Criminal Justice and the Exclusion of Incriminating Statements in Singapore

Abstract

There is inevitably tension in any criminal justice system between the state’s interest in securing the evidence necessary to convict a guilty party and the need to respect individual rights, uphold the rule of law and protect the legitimacy of criminal convictions. This tension is examined in the context of the criminal justice system in Singapore. A general overview is given of the criminal process, including its social and international dimensions. Focus is placed upon the law on the exclusion of incriminating statements obtained wrongfully from the accused person. The principal features of this law are the voluntariness test for the admissibility of such evidence, the oppression doctrine and the discretion to exclude incriminating statements where their prejudicial effect if admitted at the trial is likely to outweigh their probative value. In defending the operation and scope of these exclusionary rules, and the weakening of certain rights such as the right of silence and the right to counsel, local conditions and values are often invoked in official discourse. One theme that emerges is the influence of crime control ideology in shaping the criminal process.

Faculty of Law, National University of Singapore. I am grateful to my students Chan Kah Wai Kenneth, Loo Tze Ding Dorothy Ann and Ng Wei Jie Benjamin for their research assistance.

1 Introduction

A tension is often said to exist in the criminal process between the interest in finding the truth and respect for the rights of persons suspected or accused of having committed a crime. The interest in the truth has two dimensions: one is the interest in finding the accused guilty when he is in fact guilty and the other is the interest in acquitting the accused when he is in fact innocent. A type 1 error occurs when a factually innocent person is convicted and a type 2 error occurs when a factually guilty person is acquitted. Upholding of the rights of suspects or accused persons is sometimes motivated by the interest in protecting an innocent person from a type 1 error (that is, wrongful conviction), and this is consistent with the second aspect of the interest in determining the truth. In diluting or weakening such rights, it is the first dimension of the interest in determining the truth (avoiding a type 2 error of acquitting a factually guilty person) that is often invoked. On the standard argument, rights of individuals have sometimes to give way to the social interest in crime control.¹ It is from this perspective that there is a supposed conflict between determining the truth and respect for individual rights.

This supposed conflict will be examined in relation to evidence of a confession or an incriminating statement taken from the accused person by police officers in Singapore. The principal sources of law that govern the obtaining and admissibility of such statements are the Criminal Procedure Code (‘CPC’),² the Evidence Act (‘EA’)³ and, to some extent, the common law. The goal of ascertaining the truth is not explicitly declared in the CPC or the EA. However, as we shall see, it underpins various aspects of the criminal process (such as the presumption of innocence, pre-trial criminal case disclosure and judicial scrutiny of the factual basis for a guilty plea), and actors in the criminal process are expected to respect the truth in discharging their respective duties. At the same time, it is recognized that the search for the truth needs to be balanced against other countervailing interests. In the 1976 case of Cheng Swee Tiang v PP, the majority of the High Court judges formulated the competing considerations thus in the context of excluding illegally obtained evidence⁴:

…two important interests come into conflict when considering the question of admissibility of … evidence [that the police had improperly] obtained. On the one hand there is the interest of the individual to be protected from illegal invasions of his liberties by the authorities and on the other hand the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from the courts on any merely technical ground.

Local conditions are taken into account in deciding how the balance is to be struck. In the 2008 case of Law Society of Singapore v Tan Guat Neo Phyllis, in which issues were raised relating to the admissibility of evidence obtained in an alleged entrapment, the High Court (sitting as a bench of three judges) cautioned against uncritical following of decisions from Australia, Canada and England. It stressed that ‘the legal and social environments in these jurisdictions are not the same, and that the courts in each jurisdiction must take into account the values and objectives of the criminal justice system which they wish to promote.’⁵

This chapter will proceed as follows. Part 2 provides background information. It gives an overview of the stages of the criminal process and the duties and accountability of the actors involved in the process, and discusses the main constitutional rights that exist in the context of administering criminal justice. Part 3 explores the social dimension. It discusses the extent to which the state of criminal justice has received public attention and drawn public debate. Part 4 summarizes the legal rules governing police questioning, the admissibility of statements obtained from the suspect, and the drawing of adverse inferences from omissions to mention material facts. This is followed by a study of the exclusion of incriminating statements obtained by torture in Part 5 and by other forms of undue pressure in Part 6. Part 7 addresses briefly the admissibility and effect of derivative evidence. The influence of international law on human rights is considered in Part 8 and the availability of safeguards in Part 9. Part 10 relay such little statistics as are available. Part 11 concludes with some general observations.

2 Overview of Criminal Proceedings

This Part provides background information by way of an overview of the administration of criminal justice in Singapore and the relevant constitutional rights.

2.1 Stages

2.1.1 Investigation, Decision to Prosecute, Procedural Preliminaries

Typically, criminal investigations begin when a first information report is filed with the police⁶ alleging the commission of an offence.⁷ The law vests the police with an array of investigative powers such as the power of arrest, entry, and search and seizure. Most pertinent for present purposes is the power to question and take statements from the suspect or accused person. This is considered in detail later.

When a person is arrested and detained in custody, the police officer must bring him before a Magistrate within 48 hours.⁸ The magistrate may order that he be further detained if investigation is on-going. It is not difficult to persuade the court to grant such extensions of detention.⁹ Upon completion of investigation, the matter will be referred to the Attorney-General’s Chambers which will make an assessment of the sufficiency of admissible evidence to support a criminal conviction.¹⁰ The power to institute, conduct and discontinue criminal proceedings lies with the Attorney-General.¹¹ Should the decision be taken to commence prosecution against the person, different court procedures will apply depending on whether the case is tried in the High Court or the State Courts.

In cases before the State Courts, the case will begin with the ‘first mention’ where the charge will be read and explained to him¹² after which he will be asked whether he wishes to claim trial or plead guilty to the charge. Alternatively, the court may grant an adjournment without the plea being taken.¹³ For more serious cases which are triable only in the High Court, the accused will first be produced before a Magistrate’s Court and the charge will be explained to him. Usually this will be followed by committal proceedings where a magistrate will decide whether there are sufficient grounds for committing the accused for trial before the High Court.¹⁴ If there are not sufficient grounds, the magistrate will discharge the accused and if there are sufficient grounds, he will commit the accused for trial before the High Court.¹⁵

2.1.2 Plea-Negotiation

In 2004, the Attorney-General’s Chambers introduced the Criminal Case Management System (CCMS). This is an arrangement that brings the prosecution and the defence together to discuss the merits of and issues in the case and to engage in plea negotiation.¹⁶ The judge is not involved in this process. If the case is unresolved at this stage, there is a further opportunity for resolution in the State Courts. After the trial date is set, and before the trial, the parties may agree to have the case referred for ‘Criminal Case Resolution’ (CCR).¹⁷ The purpose is ‘to ascertain whether there are alternative options to trial that may not have been fully and adequately explored’ and ‘not to reduce the number of trials by actively encouraging pleas of guilty.’¹⁸ The CCR process is facilitated by a judge who will not be the one presiding at the trial should the case remain unresolved. Plea-negotiation in Singapore at present remains largely an informal practice.¹⁹ Representations made in the course of plea-negotiation are privileged.²⁰ ‘There is a long-established practice or convention… that such representations are made “without prejudice” and that the [Public Prosecutor] will not seek to admit them in evidence against the accused should the representations be rejected.’²¹

2.1.3 Pre-trial

Prior to the trial, a criminal case disclosure conference will be held for the purpose of settling the following matters: (a) the filing of the Case for the Prosecution and the Case for the Defence; (b) any issues of fact or law which are to be tried by the trial judge at the trial proper; (c) the list of witnesses to be called by the parties to the trial; (d) the statements, documents or exhibits which are intended by the parties to the case to be admitted at the trial; and (e) the trial date.²² The filing obligations referred to in item (a) arise from a new regime of criminal pre-trial discovery, known as ‘criminal case disclosure’, which came into effect in 2011.²³ This statutory regime of criminal case disclosure is augmented by a common law duty of disclosure.²⁴ According to the Court of Appeal in PP v Li Weiming,²⁵ pre-trial criminal case disclosure serves the objective of finding the truth²⁶:

The interest of the Prosecution in a criminal trial is not to obtain a conviction at any costs, and a procedure whereby the Prosecution first lays its cards on the table is an acknowledgment that it is the duty of the Prosecution to prove its case beyond reasonable doubt and to assist the court by placing before it all relevant facts and evidence so that the truth may be ascertained… From the perspective of the accused, an early disclosure of the Prosecution’s case enables him to make preparations for his defence, and although the mutual exchanges of information makes a limited incursion into the accused’s right to silence, it ensures that relevant facts are not concealed from the trial judge. Reciprocal discovery, if properly implemented, therefore enhances the reliability and transparency of the criminal justice process in searching for the truth.

2.1.4 Trial

At the commencement of the trial, the charge will be read and explained to the accused and his plea will be taken.²⁷ Judges are conscious of their duty to ascertain the truth even in cases where the accused elects to plead guilty. The court must be satisfied, before recording his plea, that his choice is free and informed,²⁸ in particular, that the accused ‘understands the nature and consequences of his plea’ and ‘intends to admit to the offence without qualification’.²⁹ Where the accused is charged with an offence punishable with death, the High Court will not record a guilty plea unless the accused has been committed to stand trial and evidence is led by the prosecution to prove its case.³⁰

In practice, ‘before a plea of guilty by the accused is accepted by the court, a statement of facts setting out the circumstances in which the offence is alleged to have been committed is read to the accused by the Prosecution and the accused is required to admit such statement.’³¹ The trial judge has a legal duty to record the statement of facts and to scrutinise it to ensure that all the elements of the charge are made out on those facts.³² This is to enable the judge to ascertain that the accused understands the nature of his guilty plea and intends to admit without qualification the offence alleged against him,³³ and also to assist the judge to determine the appropriate sentence.³⁴

Where the accused refuses to plead or does not plead or claims trial, the court will proceed to hear the case.³⁵ Trials are of an adversarial nature. Parties are responsible for presenting their respective cases and evidence. There is no jury system; the judge acts as the fact-finder. For non-capital offences, the Law Society’s Criminal Legal Aid Scheme provides legal assistance to accused persons who cannot afford to hire a lawyer and meet certain criteria.³⁶ All persons facing capital charges are eligible for free legal representation under the Legal Assistance Scheme for Capital Offences which is administered by the Supreme Court.³⁷

At the commencement of the trial, the prosecutor will present an opening address in which he will state shortly the nature of the offence and the evidence he proposes to adduce.³⁸ Following the opening address, the prosecutor will proceed to present the evidence. After the prosecutor has examined a witness, the defence will have the opportunity to cross-examine him, and this may be followed by re-examination of the witness by the prosecutor.³⁹ After the prosecutor has concluded its case, it is open to the defence to apply to dismiss the case on the ground that there is no case to answer.⁴⁰ The court will then have to decide whether the prosecution has succeeded in producing ‘some evidence which is not inherently incredible and which satisfies each and every element of the charge’⁴¹; if the court forms the view that such evidence exists, it will call on the accused to give his defence.⁴² At this point, the court will have to inform the accused of the following options⁴³:

First, if you elect to give evidence you must give it from the witness box, on oath or affirmation, and be liable to cross-examination. Second, if you elect not to give evidence in the witness box, that is to say, remain silent, then I must tell you that the court in deciding whether you are guilty or not, may draw such inferences as appear proper from your refusal to give evidence, including inferences that may be adverse to you.

When the court calls upon the accused to give his defence, he may either plead guilty or choose to enter his defence.⁴⁴ Should the latter option be taken, the defence will proceed to open its case and call its witnesses.⁴⁵ The accused cannot be compelled to give evidence.⁴⁶ However, if he chooses not to give evidence at his trial, the court may draw adverse inferences against him as appear proper.⁴⁷ If the accused elects to take the witness stand, his evidence must be given on oath or affirmation and he is liable to cross-examination. After the defence has presented its evidence, it will give a closing address to which the prosecution will have the final right of reply.⁴⁸

Thereafter the court will deliberate and give its judgment. If the court finds the accused guilty as charged, it will proceed to hear submissions by the prosecution and the plea in mitigation by the defence prior to deciding on the sentence.⁴⁹

2.1.5 Post-trial

The prosecution may appeal against the acquittal of the accused and the sentence delivered by the trial court. Similarly, the accused may appeal against his conviction and against his sentence.⁵⁰ There is also the possibility of petitioning to the High Court for criminal revision in respect of criminal proceedings and matters in the State Courts.⁵¹ This power is ‘exercised sparingly’ and ‘the possible existence of a serious injustice must be present’ before the High Court will act.⁵² The option of petitioning for criminal revision is important to an accused person whose conviction was on a guilty plea. This is because once a guilty plea is entered, the accused loses the right to appeal on the conviction.⁵³ ‘In such a situation, an application by way of criminal revision would be the only means by which the accused could have a wrongful conviction set aside.’⁵⁴ An appropriate situation for the exercise of this revisionary power is where ‘additional evidence before the reviewing court casts serious doubts as to the guilt of the accused’.⁵⁵

2.2 Actors: Duties and Accountability

2.2.1 Police Officers

An important function of the police is crime detection. The law confers on the police an array of powers to perform this function. Most pertinent for our purposes is the power to detain and question suspects.⁵⁶ The Police Force Act (PFA)⁵⁷ contains provisions on ‘duties and discipline of police officers’.⁵⁸ Under section 28 PFA, senior police officers may be disciplined under the authority of the Public Service Commission. Disciplinary proceedings against senior police officers are regulated by the Public Service (Disciplinary Proceedings) Regulations. For officers below the rank of inspector, disciplinary proceedings are provided for in the Police Regulations. The Internal Affairs Office is an investigation entity within the Singapore Police Force which is tasked to conduct investigations into disciplinary offences and crimes committed by police officers.⁵⁹ Police improprieties in the course of conducting investigation, including interrogation of suspects, are referred to the Internal Affairs Office for investigation. Such improprieties may constitute a disciplinary offence under section 40 of the Police Force Act as well as a criminal offence.⁶⁰ While criminal prosecution⁶¹ of, and civil claims against,⁶² police officers do occur, more often than not the matter is dealt with as a disciplinary offence.⁶³

2.2.2 Prosecutors

Under the Legal Profession (Professional Conduct) Rules 2015,⁶⁴ the prosecutor ‘must present the evidence against an accused person fairly and impartially, and without malice, fear or favour’⁶⁵ and ‘must comply with the constitutional, evidential and procedural rules which operate in a criminal trial’.⁶⁶ As a general principle, the prosecutor ‘is under a fundamental duty to assist in the administration of justice’⁶⁷ and ‘must assist the court… by drawing the court’s attention to any apparent error…, any apparent omission of fact, and any procedural irregularity, which…ought to be corrected.’⁶⁸ The Supreme Court has jurisdiction to discipline public prosecutors for professional misconduct under section 82A of the Legal Profession Act.⁶⁹ In a speech by a judge of the Supreme Court, who was formerly the Attorney-General, the following was said of the ethical duties of prosecutors⁷⁰:

The goal of the prosecution is not to secure a conviction at all costs….⁷¹ Because the decision to charge an accused is made after a process of careful consideration, the Prosecutor would be expected to pursue the case with vigour to secure the conviction of one whom he sincerely believes to be guilty. Yet, the point is that the desire to secure a conviction flows from his basic commitment to justice: the Prosecutor desires to convict the guilty only because that is what justice demands. The fact that the Prosecutor’s ultimate duty is to justice also means that the Prosecutor has a duty to withdraw a charge or, even, to apply for a criminal revision if clear evidence emerges to disprove the guilt of the accused.

The same emphasis on fairness was stressed recently in a speech delivered by the Attorney-General at the Opening of Legal Year 2016 where he stated⁷²:

There is no point in securing convictions if the public is not confident that the process is fair and the convictions are safe…. [P]rosecutors have a special responsibility to uphold the integrity of the criminal justice system. We share a responsibility with the court for ensuring that prosecution is carried out fairly and the process is one in which the public can have confidence. Fulfilling this responsibility is a big part of a prosecutor’s role.

2.2.3 Defence Counsel

Defence counsel is ‘under a fundamental duty to assist in the administration of justice.’⁷³ He ‘must pursue every reasonable defence, and raise every favourable factor, on behalf of the accused person in accordance with the law’⁷⁴ and must not be influenced by his ‘personal opinion as to whether the accused person is guilty’.⁷⁵ Where the accused person confesses to the defence counsel, the latter may continue to represent him but ‘must not adduce any evidence or make any submission which is inconsistent with the confession’.⁷⁶As the judge in the same speech noted above puts it, ‘the goal of criminal defence is not to secure an acquittal at all costs.’ ‘The duty of the Defence Counsel is to ensure that no conviction is entered unless it is done: (a) by a competent Court; and (b) upon legal evidence sufficient to support a conviction.’⁷⁷

In May 2013, a Code of Practice for the Conduct of Criminal Proceedings was jointly issued by the Attorney-General’s Chambers and the Law Society of Singapore.⁷⁸ This Code does not have the force of law.⁷⁹ It merely sets out ‘best practices guidelines in the conduct of criminal proceedings’ by the Prosecution and the Defence.⁸⁰ The guidelines are aspirational and non-binding. One of them stresses that both prosecutors and defence counsel must ‘respect the fundamental rights of suspects and the right of the accused person to a fair trial’.⁸¹

2.2.4 Judges

The trial judge’s role is to make findings of fact on the basis of admissible evidence that the parties have adduced before the court.⁸² In XP v PP,⁸³ the Singapore High Court viewed the presumption of innocence and the prosecution’s burden to prove guilt beyond reasonable doubt as a reflection of the judicial duty to search for the truth. The trial judge has a duty to assess the evidence with care. He is required ‘to apply his mind to the evidence; to carefully sift and reason through the evidence to ensure and affirm that his finding of guilt or innocence is grounded entirely in logic and fact.’⁸⁴ In Thong Ah Fat v PP,⁸⁵ the Court of Appeal held that there was an inherent duty at common law for judges to give reasons for their decisions, including decisions on matters of fact.⁸⁶

Given the adversarial nature of the trial, the presentation of evidence is generally controlled by the parties. However, this is qualified by section 167(1) EA. This provision gives the trial judge wide powers to intervene in the proceedings by directly asking questions of witnesses and parties and to order the production of any evidence. However, the courts have exercised self-restraint in using this power.⁸⁷ In an adversarial system, the trial judge is to take a relatively passive role and must not ‘descend into the arena’.⁸⁸

Judicial findings of fact at the trial level is subject to appellate control. Although appellate courts are conscious that the trial judge is generally better placed to assess evidence, especially oral evidence of witnesses, they will intervene in appropriate circumstances.⁸⁹

2.3 Constitutional Rights in the Criminal Process

Article 9 of the Singapore Constitution provides for a limited number of rights in relation to the administration of criminal justice. They are the right not to be deprived of life or personal liberty ‘save in accordance with law’, the right to counsel, and the right to be brought before the magistrate within 48 hours of his arrest.

2.3.1 Right to Counsel

The right to be defended by a lawyer at the trial is also to be found in section 236 CPC.⁹⁰ However, the present discussion is on the right to counsel prior to the trial while the person is being investigated and in police custody. While Article 9(3) of the Constitution provides that ‘[w]here a person is arrested, he … shall be allowed to consult… a legal practitioner of his choice’, this right has failed to receive as strong a vindication as in other jurisdictions. First, it has been held that the police do not have to inform the arrestee of his right to counsel. The judiciary has declined to read this ‘further right’ into article 9(3).⁹¹ Neither has the arrested person any right to contact family members or friends.⁹² Secondly, the Courts have held that article 9(3) does not require the police to give the accused access to legal advice immediately upon arrest. The police do not have to wait for him to receive legal advice before they start to question and take statements from him, and the lawyer is not and does not need to be present during the questioning.⁹³ It is not uncommon to deny access to counsel until the investigation is completed and the police have taken all the statements that they want from the suspect.⁹⁴ As judicially construed, article 9(3) is satisfied so long as the person is allowed to consult a lawyer ‘within a reasonable time after his arrest’.⁹⁵ In James Raj s/o Arokiasamy v PP,⁹⁶ the Court of Appeal highlighted the need to balance ‘the arrested person’s undoubted right to legal representation’ and ‘the public interest in enabling the police to discharge their duty and carry out investigations effectively and expeditiously’.⁹⁷ The inability to get early access to their clients has long been a major source of concern for the criminal bar.⁹⁸

2.3.2 Right not to Deprived of Life or Personal Liberty Save in Accordance with Law

Article 9(1) is the closest provision that one can find in the Constitution relating to the right to a fair trial. It states that no one shall be deprived of life or personal liberty save in accordance with ‘law’. In Ong Ah Chuan v PP,⁹⁹ the constitutionality of a statutory provision which created a rebuttable legal presumption was challenged. This case is not immediately related to the present project but it is noteworthy for interpreting ‘law’ for the purposes of article 9(1) as including fundamental rules of natural justice. In Yong Vui Kong v AG,¹⁰⁰ the Court of Appeal interpreted Ong Ah Chuan as endorsing the view that:

…[the Singapore] criminal justice system contains the following fundamental elements: (a) the accused can be convicted of the offence charged only if the ingredients of the offence have been proved by the Prosecution according to the standard of proof applicable to criminal proceedings (i.e., the standard of beyond reasonable doubt); (b) the tribunal trying the accused must be independent and unbiased; and (c) the accused must be heard on his defence to the offence charged. Accordingly, legislation that abrogates any of these fundamental elements may be open to challenge on the ground of inconsistency with Art 9(1).

The Court of Appeal has held that the right of silence, discussed below, is not a fundamental rule of natural justice protected under Article 9(1).¹⁰¹ This Article was relied upon unsuccessfully in a number of cases to challenge the constitutionality of the statutory power to draw an adverse inference from the accused’s silence or omission to mention material facts in his statement to the police.¹⁰²

3 Social Interest in Criminal Justice

3.1 Media Publicity and Public Comments

Criminal trials are held in open court. They are not televised.¹⁰³ In 1987, a number of persons were arrested and detained without trial under the Internal Security Act over an alleged Marxist plot to overthrow the government. Confessions by these persons were aired publicly on television. Allegations that these persons were tortured into confessing were rejected by the Government.¹⁰⁴

Criminal cases regularly receive press and other media coverage. This is allowed by the law but is subject to the doctrine of sub judice contempt. Under that doctrine, publication of views that carry a real risk of prejudice to or interference with pending court proceedings amounts to criminal contempt of court.¹⁰⁵ In 2013, a blogger put on the internet videos of interviews with two persons who claimed that police officers had assaulted them to get confessions. The videos were published while criminal proceedings were pending against those two persons. This led to a letter being issued by the Attorney-General’s Chambers to the blogger warning her that she has committed contempt of court. It was deemed that a letter of warning was sufficient and no committal proceedings for contempt were instituted against her.¹⁰⁶

Under guidelines contained in the Code of Practice for the Conduct of Criminal Proceedings by the Prosecution and the Defence, prosecutors and defence ‘should avoid making public comments outside the courtroom including, inter alia, speaking to the media about the merits of particular cases or the details of the guilt or innocence of the accused person before judgment by the court, and making any public statements regarding the character, credibility, reputation, or record of an accused person.’¹⁰⁷ Further, they ‘should not give any statement to the press or media that may amount to contempt of court or that is calculated to interfere with the fair trial of a case that has not been concluded.’¹⁰⁸

3.2 Public Interest in Miscarriages of Justice

Occasionally, allegations of police abuse of suspects are reported in the press¹⁰⁹ and online fora,¹¹⁰ and raised in Parliament. In all instances, the allegations were rejected by the government.

Noteworthy instances include one that occurred in 1994. The accused, a Thai construction worker, was prosecuted for murder. He alleged a series of ill-treatment at the hands of the investigating officers that included punching, kicking, hair-pulling, and hitting the sole of his feet with a cane. There was also evidence of a broken needle lodged in the accused’s arm. The defence claimed that this resulted from the accused having been pricked with a sharp object when he used his arm to block an officer whom he thought was going for his eyes with the object. However, the accused’s allegations were denied by the officers. After considering all the evidence, the trial judge excluded the statements because it ‘appeared to [him] that the accused had been assaulted’.¹¹¹ The accused was acquitted and discharged without calling for his defence. This case drew public attention and the matter was raised and discussed in Parliament.¹¹² A year later, the accused was prosecuted and convicted for making up false evidence that the police were responsible for the needle in his arm.¹¹³ It seems from the evidence adduced at the later trial that the accused had three other needles in his limbs. The needles, including the one that was revealed at the first trial, were believed be ‘charm needles’ inserted long ago for superstitious purposes.

There have been a few well-publicized cases in which an accused person had his conviction subsequently overturned by the appellate court or had charges against him withdrawn. For example, in 1993, a murder charge was withdrawn against the accused after evidence emerged which indicated that he was out of the country at the time of the crime. The accused had been charged on the basis of a confession obtained by officers of the Criminal Investigation Department (‘CID’). Questions were raised in Parliament¹¹⁴ and in the press¹¹⁵ about possible impropriety in the manner in which the confession was obtained. The Minister for Home Affairs said in Parliament that he was ‘completely satisfied’ that there was no impropriety.¹¹⁶ When asked why he had confessed, the accused told the press: ‘I was scared. It’s easy for people to ask why but I am the one who suffered in the CID.’ He declined to elaborate on how he suffered except to say: ‘You never know what you are going to face in the CID.’¹¹⁷

A more recent example occurred in 2011. Mr. Ismil Kadar had his conviction for murder overturned by the Court of Appeal. By then he had already spent six years in prison.¹¹⁸ In acquitting the accused, the Court of Appeal criticised the investigating officer for serious procedural lapses in the way he had taken statements from the accused and the prosecution for failing to make early disclosure of evidence to the defence.¹¹⁹

4 Incriminating Statements by the Accused: Relevant Rules of Evidence and Procedure

The prosecution does not have to produce any confession by the accused in order to secure a conviction. However, in most cases, the police are able to obtain a confession or other incriminating statements from the accused. It is very common for the prosecution to rely on evidence of such statements at a trial.¹²⁰ Confessions tend to be given a lot of weight. In the Court of Appeal case of Lee Chez Kee v PP,¹²¹ V. K. Rajah JA attributed this to the fact that ‘a confession is inculpatory in nature’; ‘it is a statement made against the interest of its maker and hence inherently more reliable.’ A person may be convicted on the basis of his pre-trial confession alone even if he retracts it at the trial, and no corroboration is required.¹²² It is also possible to convict a person based solely on the confession of a co-accused provided ‘that the evidence emanating from that confession satisfies the court beyond reasonable doubt of the accused’s guilt.’¹²³

It is because confession evidence is believed to be so highly probative of guilt that there is a reluctance to exclude it. This comes from the desire not to let the guilty go free. At the same time, it is also because the evidence can play such a decisive role in securing a conviction that its admissibility should be conditional on there being sufficient assurance of reliability and on its lawful and fair provenance. This springs from our interest in the accuracy and legitimacy of the conviction.

4.1 Rules on the Obtaining of Evidence

The police are legally constrained in seeking evidence. Certain methods of obtaining evidence are criminal or otherwise wrongful. For example, it is both a crime and a tort (a civil wrong) to extract a confession from a suspect by physically assaulting him.¹²⁴ The law that make this conduct criminal or tortious are general in the sense that it is not aimed specifically at regulating the process of obtaining evidence for a criminal prosecution. Some rules do have that specific aim. For example, the CPC requires the police to obtain a search warrant before they may conduct a search of premises for incriminating evidence and the court will grant the warrant only if certain conditions are satisfied.¹²⁵ Another example, one on which this chapter focuses, is the set of rules that regulate the obtaining of statements from the accused.

The police have the power under section 21 CPC to order anyone ‘who appears to be acquainted with any of the facts and circumstances of the case’ to attend before them. This includes the suspect. Section 22(1) empowers the police to question this person.¹²⁶ When questioned, the person must state truly what he knows of the facts and circumstances of the case. But this is qualified by the privilege against self-incrimination; he has the right not to make any statement that might ‘have a tendency to expose him to a criminal charge or to a penalty or forfeiture.’¹²⁷ A statement taken from the accused under this section is popularly known as a ‘long statement’. Section 22(3) requires the statement to be (a) in writing; (b) read over to the accused; (c) if he does not understand English, interpreted for him in a language that he understands; and, (d) signed by him.

When the police finally decides to charge or proceed against a person, they must follow the procedure set out in section 23. They must read out a notice to the person. The notice will set out the charge, invite the person to make a statement and contain the caution that if the person withholds any facts relevant to his defence and raises them only at the trial, the trial judge may be less likely to believe him. A statement recorded under this section is popularly known as the ‘cautioned statement’. This statement, again, must be (a) in writing; (b) read over to him; (c) if he does not understand English, interpreted for him in a language that he understands; and, (d) signed by him.¹²⁸ The police may continue to question and take a ‘long’ statement from a person under section 22 even after he has been charged or proceeded against under section 23.¹²⁹

4.2 The Privilege Against Self-incrimination and the Right of Silence

As noted, the suspect has the privilege against self-incrimination when questioned by the police. However, this privilege has been weakened in a number of ways. First, the police do not need to inform the suspect that he has this right.¹³⁰ That the suspect was not told, prior to making a statement, of his privilege against self-incrimination does not affect its admissibility.¹³¹ Secondly, as already noted, the police may and often do deny the suspect access to a lawyer before the completion of investigation. As such, the suspect who is being interrogated, unless himself legally-trained, would likely not know that he has the privilege against self-incrimination.¹³² Thirdly, the judge may draw an adverse inference against the accused from his failure to disclose to the police facts he subsequently relies upon in his defence at the trial.¹³³ This adverse inference may be drawn not just from an omission to mention relevant fact in a cautioned statement obtained under section 23 but also from an omission to do so in a statement given under section 22 (at least those that were taken on occasions subsequent to the person having been cautioned under section 23).¹³⁴ Trial judges have not been reluctant to draw adverse inferences against accused persons for not disclosing material facts to the police.¹³⁵

The risk of an adverse inference being drawn from silence provides strong inducement for the accused to speak. It may be argued that the section 23 notice and the power to draw adverse inferences from silence do not undermine the right against self-incrimination as they merely encourage the suspect to make early disclosure of exculpatory facts—which are facts supporting his defence as opposed to facts revealing his guilt.¹³⁶ But the practical reality is that the suspect is induced to incriminate himself. The suspect may not fully understand the notice. At this stage, he has no access to a lawyer and since the beginning of 2011, the police no longer have a legal duty to explain the notice to him.¹³⁷ He may form the mistaken impression that he is required to disclose everything that he knows about the case. Further, the ‘exculpatory information may well be inextricably linked with self-incriminating information.’¹³⁸ It must also be remembered that some defences, such as provocation, works as a ‘confession and avoidance’. To raise such a defence is already to confess to the elements of the offence. The suspect may not be aware that it is for the prosecution to prove the elements of the crime beyond reasonable doubt. The section 23 notice and the power to draw an adverse inference from the suspect’s silence have the effect of weakening the right not to speak and the right to put the prosecution to proof at a trial.¹³⁹

The current position has been defended by drawing on strands of crime control ideology. Singapore’s political leaders have been praised for having ‘the political will to enact an appropriate framework to achieve’ ‘a relatively safe and secure environment that is free from crime’. This includes the introduction of the power to draw adverse inferences from silence.¹⁴⁰ The changes to the law show a shift from ‘adherence to due process’ towards ‘crime control… values’.¹⁴¹ It is also claimed that they have ‘greatly assisted… law enforcement agencies in investigating offences, leading to many more factually guilty persons being convicted through guilty pleas or convictions at trial.’¹⁴² This claim does not appear to be supported by the available empirical studies.¹⁴³

4.3 Rules on Admissibility of Evidence

The legal rules on the admissibility of evidence are to be found mainly in the EA and the CPC. They are, broadly speaking, variations of rules that exist at common law. Thus, the admissibility of evidence is subject to the hearsay rule, character and similar facts rule, and so forth. Statements obtained from the accused by the police are admissible under section 258(1) CPC provided certain conditions are met. First, the statement must have been obtained by a police officer of the rank of sergeant and above.¹⁴⁴ Secondly, as discussed below, the statement must not have been obtained by applying undue pressure and the court has a limited discretion to exclude the statement on the ground of prejudice.

5 Exclusion of Evidence Obtained by Torture

5.1 Definition of Torture

There does not appear to be any domestic statute that defines torture.¹⁴⁵ The definition of torture in Article 1 of the Convention against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment (see also below, ‘Effect of International Law (Human Rights)) and decisions of international courts were considered by the Court of Appeal in Yong Vui Kong v PP.¹⁴⁶ (What fell for decision in this case was the constitutionality of caning as a form of criminal punishment which is not relevant for present purposes.) The Court of Appeal came to the conclusion ‘that to determine whether particular conduct constitutes torture entails a fact-sensitive inquiry that requires a holistic analysis of the purpose of the conduct, the manner of its execution and its effect on the recipient.’¹⁴⁷

5.2 Prohibition Against Torture and the Exclusion of Evidence Obtained by Torture

There is no express prohibition against torture in the Constitution and no provision explicitly requiring exclusion of evidence obtained by torture. However, article 9(1) of the Constitution protects against deprivation of ‘life or personal liberty save in accordance with law’. In Yong Vui Kong v PP,¹⁴⁸ the appellant relied, among other things, on the common law prohibition against torture, citing in support the House of Lords judgment in A v Secretary of State for the Home Department (No.2).¹⁴⁹ It was argued that this common law rule has constitutional force as a fundamental rule of natural justice included in the term ‘law’ in article 9(1). The Court of Appeal agreed ‘that there is a common law prohibition against torture, and that this prohibition has been imported into domestic law pursuant to…Art 162 of the Constitution’.¹⁵⁰ However, ‘the common law prohibition of torture does not prohibit caning or any other form of corporal punishment.’¹⁵¹ It ‘has a narrow and specific compass’, is ‘concerned with the practice of torturing suspects or witnesses for the purpose of extracting evidence and confessions’ and does not ‘cover the treatment of criminals after they were found guilty of their crimes.’¹⁵² The Court of Appeal went on to state¹⁵³:

The fundamental rules of natural justice in the common law are … procedural rights aimed at securing a fair trial. Torture in its narrow sense (where it is used to extract evidence to be used as proof in judicial proceedings) would violate the fundamental rules of natural justice; to convict a person based on evidence procured by torture strikes at the very heart of a fair trial.

This passage suggests that the common law rule which renders evidence obtained by torture strictly inadmissible is part of Singapore law and has constitutional status. However, this was only an obiter dictum as the case itself was concerned with the constitutionality of caning.

This common law rule is of practical significance only in relation to evidence obtained from a third party by torture. This is because a statement obtained from the accused person by torture would be inadmissible anyway under the voluntariness rule or the oppression doctrine, both of which are examined in the next section.

6 Exclusion of Statements Obtained from the Accused by Undue Pressure

For greater details, see Ho, 2016.

That courts tend to give a lot of weight to confession evidence makes it all the more important for the police to obtain such evidence. The police might be tempted to go after a confession as a short-cut and at the expense of seeking out independent evidence.¹⁵⁴ It is necessary to have legal rules that protect against the risk of confessions being obtained by undue pressure. To those rules we now turn.

6.1 Voluntariness as a Condition of Admissibility

A statement obtained by the police from the accused is inadmissible if the prosecution is unable to satisfy the so-called ‘voluntariness test’ in section 258(3) CPC. This provision, which was previously in the EA, has been in existence since the passing of the EA in 1893; it is expressed in technical and archaic language. Under this test, the court must exclude a statement if the accused was caused to give it by any ‘inducement, threat or promise’ proceeding from a ‘person in authority’. Where no inducement was in fact made, and the accused was labouring under a self-generated false impression of an inducement, this exclusionary rule would not apply.¹⁵⁵ The prototypical ‘person in authority’ is the law enforcement officer conducting the interrogation.¹⁵⁶ Another requirement is that the inducement, threat or promise must be sufficient to give the accused grounds which would appear to him reasonable for supposing that he stands to gain an advantage if he makes the statement or suffer some ‘evil’ (that is, harm) if he does not give it.¹⁵⁷ (Read literally, the provision requires the inducement, threat or promise to have reference to the charge against the accused and the benefit to be gained or harm to be avoided must be in reference to the proceedings against him. But courts have not insisted on these requirements. Thus a statement obtained under a threat to forfeit property owned by relatives of the accused is also inadmissible.¹⁵⁸)

A statement is not rendered inadmissible merely by the fact that it was made ‘under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose of obtaining it’¹⁵⁹ or ‘when the accused was intoxicated’.¹⁶⁰ In 2010, various MPs¹⁶¹ and lawyers¹⁶² objected to these provisions. The thrust of their argument was that a statement made under such circumstances cannot be said to be voluntary or reliable. But the government could not be persuaded to change the law.

6.2 Doctrine of Oppression

At one time, bad treatment of a suspect in the course of obtaining his statement—at least where it falls short of torture—was not considered capable, without a specific threat, inducement or promise, of rendering the statement inadmissible. Oppression came later to be accepted as a ground for exclusion. It was treated as having been ‘subsumed’ in the statutory voluntariness rule discussed in the preceding section.¹⁶³ English common law authorities on the definition of oppression were followed.¹⁶⁴ According to that definition, oppression ‘imports something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary.’¹⁶⁵ In determining whether there was oppression, the court will look at the full circumstances, including length of time of questioning, period of rest, the provision of refreshment and the character of the person being questioned. In 2011, oppression as a ground for exclusion received explicit statutory recognition with the introduction of Explanation 1 to section 258(3) CPC.¹⁶⁶ Oppressive treatment will render the accused’s statement inadmissible even in the absence of an “overt act from a person in authority such as a specific threat, inducement or promise”.¹⁶⁷ However, bad treatment by the police must be very egregious for the doctrine of oppression to apply. This doctrine is seldom applied by the court.

Extremely taxing interrogation can amount to oppression. For example, in Public Prosecutor v Lim Kian Tat,¹⁶⁸ one of the statements was ‘taken during an 18-hour interrogation with an hour’s break. It was taken during the fourth night in a row in which the accused did not have any adequate sleep.’ The High Court was ‘satisfied that the accused had spoken, after the police had rejected his earlier versions, and had spoken when he would not have otherwise’ and concluded that the statement was ‘made in circumstances where there was oppression.’¹⁶⁹

The failure to provide sustenance over a long period may also, depending on the circumstances, amount to oppression. In Fung Yuk Shing v Public Prosecutor,¹⁷⁰ the suspect had been deprived of food and drink for about 7 hours when his statement was taken. The trial judge held that this amounted to oppression. On appeal, the Court of Appeal expressed disagreement.¹⁷¹ According to the Court of Appeal, whether deprivation of sustenance is sufficiently serious to justify exclusion of the evidence will depend on the circumstances of the case. The criminal bar has called for greater legal regulation of the recording process. For example, in his speech at the opening of the legal year in 2008, the President of the Singapore Law Society, Mr. Michael Hwang, reported ‘a longstanding and widespread feeling at the Bar that legislation (or at least a protocol) is needed to prescribe how… statements… are recorded’ by the police.¹⁷² Similarly, Mr Sant Singh SC, a defence lawyer who has considerable experience as a former police inspector and deputy public prosecutor, has urged that ‘provisions… be enacted to put in place a protocol for the recording of statements from accused persons’.¹⁷³

6.3 Burden of Proof

When admissibility is contested, it is for the prosecution to prove beyond reasonable doubt that the accused gave his statement voluntarily and without oppression.¹⁷⁴ The burden of proof is not as difficult to discharge as it may seem.¹⁷⁵ One reason for this might be judicial pragmatism. This can be detected, for instance, in judgment of the Court of Appeal in Panya Martmontree v Public Prosecutor.¹⁷⁶ While acknowledging that the accused need not do more than raise a reasonable doubt as to the voluntariness of his statement, the Court of Appeal added that this did not mean that ‘the slightest suspicion of an inducement, threat or promise or of an assault [was] sufficient to rule out a statement’.¹⁷⁷ The Court of Appeal was sensitive to the fact that ‘[t]he police work in difficult circumstances. If they are required to remove all doubt of influence or fear, they would never be able to achieve anything.’¹⁷⁸ This message was reiterated in Yeo See How v Public Prosecutor¹⁷⁹ where the Court of Appeal took the position that ‘there is no necessity… for interrogators to remove all discomfort. Some discomfort has to be expected—the issue is whether such discomfort is of such a great extent that it causes the making of an involuntary statement’. The pragmatism discernible in these statements carries the risk of confusing the standard of proof (which goes to our knowledge of the disputed facts) and policy considerations that relate to the kinds or levels of pressure that should be judicially tolerated.

6.4 Discretion to Exclude Wrongfully Obtained Statements

There is a difference between inadmissibility as a matter of law and discretionary exclusion. A statement obtained by means of a threat, an inducement or a promise, or by oppression, is inadmissible under the legal rules discussed above. This means that the court must exclude it.¹⁸⁰ Even in the absence of any of these vitiating factors, and even when there is no rule of law that renders the statement strictly inadmissible, the court has discretion to exclude it in exceptional circumstances. There are three major groups of relevant cases.

One group involves entrapment. While it was previously acknowledged that there is some discretion to exclude evidence if it was obtained in an entrapment, this view has since been repudiated on the basis that such evidence will invariably be more probative than prejudicial.¹⁸¹ Entrapment, it seems, cannot be a ground for discretionary exclusion.

Another group consists of cases where a statement was taken from the suspect while he was suffering from symptoms of drug withdrawal or suffering from the effects of drugs or medication. The scenario that arose in Garnam Singh v PP is a fairly typical one.¹⁸² The accused was charged with drug trafficking. He gave incriminating statements to the investigating law enforcement officers. At the trial, he sought to have the statements excluded. The accused argued that his statements were not voluntarily given because he was a heavy user of drugs and at the time that he gave the statements, he was suffering from severe withdrawal symptoms. This argument was rejected by the Court of Appeal. It held that in order to justify exclusion, the suspect ‘must be in a state of near delirium’ such that ‘his mind did not go with the statements he was making. Such, however, was not the case here.’¹⁸³ This test was found to be satisfied, and the affected statement excluded, in a subsequent case.¹⁸⁴ A distinguishing feature was that the statement was taken while the effect of drug was at its peak. The legal basis for exclusion in this kind of scenario is involuntariness of some sort and appears to be discretionary.

The third group of cases involves failure to comply with the prescribed procedure in the taking of a statement. This will generally not have the consequence of rendering the statement strictly inadmissible.¹⁸⁵ The courts have not demanded strict adherence to the legally prescribed procedure as a condition of admissibility. For example, in Panya Martmontree v Public Prosecutor,¹⁸⁶ the Court of Appeal held that even though the disputed statement (which was taken by the police under the precursor of the current section 22 of the CPC) was not read back to the accused or signed by him, it remained admissible. Since 2011, this judicial approach of not allowing procedural lapses to result in strict inadmissibility has been statutorily endorsed.¹⁸⁷

But this still leaves the possibility of discretionary exclusion in extreme cases of flagrant disregard of the applicable procedure. This discretion is a narrow one. In exercising the discretion, the judge has to weigh its likely prejudicial effect if it is admitted against the probative value of the evidence. The leading authority is Muhammad bin Kadar v Public Prosecutor.¹⁸⁸ Among other features that the court found disturbing, the statements were formally transcribed only hours after the questioning, and they were not read back or signed by the accused. No acceptable explanation was offered for these lapses. The Court of Appeal held that the statements should have been excluded by the trial judge in the exercise of his discretion.

The judgment contains a number of key rulings. First, it was held that the court has ‘a common law discretion to exclude voluntary statements that would otherwise be admissible… where the prejudicial effect of the evidence exceeds its probative value’.¹⁸⁹ This discretion can be traced to the English (House of Lords’) decision in R v Sang.¹⁹⁰

Secondly, the court should not exclude a statement in the exercise of this discretion merely because of the manner in which it was obtained. It is proper to exercise this discretion only where the procedural breach results in the evidence being more prejudicial than probative. The Court of Appeal expressly disavowed any disciplinary function in the discretion. The exclusion of evidence is not to “discipline the wrongful behaviour of police officers… or the Prosecution.”¹⁹¹ Nevertheless, the exclusion of evidence may have the incidental effect of removing ‘the incentive for [future] non-compliance on the part of police officers.’ This will help ensure that all evidence in the form of written statements coming before the court will be as reliable as possible.¹⁹²

Thirdly, the governing procedures are important safeguards of reliability. A serious breach of the relevant rules may undermine the reliability of the recorded statement, resulting in the evidence having low probative value.¹⁹³ At the same time, the prejudicial effect of the evidence may be high in the sense that admitting the statement will expose the accused to the risk of the evidence being given more weight than it deserves. The risk comes from the general aura of reliability possessed by formal statements recorded by the police. This aura of reliability is misleading where the statement was not obtained, as it should have been done, ‘under a set of strict procedures strictly observed by a trustworthy officer well-trained in investigative techniques.’¹⁹⁴

Fourthly, if the prosecution seeks to admit in evidence a statement obtained by a police officer in violation of the relevant rules and procedure, the prosecution bears the burden of proving that the evidence is more probative than prejudicial. To show that the evidence is probative, the prosecution will have to offer some reasonable explanation for the procedural irregularity that is sufficient to re-establish confidence in the reliability of the statement.¹⁹⁵ The more deliberate or reckless the non-compliance, the more difficult it will be for the prosecution to offer a sufficiently cogent explanation.¹⁹⁶

Applying these principles to the present case, the Court of Appeal doubted the bona fide of the investigating officer and the accuracy of the statements recorded by him. His procedural non-compliance was deliberate and not due to carelessness or operational necessity.¹⁹⁷ No plausible explanation was given for the ‘manifest irregularities’.¹⁹⁸ The prosecution failed to show that the probative value of the statements outweighed their prejudicial effect. Hence, the trial judge ought to have excluded both statements in the exercise of his discretion.

One commentator reads this decision and other developments as heralding ‘an impending spring’ where we will see ‘the use of broader and more abstract values like fairness to effect subtle changes in judicial attitudes’.¹⁹⁹ There is as yet no known judgment in which the court has cited Muhammad bin Kadar and exercised the discretion against the prosecution.

7 Admissibility and Effect of Derivative Evidence

There is no ‘fruit of the poisonous tree’ doctrine in Singapore. A different doctrine exists. It is sometimes called the doctrine of ‘confirmation by discovery of subsequent fact’. This doctrine is provided for in section 258(6)(c) CPC which states: ‘when any fact or thing is discovered in consequence of information received from a person accused of any offence in the custody of any officer of a law enforcement agency, so much of such information as relates distinctly to the fact or thing thereby discovered may be proved.’ This doctrine was applied in PP v Chin Moi Moi.²⁰⁰ The accused, a saleswoman, was charged with theft of a gold bangle from a customer’s flat. In her police statement, she stated, amongst other things, that she took the bangle and threw it out of the flat’s window. But the accused claimed that she was forced to sign the statement and that she had been threatened, harassed and abused. The trial judge excluded the statement. On appeal, the prosecution relied on the fact that the statement had led the police to the field at the bottom of the flat where, after a search, they found the gold bangle. According to the High Court hearing the appeal, this meant that the prosecution should have been allowed to admit in evidence that part of her statement where she stated: ‘Without much hesitation, I throw down… the gold bangle out of the kitchen window…’ The truth of this part of her statement was, as it were ‘confirmed’, by the discovery of the gold bangle at the place where it was found. ‘The rationale for the admissibility of that part of the statement which is subsequently confirmed by the discovery of a material fact is that it must be reliable’.²⁰¹

8 Effect of International Law on Human Rights

8.1 International/Human Rights Law

Singapore has thus far ratified four international human rights treaties.²⁰² However, she is not a party to the International Covenant on Civil and Political Rights²⁰³ or the Convention against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).²⁰⁴

She is however a party to the ASEAN Human Rights Declaration,²⁰⁵ article 14 of which states ‘No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment’. Singapore is a member of the United Nations. The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations in 1948.²⁰⁶ Under Article 5 of the UDHR, ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Singapore has ratified the Convention on the Rights of Persons with Disabilities; article 15 of this Convention provides that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

While the provisions in the above paragraph prohibit torture, they do not address the issue of the admissibility of evidence obtained by torture. In contrast, this issue is explicitly dealt with in article 15 of the CAT which prohibits the use as evidence of any statement obtained by torture. Although Singapore is not a party to the CAT, as noted earlier, evidence obtained by torture is likely to be treated as inadmissible.

8.2 Universal Periodic Review

Singapore has participated twice in the Universal Periodic Review (UPR). The UPR is conducted under the auspices of the United Nations’ Human Rights Council for the purpose of reviewing the human records of member states. The first UPR of Singapore was conducted in 2011 and the second in 2016.

In the National Report submitted for the 2011 UPR, the government drew attention to the fact that the Singapore Constitution ‘guarantees due process and fair trial, including prohibiting … evidence obtained by means of torture’.²⁰⁷ It is an offence ‘for anyone to cause hurt to or wrongfully confine a person for the purpose of extorting a confession or any information, which may lead to the detection of an offence’.²⁰⁸ There is a need to subject ‘individual rights…to legal limits in order to protect the rights of others, as well as to maintain public order and general welfare.’²⁰⁹ The section of the Report on criminal justice stresses that ‘it is a fundamental human right of all citizens to live in a safe environment, free from drugs, guns, random street violence and terrorism.’²¹⁰ The laws in Singapore ‘are designed to protect the public against crimes, while ensuring that persons accused of alleged crimes have due process and fair trials. Singapore’s crime rate is one of the lowest—684 per 100,000 population in 2008, with 111 violent crimes per 100,000 population—despite a relatively small police force.’²¹¹

Inputs from NGOs were sought as part of the UPR process. A Human Rights NGO (MURUAH Singapore) raised several features of Singapore’s criminal process which they found to be troubling. These included the denial of access to counsel during police investigation and the permissibility of resting a criminal conviction solely on a confession recorded in the course of police interrogation. It noted that the defence often faced evidential difficulties in challenging the voluntariness of such confessions.²¹² According to the 2011 Report of the Working Group on the Universal Periodic Review of Singapore,²¹³ Singapore did not support the recommendation by Canada to ‘adopt new provisions to inform those detained of their right to counsel and guarantee their access to Counsel immediately upon arrest.’²¹⁴

In the 2015 National Report for the second UPR,²¹⁵ the government reiterated that it considers ‘the safety and security of the person to be a fundamental human right, without which other rights cannot genuinely be enjoyed.’²¹⁶ The priority of Singapore’s criminal justice system is to ‘deter crime and protect society against criminals.’²¹⁷ In its submission for the second UPR, MARUAH Singapore essentially repeated the observations and recommendations alluded to above.²¹⁸ The Report of the Working Group makes little mention of criminal justice issues save on the topic of the death penalty.²¹⁹

9 Safeguards

See generally Singh, 2006.

One way of safeguarding the voluntariness and accuracy of confessions is to allow the suspect access to legal advice before or during police interrogation. As we have seen, this safeguard is generally unavailable in Singapore as the right to counsel is a restrictive one.

In an effort to spread knowledge of rights in the course of a criminal investigation, search or prosecution, the Law Society of Singapore, working with the Attorney-General Chambers and with the support of the Ministry of Law, published a four-page pamphlet containing relevant information for distribution to police centres, police posts and community clubs and centres.²²⁰ This pamphlet is available in the four official languages in Singapore.²²¹ However, follow-up checks revealed that “some Investigating Officers had never heard of [the pamphlets], they were unavailable in a number of land divisions, and not available in the lockups where they were most needed”.²²²

An Appropriate Adult Scheme was introduced in 2015.²²³ It allows a neutral third party who is a trained volunteer to be present during police questioning of a person with mental or intellectual disability.²²⁴ Since April 2017, the scheme has been extended to minors.²²⁵ This extension was made following the apparent suicide of a fourteen-year-old boy a few hours after his release by the police.²²⁶ He had been picked up from his school and questioned alone at a police station.²²⁷ The role of the appropriate adult is not to give legal advice but to prevent miscommunication and enhance accuracy in the recording of statements.²²⁸ The scheme currently faces a shortage of volunteers.²²⁹

Another way to protect the voluntariness of statements is to have police interrogations video-recorded. The government had previously resisted repeated calls to implement a system of recording.²³⁰ In July 2015, the government finally agreed to launch a pilot programme of video recording starting in the first quarter of 2016.²³¹ This pilot project was welcomed by the legal profession.²³² But it did not materialise due to a lack of ‘appropriate legislative framework’.²³³ Legislative reform to allow video-recording is currently underway.²³⁴

10 Statistics

It is difficult to find access to relevant statistics.²³⁵ Below are some data obtained from indirect sources.

10.1 Statistics on Police Dismissals, Internal Investigations and Actions Against Officers

In a parliamentary speech delivered on 25 August 1994, the Parliamentary Secretary to the Minister for Home Affairs assured Parliament that allegations of Police abuse are not common. He revealed the following²³⁶:

[In 1993], the [Internal Investigation Section, now called the Internal Affairs Office] investigated 94 complaints of Police abuse on suspects. This represents only 0.5% of the 18,000-19,000 suspects arrested each year. Of these, only 14 cases were substantiated. The 16 errant officers involved have all been dealt with departmentally or even prosecuted in court. This figure represents less than 0.2% of our Police Force which totals over 10,600 officers.

A member of Parliament sought clarifications on two points²³⁷: first, ‘of the 14 cases that were substantiated, what kind of action was taken against the Police officers involved’ and ‘[s]econdly, whether any confessions that were extracted in those circumstances were used in prosecutions against the offenders?’ The Parliamentary Secretary did not answer the second question. In his answer to the first question, he revealed that ‘[o]ut of the 14 cases that were substantiated, one was prosecuted and charged in court. He was sentenced to one month imprisonment. The rest were departmentally dealt with.’²³⁸

The same minister reported in 1998 that the number of complaints against police abuse of suspects had dropped to 56 in 1994 which was 0.2% of the total number of suspects arrested in 1997. Only 10 cases involving 14 officers were found to be substantiated following internal investigation and they were ‘dealt with departmentally or prosecuted in court’. This was said to represent less than 0.12% of the total number of officers in the police force.²³⁹

More recently, it is reported in a newspaper that in the first 10 months of 2011, 16 police officers were sacked. It is further stated that ‘[b]etween 2007 and [2010], 80 police officers were dismissed.’²⁴⁰

10.2 Exclusion of Statements

It is uncommon for statements recorded by the police to be excluded.²⁴¹ However, full data is not easily available. In 1995, the Parliamentary Secretary to the Minister for Home Affairs reported in Parliament that from 1993 to April 1995, statements were ruled inadmissible in four out of 166 cases tried in the High Court. No data was available for cases decided in the Subordinate Court.²⁴² In 1998, the Minister of State for Home Affairs made the point in Parliament that the number of cases where a statement is challenged and excluded by the court is small. According to the Minister, that ‘the police takes its work seriously; police knows that its work will be scrutinised by the courts’.

10.3 Conviction and Acquittal Rates

Anecdotally, the acquittal rate is low. There are no easily available statistics. It is reported that in 2011, ‘156 people were hauled to court as a result of [investigations by the Corrupt Practices Investigation Bureau (‘CPIB’)]. And in the last seven years, the conviction rate in such cases has hovered between 92 and 96%.’²⁴³ A press release by the CPIB on 2 April 2015 showed that the ‘conviction rates (excluding withdrawal) for cases charged by the CPIB for corruption offences and other related offences remained high for the past 3 years, well above 95% mark.’²⁴⁴ It is unclear what inference is to be drawn from a high conviction rate. As one commentator observed, while one could argue that it reflects judicial reluctance to ‘rule against the executive’, it is equally ‘consistent with a prosecutorial job so well done that only the obviously guilty are brought to court—even the most fair and independent minded judge would have little choice but to convict.’²⁴⁵

11 Conclusion

Official discourse on the criminal process in Singapore tends to draw on crime control ideology.²⁴⁶ It is used for two main purposes. The first is to justify erosion or weak enforcement of rights, such as the right of silence and the right to counsel. The crime control ideology takes the suppression of crime as the dominant aim and is premised on an assumption about the impact of rights on crime control. To be strong on the suspect’s rights, so the argument goes, is to be soft on crime, and, conversely, those rights needs to be weakened in order to be effective in crime control. The second is to justify judicial restraint from excessive interference with the work of the police. Judges should be mindful of the practical realities of criminal investigation when applying exclusionary rules.²⁴⁷

Rights of the accused are respected but they tend to be more narrowly construed or more weakly protected than in jurisdictions that are generally viewed as progressive. The approach taken in Singapore has been defended by pointing out how it has resulted in a low crime rate and by asserting the nation’s right to set its own priorities and choose its own legal path. From time to time, concerns are aired about the criminal justice system and in connection with specific cases. These concerns have been raised in different fora—in Parliament, the press, online blogs, public speeches and professional and academic writings. Although there are reported instances of miscarriage of justice, none has generated sufficient controversy to be the catalyst for major reforms. Instead, change, when it comes about, tends come about slowly and incrementally. Singapore is concerned about its human rights image before the international community; how this will translate into legal reform in criminal justice is uncertain. International law thus far has had negligible impact in this area. There have been some welcome initiatives; especially welcome is the proposal to implement video-taping of police interviews. Certain changes have also alleviated previous perceptions of unfairness, such as the introduction of a new regime of pre-trial criminal disclosure. But there is still much that critics find to be unsatisfactory; particularly troubling is the difficulty the suspect faces in getting access to a lawyer at the police station.

12 Addendum

A number of developments have occurred after the completion of writing of this chapter. The Criminal Justice Reform Act 2018 was passed on 19 March 2018 and assented to by the President on 11 April 2018. A number of provisions in this Act were brought into force in September and October 2018. Among other changes, a new regime of audiovisual recording of statements taken by law enforcement officers have been introduced. For the moment, this is a requirement only for rape cases. There is intention to extend this gradually to other types of offences. Another change is the removal of the committal hearing for cases to be tried in the High Court.