Debated in Parliament on 29 Nov 2022.
Debate resumed.
Ms Hany Soh.
Mdm Deputy Speaker, thank you for allowing me to speak on this Bill. I would first like to declare that I am a practising lawyer.
As Senior Parliamentary Secretary Rahayu had shared earlier, in Singapore, an accused person being charged with a capital offence will typically be offered free legal representation at trial and/or appeal through the Supreme Court's Legal Assistance Scheme for Capital Offences, in short LASCO, regardless of his or her nationality and means.
The accused persons would then be assigned by the LASCO case assignment panel with a lead counsel with at least seven years of legal practice, who have represented parties in several capital trials and appeals before the Court of Appeal against conviction and trial or acquittal.
Second, an assisting counsel with at least five years of legal practice and have represented parties in capital trials. And sometimes, also with a junior assisting counsel with experience in criminal trial procedure.
This team of assigned lawyers is expected to put forward the client's instructions to the best of their ability at the earliest opportunity through making representations to the prosecution, in the hope that the charge can be reduced to a non-capital one. If unsuccessful, they would proceed to put up a strongest possible defence at trial.
In the event that the trial judge is not with the defence and finds the accused to be guilty, deliberations will be made whether an appeal ought to be made against the conviction on the basis that the trial judge might have either made an error of law or an error of fact in reaching his decision.
As the procedure develops to this stage and beyond, you will often find that the defence case is evidentially weak and chances of succeeding becomes even slimmer. While counsels might have advised the convicted person on this, the convicted persons may, at times, still insist and instruct his lawyers to explore further court proceeding options. Grasping at straws, while prolonging their time away from facing the gallows, such futile exercises would invariably cause much time and resources to be wasted. Ordering of personal costs, as one Member has suggested earlier, may be futile as PACPs more often than not, are of limited means.
I therefore support this Bill, which seeks to deal with post-appeal applications in a capital case with a prisoner awaiting capital punishment, by introducing new procedures with enhanced safeguards for post-appeal applications. However, I wish to take this opportunity to seek the following clarifications.
Firstly, in relation to legal representation. Typically, LASCO’s assignment will end in the event mitigation has been made by counsel and sentence has been given by the Court or when the case has been delisted from the Supreme Court – for example, when the prosecution eventually offers to reduce the charge to a non-capital one and be dealt with at the State Court’s jurisdiction instead – or when Presidential clemency has already been sought after the accused has been convicted of the capital offence.
In this instance, would the LASCO scheme be extended to cover applications for PACC permission and PACC which may have occurred at a much later date after Presidential clemency has already been sought but rejected?
The next question is in relation to whether one, three or five Court of Appeal judges to decide on PACC matters. Pursuant to the new section 60G(2) of the SCJA, the application for permission may be heard by a single judge exercising the Court of Appeal’s jurisdiction. The SCJA also empowers for such application to be dealt with by three or any greater uneven number of judges sitting in the Court of Appeal. In this aspect, I wish to seek the Senior Parliamentary Secretary's clarification: under what circumstances would one, three or even five Court of Appeal judges be assigned to hear application for permission to make PACC application as well as PACC application?
Whilst I understand the efficiency in getting just one Court of Appeal judge to hear and make a decision, we have witnessed on several occasions where landmark cases were made when Court of Appeal judges have dissenting views amongst themselves. The fact that such application for PACC may constitute a last-ditch attempt to prevent a possibility of miscarriage of justice means it might be prudent to have at least three Court of Appeal judges hear such applications.
Finally, in relation to the right to seek clarifications. In the event a single judge has been tasked to decide on the application for permission and/or the PACC application, I understand from the new section 60G(8) and section 60H(6) of the SCJA that such applications may be summarily addressed without an oral hearing.
In such situations where the Court of Appeal judge has refused the application, I hope that a substantive written decision will be given to explain the basis of the decision. I would also suggest that there be liberty for PACP or his/her counsel to write in to seek clarifications and make further submissions to convince the judge otherwise. As per Lord Hewart, the then Lord Chief Justice of England, “Justice must not only be done, but must also be seen to be done”. Mdm Deputy Speaker, notwithstanding my requests for clarifications and suggestions, I stand in support of this Bill.
Mr Zhulkarnain Abdul Rahim.
Mdm Deputy Speaker, if I may quote from the Court of Appeal judgment in the case of Datchinamurthy earlier this year: "When a prisoner has been sentenced to the death penalty and is to be deprived of his life, he does not necessarily lose his other legal rights. Among other things, the exercise of discretion by the State in scheduling his execution is subject to legal limits, including the usual principles of judicial review and the fundamental liberties protected by the Constitution of the Republic of Singapore".
Those where the words of Justice of Appeal Andrew Phang, a luminary legal giant who was honoured by members of the Judiciary, legal professionals and our greater community in his valedictory reference at the Supreme Court yesterday, which I attended.
When I was just a young law student, I observed a capital case hearing in the old Supreme Court Building – just next door. It was my first time attending any Court hearing. I was surprised when just before the sentencing, all of us in the courtroom was ordered to stand. I understood it as a mark of respect before the death penalty was handed down. The entire hearing also showed me how the system upholds the sanctity of life and the important role played by everyone – judges, prosecutors, and defence counsel – before anyone is deprived of his or her life. It was a moment that I remember till today.
It is thus not unsurprising that in capital offence cases, there is not only a thorough trial and appellate process where the Courts are careful and meticulous in sifting through the evidence and arguments, but there is also comprehensive support such as pro bono legal assistance through LASCO.
However, recently there have been many post-appeal applications in capital cases, also known as PACCs, which take up many years and judicial resources. Some of these PACCs were still being filed seven to 13 years after the first conviction. These PACCs take up not only judicial time and resources but in actual fact they have robbed the convicted inmates, and most importantly, their families, of what is left in their lifetime, and victims' families of a time for closure and peace.
This Bill ensures that in respect of PACC applications, there is a balance between due process and rights of PACP and also preventing the resources of the state from being unduly wasted by frivolous PACC applications. It is against this backdrop that I stand to speak today.
Mdm Deputy Speaker, I will touch on three points in my speech. First, on due process – how the Bill can ensure that the accused or PACP can be assured of due process in PACCs. Second, on liability of solicitors who are representing PACPs. Third, on what we can do together beyond this Bill to ensure that more awareness can be raised in relation to our criminal justice system.
First, on due process. The new process for a single judge hearing a PACC will save a significant amount of judicial time. This also means that it will be easier for the scheduling of court hearing on an urgent basis. However, a single judge hearing may give the impression that these PACCs are of lesser importance.
Since these PACCs are the PACP's last resort, perhaps we should require more safeguards than just one judge presiding over the PACC hearing. This is a point made by hon Member Ms Hany Soh too.
With the use of virtual hearing and technology, it is not difficult to convene a hearing with coram of two or three judges online. Perhaps it can also be clarified that for PACC of a certain degree of complexity, there can be more than one judge. To ensure efficiency, guillotine time or specific time limits for oral submissions and page limits for written submissions can be set prior to PACCs.
To borrow from the practice of international arbitration, the Courts can also set a memorandum of important issues to be address at the hearing so as to focus the judicial time on pertinent issues of relevance and materiality to the outcome of the PACC.
Separately, given the time-sensitive nature of the PACC, I hope that there will be assurance that such applications shall be heard urgently and that the AGC and its prosecutors will do their utmost best to achieve this as well.
Next, on the liability of solicitors representing the PACPs. Many defence counsel in these cases are doing it pro bono or on LASCO scheme. They are playing an important part in our criminal justice system. We owe a debt of gratitude to them appreciate their key role and contributions. Inevitably, the role of counsel comes under the spotlight in PACC applications where there tend be an abuse of process of delay in making such applications.
However, not all blame lies on the solicitor. Take for example, in cases where counsel has already advised the PACP that the chance of success is low, but the PACP insists on making such an application. In such a case, I hope that it will be made clear that any costs liability will be borne by the PACP and not counsel, except in egregious abuse of process cases caused by the solicitors.
The imposition of personal cost orders against counsel comes under the Criminal Procedure Code whereby lawyers who file applications that are frivolous or vexatious or otherwise an abuse of the process of the Court may have cost sanctions imposed on them. However, the Court of Appeal in the recent case of Iskandar bin Rahmat has recently held that a high threshold must be met before adverse cost orders may be imposed.
In the future perhaps the Ministry can consider codifying the narrow situations in which costs penalty may be considered against any counsel for clarity.
Another scenario is where new solicitors have just taken over conduct of the matter. Some PACPs are known to discharge solicitors and engage new ones at the last moment. In such cases, costs liability should be on the PACP. This is because counsel would be place in the most difficult position at the cost submissions or hearing because he or she cannot divulge or breach solicitor-client privilege. Where the PACCs are not conducted on a pro bono basis or on LASCO, a suggestion perhaps is to require the PACP to furnish security or undertaking for costs if certain requirements are met. This is nothing new in the civil appellate practice.
I hope these suggestions will encourage more defence counsel and pro bono LASCO lawyers who will step forward to contribute.
I now turn to raising awareness internationally. Under International law, the death penalty is not prohibited, whether by the International Covenant on Civil and Political Rights (ICCPR) or any other international treaty. In Singapore, capital punishment is only applied to the most serious crimes that cause grave harm to others and to society.
In this regard, I also note the United Nations Human Rights Office of the Commissioner issued a statement in 1984 on the safeguards guaranteeing protection of the rights of those facing the death penalty. In particular, paragraph 6 of the safeguards stated that steps should be taken to ensure that appeals from a death sentence shall become mandatory. Paragraph 8 states: "Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence".
In my view, this PACC Bill which further clarifies the due process beyond the appellate process is consistent with not only international law standards but also the safeguards aforesaid.
However, we can do more to raise awareness of the approach towards capital offences in our jurisdiction. For foreign PACPs, what are the measures that can be done to engage foreign embassies and governments on our approach towards PACPs who are foreign citizens? On a people-to-people level, what more can be done to raise such awareness?
One suggestion, perhaps, would be for our law schools or even the Judiciary to host foreign law students on exchange and expose them to the inner workings of criminal justice system. I hope that the foreign students or delegation will, having seen us up close, can better understand Singapore's context and criminal justice system on such capital offences.
Notwithstanding the clarifications, Mdm Deputy Speaker, I stand in support of the Bill.
Senior Parliamentary Secretary Rahayu Mahzam.
Thank you, Mdm Deputy Speaker. I thank the Members who spoke in support of the Bill. I would like to address the questions that had been raised earlier.
Firstly, on Mr Pritam Singh's questions on the threshold. With regards to the first clarification that he raised, what was meant is that the Bill merely provides that the Court must consider the matters in section, 60G(7). The Court retains discretion to grant permission even if any or all the matters are not met. The Bill sets out the conditions to be satisfied and the procedures to be followed and is enabling in nature. This is to advance the interests of justice.
The statement by the spokesman referred to by Mr Singh, made the point that ultimately the Court will retain some discretion because the Bill does not absolutely rule out the exercise of such discretion.
Parliament's intention is that such applications where the conditions in this Bill have not been satisfied should generally not succeed given the legislative intent expressed through the Bill to set up a process to be followed. The Court will exercise considerable care because there is finality, because we do not want to rule out the possibility.
The framework sets out what the Court will consider and it is likely to be extremely rare for the Court to go beyond this. So, the intention is for the framework to be followed.
Mr Singh had a second question on the point of "must not" in section 60G(15).
The provision on abuse is about abuse by the applicant, not by the lawyer. When they have previously abused the process, we think that section 60G(15) is a fair requirement because the Court can still grant permission if the requirements in section 60G(15)(c) and (d) are met, which are reasonable requirements.
On the third point about reasonable diligence, this is a factor for the Courts to consider when deciding whether the evidence and arguments in the application could have been brought earlier. And this is not a new requirement – it is already in Division 1B of the CPC.
Mr Louis Ng had asked whether the Court's power to take additional evidence can only be exercised on its own motion and about the grounds on which the Court would exercise this power.
The Court's power to take additional evidence is exercisable on the Court's own motion, or upon a party's application. The Court has discretion to decide whether to take additional evidence. Depending on the facts, possible matters that the Court may take into account could include the nature of the additional evidence and its relevance to the issues before the Court.
Ultimately, this is a matter of judicial discretion.
Mr Ng had also asked for more clarity on the meaning of the "reasonable prospect of success", which Mr Pritam Singh also touched on.
The phrase "reasonable prospect of success" is meant to clarify that in deciding whether to grant permission to make a PACC application, the CA is to consider the merits of the intended PACC application. However, as the phrase makes clear, the CA is not required to conduct a full determination of the merits when deciding whether to grant permission to make a PACC application.
Ultimately, the CA will be guided by the language of the provision, which is whether the intended PACC application has a reasonable prospect of success. To this end, it may not be helpful to focus on the standards mentioned by Mr Ng because these have been developed in different contexts and it may not be applicable to the PACC application. Moreover, as I mentioned earlier, the CA has the discretion to grant permission to make a PACC application even if the CA is not satisfied that the intended PACC application has a reasonable prospect of success.
Mr Ng had also asked for clarification on the factors that the Court should consider when determining whether an application is an abuse of process.
Under the new sections 60G(15)(c) and (d) of the SCJA, even when there was a prior abuse of process finding, as I mentioned earlier, the CA may grant an application for PACC permission if: one, the PACP adduces material that was not adduced in court before the date of the most recent finding of abuse of process; and two, the material could not, even with reasonable diligence, have been adduced in court before that date.
The new section 60M(2) of the SCJA sets out, non-exhaustively, some matters that the Court may take into account in deciding whether to make a finding of abuse. For example, the Court may consider whether the application is based on material that could not have been adduced before the relevant date, even with reasonable diligence.
Ms Hany Soh and Mr Zhulkarnain Abdul Rahim raised questions about the coram for applications for PACC permission.
A PACC application cannot be heard and determined by a single Judge. Only an application for permission to make a PACC application can be heard and determined by a single Judge. Having a single Judge hear the application for permission to make a PACC application reflects the fact that, at this stage, the Court is only deciding whether permission to make the PACC application should be granted, and the Court is not required to conduct a full determination of the merits of the PACC application.
In a related vein, under the existing section 394H of the CPC, an application for permission to make a review application in respect of a decision of the CA is to be heard by a single judge sitting in the Court of Appeal.
Further, even in the case of an application for permission to make a PACC application, the CA has discretion in each matter whether to convene a coram of three Judges or a greater uneven number of Judges. Depending on the facts, a possible matter that the Court may take into account could be an issue raised in the application. And ultimately, this is a matter of judicial discretion.
Mr Zhulkarnain offered some suggestions to ensure the efficient use of judicial time for PACC applications. In line with Mr Zhulkarnain's suggestions, the Bill expressly allows the Court to make any incidental directions or give any interim orders as considered necessary for the management of the case, including a stay of execution of the capital sentence.
And as to Mr Zhulkarnain's point about the time-sensitive nature of such applications, the cases have shown that the Courts hear them urgently. For example, when a criminal motion was filed on 25 April 2022, two days before the PACP's scheduled execution, the Court heard the matter the very next day, on 26 April 2022.
Ms Hany Soh asked about the written grounds of decision and whether the applicant can seek clarifications and make further submissions after applications are summarily dismissed. The Bill requires the CA to consider the applicant's written submissions, if any, before summarily refusing an application. The CA has discretion to decide whether it will issue a judgment or grounds of decision together with or following the issuance of the written order. Any consequential matters raised will be dealt with by the CA.
Ms Soh had also asked about whether LASCO will be extended to cover PACC applications. Any such extension will have to be carefully studied in consultation with the relevant stakeholders before a decision is taken.
Mr Zhulkarnain asked about costs orders against lawyers. All lawyers have a duty to conscientiously assess the merits of a case before engaging in court proceedings. If the lawyer thinks there is no merit but the PACP insists on making the application, the lawyer should decline to act. The Courts have observed that the filing of ill-considered and baseless applications by lawyers cannot be justified on the basis that the PACP faces a capital sentence.
There are well-established principles on when a personal costs order can be made against a lawyer. It is for the Courts, in the exercise of judicial discretion, to determine whether to make a personal costs order against a lawyer. In such cases, the lawyer will have the opportunity to be heard.
Mr Zhulkarnain has highlighted the importance of raising international awareness and understanding of Singapore's approach to capital offences. We agree that this is important. Criticisms of Singapore's approach are often based on misconceptions and inaccurate facts. Singapore actively engages in international fora such as the UN, as well as bilaterally to address misconceptions and explain our approach. We will continue to engage and raise awareness and I thank Mr Zhulkarnain for his suggestions on how we can do so.
I believe I have answered the questions raised by the Members. With that, Madam, I beg to move.
Are there any clarifications? None.
Question proposed.
Question put, and agreed to.
Bill accordingly read a Second time and committed to a Committee of the whole House.
The House immediately resolved itself into a Committee on the Bill. – [Ms Rahayu Mahzam].
Bill considered in Committee; reported without amendment; read a Third time and passed.
Resolved, "That Parliament do now adjourn to 12.00 noon tomorrow." — [Ms Indranee Rajah].
Adjourned accordingly at 7.06 pm.
PAPERCUTS