Public Defenders Bill

Mr Deputy Speaker, Sir, I thank the Members who have spoken for their views and support of this Bill.

Mr Leong Mun Wai suggested that this Bill arises from the Motion concerning Ms Parti Liyani's case. That is not accurate. He might recall that the Minister for Law had specifically stated that the Ministry had started reviewing our criminal legal model and how we provide aid, in 2018 and 2019. He repeated this point during his Ministerial Statement in April this year.

Members have raised questions and suggestions on the structure and management of the Public Defender’s Office (PDO), specific provisions in the Public Defenders Bill and the provision of aid by both PDO and the Criminal Legal Aid Scheme (CLAS).

I will address each bucket of issues in turn.

First, on the PDO’s structure and management. Mr Saktiandi Supaat, Mr Louis Ng, Mr Zhulkarnain Abdul Rahim and Mr Lim Biow Chuan asked about the independence of the PDO and if there would be any conflict of interest between the PDO and the Attorney-General’s Chambers (AGC).

The PDO will be set up as a department within MinLaw, separate from AGC.

First, this ensures that the Government has oversight over the PDO. The structure we have adopted for the PDO follows a study of various common law jurisdictions, such as the UK, Australia, New Zealand and Hong Kong. The offices in these jurisdictions are accountable to the Executive arm but retain independence in day-to-day operations. This accountability is necessary to ensure better governance and fiscal control.

Second, this structure ensures independence from the Prosecution, which is under AGC. Officers in the PDO, or PD Officers, will be employed directly by MinLaw and are placed on a different scheme from the officers in AGC. They will report to the Permanent Secretary and Minister for Law. This ensures a clear separation of powers and responsibilities from the Prosecution.

Ms He Ting Ru mentioned secondments. We want talent flows from AGC, but we want to be careful to maintain independence. We are working out how this can be done and whether it should be secondment or some other mechanism. This will provide opportunities for knowledge sharing, job exposure and career development for the officers.

Mr Yip Hon Weng asked about funding and cost control measures that the PDO would need to adopt.

We have worked closely with MOF to size the resourcing needs for the PDO in the immediate term. The PDO will start modestly and scale up over time. We will review the PDO at an appropriate juncture and assess the PDO’s needs in the medium and long term, based on the trends from its initial years of operation.

On cost controls, I spoke earlier about the means and merits tests that function as key checkpoints. We want to ensure that aid only goes to those who deserve it.

I thank Mr Murali Pillai for his suggestions on how we can manage our costs, such as requesting that certain fees be waived. We will work with other agencies to ensure that our budget is well-managed.

Mr Murali Pillai, Mr Yip Hon Weng, Ms Hany Soh, Mr Raj Joshua Thomas and Ms He Ting Ru asked about the recruitment and remuneration of PD Officers.

We are in the process of recruiting suitable candidates via a robust selection process. We are looking for individuals with both the heart and necessary legal qualifications and skills. I am heartened to say that there has been a very good response from both fresh graduates and mid-career lawyers.

We are also reviewing our staff remuneration package and career development opportunities to ensure that the PDO is competitive enough to attract and retain talent. We will monitor the caseload of the PDO to see that there is adequate staffing and capacity.

I would also like to assure Mr Yip Hon Weng and Ms He Ting Ru that the PDO is not here to compete with the Criminal Bar. We intend for the PDO to be an important stakeholder in the criminal justice system and play its part to develop a competent and reputable Bar. The PDO also provides an additional avenue for lawyers to engage in community work and serve vulnerable communities.

We will consider Ms Hany Soh’s suggestions on working with the Law Society to organise trainings for our officers and for young lawyers in private practice to have the opportunity to volunteer for cases with the PDO.

Mr Murali Pillai, Mr Zhulkarnain Abdul Rahim and Mr Raj Joshua Thomas asked how we could manage the quality of our PD Officers.

Our aim is that the pool of PD Officers will comprise a healthy mix of experienced criminal lawyers, young lawyers and fresh graduates. The officers will, obviously, have to act in the best interests of the aided accused person during plea bargaining, an area of concern highlighted by Mr Zhulkarnain Abdul Rahim.

I thank Mr Murali Pillai and Mr Zhulkarnain Abdul Rahim for their suggestions on the conduct of independent audits and publishing of annual reports. We will, certainly, look into them.

On Ms Sylvia Lim's question regarding the powers of the Chief Public Defender (Chief PD) and PD Officers, they will not have the powers under the Bill to compel witnesses for interviews, similar to private solicitors.

Mr Zhulkarnain Abdul Rahim asked how complaints against PD Officers would be handled. As mentioned in my opening speech, PD Officers are subject to the same disciplinary framework as Judicial and Legal Service Officers. As public officers, PD Officers are also subject to internal disciplinary proceedings if they misconduct themselves.

Mr Murali Pillai asked for data on accused persons who have legal representation and how that relates to the number of acquittals when they claim trial. From 2017 to 2019, about half of the criminal cases involving Singaporeans and Singapore Permanent Residents in the State Courts were unrepresented.

However, it may not be fair or accurate to measure success in terms of acquittal and to measure that against legal representation. As Mr Murali Pillai pointed out, there are many factors that affect the outcome of a case – legal representation is one of many. I assure Mr Murali Pillai that our focus is on ensuring that those who need and are deserving of help, get help.

Mr Saktiandi Supaat asked how many more people will receive legal representation when the PDO is established, compared to the number represented by CLAS. In FY2020, the Government funded CLAS to cover 712 cases. With the enhancements to income and offences coverage, we estimate that this number will likely increase by about 50%.

Mr Saktiandi Supaat also asked about the provision of criminal defence aid for the bottom 35% of households by income. As I mentioned earlier, we raised our income coverage to the 35th percentile because our analysis showed that individuals up to this income threshold would find it challenging to pay for their legal costs, even for a plead guilty case. We have to balance providing sustainable aid, while exercising prudence in the use of public funds.

Ms He Ting Ru asked about the provision of aid to non-Singaporeans and Permanent Residents. Our intention is that the assistance under this Bill will be provided to Singapore Citizens and Permanent Residents (SCPRs). Non-SCPRs can look at other avenues for legal aid.

Mr Yip Hon Weng was concerned that the public might find it repugnant if tax dollars go towards supporting accused persons who are viewed as morally reprehensible.

As the Minister for Law had raised in his Ministerial Statement in April, public outrage alone cannot be the basis upon which criminal defence aid should or should not be provided. Rather, these assessments will be made based on the legal merits of the applicant's case.

Mr Murali Pillai suggested that the PDO and the Prosecution can explore the joint appointment of experts that will bind both sides. This is not the current practice for criminal cases. This suggestion involves broader procedural considerations. It will require further study.

Currently, the Prosecution, generally, asks for the accused person to undergo a forensic psychiatric assessment only after the accused person is charged in Court. Likewise, the PDO will have the avenue for doing so even after the accused person is charged in Court.

As for the early involvement of the PDO in certain cases, the Bill is only intended to cover criminal defence aid to accused persons who have been charged in Court and not those under investigations. Not all investigations result in criminal charges in Court. It is not fiscally prudent to extend aid to accused persons who are still under investigations.

Mr Gan Thiam Poh and Mr Raj Joshua Thomas suggested how we could manage the lawyers we outsource cases to. Mr Saktiandi Supaat asked what conditions need to be satisfied before the PDO will outsource cases to lawyers in private practice.

I thank Mr Gan Thiam Poh and Mr Raj Joshua Thomas for their suggestions. We will consider them. The selection process to appoint solicitors onto the panel for outsourced cases will be stringent. Only solicitors who are sufficiently skilled and with a good track record in handling criminal cases will be appointed.

On Mr Lim Biow Chuan’s question about how we will pay these lawyers, these are operational matters which we are still working out.

Second, on the Bill. Mr Murali Pillai proposed to amend the definition of “court” in clause 2 of the Bill to limit to Courts constituted under the Supreme Court of Judicature Act 1969 or the State Courts Act 1970.

I should, first, highlight that the Bill is intended to include criminal proceedings tried in a Family Court or a Youth Court. A Family Court and a Youth Court are not constituted under the State Courts Act 1970 or the Supreme Court of Judicature Act 1969. Mr Murali Pillai’s proposed amendment, therefore, excludes the Family Court and Youth Court, which can exercise criminal jurisdiction. This is not our intent. The definition in the Bill is clear and our position is that an amendment is not needed.

Let me explain. The scope of criminal defence aid is determined by the scope of proceedings in clauses 8(1) and 12(8), which have been carved out to only cover criminal proceedings. The definition of "court” cannot be looked at in vacuum.

Under the Criminal Procedure Code, criminal proceedings are heard by the Court of Appeal, the General Division of the High Court, a Family Court, a Youth Court, a District Court or a Magistrate’s Court, which exercises criminal jurisdiction. The intent is to only provide criminal defence aid to criminal proceedings before these Courts.

The term “criminal proceedings” does not contemplate other types of proceedings, such as those before the Subordinate Military Courts, the Military Court of Appeal or the Industrial Arbitration Courts. Moreover, proceedings before Military Courts are only against persons subject to military law.

In light of the clarification above, I hope that Mr Murali Pillai will withdraw his Notice of Amendment.

Mr Yip Hon Weng, Mr Saktiandi Supaat, Mr Louis Ng, Mr Lim Biow Chuan and Ms Hany Soh asked about the exclusion of offences under various legislation listed in the Schedule.

First, I should reiterate that we are excluding offences under specified legislation in paragraph 1(1)(c) of the Schedule, only where the accused person is served with a notice to attend Court or a summons. In other words, if an accused person is charged in Court after being arrested or is issued an arrest warrant, their offences under these specified legislation are included. These offences tend to be more serious in nature.

The same applies to accused persons who have been arrested and charged for more serious traffic offences under the Road Traffic Act, which is one of the specified Acts. Accused persons can apply for criminal defence aid for these offences. On Mr Yip Hon Weng’s concern that not all drivers are well-off, they can qualify for aid as long as they pass our means and merits tests, so long as the offence is not an excluded one.

Our decision not to provide aid for regulatory or minor offences is in line with many other jurisdictions, where certain offences which are less serious are also excluded. For example, in Ontario, Canada, aid is restricted to offences that are indictable or which carry a risk of incarceration. We have to strike a balance between providing aid for all offences and ensuring that costs are sustainable.

We also recognise that in a single set of proceedings, an accused person may face multiple charges, some of which are excluded offences. The Bill covers such accused persons. If granted aid, they will not be treated any differently.

The amount of contributions required will be based on the applicant's means rather than the type of offences which he or she is charged with.

The PDO will see through the matter until the criminal proceedings have concluded, even if the non-excluded proceedings are withdrawn or replaced mid-way, leaving only excluded proceedings. Where charges are taken into consideration, these remain part of the criminal proceedings.

On Ms Hany Soh's request for discretion to provide aid for offences under the 10 Acts specified in paragraph 1(1)(d) of the Schedule, we have explained the reason for their exclusion. These are Acts whose primary purpose is to deter certain behaviours which are morally depraved or bring about significant negative externalities to society.

Nonetheless, we will monitor and periodically review the list of excluded offences after the PDO has commenced operations. If we find excluded offences that are assessed to be deserving of aid, we can subsequently amend the list of excluded offences.

Ms Sylvia Lim asked about the provision of aid for Legal Assistance Scheme for Capital Offences (LASCO) matters. MinLaw remains open to the possibility of the PDO covering capital offences at a later stage.

Mr Zhulkarnain Abdul Rahim, Mr Lim Biow Chuan and Mr Leong Mun Wai asked about the specifics of our means and merits test criteria. Mr Yip Hon Weng also asked about the safeguards to prevent the use of the PDO's resources for frivolous appeals.

Our means test criteria is largely aligned with that of civil legal aid and other social support schemes where we look at the per capita household income (PCHI). The difference with the civil legal aid's criteria is that our gross monthly PCHI covers up to S$1,500.

Mr Leong Mun Wai suggested increasing the PCHI to S$2,200. We have pegged it to S$1,500. As Ms Hany Soh said, in a family of four, that would be S$6,000. It is a significant amount.

We have tried to be prudent in spending taxpayers' monies. We need to be careful. Money has to come from taxes. The House knows that expenditures are increasing and there is some resistance to how we raise the monies needed.

The provision of legal aid has been a subject of abuse elsewhere and we need to be fiscally prudent. We will start with S$1,500 and consider whether it should be further refined after the PDO commences operations. It depends on the available funds as well.

We are mindful that there may be applicants who have extenuating or special circumstances such as those listed by Mr Zhulkarnain Abdul Rahim. We will develop administrative discretions for our means test framework, which can be applied on a case-by-case basis.

We can confirm to Ms Sylvia Lim that the Minister's discretion to grant aid in the interests of justice or where it is just and proper is not intended to extend to the excluded offences in the Schedule.

I assure Mr Lim Biow Chuan that we have robust measures in place to check that an applicant is not hiding his or her income and assets. It will be an offence for an applicant to provide false or misleading statements to obtain aid.

As for our merits test criteria, I assure Mr Yip Hon Weng that the Chief PD will assess the merits of any application before deciding if aid should be granted to the applicant. Aid will not be granted indiscriminately. Even if an applicant satisfies the means and merits criteria, the Chief PD can decide whether to grant aid depending on whether it is appropriate to do so.

The Chief PD will consider factors such as those in clause 12(2) of the Bill. These include whether the applicant is likely to lose his or her livelihood if any matter in the proceedings is decided against him or her, whether any benefit may accrue to the applicant if criminal defence aid is granted and our resource constraints. This discretion allows aid to be given to those who need it most. We will use this discretion judiciously.

To circle back to Mr Zhulkarnain Abdul Rahim's question, aid can certainly be granted to an applicant who intends to plead guilty, for the purposes of formulating a mitigation plea for sentencing, so long as the requirements to the means and merits are satisfied.

Mr Raj Joshua Thomas asked about the provision of aid for criminal appeals and criminal applications. Aid can be provided to such applicants, even if it was not provided at first instance.

Where an applicant is unsuccessful in his application, the referral mechanism under clause 12(5) will not be applicable. The applicant can seek aid from organisations providing pro bono legal services such as the Law Society Pro Bono Services' Ad Hoc Pro Bono Assessment Scheme.

Next, Mr Lim Biow Chuan, Ms Hany Soh and Mr Raj Joshua Thomas queried the speed at which the merits and means tests are conducted. The Chief PD can grant provisional aid to accused persons if he is of the view that the case requires urgent attention. For instance, because the accused has been in remand for some time or by virtue of the accused person's age. We will work with the Singapore Prisons Service and the Courts to ensure that these urgent cases are handled expeditiously.

On Ms Sylvia Lim's question regarding the deliberation of non-prescribed offences by the board, the presence of the board allows for greater deliberation of offences which carry a more serious consequence on the applicant.

Regarding Ms He Ting Ru's suggestion on an appeals mechanism, none is provided. After we get some experience with the PDO, we will consider whether such an appeals mechanism will be useful.

Mr Saktiandi Supaat asked if contributions will be a norm and when an applicant will be informed of the contributions required. Mr Louis Ng asked if an applicant's aid will be discontinued if he or she is unable to make the contribution.

As I mentioned earlier, the amount of contributions is decided based on the means of the applicant. Any contribution required will be made known to the applicant before aid is granted. If an aided person is unable to pay, we will take into account any extenuating circumstances and will work with him or her to meet the contribution.

Mr Lim Biow Chuan and Mr Raj Joshua Thomas asked about the provision of criminal defence aid to multiple co-accused persons. Mr Saktiandi Supaat and Mr Zhulkarnain Abdul Rahim also asked how the PDO would choose which cases to take up if there are multiple co-accused persons.

As I mentioned earlier, where multiple co-accused persons qualify for aid, the PDO will only represent one accused person. The other co-accused persons will still receive aid as they will be referred to CLAS or, in future, assigned solicitors from a panel. This would be the case whether the co-accused person decides to plead guilty or claim trial.

An assessment will be made as to which of the accused persons would most require representation by the PDO and who can be referred to CLAS instead. For example, an accused person in remand may require more urgent representation, which can be provided by the PDO.

Mr Murali Pillai asked about how the PDO will deal with accused persons with mental illnesses. The issue is one of mental capacity. While an accused may have mental illnesses, he may not lack cognitive abilities and can give instructions. If he lacks mental capacity, there are provisions in the Mental Capacity Act for an application to Court to be made for a deputy to make decisions on the person's behalf.

If the accused person cannot give proper instructions to his or her solicitor or PD officer because of a mental condition, the Court can call for a psychiatric assessment to determine whether the person is of unsound mind and incapable of making a defence. There are provisions under our law for Court proceedings to be held off if an accused person is found to be of unsound mind.

Mr Lim Biow Chuan asked about the extent that clause 4(5) may affect legal professional privilege and confidentiality applicable to communications between an assigned solicitor and an aided accused person.

Under clause 4(5), privileged information may have to be disclosed to the Chief PD so that the Chief PD can perform his or her statutory functions in deciding whether to grant, vary or cancel aid. Such information may be necessary to enable the Chief PD to make a fully considered decision.

We recognise and respect the confidentiality that exists within a client-and-solicitor relationship but such confidentiality is subject to exceptions even within the Legal Profession (Professional Conduct) Rules and includes situations where the disclosure is permitted or required by law.

On Ms Sylvia Lim's question regarding a witness who lies to a Public Defender and whether he or she will be committing an offence, not all untruths will be covered. There will be instances where the individual lies about the means of the aided accused person in relation to the grant of aid. In such instances, the conduct will be covered.

Mr Louis Ng, Mr Murali Pillai, Mr Zhulkarnain Abdul Rahim and Mr Lim Biow Chuan asked about processes relating to the termination of criminal defence aid.

Mr Louis Ng and Mr Lim Biow Chuan asked about the discharge of an assigned solicitor. Clause 18 governs the relationship between an aided accused person and an assigned solicitor. It does not cover the representation of an aided accused person by PD officers. Clause 18 is intended to address a situation where, for example, an aided accused person repeatedly seeks to change the assigned solicitor to delay the criminal proceedings. The criminal defence aid scheme should not be used for such abuses of process.

When deciding whether to grant permission for the aided accused person to discharge an assigned solicitor or for an assigned solicitor to discontinue the provision of criminal defence aid, the Chief PD will consider all relevant factors, including any reasons provided by the aided accused person and the assigned solicitor.

Mr Murali Pillai asked about the cancellation of aid. We expect that the factors under Regulation 8 of the Legal Aid and Advice Regulations would generally apply here. For example, a grant of aid may be cancelled if the applicant provides false information in the application for criminal defence aid.

Where a grant of aid is cancelled, the PDO will work with the aided accused person and/or his or her subsequent solicitors to minimise any disruption to the criminal proceedings and ensure the proper administration of justice.

As for Mr Zhulkarnain Abdul Rahim's question on the offence for making a false or misleading statement, this is equally egregious whether someone is applying for criminal defence aid or civil legal aid. Both are criminal offences and are a waste of public resources. On this basis, we have decided to impose the same penalty for both offences.

On Mr Lim Biow Chuan's query regarding a solicitor who has been excluded from the panel of solicitors, the Bill does not cover and the PDO will not interfere with the relationship between solicitors and accused persons who are both outside of the criminal defence aid scheme. As for whether such a solicitor can continue with a frivolous Court application, there are existing provisions within the Criminal Procedure Code (CPC) which will address such conduct.

Mr Yip Hon Weng expressed concern that some victims may wish to seek personal redress through private actions. Mr Raj Joshua Thomas also asked about private prosecutions.

Thorough investigations are conducted by our Police and the AGC considers criminal complaints seriously before determining if charges should be brought against accused persons. Where a criminal charge is brought and the accused person is found guilty, the Court may also make an order for compensation to the victim, where appropriate. This process does not require the victim to engage his or her own legal representation.

If a victim wishes to take up private prosecution against an alleged perpetrator, the victim can file a Magistrate's complaint. The Courts have put in place mediation facilities to assist such private disputes, which are intentionally simplified so that there is no real need for legal representation. Hence, criminal defence aid is not provided for private prosecutions.

If the victim wishes to take up a private civil suit and cannot afford a lawyer, he or she may apply for civil legal aid with the Legal Aid Bureau. Ultimately, we want to provide aid to those who need aid, but in a sustainable manner.

Finally, the third bucket deals with the co-delivery of aid by PDO and CLAS. Mr Yip Hon Weng, Mr Louis Ng, Mr Saktiandi Supaat and Ms Sylvia Lim noted that the PDO would overlap with CLAS and asked what cases would be handled by each outfit. Mr Saktiandi Supaat, Mr Yip Hon Weng and Ms Hany Soh also proposed centralising all legal aid.

CLAS remains an important partner and player in the criminal justice system. We will continue to work with CLAS to provide criminal defence aid. This will ensure a sustainable and effective legal aid system.

To this end, PDO and CLAS will co-deliver Government-funded aid in criminal matters and applicants can apply for aid through a common application platform, whether online or at the physical shopfront at the State Courts. The assignment of cases to PDO or CLAS will be done at the backend.

Broadly, there is a two-step process for deciding which cases go to PDO or CLAS.

First, the case would be assessed for urgency. Cases which are time-sensitive, such as remand cases where the eventual sentence of the applicant could be less than the remand period, will be assigned to the PDO. This ensures that legal representation is provided as early as possible. We do not expect many such cases.

Second, the remaining cases will be shared between PDO and CLAS. This forms the bulk of cases. The actual number of cases taken on by PDO or CLAS would depend on factors such as workload and capacity. Apart from urgent cases that will be assigned to the PDO, we do not expect fundamental differences between the cases handled by the PDO or CLAS.

On Mr Saktiandi Supaat's query on the exchange and sharing of knowledge between CLAS and the PDO, we will consider this at the appropriate stage and share what we can, subject to confidentiality and privilege. Rest assured that the PDO is committed to playing a part in strengthening the expertise and knowledge of the defence bar.

MinLaw is also working with the Law Society Pro Bono Services to develop a one-stop portal, which will provide legal information in simple layman's terms. This portal will also include the various avenues of legal assistance available so that applicants will not find it challenging to navigate should they require assistance. This is part of our broader efforts to enhance access to justice.

We will also be collaborating with other agencies and stakeholders to plug the PDO into the social service ecosystem.

We want to provide a more holistic support. To this end, we will consider Mr Raj Joshua Thomas' suggestions on working with the Police to inform accused persons about the PDO and making the application process simple and accessible.

On this note, we assure Mr Lim Biow Chuan that there are rules governing the conduct of our Police officers when dealing with any witness, suspect or accused person. If Mr Lim feels that any information given by any Police officer to an accused person is improper, he may wish to share this with the relevant authorities so that they can look into it.

I also thank Mr Saktiandi for his suggestion for a one-stop shop to apply for all types of legal aid. We can consider this as part of our broader efforts to shape the access to justice ecosystem in the future.

Mr Deputy Speaker, let me conclude by thanking the Members for their support and suggestions. The PDO is a significant move that will benefit society and enhance access to justice. We are establishing the PDO to institutionalise public defence. We will continue to work closely with all our partners and stakeholders to ensure that criminal defence aid goes to those who need it most, when they need it most. Sir, with that, on behalf of the Minister for Law, I beg to move.

*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.*