office

Nancy Petro recently blogged here about the exoneration of Jabbar Collins, who is now bringing a civil suit against the City of Brooklyn and individual prosecutorial staff for misconduct in his case.

The year of 2012 saw the discovery of additional cases of misconduct involving same district attorney’s office, leading to the exoneration of Ronald Bozeman, Lawrence Williams, and Darrell Dula in three different criminal cases.

All three spent 10 months to 2 years in jail due to governmental misconduct before being released for crimes they did not commit. Read more about them here, here, and here.

Singapore: Court to Review Conviction Based on New Medical Evidence

The Singapore High Court has decided that it will review a 2011 conviction on rape and aggravated outrage of modesty based on new medical evidence produced by the convicted person to show that he suffered from erectile dysfunction at the time of the 2006 offences.

Read more about the case here:

Pro Bono Debates in Singapore

Debates about making pro bono compulsory for lawyers continue in Singapore. Under the new proposed scheme, lawyers are required to do 16 hours of pro bono each year. Some lawyers are supportive, but many are unhappy with being “forced” to do pro bono.

The debates go essentially to what it means to be a lawyer. Qualified lawyers hold resources and skills which are in limited and controlled supply, but which are necessary for ordinary people to access the essential public good of justice. Due to the scarce and essential nature of lawyering skills, it is possible to see members of the legal profession as holding a limited form of stewardship over their resources. Such a stewardship would require them to make their resources available, in a reasonable and non-disruptive manner, to the community for public purposes.

More importantly, there is the deeper question of whether the burden of providing the lawyering skills and human resources necessary for legal aid, particularly criminal legal aid, should be shouldered by private lawyers alone. Statistics show that more than one-third of criminal defendants claiming trial do not have legal representation. Currently, the government provides funding for the Legal Assistance Scheme for Capital Offender (LASCO), which applies to capital cases, and the Criminal Legal Aid Scheme (CLAS), which is run by the Law Society of Singapore. These schemes assign private lawyers to criminal cases. If we as a society believe that justice is a public good accessible to all, the pursuit of accessible justice cannot be left primarily to private enterprise. This is especially important given the fact that poor lawyering is widely acknowledged as one of the reasons for wrongful convictions. If justice is a public good, access to quality lawyering needs to be more strongly guaranteed by the State as society’s ultimate guarantor of public goods. It is time for the Singapore State to establish an Office of Public Defence to complement the pro bono efforts of private lawyers in Singapore.

Singapore: High Court Quashes Drunk-driving Conviction

The Singapore High Court has quashed the drunk-driving conviction of Daniel Au on the basis that he had fallen into a drunken sleep while the car was parked rather than driving it while drunk. Mr Au was earlier punished with a two-week jail sentence, a driving ban, and a fine. He had appealed his conviction while serving his jail sentence, which was then quashed by the High Court. It has been reported that his new lawyer, Mr Peter Fernando, argued during appeal that the district judge who had sentenced his client had not “indicated that there was any evidence to show he had driven under the influence of alcohol or posed a risk to other road users.” Mr Au, who is to have his fine refunded and his driving license restored, is also reported to have said that his time spent in jail was “not easy”.