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The origins of Singapore’s current legal system is bound together with its history as a former British colony. In 1819, Sir Stamford Raffles of the British East India Company established a trading post in Singapore. Shortly after, in 1826, the British Parliament passed the Second Charter of Justice which in effect imported and applied English law in the Straits Settlements (i.e., the British settlements on the Malay Peninsula, which included Singapore).
During its stint as a British colony, other laws were also implanted by the English into Singapore. In the field of criminal law, for example, the Indian Penal Code of 1860 was adopted by the Straits Settlements in 1872, and used instead of English common law for the relevant offences.
After Singapore gained independence in 1965, however, it increasingly found that the law ‘received’ from the British no longer suited its needs, and started to develop its own autochthonous legal system. In 1993, appeals to the Privy Council (a UK-based body) were abolished. In the same year, the Application of English Law Act (Cap 7A, 1994 Rev Ed) came into force, and set out the extent (and limits) to which English law would apply in Singapore.
Today, Singapore’s legal system, although bearing family resemblances to other commonwealth countries, is very much a law of its own. Like most other legal systems, Singapore takes reference from other jurisdictions to gauge the possible efficacy and necessity of certain legal developments. Judgments from certain jurisdictions may even be considered persuasive in court if we have certain legislative history in common (with UK, Australia, and Malaysian cases being the foreign jurisdictions often cited). However, Singapore courts do decline to follow other jurisdictions on the basis that e.g., the social contexts of the countries are different. For example, there is no Singapore equivalent of UK’s Human Rights Act of 1998, since this was a UK incorporation of the European Convention of Human Rights into domestic British law.
TYPE OF SYSTEM
Singapore considers itself to have a Westminster-model parliamentary democracy. The Constitution is the supreme law of Singapore. Other sources of law include legislation, subsidiary legislation, and judge-made law (through precedents).
LEGAL AID SITUATION
a. Quick summary of some avenues of legal aid in Singapore
- Legal Aid (representation):
All applicants: CLAS (non-capital criminal charges), LASCO (capital charges)
Singaporeans/PRs only: Legal Aid Bureau (civil claims)
Foreigners only: HOME (migrant workers) JWB (migrant workers)
- Legal Advice (e.g., through one-off legal clinics):
All applicants: AWARE (women only), Jamiyah (Syariah law)
Singaporeans/PRs only: Community Legal Clinic, SCWO (women, civil and muslim law, Singapore residents)
Foreigners only: Healthserve (migrant workers) TWC2 (migrant workers) MWC (migrant workers)
Acronyms used (in alphabetical order): AWARE (Association of Women for Action and Research), CLAS (Criminal Legal Aid Scheme), HOME (Humanitarian Organization for Migration Economics), JWB (Justice Without Borders), LASCO (Legal Aid Scheme for Capital Offences), MWC (Migrant Workers’ Centre), SCWO (Singapore Council of Women’s Organizations), TWC2 (Transient Workers Count Too).
b. State-sponsored legal aid
- Criminal cases:
The Criminal Legal Aid Scheme (“CLAS”) provides legal assistance to anyone in Singapore who faces non-capital criminal charges in Court under the Penal Code or 16 other statutes,  provided that they pass both means and merits tests. This extends to non-Singaporeans and non-PRs.
The Legal Assistance Scheme for Capital Offences (“LASCO”) assigns free legal counsel to anyone who is charged with an offence where the penalty may be death (i.e., capital offences, e.g., murder, kidnapping, trafficking in Class A drugs). LASCO will provide legal representation at trial and on appeal, usually with one leading counsel and one assisting counsel. There is neither a means test to pass nor eligibility criteria to satisfy.
- Civil cases:
The Legal Aid Bureau (“LAB”) provides legal aid for Singaporeans and Permanent Residents (“PRs”) who pass means and merits tests in civil cases. Also eligible are citizens/residents of contracting states who are involved in applications under the Hague Convention on the Civil Aspects of International Child Abduction. If the applicant is below the age of 21, the applicant’s parent/guardian must apply on their behalf. The Legal Aid Bureau is run by the Ministry of Law.
The Community Legal Clinic also provides one-off basic legal advice for Singaporeans and Permanent Residents. The Community Legal Clinic is run by the Law Society of Singapore.
c. Other existing organizations providing pro bono legal aid
On top of directly state-sponsored legal aid, there are a number of other organizations that provide pro bono legal aid. Some NGOs focus on specific groups of applicants, such as migrant workers (HOME, Healthserve, TWC2, MWC); women (AWARE, SCWO); and startup companies (ACE). Other NGOs focus on specific areas of law, such as Syariah law (Jamiyah), intellectual property matters (IPOS), and consumer complaints (CASE).
acronyms: Action Community for Entrepreneurship (“ACE”), Intellectual Property Office of Singapore (“IPOS”), Consumers Association of Singapore (“CASE”)
d. Number of lawyers
As of 2018, there were 5,336 legal practitioners in Singapore.
SOURCES OF DEFENDANT'S RIGHTS
Singapore Constitution, in particular Art 9:
Liberty of the person
9.—(1) No person shall be deprived of his life or personal liberty save in accordance with law.
(2) Where a complaint is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him.
(3) Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
(4) Where a person is arrested and not released, he shall, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey), be produced before a Magistrate, in person or by way of video-conferencing link (or other similar technology) in accordance with law, and shall not be further detained in custody without the Magistrate’s authority.
Information first received about an offence is normally recorded in a ‘First Information Report’. First information reports can be made to either police officers or other authorized persons. The recording officer/authorized person is obliged by law to follow certain procedures when information about an offence is given.
If the information is in writing, the recording officer must note the name and address of the person who gave the report, as well as the date and time the report was received. In addition, if the information appears to be signed, the officer is to file it as a report (s 14(2) CPC)
If the information is given orally and the recording officer considers it practicable to reduce to writing immediately, the officer must ensure that they must record: (i) the date and time of their receipt of the information; (ii) the name and address of the informant; (iii) the information given by the informant; and (iv) any other such particulars as the nature of the case may require. In addition, the informant, the recording officer, and the interpreter (where applicable) must, where practicable, sign this report (s 14(3) and (4), CPC)
If the information is given orally and it is impracticable for the recording officer to write down immediately, the recording officer must (i) make a note of the first information; and (ii) if the information relates to an arrestable offence, record as soon as possible a fuller statement from the informant (s 14(5) r/w s 22 CPC).
If the information is given to any authorized person, the person must immediately record the information in a report and communicate the report to a police officer whose duty is to deal with reports relating to the commission of any offence (s 15 CPC).
2. Arrest, search, and seizure laws
Offences are broadly categorized into offences that are ‘arrestable’ and ‘non-arrestable’ without a warrant. The police’s procedures and powers of arrest, search and seizure in each investigation depends on which category offence a person has committed (or which the police can reasonably suspect them of committing). Arrestable Penal Code offences are indicated in the 3rd column of the first schedule of the Criminal Procedure Code (“CPC”).
To determine if a non-Penal Code offence is arrestable:
- (i) check for specific power of arrest in the particular legislation.
- (ii) if no specific power of arrest, check for the prescribed sentence: punishable with imprisonment for > 3 years = arrestable; punishable with imprisonment for < 3 years or fine only = non-arrestable.
All other offences are non-arrestable unless otherwise specified.
- Arrest without warrant:
In general, a warrant for arrest must be obtained for the police to arrest a person (see ss 69-74 CPC for procedural requirements). However, there are provided certain circumstances in which a warrant need not be obtained. In addition to (a) ‘arrestable’ offences, the following people can be arrested without a warrant under s 64(1) CPC:
• (b) possesses a housebreaking tool without being able to provide a lawful excuse for having it;
• (c) an absconded offender under section 88;
• (d) reasonably suspected to be in possession of stolen/fraudulently obtained property and reasonably suspected to have committed an offence to obtain it
• (e) obstruction of police officer doing duty or (attempted/)escapee from lawful custody
• (f) deserter from Singapore Armed Forces, Singapore Police Force, volunteer/auxiliary/special forces attached to the police, or any visiting forces lawfully present in Singapore
• (g) suspect that that person is trying to conceal his presence to commit an arrestable offence
• (h) has no apparent means of subsistence or who cannot give a satisfactory account of himself;
• (i) is known to be a habitual robber, housebreaker or thief, or a habitual receiver of stolen property knowing it to be stolen, or who is known to habitually commit extortion or to habitually put or attempt to put persons in fear of injury in order to commit extortion;
• (j) breach of peace (commission or attempt in the presence of a police officer)
• (k) planning to commit an arrestable offence if cannot otherwise be prevented
• (l) subject to police supervision
• (m) breached detention order
There is other legislation that provides for arrest without a warrant, inter alia –
• Any person who commits or is reasonably suspected of committing an offence under the Misuse of Drugs Act (See s 25)
• Any person who commits an offence under s 40 of the Miscellaneous Offences (Public Order & Nuisance) Act (See s 40)
• Any person who commits or is reasonably believed to have committed an offence under the Immigration Act (See s 51)
• Any person who commits an offence under the National Registration Act (See s 16(1))
- Physical but not unnecessary restaint:
Physical restraint: When arresting, the arrestee’s body must be touched/confined unless person submits to arrest by word or action (s 75 CPC)
No unnecessary restraint: The person must not be restrained more than is necessary to prevent his escape. (s 76 CPC)
- Right to be informed of grounds of arrest:
“Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest.” (s 9(3) Constitution)
• General information is sufficient: under what power he is being arrested under and the grounds of his arrest.
• “as soon as may be” – a question of fact in each case
• If not informed, the accused’s arrest and detention can be deemed false imprisonment until he is told (Christie v Leachinsky)
- Right to counsel:
“Where a person is arrested, (…) he shall be allowed to consult and be defended by a legal practitioner of his choice (s 9(3) Constitution; s 236 CPC)
• Within a reasonable time after arrest. Need not be immediately after arrest; right to be defended by an advocate must be balanced against the duty of the police to carry out effective investigations. Whether the time is ‘reasonable’ is a question of fact in each case. (Jasbir Singh v PP – 2 weeks; affirmed by the Court of Appeal in James Raj S/o Arokiasamy v PP)
• Right to counsel is not an unqualified right. Accused can only be entitled to be defended by a legal practitioner of his choice insofar as the legal practitioner is similarly willing and able to defend him. (Balasundaram v PP)
• No right to be informed of right to counsel
• No right of foreign persons to consular access before statements are recorded.
In general, the police’s powers of search depends on whether the offence is arrestable or not. In general, if the investigation involves a non-arrestable offence, the Police have no automatic powers of search, and will have to apply for a search warrant (s 25 CPC, cf. s 34 CPC).
- Of people:
Search of arrested people without bail (s78(1) CPC)
In this search of the person arrested, the police may place in safe custody all articles other than necessary wearing apparel found upon the person. Search for name and address: any person who is lawfully in custody and unable to give a reasonable account of himself may be searched to find out their name or address (s 80 CPC). Detention and search of people found in a place which is being searched for an object: where a search for anything is lawfully made in any place in respect of any offence, every person found there may be lawfully detained until the search is complete (s 81(1) CPC). Furthermore, if the thing sought can be concealed on a person, the people found in the place can be searched for it by or in the presence of a police officer rank sergeant and above (s 81(2) CPC).
Search of a woman: must be by another woman unless suspected of terrorism or unless the search cannot be made within a reasonable time by a woman (s83 CPC).
- Of premises:
Starting point: search warrant needed to be issued by the court (s 25 CPC).
Search without warrant for items related to arrestable offences: the investigating police officer may search for a document or other thing in any place without a search warrant if he considers the item necessary for his investigation, and: (a) he has reason to believe that the person in possession of the item is unlikely to produce it; (b) he has reason to believe that the item is likely to be removed; or (c) it is not known who possesses this item or thing (s 34 CPC).
These powers include access to and limiting access to any computer if the police officer has reasonable cause to suspect that it is or has been used in connection with or contains evidence relating to the arrestable offence (s 39 CPC).
Search without warrant of the premises of the person related to arrestable offence: police officers are allowed to enter and search any place belonging to/in the control of a person who is: (i) under arrest for an arrestable offence, (ii) connected to the arrestable offence, or (iii) has given shelter to the person under arrest for an arrestable offence (s 78(2) CPC).
Search without warrant for stolen property: police officers rank sergeant and above can without a warrant search a place which they have reasonable cause to suspect contains stolen property if they have good grounds to believe that the property is likely to be removed (s 32 CPC). In addition, any police officer who has authorization by the Commissioner of Police can search premises which are or have been (for the past 12 months) been occupied by persons convicted of receiving stolen property, harbouring thieves, fraud/dishonesty etc. for the stolen property (s 33 CPC).
Search without warrant for a person sought to be arrested: police officers with the authority to arrest (or any other person acting under an arrest warrant) can search any place if they have reason to believe that the person to be arrested is inside (s 77 CPC). In the course of this search, the police have the power to use reasonable means to effect entry for the search, including the breaking of doors and windows (s 77(4) CPC)
c. Pre-trial detention
- Must be brought before a court without unnecessary delay
• When arrest is without a warrant: must be heard before a Magistrate’s Court without unnecessary or unreasonable delay and within 48 hours (ss 67, 68 CPC)
• When arrest is with a warrant/when arrest is by a citizen: must be brought before the relevant court without unnecessary delay
- Exception: Preventive Detention
Article 9(1) of the Constitution states that “no person shall be deprived of his (…) personal liberty save in accordance with law”. However, the Constitution simultaneously provides that any law designed to prevent actions that are (inter alia) prejudicial to the security of Singapore is valid notwithstanding that it may be inconsistent with the rights enumerated in the Constitution, including Art 9 (Art 149(1), Singapore Constitution).
Person may be detained for up to 2 years on order of Minister with the satisfaction of President: Under s 8 of the Internal Security Act (“ISA”), the Minister may order that a person be detained for up to two years if the President is satisfied that it is necessary to prevent that person from acting in any manner prejudicial to the security of Singapore.
Person may be detained for up to 12 months with satisfaction of Minister and consent of Public Prosecutor: At the same time, s 30 of the Criminal Law (Temporary Provisions) Act (“CLTPA”) allows for the detention of a person for up to 12 months if the person has been associated with activities of a criminal nature, if he has the consent of the Public Prosecutor, and if he is satisfied that this detention is necessary in the interests of public safety, peace, and good order.
Constitutional restrictions on preventive detention: Art 151 requires the authority on whose order the person is being detained to provide (i) grounds, (ii) allegations of fact and (iii) opportunity to make representation. Furthermore, no citizen can be detained for more than 3 months without being given the opportunity to make representations to the advisory board (final decision upon 2/3 of Elected Presidency, Advisory Board or Internal Security Department).
There have been efforts to judicially review the executive’s discretion under the various Acts that provide for preventive discretion. One of the main controversies is whether it the court should use a ‘subjective’ or ‘objective’ test to determine whether the Minister has been reasonable in ordering the detention (see Lee Mau Seng, Chng Suan Tze, and Teo Soh Lung; Michael Hor (2005) for a more comprehensive overview).
d. Enforcing the Rules
Note that the illegality of arrests do not affect the court’s jurisdiction to try the accused. Rather, the accused’s remedies lie in civil proceedings or disciplinary actions against the police.
(i) Lineups and other identification procedures
There is a lack of legislative guidelines regulating the conduction of identification parades. The Courts therefore generally have discretion as to whether they will admit or give weight to the evidence but must do so within the confines of procedural safeguards put in place to lessen the danger of the Court relying on unreliable identification evidence.
Firstly, the Courts will give less weight to evidence obtained from line-ups where the composition of foils is clearly unfair to the accused.
(a) Whether the case is dependent wholly or substantially on the correctness of the identification evidence alleged by the Defence to be mistaken; and if the answer is yes,
(b) If so, whether the identification evidence is of good quality, having regard to the circumstances in which it was made; or
(c) Where the quality of such evidence is poor, whether there is any other evidence that supports the correctness of the identification.
Whether identification evidence will be used and to what extent is subject to the three-step test. If the first limb is satisfied, the second or third does not have to be satisfied for the Court to rely on the evidence.
Singapore’s attitude towards admissibility of evidence obtained from police-led interrogation is also significantly more lenient than practices in other Commonwealth countries and marks a departure from the original intention that police-taken statements should be prima facie inadmissible. This attitude has been justified by arguments that the safeguards put in place for statements obtained by the Police ensure sufficient reliability.
- Oral Statements Taken Before Suspect has been Formally Charged
Under s 22(1) of the Criminal Procedure Code, before any person is formally charged with an offence, police officers have the power to compel any suspects or witnesses to appear before them. Police officers have the power to orally examine these persons and take section 22 statements from them as long as they are connected to the proceedings or persons to be charged or already charged with an offence in connection with the case at hand. These section 22 statements are prima facie admissible in Court.
Although the person being examined “shall be bound to state truly what he knows of the facts and circumstances of the case ”, he enjoys the right of silence. This right is not considered to be a Constitutional right.
The right of silence under this section has two limitations:
(a) The accused does not have to be informed of the right of silence; and
(b) The Court can make adverse inferences from the silence.
The Court of Appeal in Kwek Seow Hock v Public Prosecutor held that the Court may draw an adverse inference under Section 22(2) on the person’s failure to mention a fact that may prove his innocence in the statement given to the police during the investigation process. While this rarely forms the sole basis of conviction, it can be used to corroborate or support aspects of the Prosecution’s case.
However, because Section 22 statements are often taken when the suspect has not yet been informed of the charge against him, it makes it difficult for him to discern what facts would be exculpatory and which would be self-incriminating. Section 22 statements are also taken again after the suspect has been charged but where the details of the charge are not fresh on his mind, opening the door to adverse inferences made against the accused when his omissions are caused by forgetting the events or facts relevant to the Charge.
- After Suspect has been Formally Charged
Under s 23(1) of the Criminal Procedure Code, after a suspect has been formally charged or informed that he may be prosecuted for an offence, he must be served with or have read to him a notice that contains:
1. Information about the Charge; and
2. The consequences of keeping silent or refusing to give a statement.
There is no right to silence for statements made under s 23 of the Criminal Procedure Code. If the suspect continues to keep quiet or omits important information that is useful for his case in his statement, the Court will have the power to draw adverse inferences based on this silence.
- Procedural Safeguards during Interrogation Process
The procedural safeguards for the interrogation process operate almost entirely retroactively. Accused persons can usually only challenge the admissibility of the statements they made under interrogation or argue that the statements should be given less or no weight by the Court.
Consequences of Breach of Procedural Rules: The Criminal Procedure Code does not prevent evidence from being admitted simply because the procedure set out under the code was not adhered to because “[the courts] are not concerned with how the evidence is obtained as it is not for the courts to discipline the police ”. Any lapse in procedure when taking a statement can only go towards a finding of one of the above two points. No lapse in procedure will in and of itself automatically cause statements to be excluded and no inferences will be drawn from the breach of procedure.
Statements taken by any enforcement personnel can only be excluded under two circumstances:
1. Voluntariness: Firstly, where the statement was not given voluntarily
For the statement to be admissible, the Prosecution must prove beyond reasonable doubt that the statement taken by the police officer was given voluntarily by the accused. A statement is not given voluntarily if it is made as the result of a threat, inducement or promise which operates on his mind, such that it robs him of his free will. However, the bar to Courts finding a lack of voluntariness is extremely high.
2. Prejudicial effect > Probative Value
The Court of Appeal’s judgment in Muhammad bin Kadar and another v Public Prosecutor  3 SLR 1205 marked a change in attitude towards severe breaches of procedure and their consequences for the evidence’s admissibility. While statements obtained through procedural lapses such as lying to the suspect continue to be prima facie admissible as long as they are voluntarily given, the Court now explicitly reserves the discretionary power to exclude these statements where it finds the prejudicial effect of the statement outweighs the probative value of the statement. This can be found where there have been excessive breaches of procedural guidelines that render the evidence so unreliable as to be inadmissible.
Video recording: As a practical safeguard and to better assess the arguments on whether a statement was voluntarily taken, the Courts have begun to roll out mandatory video recordings (VRIs) of interrogations and interviews. While VRIs are currently limited to those accused of specified rape offences, there are plans to expand its scope in the future. Although defence counsels will not be able to obtain copies of the recording, they will be given access to watch the recordings at an approved place for however many times they want as well as a transcript of the recording.
Disciplinary Action for Mistreatment of Suspects and Witnesses: Besides procedures during interrogation affecting the statements as evidence, there are Police General Orders in addition to a Criminal Procedure Code which police officers are trusted to follow during interrogation. Breach of procedures under these codes can be punishable. However, disciplinary proceedings relating to lack of adherence to interrogation procedures is uncommon in Singapore.
Right to counsel: There is an inalienable Right of access to Counsel in Singapore that continues to subsist even where the person is remanded under the Internal Security Act. Its source is Article 9(3) of the Constitution: Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. However, no one has the right to be informed of his right to Counsel. Furthermore, the Article does not provide the time elapsed or conditions that must be fulfilled before a person can have their Right to Counsel.
The prevailing view in Singapore is that the right to counsel must be granted “within a reasonable time” after the suspect’s arrest, and this “reasonable time” means affording a “reasonable time” for investigations -- the right does not elapse immediately after arrest. As to the actual measure of “reasonable time”, the Courts have stated that it is instead a question of fact because it calls for a factual inquiry of all the relevant considerations, explicitly rejecting arguments that a reasonable time is within 48 hours. While the Courts have stated that the onus is on the Police officer to show that the right to counsel would impede police investigation or the administration of justice, a largely permissive view has been taken towards delays: Courts have held 2 weeks of no access to counsel to be reasonable despite the Prosecution already having taken a cautioned statement from the accused.
Rights of the accused at all times
CRIMINAL LAW SYSTEM
1. Double jeopardy
The prohibition against double jeopardy protects a person from the peril of suffering criminal penalties more than once for the same offence. Article 11(2) of the Constitution of the Republic of Singapore explicitly prohibits double jeopardy. This prohibition is also provided for under s 244 of the Criminal Procedure Code.
The prohibition will only be found to have been breached if:
1. There was a previous criminal “conviction” or “acquittal” of an “offence ”; and
2. The accused has been charged with the same offence, in fact and in law .
2. Legality principle (Presumption of Legality)
The Singapore Court of Appeal has stated in Ramalingam that there is an “established principle that the acts of high officials of state should be accorded a presumption of legality or regularity ”. This “strong” presumption applies to all officials , but is naturally stronger when it involves constitutionally conferred powers or criminal legislation. Where the accused wishes to challenge the actions of officials of state or the constitutionality of a law, he must challenge these presumptions of legality based on the principle of legality under the rule of law.
In the landmark 1988 case of Chng Suan Tze v Minister of Home Affairs  2 SLR(R) 525, the Singapore Court of Appeal affirmed the principle of legality as existing in Singapore: "the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power".
This principle has continued to be affirmed by multiple Court of Appeal judgments. There are three things the accused can challenge on the basis of the principle of legality:
- Challenging the exercise of powers of clemency
The clemency power is not “extra-legal” and is an executive power subject to legal limits. Courts have the power to ensure that the power of clemency is not being abused – however, this power is not limited to reviews on the merits but merely on the legality of the decision. Therefore, Courts will only interfere where there is conclusive evidence to show that the procedural requirements in Art 22P of the Constitution were not complied with .
- Challenging Prosecutorial Discretion
In theory, there are two general grounds where prosecutorial discretion can be subject to judicial review: where it has been exercised in bad faith for an extraneous purpose and where the exercise of prosecutorial discretion contravenes constitutional protections and rights . This is based on the principle that the Attorney-General’s exercise of his discretionary powers is subject to substantive limits: to uphold the public interest in maintaining law and order .
However, because these are extremely difficult to show in practice, these have rarely been successful in triggering successful judicial review.
For example, under s 33B(4) of the Misuse of Drugs Act, where prosecutors can provide accused persons with a certificate of assistance, bad faith will only be found if there is a knowing use of a discretionary power for extraneous purposes -- in other words, the Public Prosecutor must be shown to have knowingly exercised his discretion not to issue a certificate of substantive assistance pursuant to 33B(2)(b) for a purpose other than the intended purpose of the substantive assistance regime under s 33B (to enhance the operational effectiveness of the CNB in the disruption of drug trafficking ). In practice, it is near impossible to meet this bar given the opacity of Prosecutorial decision-making in general and the Court acknowledging that there is a presumption of constitutional legality behind Prosecutorial discretion .
- Challenging the Constitutionality of Criminal Legislation
Accused persons can also invoke the principle of legality to challenge the constitutionality of criminal legislation. The argument employed in these cases are that laws which contradict the Constitution (the supreme law of the land) should be pronounced void .
There have been some notably high-profile cases, the most prominent being the challenge against s 377A of the Penal Code which criminalizes same-sex relations between men. In Lim Meng Suan, this challenge was based on Art 12(1) of the Constitution of the Republic of Singapore, which states that “[a]ll persons are equal before the law and entitled to the equal protection of the law.” In this case, the Courts applied the presumption of constitutionality and found that the law was not so irrational as to displace the presumption .
3. Presumption of innocence
Singapore does not have an explicit constitutional or statutory basis for the presumption of innocence. Furthermore, no Singapore cases have explicitly conceptualized the presumption of innocence -- this has caused a major unresolved source of confusion as to whether the presumption of innocence is a presumption of legal or factual innocence.
Regardless, the presumption of innocence is cornerstone of the criminal justice system and the bedrock of the law of evidence and has been accepted to mean this: that every accused person is innocent until proven guilty .
Several features of the Singapore law derogate from the presumption of innocence. It has been argued that the fact that the Court is allowed to draw adverse inferences against the accused based on silence and that the Court is allowed to rely on confessions from co-accused to form a corpus of evidence to convict the accused are derogations from the Presumption of Innocence.
Furthermore, statutory presumptions under various pieces of Singapore legislation work to displace the presumption of innocence because it removes the burden on the Prosecution to prove on the evidence that the Accused is guilty beyond reasonable doubt.
Most prominently, the Misuse of Drugs Act provides for circumstances where it can be presumed based on certain pieces of evidence that the accused was knowingly in possession of controlled drugs , effectively relieving the Prosecution of the burden to prove on the evidence that the Accused had knowledge and possession.
4. Standards of proof and standards for conviction
Traditionally and historically, anyone faced with a criminal charge can only be found guilty if his guilt is proven beyond reasonable doubt . A reasonable doubt is a reasoned doubt, “a doubt for which one can give a reason, so long as the reason given is logically connected to the evidence ”. The Courts have stated that this standard means that the legal and evidential burden is on the Prosecution to show that there is no other reasonable explanation that points to innocence - showing that the accused person “probably” or “most likely” committed the crime is insufficient .
This standard is tied to the presumption of innocence. V K Rajah J (as he then was) stated in Jagatheesan s/o Krishnasamy v Public Prosecutor  4 SLR(R) 45 at : "That threshold below which society will not condone a conviction or allow for the presumption of innocence to be displaced is the line between reasonable doubt and mere doubt".
- Standard of beyond reasonable doubt continues to operate even under statutory presumption
However, Statutory presumptions create a presumption of the truth of certain facts that the accused must rebut on a balance of probabilities. This includes the Misuse of Drugs Act which provides for circumstances where it can be presumed that the accused was knowingly in possession of controlled drugs and was trafficking the drugs. However, it has been argued that these presumptions only alter the evidential burden of proof and do not affect the required standard of proof, which continues to be beyond reasonable doubt .
- Other anomalous standards of proof
In cases where the accused wishes to raise a defense against the charges against him or claim that an exception under the Penal Code applies to him, he must prove so on a balance of probabilities. Where a fact is especially within the knowledge of a person, the burden of proving the fact is upon him – but this burden is an evidential rather than legal burden.
5. Capital punishment
Singapore is a retentionist state that continues to retain capital punishment. The Court of Appeal has consistently ruled that capital punishment is not cruel or inhuman and not prohibited under the Singapore Constitution or International Law that the Country has subscribed to.
Executions are practiced on a regular basis, and there were 13 executions in 2018 . Execution is carried out by hanging . The death penalty is mandatory for murder and a handful of rarely prosecuted offenses such as mutiny, genocide, piracy, and terrorist related crimes; it is discretionary for offenses such as hostage-taking, kidnapping, economic crimes, treason, and arms trafficking . Recent amendments to the Misuse of Drugs Act have made the death penalty discretionary for the offense of trafficking .
The scope of mandatory death penalty for murder in Singapore is broader than most because it also includes group liability – where there is a common intention to murder, a person need only participate and does not have to directly do the act to be liable for murder .
As a procedural safeguard, the Court will not record a plea of guilty in a case where the accused pleads guilty to an offence punishable with death unless evidence is led by the prosecution to prove its case at the trial . Furthermore, as a substantive safeguard, accused persons charged with capital offences are automatically assigned free legal counsel under the Legal Assistance Scheme for Capital Offences .
6. Ex Post Facto punishment
Singapore has strict Constitutionally guaranteed protection against ex post Facto punishments. This can be found in Article 11(1) of the Constitution.
FAIR TRIAL RIGHTS
1. Freedom from prolonged pre-trial detention
Article 9(1) of the Constitution guarantees the right to life and personal liberty. Specifically, it provides that “no person shall be deprived of his life or personal liberty save in accordance with law”.
Article 9(4) states that a person must be produced without unreasonable delay before a Magistrate within 48 hours of his arrest (excluding the time of any necessary journey). He cannot be further detained in custody without the Magistrate’s authority.
However, these rights may be derogated pursuant to Article 9(6) of the Constitution in relation to two categories of laws.
Firstly, laws authorising the arrest and detention of persons “in the interests of public safety, peace and good order” allow for preventive detention, also known as detention without trial. This includes situations where a person is detained under the Internal Security Act (“ISA”) or the Criminal Law (Temporary Provisions) Act (“CLTPA”).
Secondly, laws addressing the “misuse of drugs or intoxicating substances” authorise the arrest and detention of persons for their treatment or rehabilitation without trial. Specifically, section 37(2) of the Misuse of Drugs Act empowers the Director of the Central Narcotic Board to order the detention of drug addicts and abusers if he is satisfied that it is necessary for the accused to undergo treatment or rehabilitation or both at an approved institution.
2. Freedom from punishment
There is no constitutional right against torture in Singapore. The death penalty was upheld as constitutional by the Court of Appeal in Yong Vui Kong v Public Prosecutor (2010) as the Constitution did not contain an express or implied prohibition against inhuman punishment.
In Yong Vui Kong v Public Prosecutor (2015), the Court of Appeal also upheld the constitutionality of caning and held that even if there was an unenumerated constitutional right against torture, caning was not torture. However, women and men over the age of 50 are excluded from caning.
3. Right to counsel
Article 9(3) of the Constitution provides that “[w]here a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice”. However, in James Raj s/o Arokiasamy v Public Prosecutor, the Court of Appeal upheld its decision in Jasbir Singh v Public Prosecutor, which held that the right of access to counsel was one available within a reasonable time and that an allowance for police investigations and procedure was intended to be incorporated within the framework of a “reasonable time”.
In addition, in Rajeevan Edakalavan v Public Prosecutor, the High Court held that accused persons did not have the ancillary right to be informed of one’s right to counsel. In Sun Hongyu v Public Prosecutor, the High Court further held that accused persons did not have a right to “contact third parties to discover and enquire into his right to counsel” or a right to “contact family and friends to enquire into the legal consequences of his arrest”.
4. Right to habeas corpus
Article 9(2) of the Constitution provides that “[w]here a complaint is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him.”
An application for a writ of habeas corpus may be brought for preventive detentions under the ISA and the CLTPA. The scope of judicial review of a detention order under the CLTPA is limited to the traditional grounds of illegality, irrationality and procedural impropriety: Tan Seet Eng v Attorney-General and another matter. In contrast, the ISA was amended in 1989 where s 8B was introduced to limit judicial review only to issues of non-compliance with any procedural requirements.
5. Right to a fair trial
Article 9(1) of the Constitution provides that a person cannot be” deprived of his life or personal liberty save in accordance with law”. The Singapore courts have recognised that the word “law” includes fundamental rules of natural justice: Ong Ah Chuan v Public Prosecutor (“Ong Ah Chuan”).
In Ong Ah Chuan, the court identified three “fundamental elements” of the Singapore criminal justice system, where a breach of any of them would be grounds for violation of Article 9(1). Firstly, criminal convictions could only be secured on proof by the prosecution of the elements of the offence beyond reasonable doubt. Secondly, the tribunal in question must not be biased (see “Right to impartial judge” below). Thirdly, the accused must be heard in his defence (see “Right to counsel” above).
Though the requirement that an offence be proved beyond reasonable doubt is commonly described as a presumption of innocence, the court in Ong Ah Chuan clarified that a statutory presumption of guilt is not necessarily unconstitutional. In that case, the accused was charged with drug trafficking and the prosecutor had relied on the statutory presumption of trafficking in making out the offence. In Yong Vui Kong v Attorney-General (Clemency), the Court of Appeal also held that Article 9(1) require adherence to the procedure in the clemency process because “that is what the law mandates”.
6. Right to notice of charges
Where a person has been charged, he must be served with and have read to him a notice in writing, which includes the offences he has been charged with: s 23(1) CPC.
In Assathamby s/o Karupiah v Public Prosecutor, the High Court averred that “[a] charge should state all essential ingredients of an offence, to give an accused notice of the offence and a chance to defend himself”.
The specific details that the charge should include is laid down in ss 123-125 of the Criminal Procedure Code. In particular, s 123(1) CPC states that every charge must state the offence with which the accused is charged while s 123(4) CPC provides that the provision of the law against which the law is said to have been committed must be mentioned in the charge.
In addition, s 124(1) CPC requires that the charge contain details of the time and place of the alleged offence and the person, if any, against whom or the thing, if any, in respect of which it was committed, as are reasonably sufficient to give the accused notice of what he is charged with.
7. Right to non self-incrimination
There is no constitutional right against self-incrimination nor is the failure to inform the accused of his right to remain silent a breach of his constitutional rights: Public Prosecutor v Mazlan bin Maidun. In that case, the Court of Appeal explained that to recognise such a right is to “elevate an evidential rule to constitutional status despite its having been given no explicit expression in the Constitution”. Consequently, a suspect or accused person need not be expressly informed of a right to remain silent when a statement is recorded from him.
Instead, accused persons enjoy what has been described as a privilege against self-incrimination. Though section 22(2) of the Criminal Procedure Code imposes a duty on a person who is questioned by the police to “state truly what he knows of the facts and circumstances”, this is qualified by the proviso that “he need not say anything that might expose him to a criminal charge, penalty or forfeiture”. However, an adverse inference may be drawn from the accused’s failure to mention a fact relied on in his defence in that statement: Kwek Seow Hock v Public Prosecutor.
Additionally, section 261(1) of the Criminal Procedure Code provides that an adverse inference may be drawn from an accused person’s failure to mention any fact which he subsequently relies on in his defence after he has been charged with an offence or informed by the police that he may be prosecuted for an offence.
Section 291(1) also states that an adverse inference may also be drawn from an accused’s refusal to give evidence or answer any question at trial. In Haw Tua Tau v Public Prosecutor, the Privy Council did not consider this a breach of the natural rules of natural justice. This was because though such powers to draw adverse inferences provided a “strong inducement” to accused persons to submit themselves to cross-examination at trial, there was no “legal compulsion” to do so.
8. Right to a speedy trial
There is no right to a speedy trial. This issue has not been canvassed before the courts. However, there is a case on whether a prolonged delay in the execution of a death sentence was unconstitutional: Jabar bin Kadermastan v Public Prosecutor. In that case, the Court of Appeal held that the accumulation of time spent on death row did not infringe the constitutional rights of prisoners.
9. Right to a trial by jury
There is no right to trial by jury. Singapore abolished trial by jury in 1969.
10. Right to impartial judge
An accused may apply for judicial review on the basis that the judge was biased. This is based on the rule encapsulated by the maxim “nemo iudex in sua causa” (“no one shall be a judge in his own cause”), which has been accepted as a fundamental rule of natural justice in relation to Article 9(1): Ong Ah Chuan.
Bias includes both actual and apparent bias. However, due to the extremely onerous standard of proof of actual bias, most cases have relied on apparent bias instead: Chee Siok Chin and another v Attorney-General.
The test for apparent bias was recently clarified as the “reasonable suspicion of bias” test in the recent Court of Appeal decision of BOI v BOJ. This is an objective test based on whether a reasonable observer would think, from the relevant circumstances, that bias was possible. A reasonable observer is informed, fair-minded and would not be complacent or unduly sensitive and suspicious. The relevant circumstances which the court may take into account in finding a reasonable suspicion of bias would be limited to what is available to an observer witnessing the proceedings.
11. Right to appeal
a. Magistrate’s Appeal to the High Court
Generally, accused persons may appeal against any judgment, sentence or order of a trial court to the High Court: s 374 CPC. However, where an accused person has pleaded guilty and has been convicted on the plea, he may appeal only against the extent or legality of the sentence: s 375 CPC. However, a question of law of public interest which has arisen in the matter and the determination of which by the Judge has affected the case may be referred to the Court of Appeal (see “Motions” below).
b. Criminal Appeal to the Court of Appeal
The Court of Appeal is empowered to hear appeals against any decision made by the High Court in the exercise of its original criminal jurisdiction. There is no appeal to the Court of Appeal from decisions made by the High Court in its appellate or revisionary jurisdiction; however, the accused may file a criminal reference under s 397(1) CPC. Where no appeal is lodged by the accused against a sentence of death, the Public Prosecutor must lodge a petition for confirmation with the Registrar of the Supreme Court 90 days after the time allowed under the CPC: s 394A(1) CPC. The Court of Appeal must then examine the record of proceedings and the grounds of decision and satisfy itself as to the correctness, legality and propriety of both the conviction and imposition of the death sentence: s 394B CPC.
c. Procedure for appeal
A petition of appeal must be lodged within 14 days after service of the record of proceedings and the grounds of decision with the Registrar of the Supreme Court (if the trial court is the High Court) or Registrar of the State Courts (if the trial court is a Magistrate’s Court or District Court): s 378(1) CPC. The appeal will be treated as withdrawn if not lodged within this timeframe though the appellate court may permit an appeal notwithstanding if it considers it to be in the interests of justice: s 378(3) r/w s 380 CPC.
d. Criminal revision
The High Court may also exercise its revisionary powers to examine the record of any criminal proceedings before the State Courts or any criminal case disclosure conference, and correct any irregularities in the decisions of such matters: ss 400 - 403 CPC.
The court has an “exclusionary discretion” where the prejudicial effect of the evidence exceeds its probative value: Muhammad bin Kadar and another v Public Prosecutor. In that case, in relation to the exclusion of statements made by the accused voluntarily, the court held that it should exercise this discretion only where there has been serious procedural irregularities that materially affect the evidential value of a voluntary statement.
This exclusionary discretion does not extend to evidence that was wrongfully obtained, such as entrapment evidence: Law Society of Singapore v Tan Guat Neo Phyllis.
Pursuant to s 258(3) of the Criminal Procedure Code, the court is also statutorily obliged to refuse to admit a statement of an accused if the making of the statement appears to the court to have been involuntary. There are two grounds on which a statement may have been made involuntarily.
Firstly, the statement must have been made as a result of some inducement, threat or promise from a person in authority. This inducement, threat or promise must have given the accused grounds which would reasonably have led him to suppose that he would gain an advantage or avoid an evil by making the statement.
However, it has been observed that the courts have demonstrated a judicial tolerance of police pressure in relation to what qualifies as an inducement, threat or promise In Chai Chien Wei Kelvin v Public Prosecutor, the Court of Appeal held that expressions by the police for the accused to “tell the truth” and that “the rope was round his neck” did not amount to threats while a remark that the accused would be allowed to call his wife if he co-operated also did not amount to an inducement or a promise.
Secondly, in Explanation 1 to s 258(3), a statement should not be admitted if it had been obtained from an accused by a person in authority who had acted in such a manner that his acts tend to sap and have in fact sapped the accused’s free will. Also known as the doctrine of oppression, the courts have set a high threshold for oppression to be found and most accused persons have failed in relying on this doctrine. For instance, the Court of Appeal has held that the deprivation of sustenance will not generally lead to the exclusion of an accused’s statement unless it was “so serious… that the [accused’s] will might have been completely overborne”: Fung Yuk Shing v Public Prosecutor.
Rights in prison
CONDITIONS OF CONFINEMENT
The prison must be kept clean and washed as often as necessary: r 105. The clothes of prisoners and their bed-clothes are also required to be aired, changed and washed as often as the medical officer may direct: r 106(1). The clothes of prisoners must be changed weekly: r 106(2).
Every prisoner must be provided with regular meals that are adequate for the basic health or medical condition of the prisoner: r 110. They are also entitled to such exercise as the medical officer considers necessary for their health: r 107.
The hours of labour for prisoners is determined by the Minister though it cannot exceed 8 hours in any one day: r 102. Prisoners are also entitled to rest days on weekends and public holidays: r 103(1). Jewish and Muslim prisoners are also entitled to observe the sabbath and fasting during Ramadan respectively: r 103(2)-(3). Prisons are also obliged to hold religious services and visits by religious ministers: r 114.
Prisoners may also have access to books and papers as well as educational programmes, as may be directed by the Commissioner: r 115(1). Long sentence prisoners may also participate in recreational activities as authorised by the Commissioner: r 115(2).
It is the Superintendent’s discretion as to the hours that prisoners are unlocked from their cell and locked up for the night, and he may fix different hours for different categories of prisoners: r 101. Every male prisoner must be confined at night in individual cells if the accommodation of the prison permits: r 80. Where prisoners must be kept together in the same cell, a minimum number of 3 prisoners must be kept in each cell and must be lighted at night and be under the constant supervision of prison officers: r 81.
Prisoners also have the privilege of sending and receiving letters monthly, which may be opened and read by a prison officer: r 127(1) r/w r 127A. They may also receive visits from their family and friends: r 127(2).
RIGHT TO MEDICAL CARE
Upon admission, every prisoner will be examined by a medical officer, who will record the prisoner’s state of health: r 77(1). Medical officers are also obliged to visit sick prisoners once daily or more frequently, prisoners sentenced to solitary confinement once daily, every other prisoner once a week: r 60(2).
An infirmary is provided for sick prisoners (r 108) and prisoners may be vaccinated at the discretion of the medical officer (r 109).
In conducting the initial examination upon the prisoner’s admission, the medical officer is obliged to give special attention to the mental condition of the prisoner: r 77(2). The medical officer is also obliged to keep careful observation on the mental condition of prisoners condemned to death and long sentence prisoners: r 62.
WOMEN'S RIGHTS IN PRISON
Female prisoners must be attended by female prison officers: r 82. Female prisoners also do not have to have their hair cut on admission unless the medical officer considers it necessary for health and cleanliness: r 78(3).
1. Initial Court Appearance
For all charges that are to be tried (whether in the District Court, Magistrate Court or High Court), the accused will first be produced before a Magistrate’s Court.
- For matters to be tried in the Magistrate’s or District Court
Matters to be tried in the Magistrate’s or District Court tend to be less serious offences. In criminal cases, a District Court can try offences where the maximum imprisonment term does not exceed 10 years or which are punishable with a fine only. However, where the law expressly provides for it, the District Court also has the jurisdiction to try offences and impose sentences which exceeds the above limits such as the Companies Act (Cap 50), Misuse of Drugs Act (Cap 185), Prevention of Corruption Act(Cap 241) and Securities Industry Act (Cap 289).
Where the case is due to be tried in the Magistrate/District Court, when an accused is first charged in court, the charge must be framed, read and explained to him. Thereafter, the accused must be asked whether he wishes to claim trial or plead guilty to the charge unless either party applies for, and the court grants, an adjournment without the plea being recorded.
- For matters to be tried in the High Court
Generally, offences to be tried in the High Court in its original jurisdiction are the more serious offences such as murder, drugs trafficking, rape and kdinapping. The Public Prosecutor may, by fiat, designate the matter to be tried in the High Court where he is of the opinion that this ought or must be done.
In matters to be tried in the High Court, the accused will be produced before a Magistrate’s Court and the charge shall be explained to be him but he will not be called upon to plead thereto.
2. Charging Instrument
The charging instrument in Singapore Criminal Law is simply known as the “charge”. Every charge must state the offence with which the accused is charged. If the law which creates the offence gives it any specific name, it may only be described in the charge by that name only (s 123(2) CPC). If the law that creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged(s 123(3) CPC). The fact that the charge is made is equivalent to a statement that the case fulfils every legal condition required by law to constitute the offence charged(s 123(5) CPC).
3. Preliminary Hearing
Prior to the Criminal Justice Reform Act 2018, most cases to be tried in the High Court go through an additional committal hearing to determine if there is sufficient evidence to commit an accused person for trial. This has since been replaced with the extension of the transmission procedure for cases to be heard in the High Court to replace the committal hearing process(s 47 Criminal Justice Reform Act 2018).
The other preliminary hearings for criminal trials are mostly in the form of “pre-trial conferences”. These are used to settle administrative matters in relation to a trial. These apply to both matters to be heard in the Magistrate/District Court and those to be heard in the High Court(s 171 CPC and s 220A CPC).
4. Pre-Trial Motions
Criminal Motions are governed by Part XX, Division 5 of the CPC. The motions commonly arising pre-trial include:
- Bail pending trial or appeal;
- Variation of the amount of bail;
- Request for production of papers and documents
- Reservation of question of law to the Court of Appeal
Criminal motions that are filed to the High Court are normally heard in Open Court. Any party to the proceedings may also apply to state a case to the relevant court on any question of law(s 395-396 CPC).
Discovery procedure in Singapore is largely governed by the Criminal Case Disclosure Conference (“CCDC”) Process as specified in Part IX, Division 1 and Division 2; and Part X, Division 5 of the CPC. CCDC procedure applies to offences triable both in the Magistrate/District and High Court, but can be dispensed away with on request by the Defence for matters heard in the Magistrate/District Court. Matters to be tried in the High Court are compulsorily subject to the CCDC procedure.
The CCDC directed by a Court will settle 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 trial; and
e. The trial date.
The Case for the Prosecution must contain the following :
a. A copy of the charge which the prosecution intends to proceed with at trial;
b. A list of the names of the witnesses for the prosecution;
c. A list of the exhibits that are intended by the prosecution to be admitted at the trial;
d. The statements of the witnesses that are intended by the prosecution to be admitted at the trial
e. Any written statement made by the accused at any time and recorded by an officer of a law enforcement agency, which the prosecution intends to adduce in evidence A list of every statement, made by the accused at any time to any enforcement agency, which the prosecution intends to adduce in evidence
f. A list of statements made by the accused which the prosecution intends to adduce in evidence.
The Case for the Defence must contain the following :
a. A summary of the defence to the charge and the facts in support of the defence;
b. A list of the names of the witnesses for the defence;
c. A list of exhibits that are intended by the defence to be admitted at the trial; and
d. If objection is made to any issue of fact or law in relation to any matter contained in the Case for the Prosecution: (i) a statement of the nature of the objection; (ii) the issue of fact on which evidence will be produced; and (ii) the points of law in support of such objection.
Further, the Prosecution is under an obligation to disclose to the Defence :
(a) any unused material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; and
(b) any unused material that is likely to be inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused.
This will not include material which is neutral or adverse to the accused – it only includes material that tends to undermine the Prosecution’s case or strengthen the Defence’s case.
1. Nature of the Trial
The Singapore Criminal Justice system, adopted from the British, is an adversarial one. The procedure for all criminal trials is provided for by s 230 of the CPC. The trial begins by the prosecutor opening his case and stating the nature of the offence (s 230(1)(d) CPC). Evidence is presented by way of the prosecutor’s examination of his witnesses, and each of them may be cross-examined by the defence, following which the prosecutor may re-examine them (s 230(1)(e) CPC). After the prosecution has concluded his case, the defence may invite the Court to dismiss the case on the basis that there is no case to answer and the prosecutor may reply to this submission (s 230(1)(f) CPC).
If after considering the evidence put forth by the Prosecution’s case, the court is of the view that there is some evidence which is not inherently incredible and which satisfies each and every element of the charge as framed by the prosecutor or as altered or framed by the court, the court must call on the accused to enter a defence (s 230(1)(j) CPC). If there is no such evidence, the court must order a discharge amounting to an acquittal (s 230(1)(k) CPC).
When the accused is called on to begin his defence, he may, before producing his evidence, open his case by stating the facts or law on which he intends to rely and make such comments as he deems necessary on the evidence for the prosecution (s 230(1)(o) CPC). Thereafter, the accused shall give evidence and then be cross-examined by other co-accused (if any), and then by the prosecutor and then be re-examined. He can then call on his witnesses to give evidence, who will then be cross-examined and re-examined. The same process follows for his co-accused (s 230(1)(p) CPC).
At the close of the defence’s case, the prosecution has the right to call on any person to testify as witness or recall a witness already re-examine a witness already re-examined for the purpose of rebuttal, and such witness may be cross-examined by the accused and co-accused, after which the prosecution may re-examine (s 230(1)(t) CPC). After this, the defence may sum up his case (s 230(1)(u) CPC), to which the prosecution has a right of reply. The court will then determine guilt of the accused (s 230(1)(v) CPC).
Article 35(8) of the Constitution provides that the Attorney-General wields the prosecutorial power in Singapore. The Attorney-General holds two hats- one as chief adviser to the Government and the other as the Public Prosecutor. He has the power and complete discretion to institute, conduct or discontinue proceedings for any offence , including private prosecutions.
In practice, officers from the Attorney General’s Chambers’ (AGC) Crime Division act as Deputy Public Prosecutors (DPPs) and Assistant Public Prosecutors (APPs) under the authority of the Attorney-General. They are responsible for all Criminal Prosecutions.
Article 9(3) of the Constitution provides that an accused person may “consult and be defended by a legal practitioner of his choice”. In cases of preventive detention, the detaining authority under Article 151(a) of the Constitution shall “as soon as may be, inform him of the grounds of detention” and the factual allegations (subject to a privilege of non-disclosure in the national interest) on which the detention order is based, and “shall give him the opportunity of making representations against the order as soon as may be”.
The right to legal counsel is not an unqualified right as the accused is only entitled to a counsel who is “willing and able to represent him” such that an accused cannot claim that his Article 9(3) rights are breached where counsel fails to turn up or is unwilling to act for the accused.
Criminal trials in both the State Courts (Magistrate and District Court) and High Court are presided by and disposed of by a single Judge (s 234 CPC).
There is no requirement for the victim of a crime to testify to warrant conviction of the accused person. Aside from this point of principle, the role of the victim at trial varies widely. At the stage of sentencing, the prosecution’s address on sentence may include a victim impact statement (s 228(2)(b) CPC). Where a victim of a sexual abuse or child abuse offence has to testify, the Court must order that the victim give evidence in-camera if the victim does not wish to testify in open Court (s 281B CPC).
Sentencing is addressed upon conviction of an accused person (s 228(1) CPC). The address of sentence may include the criminal records of the accused, any victim impact statement and other relevant factors which may affect the sentence (s 228(2) CPC). The Court must then hear any plea in mitigation of sentence by the accused to which the prosecution has a right of reply (s 228(3) CPC). At this stage, where any matter raised in the plea affects any legal condition required by law to constitute the offence charged with, the Court must reject the plea of guilty (s 228(4) CPC). Any qualification on the plea of guilty at the stage of mitigation is tantamount to retraction of the plea of guilty and the Court must reject the plea. The constitutional validity of the mandatory death sentence has been repeatedly litigated and it has always been upheld as constitutional.
An appeal against judgment, sentence or order of a court may only be made as provided for by statute (s 374(1) CPC). An appeal may lie on a question of fact, a question of law, or on a question of mixed fact and law (s 374(2) CPC).
An appeal by the Public Prosecutor shall be against the acquittal of an accused or the sentence imposed or an order of the trial court (s 374(3) CPC). Conversely, an appeal by a person convicted by a trial court shall be against his conviction, the sentence imposed on him or an order of the trial court (s 374(4) CPC).
Where a novel issue of law of public interest is raised, a Criminal Reference may be sought to determine the question of law after an initial appeal has been exhausted (s 397 CPC).
The criteria to be satisfied are that: 1. The reference to the Court of Appeal may only be made in relation to criminal matter by the High Court in its appellate or revisionary jurisdiction; 2. The reference must relate to a question of law of public interest; 3. The question of law must have arisen from the case which was before the High Court; 4. The determination of the question of law by the High Court must have affected the outcome of the case.
- See e.g., the landmark case of R v Wilans, a Straits Settlement (Penang) case which held that English law up to 1826 (both common law and equity) was introduced to Singapore through the 1826 Second Charter of Justice.
- See e.g., Yeo, Morgan & Chan, ‘Criminal Law in Singapore & Malaysia, Rev 2nd ed.’ (LexisNexis: Singapore, 2015) at 1.22-1.27
- Ministry of Law, ‘Our Legal System’ (2018) https://www.mlaw.gov.sg/our-legal-system.html
- Arms & Explosives Act (Cap. 13); Arms Offences Act (Cap. 14); Computer Misuse and Cybersecurity Act (Cap. 50A); Corrosive & Explosive Substances & Offensive Weapons Act (Cap. 65); Dangerous Fireworks Act (Cap. 72); Enlistment Act (Cap. 93); Explosive Substances Act (Cap. 100); Films Act (Cap. 107); Miscellaneous Offences (Public Order and Nuisance) Act (Cap. 184); Misuse of Drugs Act (Cap. 185); Moneylenders Act (Cap. 188) [Sections 14 & 28] 12. Penal Code (Cap. 224); Prevention of Corruption Act (Cap. 241); Undesirable Publications Act (Cap. 338); Vandalism Act (Cap. 341); Women’s Charter (Cap. 353) [Sections 65(8) and 140(1)(i)] [Section 65(8) – any person who willfully contravenes a protection order] [Section 140(1)(i) – has carnal connection with any girl below the age of 16 years]
- See http://www.lawsocprobono.org/Documents/CLAS2015_PRINT%20(updated%2018jan16).pdf for more information
- Supreme Court of Singapore, ‘Legal Assistance for Capital Offences (LASCO)’ https://www.supremecourt.gov.sg/services/self-help-services/legal-assistance-for-capital-offences
- To qualify for advice, assistance, and aid, applicants have to pass the means test. In addition, to qualify for aid (representation), applicants also have to pass the merits test. The means test qualifies people with (a) disposable income of $10,000 and below, and (b) disposable capital of $10,000 and below. Means test notwithstanding, the Director of Legal Aid can also qualify other applicants who are facing hardship. (see: https://www.mlaw.gov.sg/content/dam/minlaw/lab/About%20Us/Legal%20Aid%20Bureau%20-%20Flyer.pdf) Note however that there are some civil matters for which the LAB does not provide legal aid, such as defamation cases, as well as proceedings before the Small Claims Tribunal and the Tribunal for the Maintenance of Parents.
- Legal Aid Bureau, ‘Do I qualify for legal aid?’ (2018) https://www.mlaw.gov.sg/content/lab/en/eligibility/do-i-qualify-for-legal-aid.html
- Law Society of Singapore, ‘General Statistics’ https://www.lawsociety.org.sg/About-Us/General-Statistics
- s 2(1), Criminal Procedure Code (“CPC”).
- James Raj s/o Arokiasamy v PP (“the Messiah”)  3 SLR 750
- Lee Mau Seng v Minister for Home Affairs, Singapore & Anor [1969-1971] SLR 508; Chng Suan Tze v Minister of Home Affairs  MLJ 89 and  2 SLR 525; Teo Soh Lung v Minister of Home Affairs & Ors  SLR 40
- Michael Hor, ‘Law and Terror: Singapore Stories and Malaysian Dilemmas’ in Victor V. Ramraj, Michael Hor & Kent Roach, eds., Global Anti-Terrorism Law and Policy (Cambridge: Cambridge University Press, 2005) 273-294
- CHEN, Siyuan and CHUA, Eunice. Wrongful Convictions in Singapore: A General Survey of Risk Factors. (2010). Singapore Law Review. 28, 98-122. Research Collection School Of Law.
- Lee Desmond, "Legal and Psychological Perceptiveness on Eyewitness Testimony" (2002) 22 Sing. L. Rev. 202
- Kunasekaran s/o Kalumuthu Somasundara v Public Prosecutor  4 SLR 580
- R v Turnbull  QB 224
- CHEN, Siyuan and CHUA, Eunice. Wrongful Convictions in Singapore: A General Survey of Risk Factors. (2010). Singapore Law Review. 28, 98-122. Research Collection School Of Law.
- Muhammad bin Kadar and another v Public Prosecutor  3 SLR 1205 at 
- Muhammad bin Kadar and another v Public Prosecutor  3 SLR 1205 at 
- Michael Hor, ‘The Future of Singapore’s Criminal Process’,  25 SAcLJ 847 at page 851
- Muhammad bin Kadar and another v Public Prosecutor  3 SLR 1205 at : These safeguards give rise to the statutory-based assumption that such senior police officers are competent and will discharge their obligations conscientiously.
- s 21(1) of the Criminal Procedure Code (Cap 68): In conducting an investigation under this Part, a police officer may issue a written order requiring anyone within the limits of Singapore, who appears to be acquainted with any of the facts and circumstances of the case, to attend before him, and that person must attend as required.
- s 22(1) of the Criminal Procedure Code
- s 258(1) of the Criminal Procedure Code
- s 22(2) of the Criminal Procedure Code
- Also known as the privilege against self-incrimination. Ho Hock Lai, ‘On the Obtaining and Admissibility of Incriminating Statements’,  Singapore Journal of Legal Studies, 249–276
- Public Prosecutor v Mazlan bin Maidun and another  3 SLR(R) 968
- Public Prosecutor v Mazlan bin Maidun and another  3 SLR(R) 968. In the past, the police had to inform the suspect of his right not to say anything before questioning him. This duty was set out in rules 3, 4 and 5 of Schedule E to the Criminal Procedure Code (Cap 113, 1970 rev. ed.). The Schedule was repealed in 1976. See Mohamed Bachu Miah v. PP  2 SLR(R) 783 at , .
- S 261 of the Criminal Procedure Code
- Public Prosecutor v Chee Cheong Hin Constance  2 SLR(R) 24 at 
- Ho Hock Lai, “The Privilege against Self-Incrimination and Right of Access to a Lawyer” (2013) 25(3). SAcLJ 826 at 840–842
- Ho H.L. (2019) Criminal Justice and the Exclusion of Incriminating Statements in Singapore. In: Gless S., Richter T. (eds) Do Exclusionary Rules Ensure a Fair Trial?. Ius Gentium: Comparative Perspectives on Law and Justice, vol 74. Springer, Cham
- S 261 of the Criminal Procedure Code
- Law Society of Singapore v Tan Guat Neo Phyllis  2 SLR(R) 239 at 
- s 22(6) of the Criminal Procedure Code
- Public Prosecutor v BDA  SGHC 72 at 
- s 258(3) of the Criminal Procedure Code (Cap 68); see also https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/second-reading-speech-by-law-minister-k-shanmugam-on-the-criminal-procedure-code-bill.html
- Explanation 2 to s 258(3) of the Criminal Procedure Code
- Hor, Michael, ‘The Future of Singapore’s Criminal Process’, (2013) 25 Singapore Academy of Law Journal, 847–873 at 855
- Explanation 2 to s 258(3) of the Criminal Procedure Code
- Muhammad bin Kadar and another v Public Prosecutor  3 SLR 1205
- Lum, S. (2018, March 19). Video-recordings of suspects' statements to start in phases. Retrieved from https://www.straitstimes.com/politics/video-recordings-of-suspects-statements-to-start-in-phases
- Lum, S. (2018, March 19). Video-recordings of suspects' statements to start in phases. Retrieved from https://www.straitstimes.com/politics/video-recordings-of-suspects-statements-to-start-in-phases.
- Lee Mau Seng v Minister for Home Affairs [1971–1973] SLR(R)135
- Lee Mau Seng v Minister for Home Affairs [1971–1973] SLR(R)135 at 
- Constitution of the Republic of Singapore (1999 Rev Ed)
- Excepting enemy aliens or any person arrested for contempt of Parliament pursuant to a warrant issued under the hand of the Speaker.
- Rajeevan Edakalavan v Public Prosecutor  1 SLR(R) 10 at 
- Jasbir Singh and another v Public Prosecutor  1 SLR(R) 782 at 
- James Raj s/o Arokiasamy v Public Prosecutor  3 SLR 750 at 
- James Raj s/o Arokiasamy v Public Prosecutor  3 SLR 750
- James Raj s/o Arokiasamy v PP  2 SLR 3 at 
- Jasbir Singh v Public Prosecutor  1 SLR 782
- Re Wee Harry Lee [1983-1984] SLR(R) 274 endorsing Lord Morris’s statement in UK House of Lords in Connelly v Director of Public Prosecutions  AC 1254 at 1309: …”the test is… whether such proof as is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first offence or of an offence for which on the first charge there could be a conviction.”
- Ramalingam Ravinthran v Attorney-General  2 SLR 49 at 
- Taw Cheng Kong v Public Prosecutor  2 SLR(R) 489
- Ramalingan v AG  2 SLR 49
- At 
- Neo, Jaclyn L, ‘All Power Has Legal Limits’: The Principle of Legality as a Constitutional Principle of Judicial Review (December 2017). 29 Singapore Academy of Law Journal 667-689 (2017). Available at SSRN: https://ssrn.com/abstract=3144333
- Yong Vui Kong v Attorney-General  2 SLR 1189
- Law Society of Singapore v Tan Guat Neo Phyllis  2 SLR(R) 239 at .
- Ramalingam Ravinthran v Attorney-General  2 SLR 49 at 
- Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal  2 SLR 216 at 
- Chan, Gary Kok Yew, Prosecutorial Discretion and the Legal Limits in Singapore (March 1, 2013). Singapore Academy of Law Journal, 2013; Singapore Management University School of Law Research Paper No. 25/2013. Available at SSRN: https://ssrn.com/abstract=2312233
- Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal  2 SLR 216 at 
- Law Society of Singapore v Tan Guat Neo Phyllis  2 SLR(R) 239 at 
- Lim Meng Suang v Attorney-General  1 SLR 26
- CHEN, Siyuan. A Preliminary Survey of the Right to Presumption of Innocence in Singapore. (2012).LAWASIA Journal. 7, 78-96.Research Collection School Of Law
- “…the presumption of innocence is a presumption that an accused is legally innocent. It is simply an expression, that in a criminal trial, the prosecution is obliged to prove its case beyond reasonable doubt.” https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/oral-answer-by-law-minister-k-shanmugam-to-parliamentary-question-on-acquittal-presumption-of.html
- XP v Public Prosecutor  4 SLR(R) 686 at 
- XP v Public Prosecutor  4 SLR(R) 686 at ; Haw Tua Tau v Public Prosecutor [1981–1982] SLR(R) 133 at 
- (Cap 185, 2008. Rev Ed)
- S 17 and 18 of the Misuse of Drugs Act (Cap 185, 2008. Rev Ed)
- S 103 Penal Code; s 3 of the Evidence Act; Woolmington v The Director of Public Prosecutions  AC 462 at 481-482 (most recently approved in Took Leng How v PP  2 SLR(R) 70 at )
- XP v Public Prosecutor  4 SLR(R) 686 at 
- GCK v Public Prosecutor  SGHC 46 at 
- (Cap 185, 2008. Rev Ed)
- S 18 of the Misuse of Drugs Act (Cap 185, 2008. Rev Ed)
- S 17 of the Misuse of Drugs Act (Cap 185, 2008. Rev Ed)
- S 107 of the Penal Code; Jayasena  AC 618; s 105 of the Penal Code
- S 108 Evidence Act; Public Prosecutor v Chee Cheong Hin Constance  2 SLR(R) 24
- Jabar bin Kadermastan v Public Prosecutor  1 SLR(R) 326
- Art 9(1) of the Constitution of the Republic of Singapore
- Hermes. (2016, October 2). Maintaining the legitimacy of capital punishment in S'pore. Retrieved from https://www.straitstimes.com/opinion/maintaining-the-legitimacy-of-capital-punishment-in-spore.
- Death Penalty Database. (0AD). Retrieved from https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Singapore.
- s 316 of the Criminal Procedure Code (Cap 68)
- NOVAK, A. N. D. R. E. W. (2016). Global decline of the mandatory death penalty. Place of publication not identified: ROUTLEDGE. at pg 76
- Saad, I. (2017, March 21). Singapore completes review of mandatory death penalty. Retrieved from https://www.channelnewsasia.com/news/singapore/singapore-completes-review-of-mandatory-death-penalty-8369356.
- s 34 of the Penal Code
- s 227(3) of the Penal Code
- Legal Assistance for Capital Offences (LASCO). (0AD). Retrieved from https://www.supremecourt.gov.sg/services/self-help-services/legal-assistance-for-capital-offences.
-  3 SLR 489; SGCA 20
-  2 SLR 1129; SGCA 11
-  3 SLR 750; SGCA 33
-  1 SLR(R) 782
-  1 SLR(R) 10
-  2 SLR(R) 750
-  1 SLR 779;  SGCA 59
- [1979-1980] SLR(R) 710
-  2 SLR 1189
-  1 SLR(R) 1030;  SGHC 104 at 
-  3 SLR(R) 968
- Ho Hock Lai, “The privilege against self-incrimination and right of access to a lawyer” (2013) 25 SAcLJ 826
-  3 SLR 157
- [1981-1982] SLR(R) 133
-  1 SLR(R) 326
-  4 SLR(R) 541;  SGHC 153
-  2 SLR 1156;  SGCA 61
-  3 SLR 1205;  SGCA 32
-  2 SLR(R) 239;  SGHC 207
- Ho Hock Lai, “On the Obtaining and Admissibility of Incriminating Statements”, (2016) 2 SJLS 249
-  3 SLR (R) 619
- Ho Hock Lai, “On the Obtaining and Admissibility of Incriminating Statements”, (2016) 2 SJLS 249
-  2 SLR(R) 771
- s 158(a) Criminal Procedure Code (Cap 68) (“CPC”).
- s 158(b) CPC
- s 210(1) CPC
- s 173 CPC
- Part VII CPC
- s 123(1) CPC
- s 159(2) CPC
- s 211A CPC
- s 160 and s 212 CPC
- s 162(1) and s 214(1) CPC
- s 165(1) and s 217(1) CPC
- Muhammad bin Kadar v PP  3 SLR 1205
- Balasundaram s/o Suppiah v PP  1 SLR(R) 853
- GCK v PP  SGHC 46 at 
- Dinesh s/o Rajantheran v PP  SGHC 255
- Yong Vui Kong v AG 
- Muhammad Faizal bin Sabtu and another v Public Prosecutor and another matter  SGCA 1