Criminal Procedure Code (Amendment) Bill

Order for Second Reading read.

4.19 pm

The Senior Minister of State for Law (Mr Edwin Tong Chun Fai) (for Minister for Law): Mr Speaker, on behalf of the Minister for Law, I beg to move, "That the Bill be now read a Second time."

The Government regularly reviews criminal procedure with the aim of ensuring a progressive, balanced and modern criminal justice system that protects society from crime. As part of this review, we introduced the Criminal Justice Reform Act 2018 (CJRA) last year, which amended the Criminal Procedure Code (CPC) and other laws. The CJRA introduced, amongst other things, the video recording of interviews in investigations and a statutory procedure for the re-opening of criminal cases where all appeals had been exhausted. Changes were also made to disclosure of evidence in criminal proceedings and to the sentencing powers of the court, including to the sentence of Reformative Training.

The scale of the current Bill is much smaller than that of the CJRA. The current proposals serve to improve and refine the laws introduced or amended last year.

The amendments can be split into three main categories. First, investigative processes. Second, court procedure. And third, the sentencing powers of the Court. Let me elaborate on each of these.

The first change to investigative processes concerns video-recording of interviews (VRI). When we implemented VRI last year, we also created new offences relating to the misuse of VRI recordings. Examples include the unauthorised recording of the VRI process and the unauthorised copying or distribution of a VRI statement.

The existing law allows the police to investigate such VRI-related offences. However, other agencies that use VRI in their investigations may not have the power to investigate such offences and would have to rely on the police to investigate them.

For example, if the Central Narcotics Bureau (CNB) is conducting a drug-related investigation and takes a VRI recording, and that recording is wrongfully copied or distributed, the CNB cannot investigate that act. It must call on the police to assist with that aspect of the investigation.

The law enforcement agencies gave us feedback that it would be a lot more efficient if the investigative agency that makes a VRI recording was empowered to investigate any misuse of that recording. That agency would be familiar with the wider investigation and would be able to put the VRI-related offence into its proper context.

As such, the Bill will allow prescribed law enforcement agencies which already have the power to take VRI statements to investigate any VRI-related offences relating to the statements they take. The intention is to prescribe CNB as such an agency, with others considered as and when the need arises.

The second amendment will allow the police or the Prosecution to redact sensitive information from any document or thing relating to a criminal case before disclosing it to the Defence or other persons.

Sensitive information refers to information which, if disclosed –

(a) may be prejudicial to the public safety, public security or propriety, public order, national interest or national security of Singapore or any part of Singapore;

(b) may endanger the safety of any particular person;

(c) may prejudice the effective conduct of any ongoing or future operation or investigation of any law enforcement agency. For example, information that may reveal the operational processes or capabilities of any law enforcement agency; or

(d) may otherwise be prejudicial to the interests of justice in any criminal investigation or criminal proceedings.

Our current statutes already provide for the non-disclosure of official records relating to affairs of state and, in certain circumstances, official communications. The proposed amendment, which applies only in the criminal context, expressly allows a law enforcement officer or the Prosecution to redact sensitive information if, for example, the redaction is needed to protect a person's safety or the effective conduct of an investigation.

To take a further example, let us say that CNB takes a VRI statement from a suspect, who is a member of a drug trafficking syndicate. In the course of the interview, it is revealed that CNB has certain intelligence-gathering capabilities. If this part of the video-recording were to be publicly disclosed, it could compromise CNB’s intelligence-gathering and undermine investigations not just into that syndicate, but also others as well. The proposed amendments would expressly allow that part of the VRI statement to be redacted.

We were of course mindful that any exercise of this power should not prejudice an accused person's ability to conduct their defence. A key objective of the criminal justice system is to produce accurate and equitable outcomes, through procedures that are fair – not just fair but seen to be fair as well. With this in mind, the power to redact comes with certain limitations. The Prosecution will not be allowed to redact sensitive information from material disclosed to the Defence (a) where the Prosecution intends to rely on that sensitive information as evidence, or (b) where the law requires the disclosure of the sensitive information because it tends to undermine the Prosecution’s case or to strengthen the defence's case. This latter type of disclosure refers to the principle in the Court of Appeal’s decision in Muhammad bin Kadar and another v Public Prosecutor and the cases that elaborate on that decision.

Where the Defence wishes to dispute a redaction made under this power, the amendments provide that they may apply to the court in a closed-door hearing. The court will view the material in the absence of the Defence and it may order that the Prosecution disclose the redacted information.

I turn now to cover an amendment relating to court procedure. The CJRA introduced a statutory procedure for re-opening concluded criminal cases, where all avenues of appeal have been exhausted. Under the CJRA amendments, the appellate court that last dealt with the case will hear the application to re-open the case and may extend certain timelines for filing documents prescribed for the re-opening procedure.

Again, we received feedback that it would be more efficient, and also allow more flexibility for the courts, if this procedural power includes the power both to shorten and extend timelines, and if it can be exercised not only by the last appellate court to hear the matter, but also the Registrar of the Supreme Court, and any High Court Judge or Judge of Appeal. We are therefore proposing an amendment to that effect.

Finally, let me deal with an amendment to the courts' powers in relation to Reformative Training (RT) sentences. RT sentences apply to offenders under the age of 21. Under such sentences, young people who commit relatively serious crimes go through intensive rehabilitation in a Reformative Training Centre (RTC) followed by post-detention supervision in the community.

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, on how to stay crime-free, and on how to strengthen their relationships with their family.

An amendment is proposed to provide that a RT sentence cannot be backdated. What this means is that even if an offender was remanded before sentence, any RT sentence imposed cannot be backdated to take the remand period into account.

Let me explain why this is needed. Under the CJRA, the CPC was amended last year to reduce the minimum RT detention period. The period used to be 18 months, but under those amendments, the court is given the discretion to set the minimum period at either 12 months or six months depending on the nature of the rehabilitation required.

This substantial reduction in the minimum detention period benefits offenders because it allows them to return to the community and begin their social reintegration earlier. However, the reduced period also means that offenders have a very limited time in RTC to complete the intensive rehabilitative programmes designed to keep them crime-free.

If an RT sentence is shortened any further by backdating, it would deprive the offender of the chance to complete the necessary programmes. Without the full benefits of their rehabilitation, there is a higher risk that the offender will not be able to stay crime-free. This will not be good for them or society.

We are conscious that with this amendment, an offender who is remanded for a substantial period of time before being sentenced to RT will face a longer total period of incarceration compared to an offender who was not remanded, or not remanded for as long. This was a concern raised by the criminal bar during our consultation with them.

To address this, the relevant agencies, such as the police and AGC, will work together to ensure that where RT is a possible sentence, remand is either avoided or minimised where possible. This will prevent the offender being disadvantaged. In fact, this is already being done. Of course, this is leaving aside remand ordered by the sentencing court for preparing the RT pre-sentencing report, which agencies currently keep to about one week or less.

The Bill also contains other technical amendments. These clarify the court's procedure and powers in forfeiting bail bonds, introduce definitions to aid understanding of the High Court criminal case disclosure procedure and improve some language which was unclear.

To conclude, the Bill builds on the reforms in the CJRA of last year and further enhances the effectiveness of some of those reforms. In this modest way it contributes towards a fair criminal justice system that serves the needs of Singaporeans. With that, Mr Speaker, I beg to move.

Question proposed.

4.29 pm

Ms Sylvia Lim (Aljunied): Mr Speaker, I declare that I am a lawyer attached to a firm that practises criminal law.

I am generally supportive of the amendments proposed, but i would like the Ministry to clarify two matters. Firstly, relating to the video recording of interviews (VRIs), and secondly, on reformative training (RT) sentences.

First, on Video-Recording of Interviews, or VRIs, I must commend the Ministry on how far it has moved on VRI over the years. When I first broached the idea of video-recording of statements during MinLaw's COS in 2008, more than ten years ago, it was met with a negative response. Today, we are here discussing how to enhance the VRI framework to cover law enforcement officers outside of the Singapore Police Force. This is indeed progress, and progressive.

Clause 3 of the Bill seeks to enable non-police officers to investigate offences relating to a statement made by an audiovisual recording. The rationale for this change was explained in MinLaw's press release of 11 February, as to enable Central Narcotics Bureau officers who had used video-recorded interviews as part of their investigations to be able to investigate VRI-related offences. This makes sense. As to which types of cases are being investigated with the use of VRI, section 22 of the CPC currently makes VRI mandatory only in cases of rape under section 375(1)(a) of the Penal Code. It is discretionary in all other circumstances.

To get a sense of how widespread the use of VRI is among our law enforcement agencies, could the Minister inform the House as to which agencies have commenced using VRI, and for what kinds of offences? Also, what has been the assessment thus far of the usefulness of VRI as an investigation tool and as evidence in Court?

Secondly, on Reformative Training Sentences. Clause 6 of the Bill basically removes the right of the sentencing judge to backdate the period of custody to an earlier date. Currently, backdating a sentence to start running at an earlier date could happen if the offender was remanded in custody from the time of his arrest and continued to be in custody for weeks or months before he is eventually sentenced. Such backdating recognises that he has lost his liberty from an earlier date, and takes that pre-sentence period into account.

MinLaw has explained that it is removing the possibility of backdating sentences of Reformative Training, because Reformative Training is geared towards rehabilitation and if sentences are backdated, the offenders may not have enough time to complete the prescribed programmes. That I understand due to the changes made to Reformative Training over the years. But when backdating does not happen, how do we account to the individual for the period he or she has spent in pre-sentence custody. Not backdating may cause injustice to the offender.

I see that MinLaw is alive to this injustice, as in its media release, it has stated that agencies will work together to ensure that where Reformative Training is a likely sentence, remand is avoided or minimised where possible. As Reformative Training will be imposed on young offenders, namely those below 21, it is certainly important to ensure that these youths are not incarcerated for longer than necessary, as it would affect their reintegration into education, society and work.

In order to avoid or minimize remand as MinLaw has stated, what practical things will be done? For example, will the prosecution be more prepared to ask for lower bail amounts, or will the cases be fast tracked in a specific way?

Finally, the wording of clause 6 is that the sentence of Reformative Training is to take effect on the date it was passed "or at such later date as the court may determine". It would be important for the Ministry to clarify that such post-dating would only occur if the offender is not incarcerated while waiting to commence a sentence of Reformative Training.

4.33 pm

Mr Christopher de Souza (Holland-Bukit Timah): Sir, the amendments in this Bill relate to different stages of the criminal justice process – from investigations, to pre-trial disclosure, as well as post-trial procedure.

In terms of investigations, clause 3 of the Bill allows officers of prescribed law enforcement agencies to investigate offences relating to video interviews. This is good as it streamlines the process by allowing the agency which is most familiar with the circumstance to investigate the offence, thereby smoothening the process.

In order to fulfil such duties, is it envisioned that the skillsets and expertise will be slightly different from what the officers from the prescribed law enforcement agency are already using? If so, what training or arrangements will be provided to ensure that the officers would be able to develop the necessary expertise – tap into the requisite resources – to investigate each case? Still staying on this issue, why does the new section 40B remove the need for an officer to be of an equivalent rank to that of an inspector of the police without seemingly replacing it with an equivalent safeguard?

Allow me, Sir, in this stage, to declare my interest as a lawyer in private practice who sometimes acts as Defence counsel.

Moving on to amendments relating to the pre-trial and trial stages, clause 9 provides for the non-disclosure of sensitive information and a process for it, that is, seeking a balance between the accused’s rights and interests with that of others’. For instance, while sensitive information may prejudice public safety, safety of any particular person or future investigations, the prosecution may still need to disclose it if it is required by law and if it undermines the prosecution’s case or strengthens the Defence's case according to the new section 425B(3). Additionally, by the words "if the Defence is aggrieved by the removal or redaction" in the new section 425B(4), it seems as though the court’s determination on the matter can be easily sought by the Defence. Is this the case?

While not allowing the Defence to be present as the court views the document makes sense in order for this non-disclosure to be effective, would this be an exception to Rule 30 of the Legal Profession (Professional Conduct) Rules 2015 under which legal practitioners are ethically bound not to initiate any communication with the court unless he or she has given each legal practitioner acting for another party to the proceedings an opportunity to be present or to reply? That is my question to the Senior Minister of State. Further, how does the process take into account the general understanding that the Defence would be best placed to know whether something would strengthen its own case?

Another question, these concerns must be weighed against the importance of protecting sensitive information. A correct balance must be struck. The provision could protect public safety, public security or propriety, public order, national interest, national security, safety of individuals, ongoing and future investigations and interests of justice in criminal investigation or proceedings. Even as the accused must be able to present the best case, such important concerns cannot be compromised if there is no need to, especially if it does not weaken the prosecution’s case or strengthen the Defence's case. However, when there is a need to disclose such information even though it is sensitive information, what will be done to safeguard the sensitive information from being abused? Similarly, how can we be sure that information is indeed disclosed even where it is valuable or relevant and necessary to the Defence's case?

Post-trial, certain timings for both the application for leave of review application as well as the hearing of a review application can be abridged through clauses 7 and 8. As these two powers would be able to shorten the timeline from those prescribed in the Criminal Procedure Rules, potentially prejudicing the relevant parties, would the Senior Minister of State please explain the rationale behind these amendments?

The fourth area of substantive amendments that I want to speak about, in this very short speech, is that of reformative training. The reformative training regime is an important feature of our criminal justice system through both rehabilitation and deterrence. Clause 6 removes the ability of courts to backdate reformative training. While this removes the period that the accused was remanded for pre-sentencing, this amendment furthers the aim and purpose of reformative training.

As the Singapore High Court in the case of Nur Azilah bte Ithnin vv Public Prosecutor opined, backdating reformative training will shorten the period of training and could undermine or hinder the effectiveness of such a programme. As such, this amendment will promote the effectiveness of the reformative training regime. Following the Criminal Justice Reform Bill 2018 which allowed for a more calibrated rehabilitation program through changes to the duration of the reformative training regime, this amendment will further enhance the effectiveness of reformative training and is a welcomed amendment. Nevertheless, what will be done to ensure that the duration of remand will be reduced or minimised?

Additionally, since corrective training also contains rehabilitation as part of its focus, did the Ministry consider introducing a similar change to disallow backdating for corrective training and, if so, why was it not extended to corrective training?

Sir, in conclusion, all stages of the criminal justice process are important. The criminal procedure code is integral to our criminal justice system. In order to achieve justice in our criminal justice system, the process must be robust yet flexible, balanced and fair. It has to take into account both the interests of not just the accused, not just the victim but also that of the broader society. Hence, I support this Bill.

4.40 pm

Mr Speaker: Senior Minister of State Edwin Tong.

Mr Edwin Tong Chun Fai: Mr Speaker, I thank the Members who have spoken up in support of the Bill. Let me address the questions directly.

First, questions about VRI. Mr de Souza asked if non-police law enforcement officers will need different skills, training and resources to investigate these offences. As with all legislative amendments, before bringing the changes into force the relevant agencies will assess what kind of training or preparation is needed and will get that done. There is an inter-agency workgroup comprising MHA, MinLaw, AGC, the police and other law enforcement agencies, which oversees the development of policies, operational procedures and also training plans to ensure uniformity in VRI implementation across the agencies. This workgroup will work towards ensuring that the investigation of VRI offences is done to a common high standard across all agencies.

Mr de Souza also asked why the non-police officers exercising the new powers to investigate VRI offences do not need to be of a rank equivalent to an inspector of police, but are deemed to be of that rank for these purposes. This is to match the existing powers of those officers. For example, under section 32 of the Misuse of Drugs Act (MDA), a CNB officer investigating an offence under that Act has the same CPC powers as a police officer investigating an arrestable offence. In exercising those powers, the CNB officer is deemed by section 32(3) to be an officer not below the rank of inspector of police. Provisions like section 32 of the MDA and the proposed section 40B of the CPC recognise the fact that officers of specialised law enforcement agencies such as the CNB are highly-trained, and are able to competently and responsibly exercise the investigative powers given to police officers of the rank of inspector and above.

Ms Sylvia Lim asked which agencies have commenced using VRI, for what kinds of offences, and for the assessment of the usefulness of VRI in investigations and as evidence. VRI has been used by the Serious Sexual Crime Branch of the Criminal Investigation Department, in investigations into rape, and by the Central Narcotics Bureau to investigate certain drug trafficking offences. Several Police land divisions are also preparing to use VRI. Early feedback from the ground and from these agencies is that VRI is useful to investigators and our officers are confident in the VRI system. So far, there has not yet been a case where a VRI recording has been used as evidence in court. As more cases go through the criminal justice system, we will continue to gather feedback from the implementing agencies in order to further refine and improve the VRI process.

I thank Ms Lim for being supportive of this and with reference to the suggestion in 2008, that MinLaw was dismissive of this during COS, let me just clarify the position. [Please refer to "Clarification by Senior Minister of State for Law", Official Report, April 2019, Vol 94, Issue No 102.] The answer then was that MHA will take ownership of this issue and at that stage whilst MHA had no plans to implement VRI, they were nonetheless, and I quote, "MHA's position is that the issue of video recording as well as other operational issues should be looked into, in the following manner: there should be a fair system which seeks to ensure that crimes are solved and the system should also ensure that the rights of the accused are protected. If an accused wishes to challenge the statement given by him, there are clear avenues available today". So, that was the position in 2008, not quite so dismissive as Ms Lim has suggested.

Next, there were several questions on the removal of sensitive information from disclosed materials. Mr de Souza asked if the Defence can easily seek the court’s determination of whether such a removal or redaction should stand. The Defence may apply for the court’s determination without any procedural barrier – for example, leave of court will not be required. However, to succeed the Defence will need to satisfy the court that the Prosecution should not have redacted the relevant information, either because it was not sensitive information, because the Prosecution is relying on it as evidence, or because it tends to assist the Defence or undermine the Prosecution’s case and, therefore, must be legally disclosed. That is the test in Kadar's case.

4.45 pm

Mr de Souza asked whether the requirement that the court view the disputed redacted material in the absence of the Defence violates an ethical rule against a party communicating with the court without the other party also being present or able to reply. I would like to make it clear that the rules of natural justice will continue to apply to those proceedings just as they have done in other proceedings. This means that both parties will be able to make submissions on the legality of the redaction, and also rebut each other's submissions. While the court must view the disputed material in the absence of the Defence, this does not mean that the Prosecution will be allowed to make submissions in the absence of the Defence.

In other words, you make the submissions, the Defence can respond and the court views the disputed material in the absence of the Defence.

Mr de Souza also asked how this procedure takes into account the understanding that the Defence would be best placed to know whether something would strengthen its own case. This question relates to the common law principle from the case of Kadar, which I mentioned earlier, that the Prosecution must disclose unused material that tends to strengthen the Defence's case.

Mr de Souza's question calls to mind the argument, sometimes advanced before the courts, that the Defence should receive disclosure of material for the purposes of arguing that it should be disclosed. The High Court in fact considered this precise point in Winston Lee's case and held that even where it fell to the Prosecution to show that in compliance with its Kadar disclosure obligations, the disputed material may be shown to the court but not to the Defence. And, to quote the judgment on this, "[t]o allow the Defence to examine the undisclosed material on a preliminary basis simply because there is a dispute on disclosability has a similar practical effect to disclosure and this would in essence be going further than the situations of disclosure envisaged in [Kadar]". The wording in the proposed legislation is entirely consistent with this common-sense position.

In a similar vein, Mr de Souza asked how we can be sure that information is indeed disclosed where it is valuable or relevant and necessary to the Defence's case. The courts have set down detailed procedures to fairly balance the competing interests in this area. And the High Court's decision in Winston Lee's case was then subsequently brought before the Court of Appeal in a Criminal Reference, and our apex court stated that while the Public Prosecutor is presumed to have complied with his disclosure obligations on account of his constitutional office, this presumption can be rebutted. Once the Defence satisfies the court that there are reasonable grounds for belief that the Prosecution has failed to comply with its Kadar obligation, the court will look to the Prosecution to show that it has complied. With the Defence assisting the court in this regard, we are confident that the outcomes will be fair when the Kadar principles are applied in the context of the redaction of sensitive information.

Finally, Mr de Souza asked a question from the other perspective, from the other side of the spectrum, I think, which is, when there is a need to disclose such information even though it is sensitive information, what will be done to safeguard the sensitive information from being abused.

The Prosecution will weigh very carefully, in the first place, whether to use sensitive information as part of its evidence, and will only do so where it is necessary. If unredacted sensitive information has to be used in a criminal proceeding, various measures can be taken to mitigate the risk of publicity.

First, if there is sensitive information in materials disclosed in the statutory pre-trial disclosure process, the court may order that the accused and his advocate cannot communicate it to any person. Breach of this order would be an offence. It is also worth noting that generally, the media are not allowed to publish reports of information contained in materials disclosed during the statutory pre-trial disclosure process, except the basic facts of the case.

Second, the court may order that the matter be heard behind closed doors – in camera.

Finally, if the sensitive material contains or concerns the identity of a witness, the court can order that such information not be published. This is commonly known as a "gag order".

Moving to the next area being amended, Mr de Souza asked for the rationale of giving the courts and the Registrar the power to shorten timelines in relation to procedure for re-opening of concluded cases.

I should highlight that both parties will be given a chance to make arguments about the timelines before the court makes the decision to either shorten or extend them. So, that is the usual way where the court will entertain submissions from both parties. The court will take on board all the facts and arguments, taking them into account in deciding whether it is in fact just to make the order or not.

I stated in my opening speech that this proposal was designed to enhance efficiency, and allow for more flexibility. Let me illustrate the point with one example. Let us say an application to re-open a concluded case is filed very late and close to the time the sentence is to be carried out, for example, a caning sentence, which will be irremediable. With this amendment, the court will be able to consider whether to shorten the procedural timelines to have the application heard and resolved more quickly. We have no doubt that the courts, in applying its discretion to the facts of each case, will have the fair balance between the parties' interests at heart when deciding.

Finally, there were a number of questions on the backdating of RT sentences, and let me deal with that.

Both Ms Lim and Mr de Souza asked what steps the agencies will take to avoid or minimise remand where RT is a possible sentence.

First, as I mentioned earlier, the agencies will work to identify the remand cases where the accused is under the age of 21 early. This age group includes all accused for whom RT may be ordered. The identification of these cases may be done even before charge. Once such cases are identified, the Prosecution and investigators will take steps to expedite the case and reach the sentencing stage as quickly as possible.

In addition, in appropriate cases, remand can be avoided by offering a reduced bail amount, for example, if the sureties have difficulty raising bail in those situations. Release on bail with electronic tagging can also be used as an alternative to higher bail amounts where appropriate. The CJRA amended the CPC to expressly allow the use of electronic tagging as a condition of bail.

Ms Lim also asked for confirmation that a court will not have an RT sentence take effect on a date later than the date it was passed if the offender is already in pre-sentence remand, as I understand the question. Yes, that will be so, and in such a situation, it will be started immediately. Generally, the CPC empowers the courts to direct a sentence of imprisonment, RT or Corrective Training or Preventive Detention take effect at a later date than the date it was passed. This, however, is usually done on the request of the offender, in most of these cases, to allow, for example, time to sort out personal affairs and so on before serving a sentence. So, the usual position is if you are already in pre-sentence remand, then unless the offender requests, he will simply carry on. If the offender is already in remand in that situation and they are not requesting bail to sort out personal affairs or other matters, then there is generally no reason to postpone the commencement of sentence.

Finally, Mr de Souza asked whether the Government also considered disallowing backdating for Corrective Training (CT) sentences. As background, although CT sentences share the rehabilitative element with RT, they apply to a different group of offenders. CT applies to adult offenders – as opposed to RT – who have committed one or more offences with maximum sentences of two years' imprisonment or more, and also have relatively serious previous convictions. These adult repeat offenders can be sentenced to CT for a minimum of five and a maximum of 14 years, without entitlement to remission. Considering the long minimum duration of CT sentences, there is less risk that backdating of such sentences will interfere with any rehabilitative efforts during the sentence.

In conclusion, Mr Speaker, I thank the Members for their contribution, both Ms Lim and Mr de Souza, to this debate. The Government is continuously working towards a progressive, balanced and modern criminal justice system that protects society from crime. This Bill contributes to this effort by building on past reforms and also, at the same time, enhancing their effectiveness. With the support of the House, I beg to move.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

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