Criminal Process

Question 1

Chan Sek Keong, “From Justice Model to Crime Model” (2006): Main arguments on Crime Control Model?

Answer 1

1. Primary obj is to bring justice with efficiency through presumption of factual guilt (justice to victims of crime).
2. Efficient application of admin and prosecutorial expertise (early determination of probable guilt, ensures factually innocent are not charged). Presumption of factual guilt = Expression of confidence in reliability of admin fact finding.
3. Affords greater protection to individual rights and freedom by repressing crime.
4. Focuses on justice with efficiency.

Question 2

Chan Sek Keong, “From Justice Model to Crime Model” (2006): Main arguments on Due Process Model?

Answer 2

1. Primary obj is to prevent any innocently accused person from being wrongly subjected to the criminal process or being convicted in trial.
2. Designed to present formidable impediments to the trial process, based on the assumption of human failings.
3. Presumption of innocence (directing principle of this model) is normative and legal.
4. Focuses on prevention of any miscarriage of justice.

Question 3

Chan Sek Keong, “From Justice Model to Crime Model” (2006): Singapore’s legal framework?

Answer 3

Began shift from DPM to CCM as early as 1959.

3 components; combination of these laws cases a wide net that makes it difficult for factually guilty offenders to escape conviction:

1. CPC and EA provisions modified to give greater effect to crime control.
   - E.g. Previously, silence not a relevant consideration upon arrest up to trial. Now, silence would lead to a risk of an adverse inference being drawn against him.
2. Serious offences are subject to evidential rules that reverse burden of proof of intent if certain basic facts are proven.
3. Substantive criminal laws allowing detention without trial and stiff deterrent punishments such as capital punishment.

Question 4

Chan Sek Keong, “From Justice Model to Crime Model” (2006): Counter-argument to pro-CCM legal model?

Answer 4

DPM is present through golden thread of proof beyond reasonable doubt and presumption of innocence, prevalent in large majority of offences esp in CPC (targeted at very serious offences).

Question 5

Chan Sek Keong, “From Justice Model to Crime Model” (2006): What is an acceptable model of CJS?

Answer 5

CJS must effectively meet the expectations of the people it is designed to serve.

Involves equilibrium that reflects a jurisdiction’s belief in balancing due process and crime control according to its cultural, moral and political values.

Question 6

Michael Hor, “Singapore’s Innovations to Due Process” (2001): What is Singapore’s official position?

Answer 6

Utilitarian argument:
Measures which appear to trample upon human rights in the context of criminal justice are justified by gains in dealing effectively with crime and not putting the innocent in jeopardy.

Question 7

Michael Hor, “Singapore’s Innovations to Due Process” (2001): How is SG’s CJS a stark utilitarian calculus?

Answer 7

Willingness to trade in respect for human rights for better crime control.

• Departs from norms of criminal justice
• Many constitutions provide for the contingent use of emergency powers to deal with unusual situation where the normal legal order is inappropriate. Singapore applies a limited use of such emergency powers.

Question 8

Michael Hor, “Singapore’s Innovations to Due Process” (2001): No clear evidence criticism?

Answer 8

No clear evidence that increased conviction of the guilty will lead to a deterrent effect on potential offenders, or that innocent will not be ensnared.

• Argument: innocent will not be at risk based on a high degree of trust in govt institutions
• BUT focus of resources should be on choosing the right personnel and not on setting up a system of checks and balances.

Question 9

Michael Hor, “Singapore’s Innovations to Due Process” (2001): Moral argument criticism?

Answer 9

There are things that should be sacrosanct and immune from utilitarian barter.

• Unspoken value judgment in the official SG position that the projected gains in crime prevention still outweigh the cost of some innocent persons being caught.
• Rigid cost benefit analysis is applied to every measure.

Question 10

Michael Hor, “Singapore’s Innovations to Due Process” (2001): Why does moral discourse not feature prominently in official decision making?

Answer 10

1. Asian values
2. Immigrant mentality
3. Official downplaying of moral discourse

Question 11

Michael Hor, “Singapore’s Innovations to Due Process” (2001):
Utilitarian stance of SG’s CJS - Theme of reliance on official discretion?

Answer 11

Theme of reliance on official discretion

• Based on hope that officials will behave with restraint and responsibility and though judicial review exists, judges are extremely reluctant to subject these decisions to scrutiny.
• No govt should be given such latitude; need an independent judiciary to serve as check and balance. However, SG judiciary has receded into the bg.

Question 12

Michael Hor, “Singapore’s Innovations to Due Process” (2001):
Utilitarian stance of SG’s CJS - Drift net crimes?

Answer 12

Drift net crimes (broadly defined offences)

• Definition of drug trafficking in MDA is broad
• Arguable intention is meant to prevent traffickers from getting away, even if it means ensnaring those who only literally give drugs
• Theme of reliance on official discretion: doesn’t matter if the crime is drafted broadly, police and PP can be relied on to ID and prosecute the real traffickers.

Question 13

Michael Hor, “Singapore’s Innovations to Due Process” (2001): E.g. of SG’s CJS utilitarian stance?

Answer 13

Detention without trial

• Criminal Law (Temporary Provisions) Act s 30
• Minister allowed to detain for up to 12 months any person associated with activities of a criminal nature if he is satisfied that the detention is necessary for public safety, peace, and good order.

Safeguards:

• Act must come up for renewal every 5 years
• Ministerial order of detention must receive consent of PP, confirmed by President
• In practice, never ordered except in Chinese triads and drug trafficking.

Question 14

Michael Hor, “Singapore’s Innovations to Due Process” (2001): CJS’s link with quality of life?

Answer 14

Quality of life is intimately linked with how society deals with moral issues.

A rigidly utilitarian society is a soulless one, efficient and affluent at the cost of moral apathy.

Question 15

Chan Sek Keong, “New Challenges to the Criminal Justice System in ‘Rethinking the Criminal Justice System of Singapore for the 21st Century” in The Singapore Conference: Leading to the Law and Lawyers into the new millennium @ 2020 (2000):
What are the 3 challenges?

Answer 15

1. Fundamental rights in criminal justice
2. Making laws clear (MR and Strict Liability)
3. Improving prosecutorial decision making

Question 16

Chan Sek Keong, “New Challenges to the Criminal Justice System in ‘Rethinking the Criminal Justice System of Singapore for the 21st Century” in The Singapore Conference: Leading to the Law and Lawyers into the new millennium @ 2020 (2000):
Fundamental rights in criminal justice?

Answer 16

Influence from ECHR may affect conception of fair trial, and the structure of rules of law, evidence and procedure to achieve a fair trial.

Confers similar but broader rights in as much as they are expressed in open-ended language, thus allowing the courts to interpret their scope according to the prevailing morality or ideology.

Example: Issue of capital and corporal punishment.

Question 17

Chan Sek Keong, “New Challenges to the Criminal Justice System in ‘Rethinking the Criminal Justice System of Singapore for the 21st Century” in The Singapore Conference: Leading to the Law and Lawyers into the new millennium @ 2020 (2000):
Making laws clear?

Answer 17

Case law on strict liability offences is difficult in UK and Singapore.

Compared with PC: Drafting technique used for PC is to define every expression and offence, make explicit the requisite mental element of any offence, provide a list of defences applicable etc.

Hence, it is practically impossible to misunderstand the Penal Code.

Therefore, strict liability offences should be drafted clearly.

Question 18

Chan Sek Keong, “New Challenges to the Criminal Justice System in ‘Rethinking the Criminal Justice System of Singapore for the 21st Century” in The Singapore Conference: Leading to the Law and Lawyers into the new millennium @ 2020 (2000):
Improving prosecutorial decision making?

Answer 18

In the past: Quality of decision depended entirely on the quality of the DPP making it.

Now: Requires the collective input of a selected body of DPPs.

Decision-making process is more focused, systematic and objective.

Example: Serious offence decisions under 3 or more levels of evaluation

1. Assigned DPP evaluates
2. Recommendation goes to a panel of 3 experienced DPPs for review
3. Panel forwards report to Deputy Head, then forwarded to head of CJD, and finally to the PP.
4. Prosecution does not prosecute unless they are satisfied that there is a reasonable prospect of conviction.
5. Decision to prosecute undergoes several levels of checks, and a collective evaluation by experienced DPPs ensure that there is a reasonable prospect of obtaining a conviction to prevent frivolous or unmeritorious prosecution.

Guarantees the integrity and contributes to the efficiency of the criminal justice system by ensuring that there are no unjustifiable prosecutions and only unsuccessful ones.

Question 19

Chan Sek Keong, “New Challenges to the Criminal Justice System in ‘Rethinking the Criminal Justice System of Singapore for the 21st Century” in The Singapore Conference: Leading to the Law and Lawyers into the new millennium @ 2020 (2000):
Stance on CJS v individual rights?

Answer 19

We should not be apologetic or defensive about a criminal justice system that is effective in reducing the incidence of crime in society.

Individual rights are only meaningful in the context of an established social order, without which, are meaningless.