Criminal Justice Reform Bill

Order for Second Reading read.

11.10 am

The Senior Minister of State for Law (Ms Indranee Rajah) (for the Minister for Law): Mr Speaker, Sir, on behalf of the Minister for Law, I beg to move, "That the Bill be now read a Second time."

This Bill is closely related to the next Bill on our Order Paper, the Evidence (Amendment) Bill. Sir, may I, therefore, suggest, with your permission, that the debate on both Bills take place now as both these Bills are closely related? Members would be welcome to raise questions or express their views on both Bills during this debate.

But we would still have the formal Second Reading of the Evidence (Amendment) Bill as well, to ensure that procedural requirements are dealt with. However, the proposal is to have the substantive debate for both Bills take place now to avoid duplication or overlap, so that all substantive arguments can be captured cogently in a single debate.

Mr Speaker: Please proceed.

Ms Indranee Rajah: Thank you, Sir. Mr Speaker, the Government has made important changes to the criminal justice system over the past decade. These changes have been towards a more progressive, balanced and modern criminal justice system that protects society from crime.

In 2010, we repealed and re-enacted the Criminal Procedure Code (CPC), after a sustained period of review of more than two years. In 2012, we amended the Evidence Act to reduce the stress that complainants of sexual offences experience during the Court process. In 2012, we made calibrations to the death penalty regime. And in 2015, the Government began funding criminal legal aid, through the Law Society.

The amendments in these Bills continue in this spirit. Let me recap the key principles which underpinned the revisions to criminal procedure in 2010.

First, the presumption of innocence must be respected. Second, there must be fair processes – they must reflect a balance between various interests and each society must decide for itself what a fair balance is. Third, accurate outcomes – the system must be effective at arriving at the truth to ensure that the guilty are held accountable and the innocent are not convicted.

The current amendments are made with the same principles in mind. We made a sustained effort to obtain and consider feedback. Public consultation was held for a month in July to August 2017.

We received around 30 contributions from a wide spectrum of society: the general public, civil society organisations, banks, technology companies and the Bar.

We also had extensive dialogue with the Law Society and the Criminal Bar from the start of the public consultation until January this year when we had a dialogue with the Criminal Bar and then we took on board a number of their suggestions.

The Law Society President, Mr Gregory Vijayendran, acknowledged this in his address at the Opening of the Legal Year 2018 when he said, "The Bar appreciates the constructive consultations we have had with the Ministry of Law on amendments to the Criminal Procedure Code. The Law Ministry officials have shown considerable respect for the Law Society's perspectives, a number of which were accommodated. Even when we agreed to disagree, the process was positive and the dialogue, candid."

Finally, there were on-going consultations with the Judiciary, the Attorney-General's Chambers and other Ministries. There was broad support for the amendments proposed. I would add that we are, concurrently, in the midst of a fairly fundamental review of the Penal Code. The Penal Code Review Committee comprises representatives from the Judiciary, AGC, Criminal Bar, academia and the Government.

The proposed changes to criminal procedure that we are discussing, taken together with the proposed changes to the Penal Code, will put our criminal justice system on a strong footing going forward. Let me now deal with the overview of the changes.

The amendments can be split into three main categories. First, investigative processes. Second, Court procedure. Third, sentencing powers of the Court. Under these three categories, there are more than 50 discrete proposals. I will not go through the technical amendments in detail, although Members are welcome to ask questions, but I will briefly cover the non-technical amendments.

Let us start with "Investigative Processes" and the introduction of video recording of interviews (VRI). Under the current law, law enforcement agencies taking statements under the CPC can only do so in writing. The Bill will allow such statements to be taken via video recording. This will assist the Courts to try cases more effectively when investigation statements are sought to be admitted in a criminal trial.

First, they will be able to take into account the interviewee's demeanour when deciding on the weight to be accorded to statements. Second, video-recordings also provide an objective account of the interview, to assist the Court in deciding on any allegations made about the conduct of the interview.

The implementation of VRI requires significant investment of infrastructure and training. It will, therefore, have to be implemented in phases.

In the first phase of implementation, we intend to make it mandatory to conduct VRI for suspects in rape offences under section 375(1)(a) of the Penal Code.

However, we recognise that there may be instances where there is a need for exceptions. These are set out in the legislation. For example, there may be a need to record a handwritten contemporaneous statement from an accused person at the scene of the crime, when the person is arrested at the scene. The legislation allows for flexibility to take into account such operational exigencies.

The next set of amendments relate to the powers of investigation relating to evidence stored on computers.

Crimes increasingly involve the use of computers, smartphones and the Internet. We are enhancing the computer-related powers of investigation in the CPC to keep pace with this evolving environment. Investigators will be able to order the production of evidence stored on computers where such evidence is in the subject's possession or power. Our investigators have also been analysing and searching through large amounts of data.

To increase investigators' efficiency when processing electronic evidence produced under such an order, the amendments will allow regulations to be made to specify how such production orders must be complied with, including the format of the reply and the method of delivery. This is intended to enable electronic replies in machine-processable formats. We have consulted industry stakeholders who provide data to our investigators and have taken into account their feedback in determining the requirements that will be imposed.

Investigators will also be empowered to access, secure and safeguard evidence on computers, regardless of whether the evidence is stored on a computer inside or outside Singapore.

Many people now use web-based email accounts or web storage accounts. Technically, such data may reside in computers outside Singapore, even if the data is accessed from within Singapore. Applicable laws in other countries will be duly considered when such powers are exercised.

Next, on to the search of women suspects. The Bill makes a small but important amendment to the search powers of Police officers and immigration officers.

Currently, women can only be searched by female officers. The amendments will allow a male officer to search a woman, in specific circumstances. These are: first, if the officer reasonably suspects the woman of involvement in a terrorist act; second, the officer believes, in good faith that the terrorist act is imminent; and third, the officer believes, in good faith, that the search cannot be made within a reasonable time by a woman officer. This will allow searches of women suspected of being terrorists where time is of the essence and any delay could mean loss of lives.

Next, strengthening the bail regime. The Minister for Law had said in late 2014 that the Ministry would be reviewing the framework on bail. This was after the 2014 hostage-taking incident in a Sydney café perpetrated by a person who was accused of a serious crime and, yet, had been released on bail. He went on to take 17 innocent persons hostage in a Sydney café. The incident eventually led to the death of two innocent persons.

There is a need to strike a balance. On the one hand, the presumption of innocence means that it would be unfair for someone accused of a crime to be kept locked up in remand when he or she has not yet been found guilty by a Court. But on the other hand, there must be sufficient means to secure the accused person's continued attendance in Court, to ensure justice is served.

The system must also ensure that those who may pose a danger to public safety, are at risk of re-offending while on bail, or who may interfere with evidence, are not released on bail.

With these considerations in mind, the Bill strengthens the bail regime in a number of ways.

First, the Bill makes certain adjustments to the categorisation of "bailable" and "non-bailable" offences.

It may be helpful if I clarify for Members the meaning of "bailable" and "non-bailable" at this point, to avoid confusion.

If an offence is “bailable”, it means that the accused person is entitled to bail as of right and if the Prosecution objects, then it is for the Prosecution to show why the person should not be granted bail.

If an offence is "non-bailable", on the other hand, the accused person is not entitled to bail. He or she must show the Court why bail ought to be granted. If they fail to do so, they will be remanded. In practice, many accused persons charged with "non-bailable" offences are released on bail with conditions intended to ensure their attendance in Court.

On that note, we are making certain offences non-bailable: cheating under section 420 of the Penal Code. This brings cheating in line with the treatment of other similar offences carrying similar penalties, for example, criminal breach of trust (CBT). Offences which concern false evidence and offences against public justice will also be made non-bailable. These offences relate to interference with the administration of justice.

Second, the Courts' powers relating to bail and personal bonds will be clarified and enhanced. For example, important bail or bond conditions, such as to surrender travel documents or to surrender to custody when required, will be imposed by default unless the Court orders otherwise. Many of these conditions are, in fact, already ordered by the Court as a matter of course, but this will further tighten the system.

Electronic tagging or "e-tagging" will be allowed as a condition of bail. This will assist the Police in monitoring accused persons who have been released on bail.

The Court will be given the discretion to withhold bail for bailable offences punishable with imprisonment, if there are substantial grounds to believe that the accused person would abscond.

The rules on execution of bail pending a bail review will be tightened. If the State Courts grant bail for a non-bailable offence and the Prosecution intends to apply to the High Court for a review of bail, the State Courts will be required to order that the accused person is not allowed to go on bail until the review is determined. In other words, the accused person will have to be remanded until the High Court decides on the bail review.

If the State Courts grant bail for a bailable offence and the Prosecution intends to apply for review, the State Courts will have a discretion on whether to allow the accused person to go on bail pending determination of the review.

Third, the Bill creates three new offences to ensure that bail remains effective. It will now be an offence to abscond whilst on bail or personal bond; to leave the jurisdiction without permission, for persons whose travel documents have been impounded by investigators; and to indemnify a surety, or, if you are a surety, to agree to be indemnified.

I now move on to Court procedure and evidence and the proposed amendments for enhancing protection for victims of sexual and child abuse offences.

In the past two years or so, there has been a concerted effort to ensure that vulnerable victims of crime are sufficiently protected by our criminal justice system.

One particularly vulnerable group of victims are those who are subject to sexual or child abuse. We have re-examined every step in the system, to minimise the trauma that such victims experience in the process of bringing perpetrators to justice.

Some measures have already been implemented by the Police, for example, the one-stop centre for medical examinations to minimise waiting time for sexual crime victims, enhanced training curriculum for Police officers to better handle sexual crime cases and the pilot of a Multi-Disciplinary Interview (MDI) model for children who had been sexually abused.

These Bills introduce a suite of measures to further enhance protection. Let me highlight a few examples.

First, the publication of information leading to the victim's identity will be automatically prohibited, even before the case goes before the Courts.

One of the fears that victims have when deciding whether to report sexual offences is that media coverage will cause them further distress. This is why the Courts often grant gag orders to prevent the publication of information that may lead to the identification of a victim.

However, the case must be before the Court before such an order can be granted. This means that if a person gets wind of the identity of a victim and the case has not yet come before the Courts, under current law, that person can make public information revealing the victim's identity. Some suspects may even do this to intimidate the victim and make them basically pay a price for making a Police report.

To prevent this, the Bill will move the restrictions upstream. Anyone who knows that another person is an alleged victim of a sexual offence will not be allowed to publish any information that may lead to the identification of the victim's identity.

So, for example, a person could have confided in a colleague that she was the victim of a sexual offence. If this colleague makes public the fact that the person was such a victim, the colleague would be committing an offence. And this applies, even if the person has not reported the offence to the Police.

Second, all victims of sexual or child abuse offences will give testimony in a closed-door hearing, unless they wish to give evidence in open Court.

Third, we will amend the Evidence Act so that we can put in place subsidiary legislation that restricts the kinds of questions the Defence can ask. They will not be allowed to ask questions about the victim's sexual behaviour with persons other than the accused, where such behaviour does not relate to the charge, unless they have leave of Court.

Application for leave must be made in the absence of the victims. This will help prevent a re-occurrence of the incident that the press reported on late last year, where a defence lawyer embarked on a line of distressing questions when cross-examining an alleged victim of molestation.

Finally, clause 77 will allow the video-recorded statements of vulnerable victims, such as victims of serious sexual offences, to be used in place of their oral evidence-in-chief in Court.

Testifying in Court can be a difficult experience for such victims. Where possible, we want to minimise the trauma that these victims face in the Court process. This will only be implemented in later phases. We recognise that this must be implemented sensitively in order to help arrive at the truth and we will work with stakeholders on training and methods.

Next, the Courts' discretion to order exceptions to open Court proceedings.

The Bill also makes amendments to the State Courts Act and the Supreme Court of Judicature Act, to fine-tune the Courts' discretion to order exceptions to open Court proceedings.

The Courts already have this discretion. What we are doing is to clarify the scope of the discretion by setting out a non-exhaustive list of matters that the Court may consider when deciding whether to grant such an order. So, we are not amending the discretion per se; we are just setting out a list of non-exhaustive matters that the Court can take into account.

We will also expressly allow the Court to exclude the general public while permitting certain categories of persons to be present, for example, bona fide representatives of the press or media, the families of the victim or accused person, or other persons as the Court may identify in its discretion.

Next, enhancing and rationalising the fitness to plead/unsoundness of mind regime.

The law provides for special procedures to deal with two categories of accused persons with special needs. First, those who are "unfit to plead", in other words, not capable of making their defence at the time of trial; and second, those who are acquitted on the basis that they were of unsound mind at the time that they committed the offences.

The procedures balance the need to ensure that such persons are not a danger to themselves or others and the need to respect the fact that such persons have not been convicted of any offence. They are also designed to provide such persons with the best possible opportunities of recovery, in a controlled environment.

The Bills make quite significant amendments to this regime, to allow the Courts and medical professionals to play a more involved role in determining the most appropriate action to take in respect of such persons. For example, such persons may be released with certain conditions where they are not assessed to be a danger to themselves or others.

There is a risk in doing this; we have seen instances in other countries where release has led to harm. For example, it was reported in 2016 that a man in New Zealand who killed a person but was acquitted on the basis of insanity was released after a few years in detention and, then, had gone on to commit another violent attack in a train station.

So, there are these considerations, but it is the right thing to do where doing so would help the accused person’s recovery. The alternative would be to confine them for extended periods of time, which may not be necessary or helpful.

Due weight will be given to medical opinion, and the necessary conditions imposed, to minimise the risk of re-offending as much as possible.

A maximum duration will be set for confinements pursuant to the Minister’s orders.

The Courts and medical professionals will be given a greater role in supervising such persons and determining what measures to take with respect to such accused persons.

An accused person released under these CPC provisions may still, however, be subject to detention under the Mental Health (Care and Treatment) Act if he or she is assessed to remain a danger to himself or herself, or to others.

Next, Deferred Prosecution Agreements.

The Bill introduces a legislative framework for the Prosecution to enter into Deferred Prosecution Agreements (DPAs) with corporate offenders. This gives Prosecutors another tool to more effectively deal with corporate offending.

This tool is particularly useful where prosecution of a corporate offender unnecessarily punishes not just the management, but also the employees and shareholders of the corporate entity for what might be the acts of a small number of employees or officers of the company.

The corporation must be represented by counsel and the framework will only apply to scheduled offences.

Under a DPA, the Prosecution agrees not to prosecute a corporation in exchange for strict compliance by the corporation with a series of conditions. Such conditions can include: admission of wrongdoing by the corporate offender; and requiring the corporation to pay a financial penalty. Unlike some criminal fines, the financial penalty will not be subject to a statutory maximum. One reason for this is that the harm brought about by corporate offending may eclipse any pre-determined statutory maximum that may be prescribed.

The corporation may also be required to implement programmes for corporate reform going forward and to assist in investigations and prosecution of other wrongdoers, including individuals.

There are also safeguards: all DPAs will require High Court approval. Approval will only be granted if the High Court is satisfied that the DPA is in the interests of justice; and its terms are fair, reasonable and proportionate.

Our intention is that in assessing the proportionality of the conditions proposed, the High Court will balance the extent of the wrongdoing, including the revenue or profits attributable to the wrongdoing, with the ability of the corporation to comply.

To ensure transparency, DPAs must be published after High Court approval unless the Court orders otherwise.

Next, the Criminal Procedure Rules Committee.

A structural change to the way criminal procedure is regulated is that a Criminal Procedure Rules Committee, chaired by the Chief Justice, will be established.

Currently, almost every change in Court procedure, even on technical issues, needs to be tabled in Parliament. The responsibility for making Court-related procedural rules, for example, timelines for filing documents, will be shifted to the CPRC.

This will allow for Court procedures to remain nimble and up-to-date and is the practice in other countries, such as the United Kingdom.

Besides the Chief Justice who will chair the Committee, the Committee will consist of representatives from the Judiciary, Attorney-General’s Chambers, the Government and the Bar.

As a safeguard, any rule made by the CPRC will have to be approved by both the Chief Justice and the Minister. We have discussed this proposal with the Courts and they are supportive.

Streamlining pre-trial procedures in the High Court and extending the transmission procedure to replace the committal hearing procedure.

Under the present law, cases triable in the High Court must first go through a procedure called a Committal Hearing, before the case is put before the High Court. The only exception would be serious sexual offences, such as rape, which are transmitted to the High Court by the Public Prosecutor’s fiat. This is called the transmission procedure.

Historically, this procedure was meant to filter out cases where the Prosecution does not have sufficient evidence to justify a High Court trial. Such cases are filtered out in two ways: first, the Prosecution is required to disclose the evidence that it has on hand before trial; second, the Defence is allowed to cross-examine the Prosecution’s witnesses to test the evidence.

Today, the main benefit of this procedure has become the pre-trial documentary disclosure, as the Defence seldom chooses to cross-examine Prosecution witnesses. Doing away with the Committal Hearing will shorten the time that the accused has to spend in remand pending trial.

A similar review in England and Wales a few years ago also resulted in the abolition of Committal Hearings there.

We will continue to require the Prosecution to disclose its case and evidence, in accordance with the criminal disclosure regime, for most cases that today would have been subject to the Committal Hearing procedure.

On the whole, abolishing the Committal Hearing and substituting it with the transmission procedure and criminal disclosure obligations will shorten the waiting time for trial and free up precious judicial resources to focus on the substance of cases.

Extending video link hearings to pleas of guilty and sentencing.

Currently, the law provides for remanded accused persons to appear before the Court through video link for various procedural matters. This reduces the security risk of transporting remandees between prison and the Courts. We are expanding the use of video links to hearings for the taking of pleas and sentencing hearings in the State Courts.

The use of video links for such hearings is already in practice in countries, such as the UK, Canada and some states in the US and Australia.

Video links will not be used for trials and judges will retain discretion on whether the accused should be physically produced in Court.

To provide operational flexibility, the Minister will be able to prescribe other proceedings, both procedural and substantive, in which the accused person may appear before the Court through video link, if remanded at the time of the proceeding.

MinLaw is working with MHA and the State Courts to pilot this for selected cases in the later part of this year. We will evaluate the experience of using video links for such hearings before extending the procedure.

Next, expanding the Criminal Case Disclosure (CCD) procedure to cover more offences.

Pre-trial disclosure was introduced in the CPC in 2010 as one of the most major changes to criminal procedure in the history of our criminal justice system. Disclosure has been welcomed and both Prosecutors and Defence counsel have grown comfortable with the system of disclosure. It is, therefore, an opportune time to expand the pre-trial disclosure requirements to more offences.

With the inclusion of the Prevention of Corruption Act, Moneylenders Act, Remote Gambling Act, Prevention of Human Trafficking Act and Casino Control Act, practically all the major criminal offences will now be covered by the pre-trial disclosure regime for criminal cases.

In recent years, the Courts have seen a rise in the use of psychiatric expert evidence in criminal cases. Most of the psychiatrists who give evidence are objective and professional. However, there are a few instances where such evidence has fallen short of the basic standards of objectivity and competence expected of expert witnesses.

In one case, the Chief Justice had this to say about the psychiatrist who had given evidence: “not only was the report patently lacking in objectivity, it was plainly erroneous... experts owe their duty first and foremost to the Court and not to the client who pays their fee...”

The Bills will require that psychiatrists be admitted to a Court-administered panel of psychiatrists, before they can be called upon to give expert evidence in Court. This will safeguard the objectivity and quality of psychiatric expert evidence. We have discussed this approach with the Courts, and they are supportive.

We also took in feedback from the Criminal Bar on two practical areas: one, we will formulate the selection criteria to ensure that there is a sufficient pool of psychiatrists available; and two, procedures for the ad hoc admission of foreign psychiatrists will be put in place so that Defence counsel can call such psychiatrists as expert witnesses in appropriate circumstances.

I move on now to sentencing and other powers of the Court.

The community sentencing regime. The introduction of community sentences in 2010 was widely welcomed by members of this House and by stakeholders in the criminal justice system. We have monitored the use of community sentences ─ they have been popular and have worked well in targeting the root causes of crime.

When implemented well and for suitable cases, community sentences can give those who commit minor offences a good chance at rehabilitation without unnecessary disruption to their lives. Let me cite an example: patient A was a pharmacy student in his early 20s when he was charged with the theft of a laptop at the university hostel. He was diagnosed with Major Depressive Disorder at the Institute of Mental Health (IMH). He was subsequently placed under a Mandatory Treatment Order (MTO) for two years.

This entailed regular consultations with his psychiatrist and he was given anti-depressants. His sister was also supportive; in fact, he moved in with his sister so that she could provide closer monitoring. The case manager also followed up regularly to provide counselling. His treatment was, therefore, a combination of pharmaceutical and psycho-social care.

Patient A remained offence-free throughout the MTO period and succeeded in completing his Pharmacy degree. He continued seeing his psychiatrist at IMH after the MTO to continue treatment.

Things could have turned out very differently for this young man, if he had been sentenced to imprisonment. While our rehabilitative programmes have grown in sophistication over the years, being cut off from his supportive family network and the disruption to his studies may have undermined his successful rehabilitation.

It is because of cases like this, that we see value in expanding the eligibility criteria for community sentences, so that more offenders can benefit from the rehabilitative opportunities offered by community sentences. This will have to be done in a controlled manner, to strike the right balance with deterring crime.

Offenders who have previously served short sentences of imprisonment or previous terms of reformative training will be eligible for community sentences.

The MTO will be made available for a prescribed list of more serious offences which are punishable with up to seven years’ imprisonment. This is up from the current availability of MTOs only for offences punishable with up to three years’ imprisonment.

The Bills also increase the maximum duration of an MTO to 36 months and allow the Court to order a period of in-patient treatment as part of the MTO. This will allow the IMH to deliver a more effective treatment programme, where needed.

Finally, the Bills will give the Court the power to impose a suspended imprisonment sentence, together with a community sentence. The suspended sentence will take effect the moment a community sentence has been breached. This will encourage compliance with community sentences, when imposed in suitable cases.

Next, changes to reformative training.

Besides community sentences, the Bills also make major changes to another sentencing option that is focused on rehabilitation – the reformative training (RT) regime. The RT regime is specifically geared towards the rehabilitation of young offenders. It emphasises both discipline and rehabilitation in a structured environment, where officers provide supervision and guidance to the RT trainees. The trainees will go through programmes that will help them take charge of their rehabilitation. They will need to soberly reflect on their offences, how to stay crime-free and strengthen their relationships with their family.

The RT regime has been an important and effective one but we are always striving to see how we can improve. Over the years of running the reformative training regime, the Singapore Prison Service (SPS) has gained a deeper understanding of evidence-based rehabilitation.

The proposed changes reflect this deeper understanding, allowing SPS to take on a risk – and performance-based approach in determining the intensity of intervention in RTC for the trainee. A key feature of the proposed changes is that the minimum detention period for reformative training will be reduced from 18 months – to six or 12 months, depending on the intensity of the rehabilitation the offender requires. This will be based on the time required for programming to mitigate the risks and address the needs of the RT trainees, according to their profiles.

The amendments, hence, allow for a more nuanced assessment of the intensity of rehabilitation required, depending on each individual's likely response to RT and level of motivation to change.

Currently, trainees are already grouped by risk profile and rehabilitation needs, where they undergo rehabilitation in an environment that minimises contamination. The new minimum detention periods mean that, for some of the trainees, they can be released from detention and placed on supervision as early as the sixth-month mark to begin their reintegration into the community.

Currently, trainees are already provided with opportunities for education and skills training while in detention. The new minimum detention periods mean that disruption, if any, to education will be further reduced. For some of the trainees, they can pursue their educational goals on supervision in the community as early as the sixth-month mark.

Despite the changes, it is important to emphasise that the purposes of RT have not changed. It achieves the sentencing objectives of rehabilitation and deterrence. It offers the Courts an option to rehabilitate the offender in a structured environment while achieving deterrence. RT will continue to be the preferred option for cases where the need for rehabilitation corresponds with the need for heightened deterrence. It should ordinarily be imposed on repeat offenders or for serious offences like drug trafficking.

Each case should, however, be treated on its own facts and there may be exceptions where RT is unsuitable due to the characteristics of the offender or the heinous nature of the offence committed.

New procedures to prevent abuse of Court process in concluded criminal cases.

The Bills will give the Court more control over applications to re-open concluded criminal cases where all appeals have been exhausted and civil applications that have a similar effect, by codifying the procedure set out by the Court of Appeal in its recent judgments and providing for other aspects of procedure not covered in previous judgments.

We have looked at the procedure set out by the Court of Appeal and we agree that it strikes the right balance between preventing miscarriages of justice and the need for finality in criminal proceedings where all appeals have already been exhausted.

Next, improving the victim compensation order regime.

The Courts' powers to order compensation in the CPC recognise that criminal law is not just about the public’s interests but also about the interests of individual victims. MinLaw has been looking at ways to make the victim compensation regime more effective. In 2010, we made it mandatory for the Court to consider in every case whether it should order compensation.

The Bill now goes significantly further.

First, the Court will be required to give reasons if compensation is not awarded, where it has the power to do so.

Mr Speaker: Senior Minister of State, can we pause for a while. Leader.

Debate resumed.

Ms Indranee Rajah: Mr Speaker, I thank Members though I, hopefully, will be able to finish in the next few minutes.

Mr Speaker: Thank you.

Ms Indranee Rajah: Second, victims will be able to participate in the compensation order process by making submissions or giving evidence.

This is meant for simpler cases – the criminal Courts are simply not equipped to deal with complex hearings usually dealt with by civil Courts. Dragging out proceedings to deal with compensation will have a knock-on effect on the Court’s ability to deal with other cases.

Third, the Court will be empowered to order compensation of the dependants of a person whose death was caused by an offence, for bereavement and funeral expenses.

In conclusion, Sir, these amendments, when set against the background of the changes that we have made over the past decade, are comprehensive and progressive. They keep pace with the evolving values of society and with international best practices. Sir, I beg to move.

Question proposed.

11.50 am

Mr Christopher de Souza (Holland-Bukit Timah): Sir, I support this Bill which, as the name suggests, reforms our criminal justice system.

An effective criminal justice system is important in a rule-of-law country. Laws need to be enforced consistently. Offenders know they cannot get away scot-free. Those who obey the law must be confident that they will not be wrongly convicted and punished. Beyond that, the criminal justice system has to retain its legitimacy of addressing injustices so that people will not turn to vigilante acts.

For this legitimacy to be maintained, the criminal justice system must be concerned with arriving at the correct outcome and arriving at it in a fair and impartial manner. After all, "a person is innocent until proven guilty".

To this end, this Bill introduces video-recording of statements by an accused and expansion of the Criminal Case Disclosure (CCD) regime. Video-recording of accused's statements sets the record straight with regard to allegations of oppression, inducement, threat or promise – issues that go towards admissibility. The evidence-gathering process would, hence, become more transparent and there can be no allegations of the statement not being read back in a language the accused is familiar with. As such, the accused may perceive this as a fairer process.

Before I go on to the next part of my speech, I should make a declaration that I am a legal practitioner, practising both civil and criminal law.

The expansion of the CCD regime is also welcomed because it levels the playing field between the prosecution and the defence and reduces the perceived advantage a prosecution has in terms of resources and information availability. By being able to look over the statements before the trial, the defence will be able to identify and home in on the key disputes. By having access to more information, the defence would be able to better prepare a more accurate case in the adversarial system, thereby promoting a more precise outcome.

I also want to highlight two other amendments in light of this rationale of fairness.

With regard to protecting vulnerable victims, a balance has to be struck between removing barriers that deter a victim from taking the perpetrator to task and ensuring that the process remains fair to the accused. In order to secure a rightful conviction, the victim often needs to testify. Testifying to the hideous acts that have been done can be a very daunting and harrowing experience, especially if done in full view of the perpetrator.

Because of this, the new section 281B seeks to reduce the trauma of vulnerable victims. By providing for video-recorded statements to be adduced as verbal evidence, it reduces the need to recount the traumatic experiences again and again. Would the Minister clarify how this will be done operationally; in particular, would the statement be recorded by a third-party person in authority and would the person giving the statement know, while giving the statement that it would be used in a Court proceeding?

The new section 281B accords some certainty of protection when a victim needs to testify to the harrowing details of the alleged offence. Through it, he or she will be able to give evidence in-camera, if he or she wishes to. While this would reduce the pressure of giving testimony in a public setting, the public interest in the publicity of criminal proceedings will still be served through the amendments in clauses 126 and 127 which would give the Court the discretion to allow journalists and individuals with sufficient interest to attend in-camera proceedings. Hopefully, the names of the vulnerable victims or witnesses will be concealed.

Even as we seek to remove obstacles from victims seeking redress through the proper channel, we must also bear in mind the tenet of "innocent until proven guilty". Therefore, we need to take a balanced and measured approach.

For example, when it comes to the evidential shield in the Evidence (Amendment) Bill that prevents a defence counsel from asking certain questions without Court approval, we must make sure that it will not interfere with a fair trial – a right of the accused – in an adversarial system. The right of the accused who is innocent until proven guilty in such an adversarial system.

Allow me to turn to the restriction of psychiatrist experts to a panel, which is done through the new section 270. The rules of eligibility have to be carefully crafted so that it will be grounded on the objectivity of a psychiatrist's testimony and not add pressure on the psychiatrist to favour one side or the other.

In this regard, I would like to seek a clarification as to the purpose for the two-year term in subsection (2) as well as the possibility for revocation under subsection (4). Additionally, by limiting the supply of such experts, fees may increase. By limiting who can testify in Court on such evidence, this places a limitation on what a defence counsel may do to present his most accurate case. Therefore, to ensure the rationale of fairness remains paramount in the trial process, we should have, in my view, a long panel list of psychiatrist experts and not restrict the panel to a short list. This will allow a mentally-ill accused person to see a medical professional he or she is most comfortable with.

In the same vein, I would like to seek a clarification regarding clause 74. The explanatory statement paragraph (b) of the relevant portion, says this: "by inserting new subsection (4A) to clarify that the making of a statement by an accused is not to be regarded as caused by any inducement, threat or promise merely because a person in authority had earlier informed the accused that the accused was required or legally bound to give information under section 27 of the Prevention of Corruption Act (PCA) (Cap 241), if that person believed any of certain things in good faith, when so informing the accused."

Big mouthful; I will get to my point. Previously, however, in Annex B, and I quote: "Table of Proposed Legislative Changes to the Criminal Procedure Code (CPC) and the Evidence Act" used for public consultation, item 29 says that "It has been stated in previous Court decisions that telling an interviewee that he is bound to tell the truth in respect of non-corruption offences can amount to inducement, which renders a statement inadmissible. This is because section 27 of the PCA only applies to offences under the PCA.

My question is: will the Minister kindly clarify this possible inconsistency – I am not saying that there is an inconsistency, I am saying that there is a possible inconsistency – and whether the amendment is, indeed, changing the law or merely clarifying it?

Moving on, Sir, the criminal justice system needs to be fair and it needs to be fair for everyone who may find themselves in that system, not just the rich but, importantly, the poor. While it is important that sureties' incentive to monitor the accused is not weakened by indemnity, would the prohibition against indemnity agreements remove all possibility for families who would otherwise struggle in getting sufficient funds from getting those funds from relatives and friends so that their loved ones can be released from bail and continue working? My question.

Moving on, a criminal justice system needs to be fair and, in administering justice, the decisions have to be accurate and equitable. Upon conviction, different principles and considerations comein to play. These are just some of the important questions that have to be considered in the drafting of the post-conviction portion of the CPC.

To this end, I welcome the expansion of the community-based sentencing regime. Community-based sentencing seeks to put rehabilitation at the centre of the sentence. For some orders, there is less disruption to social support around the offender. This can be seen even for the Mandatory Treatment Order, where there is a possibility of a family or a friend taking care of the offender. Community-based sentencing would also make it easier to maintain gainful employment and be less disruptive to studies for younger offenders. Because of this, community-based sentencing ameliorates some difficulties of reintegration. It also supports rehabilitation efforts by allowing an individual to remain in the community. This Bill expands the scope of community-based sentencing to cover more offences and offenders and I hope that this will further promote the effective reduction of crimes through rehabilitation while, at the same time, not diluting a consistent message of deterrence, for deterrence is also an important rationale in sentencing.

Another amendment that deals with post-conviction considerations head-on is straightening the framework of victim compensation under the CPC. As the Singapore High Court in Soh Meiyun v Public Prosecutor said, "Compensation Orders are, in effect a shortcut to the remedy that the victim could obtain in a civil suit against the offender". This is especially important when a victim does not have the financial means to initiate a civil suit and yet requires the same compensation as those who can, especially compensation for medical bills as a result of an offender's actions.

As they have an interest in the matter, the provision also gives standing to the person being compensated to adduce evidence and make submissions. Will the good Senior Minister of State clarify if she is of the view that giving such standing would change the law on compensation to some extent? That is, "[Compensation Orders] should not require the Court to embark on complicated investigations of fact or law", taken from the leaf of the judgment of Soh Meiyun v Public Prosecutor at paragraph 58.

This Bill does not just make it mandatory for the trial judge to consider victim compensation but also makes it mandatory for the trial judge to give reasons as to why he or she does not make such an order.

To be fair to the accused who may have difficulty paying such compensation amounts as well, subsection 2B of section 359 will make it explicit that the Court must consider the offender's financial means and subsection 2C will empower the Court to make a financial circumstances order to establish this.

When it comes to corporations, the Deferred Prosecution Scheme seeks to resolve systemic problems in corporations that led to the offence being committed in the first place, for example, through requiring certain processes to be set in place.

It also seeks to resolve the difficulties in punishing the legal personality or the separate legal personality of a company. It does this by facilitating investigations so that there can be a more meaningful attribution of culpability. There is, therefore, a strict requirement that it must be a corporation or association that is represented by an advocate. Just to seek the clarification of the Senior Minister of State, would that include a fully-qualified Singapore lawyer who has now gone in-house, or not? Is that advocate required to be a practising member of the bar?

As there is a process of negotiation between the one being sentenced, that is, the company and, on the other hand the prosecutor, as well as opportunity for re-negotiation if the Court fails to approve, it is important that the introduction of the Deferred Prosecution Agreement does not create the misperception that laws will not be consistently applied.

The Deferred Prosecution Agreement is also a good illustration of the underpinning rationale behind this slew of amendments, that is, not to be content with what we have already achieved but being open to ideas and looking to improve it further, complements what the Senior Minister of State has just said.

In fact, this was the driving force behind these amendments. This is reflected in the title which says, "To enhance the fairness of procedures and ensure correct and equitable outcomes in the criminal justice system". That justice is done and is seen to be done is important in a country run on the rule of law. Singapore is such a country. Therefore, I support this Bill.

12.08 pm

Ms Sylvia Lim: Mr Speaker, Sir, I declare my interest as a lawyer attached to a firm that practices criminal law.

Sir, the long title of this Bill states that the changes will enhance the fairness of procedures and ensure correct and equitable outcomes in the criminal justice system. While I agree that the Bill carries important and progressive reforms, I do not think it is possible for any law to ensure correct and equitable outcomes in the criminal justice system. There will always be a risk of the innocent being convicted, the guilty being acquitted and victims being left without redress even with the best laws in place. Nevertheless, I do welcome the significant reforms being made to the CPC to give greater assurance of good and fair outcomes.

In my speech, I will first highlight what I see as enhancements to the law, after which I will articulate some concerns which I believe the Ministry should address. The Bill has rightly slaughtered some longstanding and sacred cows.

First, under clauses 6 and 7, the Bill provides for the video-recording of statements of an accused person during an investigation. This is something which practitioners, including myself, have called for over the last 10 years as this is an important safeguard, not just for the accused person but also beneficial for the state.

Based on experiences in other countries, a video-recording will not only give some protection to the accused person from giving statements under pressure or duress, but it will also reduce the likelihood of frivolous allegations being made against investigators which, in turn, will save Court time.

The Bill starts small, with compulsory video-recording applicable only to Third Schedule offences which, for a start, will mean only rape cases under section 375(1)(a) of the Penal Code. I presume that, in future, other offences will be added to the Third Schedule for compulsory video-recording.

Clauses 6 and 7 also provide for video-recording of accused statements as an option in other cases besides rape if the Police officer or forensic specialist so decides. The Bill, however, is silent on what circumstances the Police officer or forensic specialist is to take into account before deciding that a video-recorded statement should be taken. I would like some clarification from the Ministry on this.

Secondly, the Bill increases the coverage of the CCD regime to more offences. In the last major CPC review, a Statutory Framework was introduced for the prosecution and the defence to disclose to each other the key details, witnesses and exhibits long before trial. I believe the CCD regime has worked well over the last few years to promote fair trials and also to build trust between the prosecution and defence. The Bill now extends this regime to cover offences under several additional laws, including the PCA, something I had asked about previously. The move to include more legislation under the Disclosure regime will build more confidence in the system.

Thirdly, the rights of crime victims are being further enshrined in the Bill. Traditional criminal justice systems do not focus on the victim as the parties to a criminal case are the state and the accused person, with the crime victim reduced to being a prosecution witness, with no redress for harm suffered. Across the world, developed countries recognised this gap and promoted studies and victimology, putting in place reforms on matters, such as reducing victim trauma during investigations and in Court, and providing victim support.

In the last CPC review, our Parliament legislated that judges who convict offenders should also consider whether to make a Compensation Order for the victim's injuries. However, based on the Parliamentary answer in 2016 to a question I filed, the incidences of such Compensation Orders appeared very low, being made in only 48 cases in the year 2014 and 34 cases in 2015. In this Bill, clause 98 will further amend section 359 of the CPC significantly, by requiring judges who do not make Compensation Orders for victim injuries to record the reasons why they did not do so. This is a strong signal from Parliament, which I expect to greatly increase the numbers of Compensation Orders made. This is progressive.

Sir, while the Bill makes critical positive changes in the main, I have some concerns about specific amendments. After listening to the long and detailed Second Reading speech from the Senior Minister of State, I would like, today, to just focus on two of these changes.

First, the introduction of Deferred Prosecution Agreements (DPA) and secondly, the extension of video-link usage under clause 80.

First, DPAs. DPAs have been in use in other jurisdictions, such as the USA and the UK. I agree that DPAs are important tools to address corporate crime as they enable the state to incentivise corporations to fully investigate and cooperate with the authorities. Such cooperation would also save time and resources for the state as it facilitates the state having access to information from within the corporations more efficiently. The DPA scheme introduced by this Bill enables flexible and customised resolutions. The offending corporation may be required to compensate victims, donate monies to a charity, implement compliance and training programmes and appoint auditors to monitor progress of remedial measures.

Notwithstanding the virtues of DPAs, the fact remains that the DPA is an avenue by which a corporation which has committed a serious offence can avoid prosecution and conviction. This is a consequence that is of tremendous benefit to a corporation in that it will not have a conviction recorded against it, which will, in turn, allow it to continue business and not face consequences, such as being blacklisted or debarred from projects. Thus, the circumstances under which DPAs are offered and entered are of immense public interest.

To this end, it is comforting that the Bill will require all DPAs to be approved by the High Court under the new section 149F of the CPC. It is stated that the High Court must find that the DPA is in the interest of justice and that the terms of the DPA are fair, reasonable and proportionate.

However, what needs closer scrutiny is that the Bill seems to require less disclosure of the Court's considerations than, say, the scheme in the UK. In the UK, DPAs are regulated under Schedule 17 of the UK's Crime and Courts Act which stipulates that the Crown Court must give reasons in open Court for why it has approved a DPA in the interests of justice and why it considers the terms of the DPA to be fair, reasonable and proportionate. By contrast, the Bill before the House today requires DPA proceedings to be held in camera and does not require the High Court to give any reasons as to why it is approving a DPA.

Sir, I believe this aspect of the proposed DPA scheme should be reviewed. After all, entering a DPA is a big deal in the sense that the state is agreeing to let a corporation avoid prosecution for a serious offence that it admits to committing. This option of entering a DPA is not available to all offenders but is selectively applied and not applicable to individual offenders. So, how corporations are chosen, the considerations for imposing certain conditions on the corporations and the approved methods of monitoring the corporations for compliance will be of public interest. In my view, making it mandatory for the High Court to publicly justify why it approved a DPA can only help to instill confidence in the system.

Secondly, Sir, I move on to video-link communication. I am concerned about clause 80 on the use of video-link for Court proceedings. I do not have any issue with the changes allowing vulnerable victims to testify in Court via video link in certain types of cases as this will likely reduce the victim's trauma in Court. However, I am concerned about the further extension of video-link communications with accused persons who are remanded in prison while their cases are pending.

Under the current section 281(3) of the CPC, an accused may appear via video link if the Court is considering applications for release on bail or bond after the first mention and in proceedings for extension of remand and in such other matters that may be prescribed. I am not aware of any other matters currently being prescribed.

The Bill today seeks to extend video link to proceedings where an accused person pleads guilty and is convicted by a Court and also to proceedings for sentencing after conviction. If passed, this will mean that there will be no need for the Prisons to arrange to bring an accused out of prison to Court in order that his plea, conviction and sentence be dealt with face-to-face between the Court and the accused. While there is greater security and logistical convenience in using video link in place of physical conveyance of prisoners to Court, I am concerned whether this amendment will compromise justice.

From the Court's point of view, at the time of conviction and sentence, we often see judges admonishing accused persons or warning them not to repeat their behaviour or face more serious consequence in future. Will the effect of such warnings be diminished if seen through a TV screen? As for the defence, the stage of the accused pleading guilty and being sentenced is a critical one where counsel will usually need to confer with his accused in detail. Such communications would include checking with the accused person on the correctness of the statement of facts prepared by the prosecution, which would, in turn, have a direct impact on the sentence imposed. Counsel may also need to take his client's instructions if the prosecution objects to any part of the defence's mitigation plea and also seek client's instructions on the prosecution's sentencing positions, which may only be communicated on the day of the hearing to take a guilty plea.

Where video link is used, the defence counsel will be in Court while his client is in prison. The communication process between the two will be affected as it will need to be done via a telephone or other link where confidentiality is likely to be an issue as well. Is this too much to risk?

Sir, in conclusion, this Bill, overall, makes important reforms that will enhance the criminal justice system. Nevertheless, there are some aspects, such as those I have highlighted, that required further attention.

12.19 pm

Mr Kok Heng Leun (Nominated Member): In introducing this proposed Bill, the Minister for Law has stated that the purpose of this Bill is to enhance the fairness of existing procedures and to ensure the accuracy and equity of the outcomes in the criminal justice system.

To this end, amendments, such as the introduction of video-recordings of the statement of suspects who have allegedly committed rape offences as well as to prevent defence lawyers from questioning complaints of sexual and child abuse offences on their past sexual history and behaviours, are aligned with the principles outlined by the Minister and are most welcomed.

I will focus on a few proposed amendments which I would like to seek clarifications or re-considerations, after my consultations with some NGOs.

I will first start with clause 7 of the Bill which introduces video-recording of statements made by suspects suspected of committing rape.

The NGOs I spoke to welcomed the introduction of video-recording of the suspect’s statement as a step towards reducing the incidents of false or involuntary confessions arising from threat, inducement or promise. However, a few concerns were raised as to whether the present amendments sufficiently protect the integrity and evidentiary value of a suspect's statements taken via audio-visual recording.

Mr Speaker, in order for the Court to be able to assess the demeanour of the suspect and whether the statements made by the suspect were voluntary, it is insufficient that only the statements given by the suspect is recorded on video. Other safeguards must also be put in place to ensure that the video-recording does not give a misrepresented picture of the suspect's demeanour or interfere with the evidential value of the recording.

One such safeguard is to ensure that the entire interrogation process or interactions between the Police and the suspect be recorded on video. In situations where the threat, inducement and/or promise may have been communicated to the suspect prior to the taking of the audio-visual recording, but are not recorded, the purpose of video-recording of the statement of the suspect is defeated. Another instance, if there have already been multiple rounds of pre-questioning and interrogation prior to the taking of the audio-visual recording, research studies have shown that the suspect might appear far more callous and unremorseful when their statements are taken via video-recording thereafter. As such, the recording of the suspect's statement after such intensive interrogations may not provide the Court with an accurate picture of the suspect's demeanour or his voluntariness in making such a statement.

Moreover, there are several technical aspects of the conduct of the video-recording that, if not undertaken, may compromise the accuracy in the assessment of the demeanour of the suspect. Consider a situation where the video frame is focused only on the suspect’s face and not on his other body parts. The suspect’s facial movements on camera may suggest that he is calm but his body movements may suggest that the suspect is operating under distress but such signs of distress may not be captured on video-recording. Thus, under such circumstances, we may not be capturing the accurate assessment of the suspect's demeanour or make a finding as to whether the statement was made by the suspect voluntarily.

It is also important that safeguards be in place to ensure that the video footage will not be tempered or ill-edited such that important or material portions of the audio-visual recording are inadvertently cut-off and not provided to the defence.

As such, I would like to ask the Minister what the other safeguards and procedure are − such as whether the camera will only focus on the suspect person or will also be focused on the interrogators − that will be established, alongside the use of audio-visual recordings' to ensure that the audio-visual recording scheme does not give a misleading account of the suspect which may, in turn, prejudice the suspect.

I also hope that the Ministry will continue to expand the scope of offences where video-recording of statements, especially for serious offences which carry severe punishments, such as life imprisonment and capital punishment.

I will look at clauses 6 and 77 of the Bill which permit the recording of a statement from a vulnerable victim. I am heartened to see that the Government is taking such steps to protect the interests of vulnerable victims and to support them through the investigation process.

I understand that investigators are now allowed to take statements from such vulnerable victims via video-recording and that the video-recorded witness statement scheme will be implemented in stages. I have two points to raise on this scheme.

The first is that I would like to know how the Government intends to implement this scheme in stages and the related timelines for its implementation.

The second point which I want to raise pertains to a concern which AWARE raised in its submission on this specific video-recording scheme of the statements of vulnerable victims of sexual crimes.

Based on AWARE's working experience with vulnerable victims who have been sexually assaulted or abused, many of such victims may be reluctant to speak about their experience out of fear and embarrassment. The knowledge that they might be filmed while recounting their experience might cause them to feel intimidated or be less willing to share sensitive details via video-recording. The use of video-recording to record statements of vulnerable victims might potentially be counterproductive to ensuring an accurate assessment of the facts.

Under such circumstances, would the interviewer of a vulnerable victim be able to exercise his or her discretion, even if the Police officer may think it is necessary, to not video-record the statement but instead record it in writing under the proposed section 22(5)(c)?

I hope that the Ministry can set out how it seeks to address such a situation where the victim might feel very uncomfortable to go on video to record his or her statement.

I turn now to clause 78 of the Bill which proposes that psychiatrists will only be allowed to give expert evidence in criminal cases if they are on a Court-administered panel of psychiatrists.

My main concerns with this panel of psychiatrists are whether its implementation will restrict the defence's ability to effectively conduct their defence.

First, I would like to know if there are any price controls to regulate and ensure that the cost of hiring a psychiatrist from such a panel will not be excessive and will remain affordable to suspects who are financially-strapped.

Second, will the Minister consider permitting an ad hoc admission basis, alongside this scheme, should there be a psychiatrist whose expertise may be very relevant in assisting the Court but who may not be able to meet the admission criteria? I am glad just now to hear from the Senior Minister of State that it would have such ad hoc admission for overseas psychiatrists. I am sure, even if we have this list of psychiatrists no matter how long the list, there will be situations whereby we may need to have to admit some other possibilities.

Third, how will the Ministry ensure that there are sufficient numbers of psychiatrists on the panel such that it will not limit the pool of expert witnesses from which the prosecution or the defence may appoint? When this proposal was first introduced in 2017, some doctors had raised concerns on whether the admission criteria may be too stringent and thereby causing psychiatrists to turn away from forensic work, which further reduces the number of psychiatrists who may be appointed to this panel.

Finally, while the basis of having a proposed panel of psychiatrists is to ensure that the evidence given by psychiatrists is competently arrived at and objective, there have been concerns that the contrary may result. NUS law professor Jeffrey Pinsler has cautioned that the psychiatrist who is on the panel may be unwilling to state his honest but controversial view for fear that he may appear to lack objectivity and lose his place on the panel.

I hope the Senior Minister of State can share with the House what is being done to address these concerns.

I would like to look next at clause 108, the proposed section 394F to 394K of the CPC, pertaining to the introduction of various legal conditions to re-open a concluded criminal matter. There are two main concerns which I have with this proposed clause.

The first is regarding the proposed section 394K which provides that the applicant cannot make more than one review application in respect of re-opening a decision of an appellate Court.

Mr Speaker, let us consider a situation where such an applicant has already made one review application. Years down the road, the applicant comes into possession of new evidence which may potentially prove his innocence. Such an applicant would be precluded from being able to bring another review application based on the strict wording of section 394K which only permits him to make only one review application which he has already exhausted. If such an accused person is able to obtain new material which may prove his innocence, I do not think the law should be so rigid as to not permit such an applicant to re-open his case.

The second concern I have is with the proposed section 394J of the Bill which provides that the applicant in a review application must satisfy the Court that there is sufficient material on which the appellate Court may conclude that there has been a miscarriage of justice in the criminal matter.

One of the conditions that the accused must show is that the material cannot be adduced in Court earlier even with reasonable diligence and that the material is credible, substantial, powerfully probative and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made. This section is a relatively high threshold standard for accused persons to satisfy in order to re-open their case.

I am worried that such a provision might preclude the accused person who may not be able to meet such threshold but, nonetheless, are able to show evidence that might prove their innocence.

Take, for instance, accused persons who represent themselves. Without the benefit of legal advice, a self-represented suspect may not know or appreciate that particular evidence or material which he or she possesses may be material or relevant to proving their case and, thereby, did not adduce it when the case was on-going.

Mr Speaker, in such situations where the suspect cannot be said to be deliberately omitting the evidence or material when the case was on-going, such a suspect should not be prejudiced from taking up another application to adduce or obtain such material when the said material can potentially prove his or her innocence.

Given that a justice system is subject to human fallibility, we should have a justice system that is flexible enough to correct such human errors where they occur.

I, therefore, hope the Minister can reconsider this proposed section 394J and perhaps create an exception under the proposed section to allow meritorious cases. For consideration, perhaps such an exception may provide that accused persons who did not intentionally or deliberately not disclose such evidence during the criminal proceeding are not precluded from re-opening a concluded case.

Mr Speaker, I do appreciate that finality in a criminal process is an important principle. But such finality must not come at the expense of rigid rules precluding the Court from rectifying potential miscarriages of justice.

Also, while I understand that the high threshold standard set out in the proposed section 394J is also to keep the "floodgates" of unmeritorious cases shut, but, as the words of the Court of Appeal, in the case of Yong Vui Kong v State, I quote, "the floodgates arguments should not be allowed to wash away both the guilty and the innocent".

Mr Speaker, there are many other amendments contained in the Bill that are commendable and are steps in the right direction. I support this Bill but I hope that the Minister will address the four areas of concerns that I have shared in this House.

But, finally, I would also want to draw attention to the proposed amendment in the Evidence (Amendment) Bill. I applaud the move to protect victims of sexual offences and child abuse.

In a Straits Times' report about the case of the 36-year-old man sentenced to 16 years for molesting and raping his mother, the report outlined how the defence cross- examined the victim. A woman who was a sexual abuse victim, after reading the article, wrote to AWARE to voice her concerns about unrestrained cross-examination. She has given permission for me to share her thoughts about what she felt as a victim when reading about that cross-examination.

I will read a portion of her letter. I quote,

"For me, being attacked by someone I loved was confusing and shocking. You are trying to make sense of the world to comprehend what the heck just happened, trying to figure out why he did not understand you, how this massive miscommunication just occurred. Your mind is nowhere near trying to seek revenge or justice. Going to the Police means getting that person into trouble, and you still love that person. And why would you tear up your life even more by going at your family? I could not bear their concern or worry or anger.

And till today, it is really hard for me to use the words 'rape' or even, perhaps more accurately, 'forcible sodomy' to describe what happened. Those words are forceful, heavy, have all sorts of violent and awful connotations. Just because victims do not use certain words does not mean that what Courts understand that thing to be, did not happen to them.

And I remember going 'about my usual routine' as well. Why not? I had a lecture to give the next day. I had students to meet. Life goes on. We still have responsibilities to fulfil, jobs to tend to. Other people's lives do not just ground to a halt because of what happened to you the day before.

I do not know why lawyers, or indeed, people, in this day and age, continue to believe that sexual assault victims must all behave in a certain way after their incidents, or else they must be lying. Maybe they just do not understand. But what really concerns me is that these attitudes are brought into Courtrooms. I do not think I can defend how I behaved after my incident many years ago. I certainly could not do it while facing a Senior Counsel. I do not think I could withstand being put on trial for how I behaved after the incident, as if how I behaved had anything to do with how I feel even years after the fact.

I cannot imagine being a woman trying to bring her rapist to justice in Courtrooms where these kinds of arguments are used."

Her powerful sharing reminds us of how victims really need to be protected with great sensitivity and care. I wish the amendment would go further in putting more restrictions in how cross-examination should be done. The Court must have a duty to ensure that victims are not re-victimised, being asked questions which are unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or has no basis other than a stereotype. I also would like to suggest that defence lawyers be encouraged or required to attend some training to sensitise them to what sexual assault victims go through before they take on such cases. Insensitive cross-examination not only hurts the victim on the stand, but also deters others from bringing their case forward.

I think this Bill is an important step and hope we can continue our effort to protect the victims of sexual offences and child abuse.

12.36 pm

Mr Patrick Tay Teck Guan (West Coast): Mr Speaker, I rise in support of the Criminal Justice Reform Bill. I am supportive of the proposed revamp of the criminal procedural rules. It is laudable that efforts are undertaken to move our criminal justice system toward a more progressive and balanced one. I have some queries which I would like to raise in relation to some of the changes proposed under the Bill.

First, video-recorded statements. The move to allow video-recorded statements heeds the longstanding calls from the legal fraternity and fellow colleagues for the use of video-recording by law enforcement officers when taking statements from accused persons and witnesses.

The use of video-recorded statements aims to better safeguard the rights of accused persons in the process of taking their statements, go some way towards protecting the officers who are taking the statements against baseless accusations that they had coerced or threatened the witness and help to reduce the Court time spent on unmeritorious challenges as to the voluntariness of the statements given in the Police interviews. Video-recorded statements can also help to reduce the trauma faced by vulnerable victims of crime in having to recount their ordeal repeatedly through the investigation process by using the video-recorded statements as their oral evidence-in-chief in Court.

With the introduction of this new mode of taking of statements, how are our Police officers being equipped to take video-recorded statements? What training is in place to prepare our Police officers and other support persons involved in the interview process, such as forensic specialists and interpreters, for this new mode of taking statements?

Would a set of guidelines or practice directions be put together to assist the Police officers in achieving the intended outcomes of video-recorded statements? In putting this set of guidelines together, reference can be made to other jurisdictions' experience in the taking of video-recorded statements.

In 2016, the Australian Royal Commission into Institutional Responses to Child Sexual Abuse conducted an evaluation of alternative measures used in eliciting evidence from complainants of child sexual abuse, such as through pre-recorded Police interviews. It was found that technological problems associated with the use of pre-recorded interviews could impact the trial, delay proceedings, extend trial times and, at times, cause distress to complainants. These technological problems include low audio clarity and image clarity and the failure to capture images of the complainant that allowed for an adequate assessment of demeanour, such as by omitting an image of more than just the complainant's face, or by placing the camera at such great distance from the complainant that facial expressions were not adequately displayed. We can then take reference from these findings and implement measures to ensure such technological issues are mitigated or, where possible, overcomed.

The Australian Royal Commission also found that one of the concerns among the legal practitioners who were interviewed in the study was the quality of Police interviews, which were described as suggestive at times, cluttered with irrelevant details and prone to omitting important evidential details. It was recommended that there was a need to adopt better guidance and address issues in skills development and quality assurance, to improve Police interview practices. In the same vein, we can do more to prepare our officers to enhance the quality of Police interviews.

I would also like to seek clarification on the experience of Police officers who take statements which can be used as evidence. For example, under the current CPC, statements taken pursuant to section 258(1) of the CPC shall be used in evidence if it is made to a Police officer below the rank of Sergeant. This has been the rule for some time where, in the past, Sergeants were less likely to be fresh hires and would have had accumulated more experience in the force before rising to the rank of Sergeant. Today, most of the new hires enter the force as Sergeants or at a higher rank. Would it be timely to review this rule to ensure that the officers who are taking statements possess adequate experience in the taking of statements for use as evidence?

Second, safeguards to ensure security of video-recorded statements. The Ministry has also shared that copies of the video-recorded statements will not be made available to the defence due to the risk of recordings being posted online or sold on the black market. What safeguards are being put in place to ensure that the security of these video-recorded statements is not compromised, such as through hacking or illicit recording of the video-recorded statements?

Third, use of screens in Courtrooms. The Bill allows vulnerable witnesses to use a screen in Court while giving evidence on the stand to prevent him from being seen by the accused. Once again, we can take a leaf from other jurisdictions' experience in the use of screens in the Courtroom.

The Australian Royal Commission, in their 2016 study, gathered feedback on the use of screens in the Courtroom and found that some defence counsel and judges were of the view that the use of screens was unfair to the accused as he was not able to see the witness who was giving evidence against him.

Some stakeholders also found the use of screens to be ineffective in reducing the witness' stress as the witness was still aware of the proximity of the accused and, in some instances, the accused could still be seen by the witness when the accused moved.

Also, due to the layout of the Courtroom, the witness would often still be seen by the accused as they had to walk past the accused to get to the witness box. Some Courtrooms also did not utilise well-designed and purpose-built screens, as a result, the use of a screen was viewed as a negative experience for the witness, making the Court process more complex and, at times, unintentionally blocking the view of other members of the Court. It would be useful if a set of guidelines or practice directions could be put together on the use of screens in the Courtroom to ensure that it is able to achieve its intended purpose.

Fourth, strengthening the bail regime. The amendments to strengthen the bail regime are welcomed. This is especially in light of the recent case of Chew Eng Han who attempted to flee Singapore while he was out on bail.

I would like to ask the Ministry for statistics on the frequency of bail granted in the past five years and the incidence of absconding over the same period. For those who had absconded, were they later apprehended and what happened to these accused persons or convicted persons?

I also note that under the Bill, the Court will now be allowed to grant bail in extradition cases if special circumstances apply. Under the current bail regime, bail cannot be granted at all for extradition cases. I would like to ask the Minister for the rationale behind this change and to seek clarification on what special circumstances are required for bail to be granted in such cases?

Fifth, establishing a Criminal Procedure Rules Committee. I am supportive of the establishment of the Criminal Procedure Rules Committee which is conferred the power to prescribe Court-related procedural rules to keep the Court process nimble and up-to-date. Besides the 13 members identified in the Bill, I would like to propose that the Committee should also regularly seek inputs from the social science and technology experts to review the criminal procedural rules and identify ways to enhance the robustness and fairness of our criminal justice system.

Sixth, regulating psychiatric expert evidence. In respect of having a Court-administered panel of psychiatrists to ensure that evidence given by psychiatrists in Court is competently arrived at and objective, I would like to ask the Minister what selection criteria will be applied to assess if a psychiatrist should be appointed to the panel. What safeguards are in place to ensure that the selection criteria do not inadvertently cause the composition of the panel to lack diversity of views which are within the limits of objective opinion?

Are there plans to provide this panel of psychiatrists with training to enable them to better understand Court processes and the role they play in adversarial proceedings, to enable them to be able to perform their role more competently?

Seventh, expanding the community sentencing regime. The Bill seeks to expand the eligibility for Mandatory Treatment Orders (MTO) to include offenders who commit certain prescribed offences carrying up to seven years' imprisonment from the current three years and the maximum duration of the MTO sentences increased from 24 to 36 months. The amendments will also allow the Court to order the offender to reside at the Institute of Mental Health (IMH) for a specified duration of in-patient treatment as a condition of the MTO.

I would like to ask the Minister to share statistics of the number of MTO sentences meted out since its introduction in 2010 and the types of offences to which the MTO has been applied. How many offenders have failed to comply with the conditions of their MTO sentences? How many offenders re-offend or cause harm to themselves or others during their MTO sentence due to their mental condition?

I would also like to ask the Minister what community-based support does the offender receive during the course of the MTO and what safeguards are put in place to ensure that the victims of these offenders are protected while the offender is allowed to remain in the community to seek treatment.

For example, in a recent case where a woman was given a two-year MTO for harassing her neighbour, the offender continued to harass her neighbours on a daily basis by verbally abusing them and throwing urine and rubbish at her neighbours' premises. It was reported that such harassment has gone on for years. In such cases, what can be done to ensure that the victims do not continue to be harassed by the offender as the offender seeks treatment? There is a need to provide a support system to ensure that the victims of these offenders are not overlooked as well.

Eighth, DPAs. With regard to the introduction of DPAs, certainty and transparency must be ensured so that DPAs are not perceived as a way for corporations to game the system. In the United Kingdom, DPAs were introduced in 2014 and, prior to that, the Serious Fraud Office and the Crown Prosecution Service had published a code of practice for the use of DPAs. The code provides guidance on factors that the prosecutor may take into account when deciding whether to enter into a DPA. I would like to ask the Minister if a similar code will be published in Singapore.

Under the Bill, a DPA only comes into force when the High Court approves the DPA by making the relevant declaration. Upon the High Court making a relevant declaration, the Public Prosecutor must give public notice of the following: (a) the DPA to which the relevant declaration relates; (b) the relevant declaration; (c) the reasons given by the High Court for its decision to make the relevant declaration, if any.

Would the Minister consider making public the reasons given by the High Court in cases where the High Court does not make a relevant declaration? This will help to ensure consistent and transparent application of the DPA tool. This will also afford guidance on what cases are best suited for DPA and to provide corporations with more certainty in the management of their affairs.

Mr Speaker, I support the Evidence (Amendment) Bill. Child abuse and sexual offences are particularly traumatic offences and victims are often afraid to come forward to report the offences due to a variety of reasons, ranging from being unable to make sense of what has happened to them, fear of the perpetrator, fear of judgement and being subjected to further humiliation and shame, fear that they would be blamed for their predicament, fear that they would not be believed and the fear of having to recount and relive the experience repeatedly in the course of investigation and in the adjudication process. In adversarial proceedings, we can and must ensure that the victim of the offence is, as far as possible, protected from being re-victimised in the cross-examination process.

MinLaw has shared that the amendment to the Act seeks to restrict the defence from asking complainants questions or adduce evidence concerning their sexual history or activities, including their appearance or behaviour, other than those to which the charge related, without the leave of the Court. Such leave will only be granted if it would be in the interests of justice to allow the question to be asked or the evidence to be adduced.

I am supportive of this move and would like to suggest some ways in which the scope of the amendment could be expanded.

Offences listed in First Schedule.

First, the Bill defines "child abuse offence" and "sexual offence" to mean any offence specified in the First Schedule. In addition to the sections of the Children and Young Persons Act, Penal Code and the Women’s Charter listed in the First Schedule, should sections 366 and 367 of the Penal Code (Cap 224) be included in the First Schedule as well, given that these sections also deal with offences of a sexual nature?

Besides child abuse and sexual offences, should certain criminal intimidation offences under section 506 of the Penal Code or harassment offences under the Protection from Harassment Act also be treated in the same manner, in particular, where the criminal intimidation imputes unchastity to a woman or where harassment is sexual in nature? Could the presiding judge be given flexibility to decide to apply similar restrictions on cross-examination to those cases, even though they are not offences listed in the First Schedule?

Second, a set of practice directions or guidelines should be formulated to set out the approach prosecutors and defence counsel should take in handling child abuse and sexual offences. The guidelines would serve as a guide to help prosecutors and defence counsel put the amendment into practice without diminishing the right of the accused to a fair trial. I understand that the Law Society is working on a set of guidelines of best practices for examination of children and victims of sexual offences and is aiming to issue the guidelines this year. In particular, I hope that this set of guidelines would instruct defence counsel to refrain from making baseless submissions that disparage the character, integrity or morality of the victim or premise their case theory on unsubstantiated myths and stereotypes to attempt to shift the blame to the victim.

The Crown Prosecution Service (CPS), the principal public prosecuting agency for conducting criminal prosecutions in England and Wales, has developed a set of Guidelines on Prosecuting Cases of Child Sexual Abuse and have identified a list of myths and stereotypes which should be challenged in Court. These myths and stereotypes had been relied on by some defence counsel in representing accused persons in sexual offences before the Singapore Courts.

In defending his client accused of outrage of modesty, defence counsel in Public Prosecutor v Xu Jiadong asked the complainant to stand up in Court to assess her "attractiveness" and suggested to the Court that he would have to know the complainant’s breast size and whether she had been wearing low cut attire on the day of the incident. The judge found that the defence counsel’s line of questioning was indecent, scandalous and intended to insult or annoy the victim. Not only were the questions offensive, I find it regrettable that the defence’s case was premised on misogynistic stereotypes that the complainant’s looks and dressing had, in some manner, induced the accused to outrage her modesty. This is an example of the type of myths and stereotypes which should not be perpetuated.

In the case of Public Prosecutor v BLV, the defence counsel sought to rely on the complainant’s ability to keep her composure at the time of interviews by the medical assessors and the complainant’s good performance in school to indicate her lack of credibility as regards the occurrence of the alleged sexual abuse by her father.

In Ng Jun Xian v Public Prosecutor, the High Court found that it was wholly unnecessary for defence counsel to specifically highlight that the victim was older, was sexually experienced or that she was calm when she was examined by the doctor.

More recently, in defending the accused who was charged with the rape of his biological mother, defence counsel made the argument that the complainant could have "shut the gates" by crossing her legs. The prosecutor submitted that this line of argument was premised on the antediluvian notion that a woman could resist a rapist if she really wanted to and there was no room for such statements in the 21st century, both in the Court and outside of it.

While the prosecutors and judges had intervened in the aforementioned cases, the complainants had already been unduly subjected to unnecessary lines of questioning and assertions while being put on the stand. The set of guidelines should draw reference from these cases and set out best practices for defence counsel to adopt in formulating their case theory, to refrain from subjecting the victims to such unnecessary lines of questioning and assertions where such assertions do not mitigate or justify the accused's conduct or diminish the complainant's credibility.

In respect of cross-examining child witnesses, the Law Society has come up with some draft guidelines on the approach that defence counsel should take when doing so. Some of these guidelines include adjusting the pace of questioning to the child’s needs, making sure that the child understands the questions posed and ensuring that the defence counsel’s tone of voice and body language are neutral.

Besides these guidelines, the set of guidelines should also include best practices on how defence counsel should shape their cross-examination strategy in respect of child witnesses or witnesses of lower intellectual abilities, bearing in mind the general rule of practice which has been affirmed by the Court of Appeal in BMD v Public Prosecutor, that the evidence of such a witness is generally not taken at face value as such witnesses may find it difficult to distinguish between reality and fantasy, and between results of observation and results of imagination. Defence counsel should be sensitive to this general rule of practice and the particular circumstances of the witness and calibrate their cross-examination questions accordingly so that they do not inadvertently badger the witness and subject the witness to undue stress in addressing these inconsistencies.

The guidelines should also include best practices on how the defence counsel should put their case to victims in child abuse and sexual offences. It should be explained to the victims that, in the course of cross-examination, defence counsel will put their case to them and the questions posed may be upsetting to them as they seek to make out the elements of the accused's case. On the defence counsel’s part, care should be taken to formulate questions to suit the witness’ level of understanding, such as through the use of short and simple questions, given that the language used conventionally by counsel in putting their cases tends to be complex and certain classes of vulnerable witnesses may be highly susceptible to suggestion. The aim of the defence counsel should be to elicit the most accurate evidence that the vulnerable witness is able to give rather than to confuse or confound the witness to give an impression of a lack of credibility. I support the Bill.

12.54 pm

Asst Prof Mahdev Mohan (Nominated Member): Mr Speaker, 15 years ago when I first started being interested in criminal litigation, there was a speech that was made by a senior member of the Attorney-General's Chambers. The gist of that speech was that there is no such thing as an unmeritorious prosecution, only an unsuccessful one. That was the approach then and I am very happy to say that, from what I have heard and from this particular Bill that is before us, that is not the current mindset of the Ministry.

The Ministry has proposed significant contemporary changes of the criminal justice system. It marks, in their words, a "major step in the long-term move towards a more progressive, balanced and modern criminal justice system." I celebrate that move, welcome it, and I declare at this point that I am a consultant to the Criminal Practice Committee of the Law Society. Over the past several months, we have had an opportunity to meet with the Ministry at all levels several times and we have done what lawyers do best – after these consultations, argue. We followed up with copious notes and extensive submissions. So, I will not go through every point that was raised. I am just happy to note that quite a few of these points were incorporated in the refinements to the draft Bill at that time.

I will focus on a few points that I think we would like some clarification on, Mr Speaker. Let me begin with video-recording of interviews (VRIs), please.

Video-recording or the new section 225B is welcomed because – it begins with certain categories of offences – the hope is that, in time, video-recording may become a norm as it is in other jurisdictions, including the UK. What that does is that it removes the possibility that evidence was tampered with at an early stage, the statements were coerced through threat, inducement and promise – that is the hope, in time. But it is good that we at least have the possibility for video-recording now.

I do raise a few points in relation to video-recording in two separate respects.

First, I ask a very technical and procedural point: even though there is going to be video-recording, is there a significant, principled reason as to why this particular copy of the video will not be furnished to defence counsel and the accused person himself or herself? Is there a reason why a lawyer who has a professional responsibility as an advocate and solicitor not to disclose that recording in public should be not provided this copy?

If the fear is that a foolish or crooked defence lawyer may disclose the footage, then perhaps could the Ministry require defence counsel to sign an undertaking that they shall not disclose the footage? Would that not be sufficient? A breach of such an undertaking of course would be on pain of disciplinary penalties and, perhaps, even prosecution. So, is there a reason why we would not disclose a video-recording to the defence counsel themselves? I say this with full knowledge that the defence counsel would have an opportunity to look at the video-recording at the Police station or at a particular place that the Minister so prescribes.

Putting aside the additional resource burden that this will place on the Police to make such arrangements for defence lawyers to view the video footage, could the Minister confirm, for the record, that defence counsel will be able to review the footage as many times that they may want to and at a time of mutual convenience to the Police and to them? I ask this because, in preparation for the defence's case, viewing footage as to how the long statement and short statement are made, they are the first statements that are given to the Police, are crucial for the preparation of the defence's case, and preparation often cannot be done by just looking at a video-recording once.

Separately, looking at section 264A that is being proposed and here I am looking at statements recorded through video as well, at the suggestion that, in certain situations, video-recordings may even be used as a substitute or as a complement to evidence that is given in-chief in Court – the Criminal Bar, during consultations, has expressed legitimate concerns about the implications on the trial process if video-recordings are used, even partially, to substitute evidence-in-chief in Court.

When evidence is led, Mr Speaker, leading questions are not permitted and can be subjected to "on the spot" objections. But this rule may not be practically enforceable in a video-recorded interview. The potential of an interviewer inadvertently prejudicing the evidence cannot be ruled out, especially if the interviewer is not a trained advocate.

Many technical questions also arise. Will the video be shown in its entirety to a vulnerable complainant? Where there are breaks in the interview, will these be recorded and shown? Will the video that is shown in its entirety, if it is, show all the individuals who are present in the room at that time? These are nagging questions, Mr Speaker, especially because these are often the questions that are raised by defence counsel.

Now, at the point if there was no video-recording, these are the questions that you will ask of your client, an accused person, to answer: "How did your interview process go?" And after the questions are asked of the accused person, you prepare your case. Whether there is an advantage of actually having a video-recording, there will be questions that are asked if that recording of complainants of sexual offences, for example,is going to be substituted for the actual evidence in Court.

Moving on, Mr Speaker, I am looking at clause 42, which proposes section 166 amendments. At present, Mr Speaker, there is no further obligation on the defence to disclose the Supplementary Bundle of further information beyond what the prosecution gives. Let me give an example: the CCD regime, which is the present situation, operates on a quid pro quo basis. The initial disclosure is by the prosecution and is to be reciprocated by the defence. I understand that this is the basis and thrust of a lot of the amendments on discovery that are being put forward by this Bill. But I have a few questions.

If there is a requirement for the defence to disclose a Supplementary Bundle that arises from the premise that both the prosecution and the defence have the same starting point, that wish is for them to have a level playing field. But the truth, Mr Speaker, is that resources are considerably different. The prosecution has the resources of the state; the defence often has a team of very few lawyers. I say this keeping in mind that the current practitioners of the Criminal Bar often are not pure practitioners of criminal justice. Those practitioners have probably a considerable practice in civil litigation and arbitration, and, often, the criminal practice is done by the more senior practitioners of the Criminal Bar and is done pro bono or through Criminal Legal Aid Scheme (CLAS).

So, how would we even out then the playing field? I ask this also because the prior assumption which was expressed by the Singapore High Court was to assume this natural imbalance, to know that the prosecution has the resources at its disposal, the defence definitely does not have the same resources, but may be inadvertently or by practice, prejudiced. They do not have the same number of people, they do not have the same investigation team.

In the Singapore High Court case, this is what the Court observed. The High Court said: "In an adversarial system of criminal justice, it is not the prosecution’s duty to assist the defence in making out a case nor is it appropriate to allow the defence to trawl through lists of unused material in the speculative hope of finding a defence, while placing the burden on the Court to decide on the relevance or credibility of those materials. The prosecution’s overriding duty is to act fairly in the public interest and to assist the Court. Surely, this does not mean it must be placed in the invidious position of having to assist the defence to this extent as well." That was the position that was taken in that case. The reverse applies, too.

Allow me to conclude, perhaps, Mr Speaker, with a couple of points based on a recent case where I had the opportunity of seeing play out in Court. I was not involved in this case but I attended the Court of Appeal hearings and I noticed an interesting point, and I say this in relation to perhaps section 394K that is being proposed in the Criminal Justice Bill.

This particular section has already been raised by speakers before me and my hon colleagues rightly asked one question: does it go too far? The Senior Minister of State said earlier that it is codified, the current law, and she is correct because it codifies the position that was taken in Kho Jiabing by the Court of Appeal. But in doing so actually looking at the test in statute, hard coded in statute and noting that she mentioned earlier that it is that test in Kho Jiabing-plus, which is how I refer to this test, Kho Jiabing-plus.

So, if that is the test that is going to be applied, there are a couple of questions that arise. Are there going to be certain terms that are going to be questioned again and again when we have a possibility of a miscarriage of justice? My hon colleague, Mr Kok Heng Leun, asked earlier whether if there is one try for a review, should that really prejudice or stop you from trying again. And I think the main idea is: will there be unfairness to the accused at any point?

My hope is that the Court will be able to intervene at that point and say no. If we think we want to hear it, we will hear it. But the question here is: are we tying the hands of the Court? I understand that we do not want to be inundated by unmeritorious claims. But what if one of these claims turns out to undo or reverse an injustice? Surely, there must be a possibility to bring that before the Court.

I compare this, therefore, to a particular recent case that I mentioned earlier. The 2018 case of Public Prosecutor v Mohamed Ariffan, which was a Criminal Legal Aid Scheme (CLAS) case ‒ that was argued before the High Court. And at the High Court, the defendant was acquitted of charges, including rape and sexual violence. The prosecution is currently appealing, so I will not go into the facts of this case since it is pending. But what is concluded is a criminal motion that was put forward as to whether fresh evidence could be introduced. It was a very tough case for the prosecution to argue. The prosecution was trying to adduce fresh psychiatric evidence of a psychiatrist who had not actually examined the alleged victim. So, the natural question is why should such evidence be relevant or even necessary? And the issues were argued extensively and, ultimately, the Court of Appeal said the legal tests will not be changed, but, having said that, there would be some evidence which would be useful in their determination of that case on appeal and admitted some parts of the evidence.

If that is the approach that we are taking, Mr Speaker, that the Court should be free, not handcuffed, by the words in the statute, will there be any change in this current position? I ask this of the Senior Minister of State through you, Mr Speaker.

Finally, Mr Speaker, may I conclude with this. In that case, while it is important, the Court of Appeal reminded us there is dire anxiety on the part of the Court not to convict an innocent person or to impose a sentence that is out of proportion to the criminality of the offenders, they tread very carefully to avoid any prejudice that could be suffered by an accused person who is wrongly convicted or who receives a manifestly disproportionate sentence relevant to their culpability.

Criminal defence lawyers have a difficult but important role, Mr Speaker. That role is not popular, that role is often criticised, this happens even in this House. Perhaps it is right sometimes. The criticism that came from my fellow colleagues was about cross-examination that oversteps the bounds. And certainly, that must be struck down. That as cross-examination is thought of and presented, the point is, people will ask, "If I do not ask a particular question, which is within the bounds, which is not insulting or outraging the modesty of a complainant or witness on the stand; if a particular question is not asked, will that somehow prejudice my client's case?"

Again, I go back to Mohamed Ariffan’s case where that became almost a question that was raised; in this 2018 case. It went on the level of questions that were asked at the trial below and whether a particular point remained a "live issue", or whether that particular point actually was concluded substantively such that the prosecution did not have the basis to raise it on appeal or if it was unavailable.

All these are technical points but, again, I say it was a sexual offence case. It was a rape case. Questions never went or strayed beyond a particular line; never were inappropriate. But do we want to have a chilling effect on responsible defence lawyers, Mr Speaker to tell them to not just be careful but, maybe, do not ask a particular question? Since you have made your case, do not ask that question? I do not think that should ever be the case, Mr Speaker. With that, and notwithstanding those points, I support the Bill.

1.11 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, one of the key amendments in this Bill is to make community sentences available to a wider range of offenders. Community sentences provide our Criminal Courts with alternative sentencing options. They focus on rehabilitating rather than punishing the offender. This proposed amendment is just one example, which indicates a more holistic and reformative approach to criminal justice. This is a welcomed change.

There are instances in which the full brunt of society's condemnation of an offence must be brought upon a particular offender. However, it must not be forgotten that rehabilitation is aimed at changing the root causes of an individual’s criminal behaviour and should always be foremost in mind.

Moving forward, can I ask the Minister whether we will eventually let the Criminal Courts decide in which instances a community sentence can be imposed?

Can I also ask if, in line with the spirit of these amendments, the Minister would consider providing our Criminal Courts with more alternative sentencing options?

A recent case illustrates the difficulties that Courts face because of limitations in sentencing options. The Judge will be releasing written grounds and what I will discuss is informed by media reports.

In this case, an individual was convicted for sexual assault and rape of a 16-year-old girl and sentenced to reformative training. There are some who may consider this a light sentence. They may change their mind when they learn that the offender was 14 years old when he committed the offence and has a low IQ of 61.

I do not, for one moment, suggest that the actions of this young offender should be minimised in any way. His actions have severely traumatised a young girl and she is likely to remain scarred for life. What is notable from the press reports is the difficulty that the Judge faced with the limited sentencing options that were available.

In this case, the defence lawyers had asked for reformative training. The prosecution asked for a jail term of between 15 and 18 years with at least 15 strokes of the cane. The prosecution argued that the offender lacked the requisite cognitive abilities to understand the programmes because of his low IQ and was unlikely to benefit from reformative training.

I am not sure though if this is the signal that we want to send out as a society when dealing with such an offender. Ultimately, Justice Woo had said that this case had exposed larger issues at stake, including limited sentencing options available to a Court faced with a young offender who has some intellectual disability.

I would thus like to ask the Senior Minister of State if this concern can be addressed and whether we are looking into the sentencing options available to a Court faced with a young offender with some intellectual disability.

Next, on this Bill, I am supportive of the amendments to the victim compensation regime, which makes it easier for victims to obtain compensation through the criminal Courts, increase victim participation in the compensation order process and allow dependants to obtain compensation in certain cases.

The effectiveness of the regime will depend on how easy it is for victims and the dependants to navigate the process. As such, can the Senior Minister of State elaborate on the procedures for seeking compensation from the criminal Courts?

Can I also find out if there will be a limit on the compensation that can be ordered?

Further, can the Senior Minister of State clarify the rationale for limiting criminal compensation for a deceased victim’s dependants to funeral expenses and bereavement?

Sir, this next one has created a fair amount of concern amongst members of the public which the Senior Minister of State has clarified slightly. Can she clarify further the rationale behind section 83(2), which departs from the current status quo where a woman is searched by a woman officer? What checks will be in place to ensure that such searches are made with strict regard to decency as provided for under section 83(3)?

Next, lawyers have raised to me the concerns that the threshold for re-opening of criminal cases is too high, as fellow Members have raised previously. The impetus behind instituting the review application framework seems to be to prevent the opening of floodgates to applications to reopen cases. However, it bears noting that when seen in the context of all the cases that go before the Court, the applications to re-open cases are few and far between. While finality of proceedings is a key concern, ensuring that miscarriages of justice do not occur is as compelling a consideration.

Can the Senior Minister of State clarify that the new review application framework should not be interpreted to allow floodgates arguments to always prevail and that considerations of justice and the prevention of error should be given due weight, even at this late stage of the proceedings?

Next, I do welcome the introduction of video-recording for some Police interviews as it ensures greater transparency of the interview process. It deters the use of coercive practices by investigators, deters false claims of involuntariness, assists judges in more accurately assessing the voluntariness and accuracy of statements made in custody and increases public trust in the Police. However, these benefits can only be achieved if proper safeguards are put in place.

Video-recording will only reduce instances of false confessions if it captures the entire interaction between interrogator and accused.

In the words of Prof Michael Hor, "the purpose of such a scheme is defeated if the whole interrogation process spans across hours but only a portion of the statement or confession was recorded on tape".

Will the Senior Minister of State consider including in regulations or guidelines on the use of video-recording the requirement that the entire interview must be recorded and that the Police do not engage in unrecorded pre-interrogation exchanges or preliminary interviews with the suspect except where absolutely necessary?

Studies have shown that footage primarily focused on the suspect causes a "camera perspective bias" where viewers are given the notion that the statement was voluntarily given even when it was not.

Will the Minister consider including in regulations or guidelines that the footage should have equal focus on both suspect and interrogator and, ideally, also shows the full extent of space in the room?

Lastly, for this point, I note that only rape under section 375(1)(a) has been listed as an offence for which statements must be video-recorded.

Will the Minister consider making video-recordings mandatory for all offences punishable with death or life imprisonment and for all vulnerable suspects, including juveniles, the elderly, the cognitively impaired or the psychologically disordered, regardless of the alleged offence?

Vulnerable suspects are exceptionally vulnerable to giving false confessions and should be given special protection in the investigative process.

Next, this point relates in part to the rationale behind the Evidence (Amendment) Bill that victims of sexual and child abuse offences require special protection.

Aside from mitigating the trauma of the trial process on these particularly vulnerable victims, will the Minister consider enhancing the penalties or creating new offences where children are preyed on by online predators? The ease of access and anonymity of the Internet heightens the susceptibility of children to exploitation by online predators.

Next, the Evidence (Amendment) Bill seeks to introduce a new section 154A to the Evidence Act to restrict two things: first, the questions that can be put to the alleged victim and, second, the type of evidence that can be adduced about the alleged victim.

My first query relates to the types of questions that can be put to an alleged victim. There is currently a provision in section 154 of the Evidence Act to prevent such questions from being asked of an alleged victim.

Can I clarify what questions the proposed section 154A(1)(a) will cover that do not already fall under the scope of section 154? Can I also clarify if the combined effect of section 154A(1)(a) and 154A(2)(c) is intended to stop questions before they are even asked?

If so, I am fully supportive of the amendment as the mere asking of a question is sometimes enough to provoke trauma in an alleged victim. This is lacking under section 154, which only prevents questions that have already been asked from being answered.

My second question on the scope of sexual offences under the new section 154A is the types of offences that are considered sexual offences are set out in Part 2 of the new First Schedule. References there are made to several offences under the Penal Code and the Women's Charter. Most of the offences referred to are capable, at first sight, of being considered of a sexual nature.

There are others which are not as clear. For instance, there is reference to section 356 of the Penal Code, which criminalises the assault or the use of criminal force to commit theft of property committed by a person.

While I can understand that, in certain cases, the prosecution prefers a charge under section 356 where sexual violence was used in the course of committing theft of property because of ease of proof, this also casts too broad a net as there may be other cases that do not involve violations of a sexual nature.

Can the Senior Minister of State clarify that an offence will not be deemed to be of a sexual nature just because it falls under section 356?

Sir, notwithstanding all of the above clarifications, I do stand in support of both Bills.

1.21 pm

Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, I declare my interest as a disputes lawyer.

The Criminal Justice Reform Bill and the Evidence (Amendment) Bill, taken together, introduces significant reforms to keep up with the evolving needs of our criminal justice system and the larger community. The introduction of this Bill follows one of the most exhaustive reviews of the criminal justice system in recent history. I commend the Government for involving the public and stakeholders, such as the Law Society of Singapore, in consultations before drawing up the Bill. And we have just heard the account from the hon Nominated Member of Parliament Asst Prof Mahdev Mohan who stated his involvement as a consultant to one of the stakeholders in engaging the Government over several months.

The strength of this Bill is reflected in the consultative process that it underwent before reaching this House. I take the opportunity to comment on three aspects of the Criminal Justice Reform Bill and two aspects of the Evidence (Amendment) Bill.

I start with the proposed amendments in the Criminal Justice Bill to community-based sentencing. As this House may recall, I had moved an Adjournment Motion some months ago to discuss the need for greater rehabilitative options to take into account the evolving needs of our sentencing regime, particularly for offenders suffering from mental disorders. The present proposed amendments go towards this and I am glad to see that my suggestion to expand community-based sentencing (CBS) to offences with specified minimum sentences of fine has been taken up.

As a result of these amendments, a whole new range of CBS options will now be open to the Court dealing with such cases. I recall a recent appeal which I did before the High Court where parties were asked to consider if a short detention order in lieu of an imprisonment term – these are community sentences – may be imposed on a person who pleaded guilty to the offence of drink-driving causing a moderate level of harm to the person and property damage. Under the registration of Criminals Act, the record for crime for which a community sentence was imposed by the Court will be deemed spent upon completion of the sentence. As a consequence, the person may lawfully state that he has no record of conviction. This was the case for a company director who was convicted in January 2017 in the State Courts for failing to use reasonable diligence in the performance of his duties, an offence under the Companies Act. The Court imposed a short detention order of 14 days on him. Upon serving the community sentence, he was able to move on with his life more easily as his job prospects were not indelibly affected. This would not have been the case before the advent of the CBS regime.

Returning to my case, as a minimum sentence of fine was specified in the drink-driving provision, this option was not open to my client. Now, depending on the circumstances of the case, the person may be imposed a short detention order. This option will enable the Court to better tailor the punishment it imposes to the culpability of the offender. It will not indelibly affect his employment prospects in the future.

One further example of a CBS doing good for the person involved is a mother who was convicted for criminal intimidation against her own young children. At that point, she was suffering from clinical depression and other psychiatric conditions. She was separated from her husband. The Court imposed a 12-month MTO on her. As a result, the Order allowed her to continue with her treatment and the Child Protection Services allowed her to have supervised and, subsequently, unsupervised access with her children. The result of it is that she has now reconciled with the children and she is well on her way to be back on her feet.

The enhanced CBS regime does not mean that we are going soft on crime. The stipulation that CBS is not available to persons who have committed serious offences for which sentences are fixed by law or prescribed by a mandatory minimum sentence of imprisonment or an offence for which the sentence is fixed by law still remains. It seems to me that more resources than ever before would be devoted to address the root causes of criminal conduct.

The significant difference here is that, under the enhanced CBS regime, we are in a better position to target root causes of criminal conduct by persons, especially those who have psychiatric conditions. The enhanced CBS regime will allow a wider class of persons to be subscribed to sophisticated rehabilitative programmes administered by duly qualified professionals, like in the case of the mother I mentioned earlier. This will provide these persons with the best chance for rehabilitation, mend their ways and stop re-offending. This approach better serves public interest.

I wholeheartedly support the proposed amendments to expand CBS and take the opportunity to make a few comments.

The present amendments do not alter the present framework for assessing an offender's suitability for a mandatory treatment order. It, therefore, still remains that, under the CPC, the suitability assessment is conducted by a psychiatrist appointed by the Director of Medical Services of MOH.

In my Adjournment Motion, I pointed out that there is a spectrum of mental disorders, some of which are easily treated, and others, such as personality disorders, which require sustained efforts to effect improvement.

However, if the appointed psychiatrist makes a guarded prognosis of the offender's susceptibility to treatment and does not recommend an MTO, the Court would have no choice but to decline to make the MTO. The effect of this is that the Court's determination of whether an MTO should be made is entirely reliant on the rigour and the professional opinion of the appointed psychiatrist. There is no mechanism for the Court to scrutinise the opinion of the appointed psychiatrist, for example, by reference to other independent psychiatric evaluation that the offender may have obtained, or through defence counsel's cross-examination of the appointed psychiatrist.

This approach is divergent from the approach taken in the context of reformative training. Under the CPC, before an offender may be sentenced to reformative training, the offender would need to be assessed to be suitable for reformative training by a Singapore Prison Service psychiatrist. In a Parliamentary Question that I had filed earlier this year, I had asked the Minister for Law whether it would consider expanding this requirement to allow for an independent report from a Court-appointed psychiatrist. The Minister's response was that the Singapore Prison Service psychiatrist is a professional who is familiar with the reformative training regime and would make his or her independent assessment of the offender. The Minister further highlighted that the Court may, if it deems necessary, direct that the SPS psychiatrist be cross-examined, or that further expert evidence or a second opinion be obtained, including from a Court-appointed psychiatrist. This being the case for reformative training sentences, it is, with respect, incongruent that, for MTOs, the Court's determination is constrained by the sole professional judgement of the appointed psychiatrist.

I personally dealt with a case where a psychiatrist issued an opinion supporting an imposition of an MTO on my client who was suffering from an anti-personality disorder, which I understand, requires intensive in-patient treatment for a significant period of time. This opinion was used to persuade the Court to call for a suitability assessment for an MTO. The same psychiatrist was then appointed by the Director and, later on, he issued a diametrically opposed opinion without providing sufficient explanation for the change in opinion. The Court was not in a position to look beyond the second opinion based on the current provisions.

Second, a point that I had raised in my Adjournment Motion was the approach taken to determine if an offender is "treatable" and, therefore, suitable for an MTO. Then, I had highlighted that the UK has moved from a "treatability test" towards an "appropriate treatment test" when considering sentencing orders for offenders with mental disorders. The new test allows the UK Courts to make a detention order for treatment as long as, having regard to the nature and degree of the mental disorder and all other circumstances, the "appropriate medical treatment is available" for the offender.

As I recall, MinLaw agreed to study my proposal which, if accepted, will have the potential of extending MTOs to offenders who require more intensive treatment and rehabilitation regimes to cope with their psychiatric conditions and overcome their offending behaviour. I wonder if there is any landing reached on the study, please.

Next, another area of note is the proposed regulation of the use of psychiatric evidence in criminal proceedings. The use of psychiatric evidence is an area of expert evidence that has seen some of the greatest growth in recent years. The proposed amendments will require psychiatrists to be admitted to a Court-administered panel of psychiatrists before they are allowed to give expert evidence in Court.

I do not see this amendment as singling out psychiatrists for stricter regulation than other types of expert witnesses. All experts must give evidence in an objective and professional manner. On the contrary, the amendment recognises the prominent role that psychiatrists play in the criminal justice system. Because so many cases turn on psychiatric evidence, it is important to ensure that such evidence in the form of opinions presented in Court is objective, well-researched and professional. In view of the frequency with which psychiatric evidence is admitted in criminal cases, establishing a Court-administered panel is, in my view, a very good way to regulate such evidence.

Could the hon Senior Minister of State please clarify whether it is contemplated that there will be a fixed quota of psychiatrists who are admitted to the panel? Apart from the psychiatrists being qualified and having relevant work experience and character references, are there any other factors that the selection committee will take into account in determining whether to admit a psychiatrist to the panel?

I now move to another area of amendment to the CPC relating to the admissibility of statements taken by CPIB as evidence in non-corruption offences. Section 27 of the PCA requires a person being interviewed in relation to offences under the PCA to give all information he is asked to give. In contrast, for non-corruption offences, section 22 of the CPC preserves a person’s right against self-incrimination, by requiring a person giving a statement to the Police to state what he knows of the facts and circumstances, except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture.

At present, a statement given under section 27 of the PCA is inadmissible in relation to non-corruption offences. This preserves the right against self-incrimination that is provided for in the Penal Code. However, the proposed amendments to section 258 of the CPC will change that, such that statements given to the CPIB under section 27 of the PCA, may now be relied on in non-corruption offences, when, ordinarily, if the statement were made to the Police, the right against self-incrimination would be preserved.

It will always be the case, for a person giving a statement to the CPIB under the PCA, to be legally obliged to say more than he would ordinarily say if interviewed by the Police in relation to a non-corruption offence. I am struggling to identify a principled basis to preserve the right against self-incrimination in relation to non-corruption offences, which include serious white-collar crimes, such as criminal breach of trust as an agent while, at the same time, abrogating the right if the statement was originally given in relation to a corruption offence to a CPIB officer.

In my view, the abrogation of the right against self-incrimination for PCA offences under section 27 of the PCA may be justified by reason of the nature of the corruption offences. At one level, these offences can be seen as "victimless" crimes because both the briber and the person receiving the bribes are likely to cooperate with each other and keep their conduct under wraps. This makes such offences much more difficult to investigate.

Hence, the abrogation of the right against self-incrimination will allow the CPIB to be more effective in its investigation to tackle corruption. However, it is a different ballgame when the statements are used against a person for a non-PCA offence for which he would otherwise have a right against self-incrimination.

Could the hon Senior Minister of State please clarify what is the policy and rationale behind this dichotomy in treatment?

Third, the Criminal Justice Reform Bill introduces the deferred prosecution agreement regime, which allows the prosecution to enter into an agreement with the accused corporation to agree not to prosecute, in exchange for compliance with a series of conditions, such as payment of a financial penalty, or the appointment of a person to assess and monitor the corporation’s internal controls. The contemplated DPA regime requires that DPAs are approved by the High Court and allows for the prosecution and corporation that is the subject of the DPA to make submissions before the Court makes its determination.

I noted earlier that the hon Member Ms Sylvia Lim expressed concern that the High Court making this determination sits in-camera. I felt that sitting in-camera actually strikes a proper balance because, at that point in time, the Court would not have made a determination whether or not to sanction the DPA. There is always a possibility that the case needs to go on and the corporation be prosecuted. So, in those circumstances, to make a pronouncement on what has happened in the proceedings may be sub judice, may even affect prosecution of the offences.

Therefore, I feel that the balance struck in the Bills by allowing the Public Prosecutor in a situation where the High Court gives its approval to make a public notice outlining the reasons for the High Court's decision is a good one.

In this regard, the persons acting on behalf of the company in respect of the DPA would typically be the board of directors appointed by the shareholders to act on behalf of the corporation. However, given that DPAs may have an impact on shareholder interests in the corporation, there may be times when shareholders’ interests may not be aligned with the position taken by the directors on behalf of the company, especially when the company is asked to pay fines of substantial sums.

The present DPA regime does not appear to allow for the intervention of such interested parties at the hearing by the Court to determine whether or not to approve the DPA. Would the hon Senior Minister of State please clarify that the provisions do not preclude the Court from allowing interested stakeholders to join in the proceedings so that it is in a position to properly consider the interests of all the relevant stakeholders or parties before approving the DPA?

As mentioned earlier, the DPA may provide for the appointment of an external monitor to monitor the corporation’s implementation of internal controls under the DPA or remediation, as the case may be, and to report to the prosecutor any misconduct in the implementation of internal controls. It is common in DPAs entered into with US authorities for such external monitors to be appointed at the corporation’s expense even though the monitor is, in reality, working for the prosecuting authorities. This structure has the potential of giving rise to a moral hazard, in that the external monitor may have a financial interest in having an expanded scope of work.

I have seen real life examples of this. I have seen examples of monitors tying up the corporation’s business in knots, especially when the scope of monitoring has not been precisely determined and agreed to in the DPAs beforehand and submitting bills to corporations running into millions of dollars per month.

While the contemplated DPA regime provides that the monitor is to report to the prosecutor any misconduct in the implementation of the corporation’s internal controls, it is not clear who has control over the monitor. I wonder if there is any intention to provide in the DPAs that the monitors be subject to oversight by the Court, akin to the position of liquidators appointed in the winding-up of companies. This would repose monitors with duties owed to the Court and ensure that his or her professional fees are fair and that the work done was properly within the scope of appointment under the DPA.

I now turn to the proposed amendments to the Evidence Act. The proposed amendments seek to enhance the protection for victims of sexual or child abuse, to reduce the stress they may face in the criminal justice process. Other countries have taken similar actions to protect victims of sexual offences from intrusive questioning in Court.

For example, in the UK, section 41 of the Youth Justice and Criminal Evidence Act imposes a general prohibition on the admission of evidence or questions in cross-examination relating to the sexual history of a complainant, save in narrow exceptions, such as where the evidence is necessary to rebut prosecution evidence.

However, even where one of the exceptions is met, the judge must be satisfied that further criteria are met, such as that the purpose of the evidence is not to impugn the complainant’s credibility and the evidence is required to ensure a fair trial.

The UK process requires the defence to obtain the Court’s permission to introduce such questions or evidence about a complainant’s sexual history, by way of an application made to Court within a specific timeframe, according to requirements set out in the UK Criminal Procedure Rules.

Mr Speaker: Mr Pillai, you have half a minute to wrap up.

Mr Murali Pillai: Yes. In our case, the proposed section 154A of the Evidence Act provides that the Minister may make rules to restrict the questions that may be asked of an alleged victim of cross-examination. I support these objectives. However, I wish to seek some clarifications, given that the Evidence Act already contains restrictions on certain kinds of questions. What is the rationale for having these restrictions dealt with in secondary legislation, instead of primary legislation? As I have pointed out, even the UK model —

Mr Speaker: Kindly wrap up, please.

Mr Murali Pillai: Yes, Sir. Just a last question.

Mr Speaker: You do not have time for a last question.

Mr Murali Pillai: I think I will take your cue.

Mr Speaker: Thank you very much.

1.41 pm

Mr Desmond Choo (Tampines): Mr Speaker, as technology has improved commercial and social applications, the legal ecosystem similarly needs to use technology to enhance the effectiveness of investigation and Court proceedings.

Two of the changes proposed in this Bill involve the expanded usage of video facilities in legal proceedings.

First, the expansion of video-link hearings for pleas of guilt and sentencing. Video link hearings have been successfully implemented since 1996 for bail and remand applications involving remandees. Over time, video-link hearings were used for pre-trial proceedings, followed by first mentions in 2010. The Government then did not rule out that video link hearings would not expand into accepting pleas or sentencing. I am glad to know that the state of technology has advanced such that it is possible to now hear more substantive matters like pleas of guilt and sentencing hearings in a more efficient, yet procedurally fair manner.

It also allows such matters to be heard without moving remandees between the Court and prisons. This will reduce security risks, as well as the manpower needed for the management of risk.

While I support this proposed measure, I would like to ask the Minister what safeguards would there be to ensure that the usage of video link will not compromise on the standard and quality of the proceedings and the process of justice. Will the various cybersecurity measures be in place to ensure that the links are free from being tapped or hacked by external parties? Will there be consultation with stakeholders and Court users to ensure that the operational and technical aspects of the video-link hearings do not compromise the quality of justice?

Second, allowing video recording of the interviews and suspects’ statements will allow the Courts to try cases more effectively by providing a contemporaneous account of the interview. How something is said is often as important as what is said.

I note that the Ministry has proposed a phased and measured approach. This is sensible, because too rapid an adoption of technology has its downsides. People, even seasoned media personnel, sometimes react differently when they know that there is audio-visual recording. This can also include investigators. We must not compromise on the effectiveness of our investigators, failing which, justice is then not delivered fairly for the victims as much as the suspects. Time must be given to assess, calibrate and enhance the competencies of our officers. Appropriate training should be given to our Police investigators so that they can discharge the interviews fairly and effectively. Court officers who are involved in such proceedings should also be trained to handle such recordings.

Some members of the public whom I have spoken to were concerned about the effectiveness of the video-recordings since. As some Members of this House have also pointed out, there could be interrogation or interview before the actual recording. In fact, some have also suggested more extensive recording and other processes.

Mr Speaker, we must note that statements are but one element in the entire investigation process. In my years of conducting investigations, I have never relied merely on confession or denial in the statement. I needed corroborative evidence. Our professional investigators look at the whole body of evidence surrounding a case. We must, therefore, never over-burden the investigation process with extensive SOPs, nor must we over-rely on video-recording when investigating and judging a case.

Sir, I would also like to state my support for the proposal to enhance the protection of complainants of sexual and child abuse offences in Court. It is imperative that the system provides conditions that make it easier for the cases to be reported. Victims or complainants could be reluctant to report such crimes. The proposal will protect the identity of an alleged victim even before a charge is tendered. We must not allow sex fiends and child abusers to hide in the protection of open trauma and reluctance to report.

Finally, I welcome the introduction of enhanced computer-related powers of investigation. When criminals capitalise on the anonymity and ease of communication and transaction that technology allows for, law enforcement agencies must be empowered to go after them effectively. For example, facilitating access to computers situated outside of Singapore is critical in today's cross-border investigation. Otherwise, our laws would have failed to keep up with the changing environment. At the same time, I hope that these enhanced investigative powers will be exercised with great care. I am heartened to know that the stakeholders have been consulted and that their feedback has been taken into consideration.

With this, Mr Speaker, I support the Bill.

1.46 pm

Miss Cheng Li Hui (Tampines): Mr Speaker, today I would like to raise the uncomfortable topic of rape, how it psychologically affects its victims and what we can do to provide aid and restoration to the victims.

In November 2017, The Straits Times reported a burglary-rape case that the High Court passed sentence on. In the case, a man broke into a house with the intention to burgle. When he saw the young victim in deep sleep alone in her bedroom, he decided to rape her and physically assaulted her by raining blows on her to beat her into submission and stop her resistance.

Following the traumatic ordeal, the High Court heard that the victim had become so fearful of people barging into her room that she now sleeps with the lights on and keeps a pair of scissors by her bedside.

The victim has been diagnosed with post-traumatic stress disorder. Following the breakup of her engagement due to the ordeal, she has thoughts that she is unworthy of others. She also blames herself for not sleeping in her grandmother's bedroom that night, thinking that she would not have been raped had she not slept alone that night.

In the sentencing of the case, Justice Chan Seng Onn told the perpetrator that words cannot fully express how much pain and suffering he had inflicted on the victim. "You have wrecked her life," said the High Court Judge.

Sir, the Bill in discussion today will provide additional measures to support rape victims. I support and welcome the additions to the range of safeguards that currently exist.

Specifically, the disclosure of the victim's identity and having to recount a traumatic experience in the presence of the general public may not only be embarrassing, but traumatising and may undermine the individual's recovery process. With the amendments, victims can be assured that their identities will be protected. In addition, they will be able to give their evidence in a closed-door hearing.

The Bill will also allow for the use of screens that will prevent victims from having to see their attackers. In some cases, the mere sight of one's attacker may deter the victim from testifying and cause more psychological trauma to the victims. This can compromise the victim's ability to give their evidence in Court.

The Evidence (Amendment) Bill will allow the Minister to introduce rules about the type of questions that may be asked of the victim in Court. MinLaw has announced that under these rules, the Court's permission will be required before the victim can be asked questions about their sexual history that do not relate to the charge. This will help debunk the myth that the victim's dressing or behaviour somehow suggest that they consented to sex or that their report of a sexual offence should not be believed.

Legal counsel who abuse their position by posing insensitive questions which do not have any relevance to the case have been reprimanded by wise Judges in the past and I am, therefore, particularly heartened by the Evidence (Amendment) Bill.

I remember reading about such a case recently. A lawyer was rapped by a District Judge when he suggested that it might have been the molest victim's dressing which increased the tendency for people to commit the sexual offence against her. In other words, it was her fault that she was molested.

The Judge had then said that the lawyer's conduct had been completely unacceptable and fell short of expectations of lawyers. He had also noted that such questions are forbidden in Court under the Evidence Act and also proscribed under the Legal Profession Rules.

The Evidence (Amendment) Bill will, therefore, provide another layer of safeguards against hurting victims in Court. This is a significant amendment as it is often the thought of going to Court and facing the defence counsel's cross-examination that is most daunting to the victims.

Mr Speaker, I am encouraged that the investigative processes have also been improved to ensure that a victim is treated appropriately and sensitively from the time he or she reports the offence.

Firstly, with the One-Stop Abuse Forensic Examination (OneSafe) facility, victims reporting an alleged rape to the Police will no longer have to face more stress and scrutiny of being taken to a public hospital for medical examination. Instead, the examination of the victim is done in a private setting, away from the public eye.

Secondly, investigators will be trained to speak to victims in an empathetic way to approach issues from their perspective. This will help the victims recount their ordeal without causing more hurt and trauma.

Mr Speaker, Sir, I applaud the proposed amendments made to the Bill. They are humane, compassionate and reflect a society that not only looks after, but is also respectful of the vulnerable members within. Let us try and help the victims recover from their pain and move on with their lives.

1.51 pm

Dr Tan Wu Meng (Jurong): Mr Speaker, I declare that I am a medical doctor and specialist in medical oncology in private practice. In supporting this Bill, I will speak on three points: Vulnerable victims, expert witnesses, as well as vulnerable persons of unsound mind.

Mr Speaker, as part of the broader discussion of the criminal justice system, I would like to make some points on the Evidence (Amendment) Bill as well. I concur with many of my colleagues who have spoken earlier, it is high time that we provide for appropriate restrictions on the kinds of questions and evidence that can be asked in criminal proceedings involving sexual offences or child abuse offences.

We recognise that our judiciary is impartial and can decide what is an inappropriate question to a witness, but, by then, the question may have already been asked. Our legal profession is held in high regard, with only a very small minority of practitioners censured for inappropriate questioning, but, by then, the question may have been asked.

And so, there is still a role for safeguards because by the time an inappropriate question has been asked of a sex offence victim or a child abuse victim, it is too late to undo the psychological trauma caused to the person being cross-examined.

And so, we must avoid the risk that victims will be deterred and afraid of coming forward to give evidence because of the fear of being subjected to inappropriate questioning during cross-examination.

Mr Speaker, indeed, it is even conceivable that a malicious, calculating defendant may seek to mislead his counsel into asking inappropriate questions on sexual history, so as to deter the other victims from coming forward. Victims of sexual abuse and child abuse have suffered terribly already. We must avoid a situation where unnecessary additional suffering is visited upon the victims.

Mr Speaker, my second point is on regulating expert evidence through subsidiary legislation. The proposed amendments will allow subsidiary legislation on the use of expert evidence, including the obligations of evidence and the use of concurrent expert evidence, which have been colloquially described in some jurisdictions as "hot-tubbing", or the use of what they call, joint expert reports.

These amendments and, in particular, the clarification of expert witnesses' duty to the Court, are very much welcomed because, as our society and justice system mature, expert evidence is increasingly sought to be introduced in legal proceedings, including criminal hearings.

For example, the use of medical evidence in criminal proceedings is becoming more commonplace, whether it is relating to the nature or cause of injuries; the mental state of the accused and its impact on the commission of an offence; or the possible explanations for, or the significance of, a substance that may be found in the blood or urine of an accused person. So, the creation of rules to regulate the giving of expert evidence will ensure that such testimony is held to strict as well as consistent standards and taken in an effective manner that would advance the pursuit of truth.

Indeed, the practice of "hot-tubbing" has been adopted in civil proceedings in Singapore for some time. As it involves the concurrent giving of evidence in an inquisitorial manner, "hot-tubbing" can reduce the time taken to take evidence from experts and also fosters a respectful environment where experts can put forward and have their opinions tested.

In a recent case involving an application under the Mental Capacity Act for a declaration that a woman was unable to make decisions on her property and affairs because of a mental impairment, the Court of Appeal suggested in a postscript that, ideally, medical expert evidence in such cases should be tested through "hot-tubbing" and there can be benefits to extending this procedure to criminal hearings.

Mr Speaker, it might be useful to share a medical perspective. Currently, when a patient presents with a complex medical condition, a case conference may be convened. Multiple experts from the same specialty may attend, or even multiple experts across multiple specialties. In oncology, we call these conferences "tumour boards". Other medical specialties will have their own names for such conferences. Such conferences are routinely held at reputable specialist centres around the world: Singapore, US, UK, Australia and so on.

It is important to note that such case conferences are not adversarial by design. Experts can ask questions or offer comments on other experts' views. Clinical information is presented and discussed concurrently by a panel of experts. Opinions can be tested or clarified, with the aim of seeking understanding of the scenario faced and what the range of appropriate decisions would be. Sometimes, the discussion generates a range of opinions which the panel assesses to be within the bounds of what is appropriate.

Mr Speaker, the case conference approach to medical expert decision-making in the context of clinical practice and patient care seems closer to the inquiry-based inquisitorial approach proposed for "hot-tubbing", as compared to the adversarial approach.

To clarify, I am not saying that medical case conferences are exactly the same as a "hot-tubbing" model of expert evidence in Court, but one might suggest that there are useful lessons which can be drawn. So, this review of how the Courts manage expert witnesses, especially medical expert witnesses, is to be welcomed. It can help the Court arrive more swiftly at an understanding of evidence and what the key issues are, especially for medico-legal cases or where the medical evidence pertains to a criminal case.

Medical experts would also be able to discuss the evidence and provide opinions in an environment which more closely reflects the actual clinical decision-making and opinion formulating in day-to-day real world, responsible, expert practice. This would also provide educational value for counsel as well as patient advocates.

But there are clarifications that we need to ask of the Minister. Firstly, what sort of subsidiary legislation will be enacted to regulate expert evidence? Secondly, will there be consultation on the proposed regulations? Thirdly, in particular, each expert domain – whether engineers, computer security, medical professionals – each will have its own established professional practice for discussion of complex expert cases. So there should be consultation with the relevant professional bodies before the regulations are enacted.

Mr Speaker, thirdly, I will also speak about our criminal justice system relating to persons unfit to plead or are of unsound mind. I support the amendments which give the Courts and medical professionals a more prominent role in determining the most appropriate action to take in respect of persons who are found unfit to plead, or acquitted on the basis of unsoundness of mind.

Unfitness to plead or unsoundness of mind can span a spectrum of conditions. Each case turns on its facts and it can be helpful to provide the Court with a range of options in dealing with such accused persons. So, we should welcome amendments which explicitly set out provisions that such persons can be released, if appropriate, to places such as a properly-equipped nursing home or other appropriate care facility.

This provides more options for dealing with such persons in a way that is humane while still serving the interests of justice, due process and protection of the public.

Sir, it is also important that a person's unfitness to plead, in and of itself, should not prejudice that person's interests more than would have been the case for a person who is mentally sound and fit to plead. This is an important part of the proposed enhancements to procedural protections.

For example, the existing section 249(2) allows the Minister discretion to confine a person of unsound mind who is unfit to plead, but does not specify an upper limit as to how long this confinement might be. The amendments in this Bill set out a maximum duration for the Minister's order of confinement over such persons and will help ensure that such persons are not confined under the criminal law for longer than a person in a similar position without a mental condition affecting fitness to plead.

However, there is a clarification as well to ask the Minister: what happens when the maximum term of confinement under the CPC has been reached and the subject is still found to be unsafe for discharge because he or she remains a danger to themselves or others?

Mr Speaker, in conclusion, I support these amendments.

They are part of an important shift towards a more progressive, more balanced, more modern criminal justice system. They allow for a greater role for modern medical opinion, and additional judicial safeguards. They reflect a more enlightened attitude towards those with mental conditions, as they recognise that, with proper supervision and the right conditions, some such persons can safely be cared for in the community.

Sir, we must continue building a criminal justice system that gives due consideration to the vulnerable: whether victims who are vulnerable, witnesses who are vulnerable, or accused persons who are vulnerable – or accused persons who are innocent until proven guilty − doing this even as we protect the interests of the broader community. I stand in support of these Bills.

2.03 pm

Ms Joan Pereira (Tanjong Pagar): Mr Speaker, Sir, one of the biggest challenges in getting victims of sexual and child abuse crimes to make a report is the humiliation that they may be subjected to in a Court of law. This is more so in an Asian society where a woman would be very embarrassed to relive the trauma that she had undergone. Worse still is the fact that they could be cross-examined and asked questions which are very personal in nature and be dragged into a sort of exchange with another unknown person, namely the defence lawyer.

While I may not be legally trained, I know the defence in cross-examining a victim is trying his best to establish his client’s innocence, but, sometimes, these questions can be so cutting that they become more than an examination of facts relevant to the case. The amendments strike a proper balance between two objectives: the objective of ensuring that an accused person is given the opportunity to confront his or her accuser, and the objective of protecting victims from uncontrolled, unnecessary and humiliating questions. The possibility of having to put up with the humiliating and sometimes cruel scrutiny from the lawyers is a common reason why sexual assault victims do not report the crime.

In the US, there was a case involving a student from Stanford who was accused of committing various sexual offences against an intoxicated victim. The victim was asked many unnecessary questions. She was asked about her appearance, whether she drank alcohol and whether she had a history of cheating on her boyfriend. In her victim impact statement, she recalled how badly the offence affected her and her ordeal of testifying in Court.

There was at least one occasion in Singapore where defence counsel had told the victim that he was going to ask her more insulting questions during her cross-examination. This was right after she had informed him that she felt very offended when he had asked her to stand to assess how attractive she was. In this case, the presiding judge had harsh words for the counsel.

May I ask what recourse a victim has, if she felt that the counsel had ridiculed her to the point of disparaging her reputation during a Court hearing? Or would the presiding judge be consciously on the look-out for lawyers who pursue an irrelevant and salacious line of questioning?

If I may emphasise, it is important for the investigators to be fully conversant with procedures and protocols when taking DNA samples and other evidence. We have read of a number of cases where scientific evidence could not be tendered or were rejected because the lab tests could not be done or could not give any conclusive result because of certain lapses. From media reports, I recall this has happened in a few cases. I hope that investigators follow the procedures very closely when collecting evidence.

The use of video-recorded statements in lieu of oral testimony is good because this will mean that victims will not be required to retell their horrific experience during their examination-in-chief. With pre-recorded evidence, the time that a victim will have to spend in Court testifying will also be cut down.

May I ask whether a victim can be given a choice of whether to give a statement via video or in writing? There may be situations where the victim is very uncomfortable with giving a statement on video or is unable to recount the alleged incident accurately because he or she is traumatised. What measures will be taken to ensure that victims are not disadvantaged by being made to give a statement on video in such situations?

Lastly, I note that the expansion of the community-based sentencing regime will mean that a greater number of offenders will be given access to rehabilitative opportunities. This amendment is to be welcomed as it is a continued recognition of the fact that not all offences are best addressed through the traditional sentences of imprisonment and fines.

Some offences may be committed in a moment of indiscretion and, thereafter, the offender may demonstrate a strong willingness and ability to be rehabilitated within the community setting.

There are some offenders who commit offences because they are unwell mentally. Medical intervention, rather than punishment, should be the focus in such cases. MTOs address the root of the offending behaviour by ensuring that such individuals receive treatment. The expansion of MTOs as a sentencing option for more offenders and offences is thus a welcome change.

I would like to ask which offences, punishable with up to seven years' imprisonment, will MTOs be applicable on? What is the criteria for determining the prescribed list for such offences? The Ministry had said that community-based sentences have been frequently imposed and have been successful in achieving their objectives. Can the Minister share the take-up rate? Sir, I support the Bill.

2.09 pm

Mr Vikram Nair (Sembawang): Mr Speaker, I declare my interest as a dispute resolution lawyer who sometimes advises on criminal matters. This Bill makes important and wide-ranging changes in criminal procedure, which will enhance the administration of justice in a variety of ways: first, it provides greater transparency in the investigative and evidence-gathering process; second, it provides better protection for victims of crimes; third, it provides more incentives for whistle-blowers to come forward; and fourth, it makes important improvements in the process before the Courts.

I will touch on a few areas.

The first is the protection for victims or complainants in sexual and child abuse offences. The past few weeks, we have seen newspaper reports of serious sexual offences being committed against young people and even some shocking ones against older people. A common trend in many of these cases is that the victims are afraid of reporting the offence for a variety of reasons. These include the stigma of being the victim of sexual abuse, the fear of both the perpetrator as well as the potential stress of going through the legal process and potentially having to relive the process once again in Court as the victim’s evidence gets challenged in the adversarial process.

As Court lawyers, we all know that a defence lawyer's job is to discredit the victims, so this creates a natural tension. Some of these fears, the law cannot fully remove. But what we can do is to take what steps we can to reduce that fear. And a number of the important amendments in this Act include the amendments to make the Court process less intimidating for the victim, though, hopefully, not compromising the opportunity for the accused to challenge their evidence.

This includes allowing the victim to provide evidence by video although I think the details on how the adversarial system would preserve in this context are not yet available. There are also measures − interesting measures − to prevent the victim from seeing the accused in Court, including the provision of a screen, but this does not necessarily mean that the accused will not be able to instruct his lawyers. So, again, it is to protect the victim.

There are also procedures to hold part of the hearing in-camera, meaning out of the public eye, but not necessarily out of scrutiny of the adversarial process. So, I think there are well thought-through changes that will take away a lot of the stress the victim faces while, at the same time, giving the accused the opportunities he would need to challenge the evidence, as necessary, because, as some other Members have mentioned earlier, it is important that the accused is innocent until proven guilty.

But one must not underestimate the stress that victims face and I think there is a much broader societal cost to this as well. One of the things that surprised many people, certainly myself, was the #me-too movement which came to life after the allegations against Harvey Weinstein. And what was surprising was the number of prominent individuals who came forward to say they were victims of sexual abuse, but who had never themselves decided to make complaints prior to this or put themselves through the process.

An even scarier case is that of Larry Nassar, the coach in the US who has been convicted of molesting young student gymnasts. So, this is really scary because these are conduct that could have gone unpunished and even unreported for years because victims were afraid to come forward. So, it is important for us to make sure that victims are not afraid to come forward.

The second aspect that I would like to talk about is DPAs. DPAs are a work-in-progress in Singapore and it is interesting to add to the criminal process. DPAs are essentially agreements, I anticipate, most likely, with companies, to allow them to get an agreement not to be prosecuted now but to defer that if they cooperate.

The logic of the details is quite simple and I think the commercial incentives it intends to promote is this: it is basically to support and encourage whistle-blowing. So, if a new management, for example, comes and takes over a company, it has two options. The first option is to blow the whistle and expose the wrongdoing but, if they do that, there is a chance that the authorities may then prosecute the company. The second option, of course, is to keep quiet and do nothing but that, of course, means the wrong may not go unpunished and that undermines the criminal process.

With the DPAs, this actually creates an interesting option for new management that comes in, because, in a sense, they are starting with a clean slate. They have the option to report the crime and discuss with the prosecution and try and get an agreement of this sort in place and exchange for cooperation in order to report on wrongdoings that had taken place before they had come. So, this, in a way, allows prosecution against the company to be deferred but, at the same time, for the wrongdoing to be investigated and for the wrongdoers to be taken to task.

This, I think, will be a powerful deterrent for potential wrongdoers. The requirement for Court approval and publication of the delay also keeps the process transparent. So, if you just wanted the DPA as a sweet-heart deal, then that is not going to happen because there will be conditions set for this.

One risk that such agreements have is that they may be perceived as letting companies off the hook easily and this may create outrage, especially if some egregious corporate wrong takes place and the company is not punished because of the DPA. My own views would be that it would be important that, even if the DPA is in place but some serious wrongdoing has been done, some wrongdoers, preferably the key mastermind behind the wrongdoing, would be taken to task for this.

On the whole, the DPA is an interesting tool to give to the prosecution and this should enable them to deal particularly with corporate crimes.

I would like to clarify one point. There is no requirement for the Court to give reasons for approving the DPA. In England, Courts are required to give reasons. Would the Senior Minister of State explain why Singapore has deviated from the English practice in this regard?

The third aspect – and this has been touched on by other Members earlier – it is the measures to prevent abuse of Court processes, particularly in relation to appeals. In relation to appeals, there are two competing addresses. On the one hand, we want finality of the process. So, if a hearing has taken place and the Court has pronounced on it, the number of times you can re-open the case should be limited.

The countervailing consideration is, if important or material evidence comes up, say, after the conclusion of a hearing and, in criminal cases where this can have life or death affecting some cases, it will be important for a Court to be able to consider that. Earlier, Members, including Asst Prof Mahdev Mohan, have mentioned, that the Kho Jabing case sets out these considerations in some detail.

My own reading is that the current amendments are really codifications of what was set out by the Court of Appeal. This is important because it prevents abuse and makes it very clear that, in fact, appeals are exceptional. However, there is one clarification I would like to make on this.

Most key amendments appear to be what are the positions taken by the Court of Appeal already, save for one, and that is the limiting of re-opening to a single application. What is the reason for this one-bite rule? And what happens, for example, if important new evidence becomes uncovered after this one additional chance is exhausted?

Finally, I would just make a few comments on the abolition of committal hearings. As the Senior Minister of State mentioned in her opening speech, this is a process that has been there for most criminal hearings where the prosecution has to set out that it has enough evidence to make its claim. This is generally a mechanism for the defendant to get out of having to go through a long protracted criminal process if they can establish upfront that the prosecution does not have much of a claim.

I understand, as some of the Members who spoke earlier have highlighted as well, that, in Singapore, the prosecution generally tends to be quite prudent in bringing forward actions and generally tends to get past this threshold without much difficulty. This process tends to be just one that is an unnecessary process at the moment. Removing this makes the process more efficient. But notwithstanding the care which prosecutions are commenced, I would like to seek the Minister's assurance on one matter. Are there any safeguards in place for defendants to filter out unmeritorious prosecutions at an early stage, rather than only after an extensive hearing?

Mr Speaker: Senior Minister of State Indranee.

2.19 pm

Ms Indranee Rajah: Mr Speaker, I thank the Members who have spoken on the Bill, as well as for their support, by and large, for the amendments. There are some clarifications or queries that have been raised and I would like to address them.

Let me deal first with video-recording of interviews (VRIs).

Mr Patrick Tay asked how Police officers are being trained to take video-recorded statements. Mr Desmond Choo made a similar comment, whilst also suggesting training for Court officers. The Police have a training programme in place, for taking statements while on camera. They go through a four-day course which includes interview skills, administrative procedures in conducting a video interview and how to tackle equipment failure. This is vital for consistency in the way video interviews are conducted. Sufficient officers have been trained to implement phase one.

As mentioned, the need to train officers in the skills and techniques needed to take video-recorded statements is one reason why VRI is being rolled out in phases. The Police will fine-tune the training programme, as they gain experience from the use of VRIs in phase 1. As for other users of the system, such as Court officers, we will be engaging the relevant agencies to ensure that everyone is familiar with the new scheme before the first cases involving VRI enter the system.

Mr Patrick Tay also asked about the safeguards put in place to ensure that the security of video-recorded statements is not compromised. There will be safeguards in place to minimise the risk of loss of discs containing video-recorded statements. Viewing of the video-recorded statements by Defence Counsel will only be allowed at designated locations, where recording devices will not be allowed.

Asst Prof Mahdev Mohan asked about copies of the videos and why they are not given to Defence Counsel and how many times the Defence will be able to view them. The copies of the video-recorded interviews will not be handed over to Defence Counsel as video-recorded interviews may be leaked; or they may be lost or misplaced. So, this is really to make sure that there is a safeguard against the video-recordings being misused.

However, instead of handing over a copy of the video-recorded interview, Defence Counsel would be able to view the recording at an approved place any number of times. A copy of the transcript of the recording would also be extended to the Defence during the CCD process and it was felt that an undertaking would not be sufficient for this purpose because, for example, there are some people who are unrepresented and an undertaking by an unrepresented accused person with no professional responsibilities may have a limited deterrent effect. And if the worse happens and if, let us say, the video is leaked for some reason, punishing the lawyer or party responsible will not reverse the harm.

There are also the consequences of what happens if the video is distributed on the Internet because the impact is widespread.

With VRI victims, are leading questions allowed? The answer is that investigators should not be barred from asking leading questions because they are not legally trained and the procedural rules should not be introduced at this investigation stage where really the aim is to find out what happened. The Judge can view the recording and come to his or her own conclusions about reliability.

Mr Kok Heng Leun was concerned that there should be sufficient safeguards to ensure the integrity of the video-recorded statements.

Much of the infrastructure is modelled on the best practices in other jurisdictions which are experienced in the use of VRI. The technology adopted is also consistent with best practices to minimise litigation on the authenticity of the video statements. For example, the rooms for VRI are purpose-built to ensure video statements are of good quality, both for sound and picture, while ensuring that other operations are not compromised. These have been modelled on the purpose-built rooms used in Hong Kong for VRI.

Mr Louis Ng asked whether the Government would consider the use of video-recording in the preliminary interviews or other exchanges prior to the statement recording. On a related note, Mr Kok Heng Leun expressed concerns about interactions between the Police and the suspect outside of the interview.

There would be various conversations between the Police and the accused persons from the time of arrest until statement taking and it would not be possible for officers not to have any conversations throughout. However, it would not be feasible to record every exchange that officers have with the accused person and, really, the primary intent of the interview is to take that person's statement. So, the video-recording will form the basis of the statement.

Mr Louis Ng also asked whether the Government would consider requiring the video footage to show both the suspect and statement taker, as well as the full extent of the space in the room, and Mr Kok Heng Leun expressed a similar concern on capturing the suspect’s demeanour accurately.

There will be two cameras mounted in the room, one of which focuses on the interviewee and the other captures an overview of the entire room. By way of a convex mirror installed in the room, the full extent of the room can be observed in the camera. The default angle to be used in Court, if any, would be the view focused on the interviewee, so that the demeanour of the interviewee may be seen in detail. The overview may be shown as well, if so directed by the Court, for instance, to verify the accuracy of sign language interpretation.

Finally, Mr Louis Ng asked whether the Government would consider making video-recordings mandatory for all offences punishable with death or life imprisonment and for all vulnerable suspects, including juveniles, the elderly, the cognitively-impaired or the psychologically disordered, regardless of the alleged offence.

We are not closed to the idea of extending VRI further to more offences and to vulnerable suspects. However, VRI is a complex initiative. Infrastructure needs to be put in place, as I have mentioned, the purpose-built VRI rooms and even specially designed tables so that persons in the room cannot be obstructed from being seen on camera. Investigating officers need to be trained as the entire statement-taking methodology changes because there will no longer be any written statement, if a VRI is to be recorded.

It is, therefore, necessary that implementation will be done in phases to iron out whatever issues may become apparent and to ensure that there are adequate resources. We will consider this feedback as we expand the use of VRI in future phases.

Ms Sylvia Lim asked for clarification on the circumstances that a Police officer will take into account in deciding that a video-recorded statement should be taken, in cases where it is not mandatory to do so.

In deciding to exercise any power of investigation in the law, all criminal investigators generally consider the same factors and the ultimate aim is to advance the investigation, meaning to discover whether any criminal offence has been committed and the full facts of that offence, including those who committed it. So, in this context, it is not possible for me to give an exhaustive list but it would be a situation, I would assume, where the value of a video-recording would be high.

For example, if you have an accused with a mental disability, when you record a statement and you see the transcript, the way the answers come out may make a lot of sense but when you look at the person, the facial expression, the way somebody who is mentally disabled or has some cognitive disability is responding, that tells you another picture. So, that is an example of the sort of scenario where the investigator might decide in this particular instance, before we roll out other phases, to do so.

Let me now respond to questions on video-recorded statements of victims, which will only be implemented in later phases after we have further studied the operational issues.

Mr Christopher de Souza asked for a clarification of how we will operationalise the video-recording of statements from victims.

While the operational details are yet to be worked out, we expect that specially trained Police officers will take the video-recorded statements from such victims. We will consider whether to require the recording officer to inform the victim from the outset that the statement would be used in a Court proceeding when we develop the details of implementation in consultation with stakeholders.

Mr Kok Heng Leun asked about the timeline of implementation for video-recording of statements from victims.

There is a need to allow the law enforcement agencies sufficient time to train the investigation officers, to study the lessons of the pilot and then prepare the necessary facilities for VRI of victims. The Prosecution, members of the Criminal Bar and the Judiciary will also require time to acclimatise to the use of VRI evidence in Court.

As Mr Kok Heng Leun has pointed out, there are complexities involved in video-recording of statements from victims. So, we will, therefore, carefully monitor the first phase of VRI implementation before deciding how to operationalise video-recording of statements from victims.

Mr Patrick Tay asked whether there will be a set of guidelines to assist Police officers. The Police will develop their internal guidelines on this.

As mentioned, the use of video-recorded statements for victims will only be implemented in later phases because of the complex issues that I have highlighted.

Ms Joan Pereira asked whether victims will be given a choice of whether to give a statement via video or in writing and Mr Kok Heng Leun asked a similar question. Investigators will make a decision on the mode of taking the statement. However, the victim’s willingness or level of comfort with giving a video-recorded statement will be an important factor.

So, we will work again with the stakeholders to decide how best to operationalise this sensitively, before implementing it in future phases.

Ms Joan Pereira also asked what measures will be taken to ensure that victims are not disadvantaged if they are unable to recount the alleged incident because he or she is traumatised. Victims can indicate their preference not to give their statements on video if they are uncomfortable with it. The victim’s preference and his/her composure or state of mind at the time of statement-taking will be taken into account by the investigator in deciding on the appropriate mode of recording.

For sexual crime victims, their cases are handled by specialist investigation officers who are trained in victim care.

Mr Patrick Tay asked a question not exactly in relation to VRI, but related – whether we should review the rule which allows for a statement made to a Police officer ranked Sergeant or above, to be admitted in evidence.

While there may be more officers, including newer officers, who hold at least the rank of Sergeant today than before, it would be mistaken to take that as a lowering of the standards expected of officers of that rank.

The Police have rigorous training programmes and internal guidelines in place to ensure that anyone with the rank and authority to take statements does so with the highest level of competence and professionalism.

Next, I move on to the computer-related powers of investigation. Mr Desmond Choo supported the enhanced powers but expressed the hope that they would be exercised with care. I would like to assure the Member that these powers exist only to facilitate criminal investigations. The Police will take into account the nature of the cases and the requirement for the information, before issuing any order under section 39.

Mr Louis Ng asked for clarification of the rationale behind the amendment which allows a male officer to search a woman suspected of a terrorist act and what safeguards there are to ensure that searches are made with strict regard to decency.

There is a well-recorded history of the use of women in terror attacks. Some have been coerced into this role, but others have volunteered. Between 1985 and 2008, female suicide bombers carried out more than 230 attacks, about a quarter of all such acts.

One of the earliest users of this tactic was the Liberation Tigers of Tamil Eelam (LTTE) or the "Tamil Tigers", in their campaign against the Sri Lankan government. They assassinated former Indian Prime Minister Rajiv Gandhi in a suicide bomb attack in 1991. The attacker was a 17-year-old girl.

Tragically, this is not a phenomenon of the past. The BBC very recently reported that Boko Haram in Nigeria has been kidnapping girls, some as young as 13 and forcing them to go on suicide bombing missions in crowded public areas. This was confirmed by some girls who managed to escape. Female suicide bombers deployed by Boko Haram have killed more than 1,225 people.

Research suggests that terror groups use female attackers to gain specific tactical advantages. These include a perceived unwillingness on the part of security officers to search women. In Iraq, Al-Qaeda repeatedly exploited a cultural taboo against the searching of women, allowing their female suicide bombers to pass through checkpoints without being searched. So, it really is about striking a balance.

In our case, as mentioned, male officers will only be allowed to search a woman in very narrowly defined circumstances. First, the officer must reasonably suspect that the woman is involved or has involvement in a terrorist act. Second, the officer must believe in good faith that the terrorist act is imminent. Third, the officer must believe in good faith that the search cannot be made within a reasonable time by a relevant officer who is a woman. The rationale, as explained, is that time is of the essence in such situations and it is where any delay could mean loss of lives. The Police will put in place strict Standard Operating Procedures (SOPs) to ensure that the searches are made with strict regard to decency.

Now, bail. Mr Christopher de Souza asked whether the prohibition against indemnity agreements would make it unduly difficult for families to raise bail monies, as they sometimes need to get contributions from relatives and friends.

The prohibition against indemnity agreements is premised on the seriousness of a surety's duty. The serious nature of this duty has been emphasised by the Courts on various occasions. For example, the High Court reiterated in a case last year that sureties' obligations were of "cardinal importance" and "consequences of significant gravity" must, therefore, attach to any breach of such obligations. It is, therefore, important that we do not allow sureties to be indemnified by third parties, as doing so would remove the incentive for them to fulfil their obligations.

Having said that, I should clarify the scope of the offence.

It will require that the surety enters into an agreement with the third-party, that if bail is forfeited because the accused person absconds, the third-party will cover all or part of the forfeited bail that the surety will be liable to pay.

It does not mean that the surety can never borrow money to raise bail. For example, if the surety borrows some money to raise bail and remains liable to repay that money, then it is not an indemnity. In other words, the surety must have a vested interest in ensuring that the person turns up in Court.

Mr Patrick Tay asked for statistics on the frequency of bail granted and the incidence of absconding in the past five years. He also asked whether such persons were later apprehended and how they were dealt with.

Criminal practitioners would know that bail is granted in the vast majority of cases. Notwithstanding the recent high-profile case, absconding from bail is also rare. When accused persons on bail abscond, the bail sum pledged by the surety may be forfeited. If the accused person is still within Singapore, attempts will be made to locate and arrest them. In the event that the accused person flees overseas, Police may issue an INTERPOL Red Notice. Police forces in INTERPOL member states will then help to locate and arrest the accused person. The wanted person may then be extradited back to Singapore. Absconding from bail is also an aggravating factor which could result in a higher sentence when the accused person is later brought back to face charges against him.

The changes made to the CPC in this Bill will further strengthen our bail regime. In particular, absconding from bail will be made an offence.

Mr Patrick Tay also asked about the rationale behind allowing bail for extradition cases where special circumstances apply and what such special circumstances would be required to grant bail in such cases.

We thought that it would be too harsh to prohibit bail in extradition proceedings without exception. The specific "special circumstances" which would justify the grant of bail will be prescribed in subsidiary legislation. So, for example, special circumstances could exist if the accused person was a juvenile, or was sick or infirm.

I move on now to enhancing protection for victims of sexual and child abuse.

I am very heartened that so many Members have stood up to support the proposals on enhancing protection for victims of sexual and child abuse. Mr Kok Heng Leun related a particularly moving story about the impact on a victim and many of the other Members, too, have cited examples. This just goes to show how much impact Court procedures can have on a victim and how they can sometimes be forced to relive over and over again the dreadful experience that they first underwent. So, it is very important that we have to address this.

Mr Patrick Tay pointed out some myths and stereotypes which may be associated with sexual offences. And while not all of them can be addressed through legislation, the present amendments do go some way towards tackling them.

So, Mr Patrick Tay asked whether sections 366 and 367 of the Penal Code could be included in the First Schedule of the Evidence Act.

The First Schedule, currently, lists the main sexual and child abuse offences that are more frequently prosecuted. Sections 366 and 367 of the Penal Code are offences of kidnapping or abduction albeit with a sexual element. Prosecutions under these provisions are rare. That said, the First Schedule gives us the flexibility of including other offences where it is determined that restrictions should similarly apply.

Mr Patrick Tay also asked whether more offences, such as those for criminal intimidation or harassment, should be given the same treatment. In particular, he is concerned about instances where the criminal intimidation imputes unchastity to a woman or where harassment is sexual in nature. He asked whether the judge ought to be given the flexibility to decide to apply similar restrictions on cross-examination, even though they are not offences listed in the First Schedule.

The restrictions on cross-examination are intended to apply to those sexual offences where questions relating to the victim's sexual behaviour, sexual history and the physical appearance are most likely to be asked. For other offences, such as criminal intimidation or harassment, the Evidence Act gives the judge the power to disallow certain forms of cross-examination. So, as a starting point, only relevant questions can be asked on cross-examination. And the Court has the power to disallow questions that are intended to insult or annoy. Indecent and scandalous questions may also be forbidden.

Asst Prof Mahdev Mohan asked whether the restrictions will create a chilling effect on Defence Counsel which will make their difficult job even harder. The answer is that, actually, all that is required is for leave to be sought in advance. So, so long as the Counsel can show that it is relevant and that there is a good reason for it, leave should be granted and leave will be granted if it is in the interest of justice. So, we are not saying that the topic cannot be raised but you must show a very good reason why you are asking those questions.

Finally, Mr Patrick Tay suggested that there should be a set of guidelines on the use of screens in Courtrooms. We are aware of the various operational issues that may arise and we will work closely with stakeholders on implementation, to ensure that the use of the screen is not counter-productive.

Mr Louis Ng has asked whether the Government will also consider enhancing penalties or creating new offences, especially for online predators. The Government has announced this before and I will emphasise. There is a Penal Code Review Committee that has been set up to conduct a broad review of the Penal Code. The area of sexual offences is one area that we are looking at. The Committee will complete its work and make its recommendations sometime this year. These recommendations will include recommendations on whether penalties should be enhanced and whether new offences are needed.

Mr Louis Ng also sought a clarification on what questions the proposed section 154A(1)(a) of the Evidence Act will cover that do not already fall under the scope of section 154 today. On a related note, Mr Louis Ng asked whether the combined effect of the new section 154(1)(a) and section 154(2)(c) is intended to stop certain questions even before they are asked.

The specific restrictions will be set out in subsidiary legislation. As explained, the accused or his Counsel will not be allowed to ask questions about a victim’s sexual behaviour with persons other than the accused when such behaviour does not relate to the charge, unless leave of Court is first obtained.

Hence, unlike section 154, which is broadly phrased in terms of the questions that are forbidden, section 154A will be more specific.

As Mr Louis Ng has pointed out, the requirement for prior leave is also a key difference between section 154 and section 154A. This will ensure that only appropriate questions that are in the interests of justice may be asked. The leave stage will also insulate victims from hearing insulting and irrelevant questions, as the Court will not permit such questions to be asked.

Finally, Mr Louis Ng also asked a very specific question on whether offences under section 356 which are of a non-sexual nature will be caught under the definition of "sexual offences" in the new section 154A.

The restrictions will only apply if the accused or Defence seeks to ask questions relating to the victim's sexual behaviour. If these types of questions are asked in the context of an offence under section 356, then the restrictions may apply.

Section 356 has been included because victims of such offences have always received the benefit of certain protective measures, such as being able to give evidence via video link. To have taken them out would also mean that a class of victims that were previously given the benefit of protective measures would now be deprived of the new protections. However, even after this legislation, we will continue to review the classes of victims that will be covered by various protective measures to ensure that the correct balance is struck.

Ms Joan Pereira asked what recourse a victim has, if she felt that the counsel had ridiculed her to the point of disparaging her reputation during a Court hearing and whether the presiding judge would consciously be on the look-out for irrelevant insulting questions.

As we have seen in previous cases, lawyers who cross the line may be subject to disciplinary proceedings. Judges are also vigilant to ensure that questioning by Defence Counsel does not cross the line.

The measures that we are putting in place today will further strengthen these safeguards by allowing the Minister to make rules to further restrict the kinds of questions that can be asked of alleged victims during cross-examination, including the introduction of a requirement to ask the Court's permission before certain questions are asked. The fact that the Court can control the questions before they are asked, in the absence of the victim, is significant. This gives the Judges more control over the proceedings to ensure that the victims are not intimidated by insulting and irrelevant lines of questioning.

Ms Joan Pereira also mentioned that it is important for investigators to handle DNA samples and other forensic evidence carefully. I would like to assure Ms Joan Pereira that our investigators are held to rigorous standards. Should any mishap occur – which, hopefully, they would not – the relevant agencies will conduct internal investigations and make improvements to their protocols where needed.

I move on now to the Enhancement and Rationalisation of Fitness to Plead and the Unsoundness of Mind regime.

Dr Tan Wu Meng asked about what would happen if the maximum term of confinement under the CPC has been reached and the subject is still found to be unsafe for discharge as he or she remains a danger to himself or herself or others.

He or she will be transited to the regime under the Mental Health (Care and Treatment) Act and will continue to be confined for treatment, usually at the IMH. It is just that the criminal charge element is removed. A person confined under the Mental Health (Care and Treatment) Act is periodically reviewed and assessed for his or her suitability for release.

I move on now to Deferred Prosecution Agreements (DPAs). Mr Christopher de Souza asked whether the requirement for corporate offenders to be represented by counsel includes in-house counsel.

The legislation states that the party must be represented by an advocate, which is defined as an advocate and solicitor lawfully entitled to practise criminal law in Singapore. Having said that, in-house counsel who do not fall into this category can assist or participate in negotiations on the DPA. And when you go to Court, you would have to be somebody who has the right of audience.

Mr Patrick Tay asked whether a code of practice for the use of DPAs, similar to that published in the UK, will be published here. The answer is, no, because that would be similar to publishing prosecutorial guidelines and we have a slightly different approach from that of the UK.

The publication of the code of practice in the UK is consistent with their general position that prosecutorial guidelines are published. In Singapore, the general position on such publication is different. This is to ensure that prosecutorial guidelines do not become a tool for criminals to refer to in manipulating the criminal justice system to escape punishment.

Mr Murali Pillai asked for a confirmation that the legislative framework on DPAs does not preclude the Court from allowing interested stakeholders to join in the proceedings. We can consider this issue further. However, the basic position should be that a company's decision-making power lies with its board. Other stakeholders, such as shareholders, do not have the same power. The Courts have actually pronounced on the reason for this.

The reason is that the board and the directors have a fiduciary duty. They are obliged to act in the best interest of the company. Shareholders do not have a similar fiduciary duty. Shareholders are free to act in their own interest. So, in some cases, their interests may well be aligned, but, sometimes, they may not be. At the end of the day, when you are entering into a DPA and negotiating it, the primary decision-making power should rest with the company and its board. If the shareholders have issues with the decisions, then they have other avenues available to them, such as the General Meeting, and, of course, the other rights available to shareholders under the Companies Act.

It is open to the Court to ask for information about the possible impact of a DPA on various stakeholders, to assist in making its decision on the approval of a DPA.

Mr Murali Pillai also proposed that monitors appointed under a DPA be subject to oversight by the Court. The conditions that can be attached to a DPA are deliberately left flexible, subject to the High Court's approval. It is open to parties to negotiate and set out details concerning the role and supervision of monitors in the DPA.

Mr Patrick Tay, Mr Vikram Nair and Ms Sylvia Lim asked why the High Court is not required to give reasons in a DPA decision. Ms Sylvia Lim also asked why DPA proceedings in the High Court would be held in camera. Let me take Ms Sylvia Lim's questions on the in camera hearings first.

We considered that if proceedings for a DPA approval were held in the public view and, if the DPA did not eventually come into force, the company negotiating the DPA would be prejudiced, or could be prejudiced, in any future criminal proceedings based on the same facts – that was actually the point that Mr Murali Pillai made. Because if companies have reason to fear that their willingness to negotiate a DPA will prejudice their defence later on, then they may be unwilling to volunteer information or cooperate and the benefits of the DPA scheme will then be undermined.

That is the same reason that representations written by the Defence to AGC are protected by the "without prejudice" privilege. It is essentially the same underlying philosophy that applies to "without prejudice" negotiations.

With respect to the other question of why we do not require the Courts to give reasons, some of it relates to this, but the general thinking is this: the DPA is not a judgment. So, it does not have a binding effect; stare decisis does not apply. It does not set a precedent for other DPAs. Every situation will be highly fact-specific. The approval will only be granted if the DPA is in the interests of justice and its terms are fair, reasonable and proportionate. That is the first threshold. The Court should not grant or approve the DPA unless it has met that threshold.

Under these rules, the Court is not prevented from giving grounds. In other words, the system that we have is actually consistent with the current system that we have for any other type of judgment whether it be criminal or civil, meaning that our Courts are not under a compulsory obligation to publish grounds, certainly at first instance. If it goes on appeal, it is different because, obviously, in an appeal, you are looking at the reasons why the judge decided in a particular way and you need the grounds for decision.

Currently, for criminal and civil proceedings, Courts sometimes give grounds – they sometimes give oral grounds, sometimes they give written grounds. It is the same for this. It is open to the Court to give grounds if the Court wishes to do so, but there will also be some cases which are actually very straightforward and it is not necessary for the Court to give written grounds. So, we essentially leave it to the Courts and the Courts can decide where it may be appropriate to do so.

I am aware, of course, that, in the UK, they give grounds but there are other jurisdictions where DPA is applicable where they do not, such as the US, for example. So we thought we would just have a system that is consistent with the current practice on judgments.

Moving on to the Criminal Procedure Rules Committee (CPRC). Mr Patrick Tay proposed that the CPRC should seek inputs from social science and technology experts. The CPRC will consult the relevant stakeholders, where appropriate.

On abolition of Committal Hearings, Mr Vikram Nair asked for an assurance that with the replacement committal hearings with the transmission procedure, there would still be sufficient safeguards to filter out unmeritorious prosecutions. As mentioned, the key benefit of committal hearings, as practised today, is pre-trial documentary disclosure of the prosecution's case.

Today's amendments extend the pre-trial disclosure regime to cover practically every criminal offence that is likely to be tried at the High Court. At trial, the Defence is free to cross-examine the prosecution's witnesses. If at the end of the prosecution's case there is no prima facie evidence of guilt, the accused will be acquitted without being called upon to raise a defence. This threshold, together with the CCD process, provides the answer to Mr Vikram Nair's question.

This move will actually benefit accused persons in reducing their time spent in remand or waiting for the trial to commence, as well as the overall administration of justice. In short, basically, the Committal Hearing procedure before had two main advantages. One is disclosure, or discovery, and second is the cross-examination. What the statistics have shown is that the cross-examination part of it is very rarely invoked but we will, of course, keep the discovery part. You still get a chance to cross-examine when it goes on to a High Court trial. The benefit is that you shorten the time the person spends in remand.

I move on now to the video-link hearings. Mr Desmond Choo asked what safeguards will there be to ensure that the usage of video link will not compromise on the standard and quality of the proceedings and will not affect the process of justice; whether cybersecurity measures will be in place to ensure that the links are free from being hacked by external parties; and whether there will be consultations with stakeholders and the Court users.

Careful consideration has been given to ensure that the fairness of the hearing process is not affected by the use of video link. We have and will continue to engage with the Criminal Bar and other stakeholders on the implementation of this scheme. The necessary security measures will be considered in the technical part of the planning and implementation.

Ms Sylvia Lim expressed some concerns about whether allowing video-link proceedings for guilty pleas and sentencing proceedings will diminish the impact of warnings from judges.

One of the reasons we are extending video-link hearings to more substantive matters at this time is improvements in technology. We will be using video-link technology with sufficient audio and visual fidelity so that the Court proceedings will not be adversely affected. This is actually part of the overall general move. We think that, going forward, technology is going to be more and more infused in practice, both civil as well as criminal. That is the direction in which it is moving.

Ms Sylvia Lim was also concerned with confidential communication between defence counsel and their clients. We had consulted the Law Society and the Criminal Bar and they, too, had raised this point and we have had discussions with them.

The Prisons currently operate a tele-visit system that allows counsel to interview their clients in remand through teleconferencing without physically travelling to the prison. That, as I understand it, is secure. The client-solicitor privilege is protected. Obviously, the confidentiality is protected as well and that has been working reasonably well.

From past experience and based on our conversations with the Bar, we think there is a consensus that with the right technology and processes, we can have systems for communications that will satisfy the requirements of the Defence.

In short, we will continue to consult the Criminal Bar on the implementation in this respect but the important thing will be to ensure the confidentiality and that the solicitor-client privilege is preserved. In essence, currently, there is already a system for counsel to speak to the accused and to take instructions.

Dr Tan Wu Meng asked about the kind of subsidiary legislation that we envisage for regulating expert evidence and whether there will be consultation on the proposed regulations. The answer is, yes, there will be consultation with relevant stakeholders. One example of subsidiary legislation that we envisage, as Dr Tan already alluded to, is to expressly state the obligations of an expert witness, as is currently done for civil procedure.

Mr Patrick Tay, Mr Christopher de Souza, and Mr Kok Heng Leun, all asked whether there are safeguards to ensure a sufficiently wide choice of psychiatrists.

The selection criteria has not been finalised yet. It is not the intention to set an extremely high bar for admission to the panel; we expect that most psychiatrists with the relevant forensic training will be able to qualify. They will be drafted to ensure that there is a sufficient pool for psychiatrists. MinLaw welcomes any feedback as we work through how to formulate the criteria. This should also deal with Mr Kok Heng Leun’s concern as to whether it will be more costly to hire a psychiatrist. Given that we expect the impact on the choice of psychiatrists to be minimal, it should not become more expensive for the accused person to hire a psychiatrist.

Mr Kok Heng Leun expressed concern that a psychiatrist on the panel may be unwilling to state honest but controversial views. The proposal is not intended to target psychiatrists who give unconventional views. It is intended to target psychiatrists who display a clear lack of objectivity or competence. A psychiatrist will not be removed from the panel just because the Court does not accept his or her opinion. The basic thing is, objectivity and competence.

We also note Mr Patrick Tay's suggestion to provide the panel of psychiatrists with training. We will be working with stakeholders to see what needs they have in this regard. Mr Murali Pillai asked whether there will be a fixed quota of psychiatrists. The answer is no; no fixed quota.

Mr Murali Pillai also asked for elaboration on what other factors the selection committee will take into consideration in deciding whether to admit a psychiatrist to the panel, besides qualifications, work experience and character references.

As mentioned, the selection criteria have not been finalised; so, we will work with stakeholders on suitable criteria. If Members, especially those in private practice, have thoughts on this, they should feel free to send their feedback to MinLaw.

Mr Murali Pillai asked about the clarification on the policy and rationale behind making statements recorded under section 27 of the PCA, admissible in respect to non-PCA offences.

Let me first clarify that the proposal is a very calibrated shift. Statements taken under section 27 of the PCA will only be admissible as evidence in the trial of that person for any criminal offence, in the following circumstances.

There is no inducement, threat or promise that would otherwise render the statement inadmissible; and the person taking the statement under section 27 of the PCA must have believed, in good faith, that the interviewee was a person who had been concerned in any offence under the PCA.

Under the current law, therefore, what might happen is that a person, in the course of being investigated for corruption, may reveal that he or she has also committed another offence. The CPIB will then have to go through the artificial exercise of recording another statement under the CPC. And then, what happens if in the second statement, the accused person changes his tune and decides not to reveal the fact of such an offence? Should the accused person be allowed to avoid prosecution on the procedural ground that section 27 PCA statements cannot be admitted in prosecution for other offences?

The real concern, then, is whether this amendment will create an incentive for CPIB officers to circumvent the privilege against self-incrimination in the CPC. To prevent that, we have inserted the safeguards earlier mentioned: it requires that the CPIB officer can only use the statement in the prosecution of other offences, when he or she believes in good faith that the interviewee was a person who had been concerned in any offence under PCA.

Mr Christopher de Souza asked for clarification on whether the change to the admissibility of section 27 PCA statements is a clarification or a change in the law.

The explanatory statement uses the word "clarify" because the relevant Court decision states that in respect of non-corruption offences, "the failure to inform the person interviewed of his privilege against self-incrimination, coupled with telling him that he is legally bound to tell the truth may amount to an inducement".

This leaves it debatable in each case whether merely telling a person that he is bound to tell the truth amounts to an inducement. The amendment, therefore, clarifies that, on its own, telling a person that he is legally bound to tell the truth, shall not render a statement inadmissible.

However, this clarification is achieved through a substantive change. Courts will not be allowed to treat the mere fact that a CPIB officer told the interviewee that he is bound to tell the truth under the PCA, as grounds that the statement was given under an inducement for the purposes of a non-corruption offence.

Ms Joan Pereira asked about the up-take rate of CBS. Since 2011, the number of offenders who were sentenced to community sentences has varied from around 100, to more than 200 offenders. We will continue to work with stakeholders to encourage the use of community sentences in suitable cases.

Mr Patrick Tay asked for statistics on MTOs. Given that MTOs, along with the various other community orders, have been introduced relatively recently, we have limited data on recidivism. Having said that, early data suggests that the recidivism rate amongst offenders sentenced to community sentences tend to have a lower rate of recidivism than the general prison population.

Mr Patrick Tay also asked what safeguards are put in place to ensure that victims of offenders placed on MTOs are protected while the offender is receiving treatment in the community and he cited the case of a woman who continued harassing her neighbour despite being on an MTO.

The Court is unlikely to impose an MTO where there is clear evidence that the accused person is likely to cause danger to others while remaining in the community. In such cases, the principle of prevention is likely to outweigh the principle of rehabilitation. The Court may also impose conditions as it thinks fit to mitigate the risk of harm to the victim.

We are also enhancing the MTO regime to allow for more flexibility of the treatment programmes. For example, we are empowering the Court to order a period of inpatient treatment for cases which require more intensive treatment.

Ultimately, we have to accept that there is some risk created when imposing a community sentence but this must be weighed against the alternative, which is likely a relatively short sentence of imprisonment. If the root causes of offending are not addressed, the offender has a high chance of re-offending upon release, especially if the cause is mental illness.

Ms Joan Pereira asked for an indication of the kinds of more serious offences that will be prescribed, to render them eligible for MTOs. The expanded list of offences which will be eligible for MTOs under the revised criteria will be clearly set out in legislation. Offences that reflect a danger to public safety or which require greater deterrence will not be prescribed.

Mr Murali Pillai raised two points, which he also raised earlier in an Adjournment Motion on CBS. First, he observed that the Court cannot take a different view from the appointed psychiatrist, as regards an offender’s susceptibility to treatment. He also cited a previous case that he dealt with, where an apparent change in opinion on the part of the appointed psychiatrist, resulted in the Court being unable to impose an MTO on the accused person.

Let me begin by making a brief clarification about the case that Mr Murali Pillai refers to. We had checked on this with IMH following the Adjournment Motion in September last year. The psychiatrist in question explained that his first report had indicated that while a period of inpatient stay may be beneficial in his condition, the likelihood of significant improvement in his condition with treatment was very low. The report was not for the purposes of assessing MTO suitability.

The second report, some four months later, was for the purposes of assessing MTO suitability. In the second report, the psychiatrist concluded that the offender was, in fact, not suitable for MTO as the treatment available was not likely to result in significant improvement in his condition. I hope that this clarifies the situation that Mr Murali Pillai raised.

Mr Murali Pillai’s broader point, however, is that the Courts should be allowed to impose an MTO, notwithstanding the appointed psychiatrist’s opinion that the offender is not suitable for MTO. The reasons for not taking up this suggestion are as follows.

Given that, generally, IMH is the institution to administer treatment under the MTO, there is a concern of conflict of medical ethics if IMH were to be asked to treat a person it believes does not have a treatable mental condition. The current position, therefore, aligns the diagnostic and treatment elements of MTOs.

As regard Mr Murali Pillai's point on the difference between the MTO regime and the RT regime, there is, in fact, no inconsistency. In the context of a RT pre-sentencing report, the psychiatrist is focused on whether there is any aspect of the offender’s mental condition that renders him or her unsuitable for RT.

For example, the psychiatrist will take into account whether any condition will be aggravated by the RT environment, or whether it will affect his or her ability to be rehabilitated in the RT environment. If the psychiatrist does not find any reason to recommend that an offender is unsuitable for RT, and the Court finds, after considering all relevant factors, that the offender should be sentenced to RT, the end result is that the offender will be sentenced to RT. The offender is not sentenced to undergo mandatory treatment for a psychiatric condition. The ethical issue highlighted above does not, therefore, arise in the context of RT pre-sentencing reports.

Mr Murali Pillai asked for an update on the Ministry's consideration of his proposal made at an Adjournment Motion some time back, on moving towards a different test for determining MTO suitability. The Ministry is still studying the proposal. In the meantime, the amendments today significantly expand the range of offenders potentially eligible for MTOs and we hope that this will go some way to addressing Mr Murali Pillai's concerns.

Mr Louis Ng asked whether we intend to eventually allow the Courts the full discretion to decide when a community sentence can be imposed. We have taken a balanced approach in deciding which offences and offenders should be eligible for community sentences. Some crimes may be too serious and it would not serve the justice system well to allow such offenders to be given community sentences. Some offenders may not benefit from community sentences. Hence, the regime is carefully calibrated and we need to draw the line somewhere. Nevertheless, we will continue to examine the eligibility requirements and extend the line, where appropriate.

Mr Louis Ng also asked whether we will consider giving the Courts more alternative sentencing options. He asked this in the context of a recent case where reformative training was imposed on a young intellectually-challenged offender for the sexual assault of a 16-year-old girl. Mr Murali Pillai made a similar observation about the limitations in that case. We have taken note of this case and MHA will consider this in the context of a broader policy review on sentencing.

Moving on now to victim compensation. Mr Louis Ng asked for elaboration on the process of ordering victim compensation. Mr Christopher de Souza asked a similar clarification on whether this changes the existing principle that the Court should not be required to embark on complicated investigations of fact or law when deciding on compensation orders.

The key procedures and the processes involved will be found in the CPC Rules, after consultation with the relevant stakeholders like AGC and the Courts. We have already been consulting these stakeholders to ensure that the processes and procedures implemented will be simple and inexpensive.

Mr Louis Ng asked whether there would be a limit on the amount of compensation awarded. There is no statutory limit on the compensation that can be ordered. That said, compensation orders of a certain amount can only be made by the Criminal Courts if there is sufficient and cogent evidence to support the amount being ordered.

In addition, our Courts have previously said that a compensation order should not be oppressive and the Court must be satisfied that the accused either has the means available, or will have the means, to pay the compensation within a reasonable time. This is to ensure that the compensation order does not simply become a de facto extension of imprisonment, which may be unfair to the offender.

Finally, as mentioned earlier, complex cases will have to be dealt with by the Civil Courts and not the Criminal Courts.

Mr Louis Ng also asked about the rationale for limiting criminal compensation for a deceased victim’s dependants to funeral expenses and bereavement. Criminal compensation for a deceased victim’s dependants has been limited to funeral expenses and bereavement because these expenditures are easily quantified and assessed. For example, compensation for bereavement has been pegged to a fixed quantum set out in the Civil Law Act. More complex forms of damages arising from the death of a person, such as loss of amenity or loss of future earnings, should be dealt with in the Civil Courts.

I move on now to the question of abuse of process in concluded criminal cases. Mr Louis Ng expressed some concern about the threshold for re-opening a concluded criminal case. He asked that considerations of justice and the prevention of error be given due weight even at that late stage of the proceedings. Mr Kok Heng Leun raised a similar concern. I believe Asst Prof Mahdev also highlighted this.

The re-opening procedure, including the relevant threshold tests, is largely a codification of a number of considered decisions made by the Court of Appeal in balancing the interests of finality against the need to prevent a miscarriage of justice. We are confident that in administering the threshold tests, which the Court had itself developed in case law, the Court will give due regard to the prevention of miscarriages of justice. The Government shares this concern and that is why this procedure is being legislated. And, a balance has to be struck.

It may be helpful to look at the provisions in the amendments. In terms of looking at the requirements for the exercise of the power of review, there are a few things that have to be taken into account.

First, the applicant in the review application must satisfy the appellate Court that there is sufficient material on which the appellate Court may conclude that there has been a miscarriage of justice. The key thing here is miscarriage of justice and that material must satisfy the following requirements.

Before the filing of the application of leave to make the review application, the material must not have been canvassed at any stage of the proceedings in the criminal matter, in respect of which the earlier decision was made.

So, it must be remembered that this scenario is different from a scenario where something is coming up for consideration for the first time. This is intended to address the scenario where it has been heard once – it has been appealed, it has been heard – and, therefore, you are trying to re-open it again, which means the Court has already applied its mind. Therefore, the threshold is different.

You, therefore, have to show that it is something where it could not or had not been canvassed at an earlier stage. Because if it had been canvassed at an earlier stage and it was considered and the Court had said no, then really, it should follow the normal procedural rules, which is, that you do not re-open concluded hearings.

It is also a requirement that even with reasonable diligence, the material could not have been adduced in Court earlier. Obviously, that is to impress upon parties that they must take all reasonable efforts to look for the relevant evidence.

And the material must be compelling, in that the material is reliable, substantial, powerfully probative and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made. This is repeated in other provisions where it says that the appellate Court may conclude there has been a miscarriage of justice in the criminal matter if the earlier decision is demonstrably wrong and the earlier decision is tainted by fraud or breach of rules on a matter of justice, such that the integrity of the judicial process is compromised. It is not sufficient to show that there was a real possibility that the earlier decision is wrong; it must be apparent based on the evidence tendered in support of the review application that there is a powerful probability that the earlier decision is wrong.

For the purposes of the subsection on what is demonstrably wrong, it must be shown that the decision was based on a fundamental misapprehension of the law or the facts, thereby resulting in a decision that is blatantly wrong on the face of the record.

In short, the underlying philosophy of this is that you already have had several chances at it and the Court has considered it, not once, but twice, or possibly more. And if you want to overturn this, you must show that there has been a miscarriage of justice or it is very, very clear the earlier decisions were wrong.

But, of course, people may ask: but what if there is one case where actually something turns up which was not considered before and it is demonstrably wrong, you think it is miscarriage of justice, but it is does not meet one of these conditions?

In that scenario, it is actually provided for – because the amendments provide that it does not affect the inherent power of an appellate Court to review on its own motion an earlier decision of the appellate Court.

Fundamentally, what Courts seek to do is to do justice. Obviously, I would not anticipate what the Courts would do but I can say that if it is very, very clear to a Court that there has been a miscarriage of justice and something is really fundamentally and really wrong which could not have been addressed earlier, then the Court has its inherent power to review the matter.

I think I have addressed most of the queries except possibly for one question by Asst Prof Mahdev which is on requiring the defence to disclose a Supplementary Bundle and what should be done to balance the difference in resources between the defence and the prosecution.

The idea here is you also do not want to allow the defence to ambush the prosecution by only producing its documentary exhibits at trial because that really does not save resources as well and then it results in adjournments and follow-up investigations and so on. And such adjournments would actually lengthen the proceedings.

Other than that, I think I have addressed the various queries.

Mr Speaker: I believe Mr Murali has some clarifications.

3.18 pm

Mr Murali Pillai: Mr Speaker, Sir, I seek clarifications in relation to the proposed section 154 (A) of the Evidence (Amendment) Bill. I wonder whether the learned Senior Minister of State has a response to my query in relation to why we are taking the secondary legislation route as opposed to the primary legislation route, especially since the broad contours of the proposal on how to protect the victim of child abuse or sexual offence from witness' trauma and how a balance be struck in relation to ensuring the accused's right to a fair trial is not prejudiced. It is already kind of spelt out in the hon Senior Minister of State's speech.

Also, would it not be better for at least broad rubrics of the policy intent to be provided in the primary legislation so that we can ensure that the rules issued thereunder would be consonant with the policy intent?

Lastly, would it not be a better alternative to allow such rules to be determined by the newly proposed Criminal Procedure Rules Committee as opposed to the Minister? This will allow the judicial inputs to be obtained in the making of any such rules.

Ms Indranee Rajah: I thank the Member for his clarifications which actually extended his speech by an additional minute.

Mr Murali Pillai sought clarification on why the restrictions on asking certain kinds of questions of victims of sexual offences or child abuse are being contained in subsidiary legislation. The decision to place the restrictions in subsidiary legislation was made pursuant to discussions with the Law Society as it was thought that this would allow for greater flexibility to make refinements over time to strike a fair balance between due process and preventing trauma to the victim.

Mr Murali Pillai also suggested that if the subsidiary legislation had been made in this area, it should be determined by perhaps the CPRC and not the Minister. This is so that the Court would be able to give input on the nature of the restrictions.

The specific restrictions on questions have to be formulated in consideration of a very wide spectrum of interests that may go beyond the expertise of the CPRC. For example, the views of those who work closely with victims of sexual offences would be relevant. So, on balance, we decided that the Minister would, for now, be best placed to consider the entire spectrum of considerations. But, of course, the Minister will consult all affected parties, including the Courts, when formulating these restrictions.

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 Indranee Rajah].

Bill considered in Committee; reported without amendment; read a Third time and passed.