Here’s how Singapore can strengthen its legal processes in light of high-profile acquittals

Recently, Dr Yeo Sow Nam was acquitted of four charges of outrage of modesty, because the “victim” admitted in court that she lied about the allegations against Dr Yeo.

He has since spoken about the public shame and distress he felt throughout the four-year legal process to clear his name.

The case has put the spotlight on how prosecutions are initiated.   

No system is perfect; even the best police, prosecutors, and judges get it wrong sometimes. The question is whether these shortcomings are evidence of systemic failure.

The criminal justice system is best viewed as a series of filters designed to exclude the innocent. The question is how to enhance these filters early on in the criminal justice process to further reduce the rate of “false positives” (that is, prosecutions in which the accused is factually not guilty).

Placing the emphasis on enhancing the trial and appeal stages of proceedings would be misguided, because trials and appeals form a tiny minority of all criminal cases.

Accused persons would, by the time of trial, also have already suffered significant inconvenience and reputational damage from the pre-trial process.

The best way to prevent injustice is not to secure an acquittal in court — the best way to prevent injustice is to ensure that the case never gets to court in the first place.

The first, best line of defence against injustice is a good prosecutor. The exercise of prosecutorial discretion is the most efficient filter in the criminal justice system.

The vast majority of criminal cases, roughly over 80 per cent based on calculations from the Attorney-General’s Chambers’ (AGC) annual reports, are dealt with at this stage and never make it to court: If the evidence is not sufficient, no further action is taken.

If the evidence is sufficient but there is no public interest in pursuing a prosecution, perhaps if the harm caused was very slight, the offenders are let off with a warning.

This is the best and most desirable outcome, as far as false positives are concerned, as the accused is spared a formal charge and, importantly, the shame that comes with being publicly named.

The first-instance courts, in which an accused can either claim trial or plead guilty, form the second filter.

At trial, it is the responsibility of the trial judge to decide whether the prosecution has proved the guilt of the accused.

There is a presumption of innocence, and the burden is on the prosecution to prove the accused’s guilt beyond reasonable doubt.

Likewise, if an accused pleads guilty, the judge is not expected to simply acquiesce to whatever the prosecution has put forth and the accused has admitted to – if the facts do not disclose an offence, the judge should reject the plea of guilt.

The third and final filter is the appellate courts.

On appeal, the appellate judge can be expected to catch any errors, whether of law or fact, that have been made during charging, at trial or in a guilty plea.

Law Minister K Shanmugam told Parliament in November 2020 that about 10 per cent of appeals result in acquittals.

The fact that acquittals occur on appeal is actually a sign of a healthy and functioning legal system.

Even in the most rigorous of systems, there will be some false positives that the courts need to catch.

We should be worried only where the number of false positives occurring implies that the overall system’s error rate is significant.

Dr Yeo’s case follows last year’s high-profile acquittal of former domestic worker Parti Liyani, of theft charges.

Her case caused quite a stir and prompted a ministerial statement by Mr Shanmugam in Parliament.

While two cases in a year involving similar failures relating to assessment of witness credibility may seem worrying to some, we must view this in perspective: AGC receives literally tens of thousands of investigation papers (that is, police reports that have been investigated and surfaced for a decision on whether to prosecute) a year — over 55,000 in 2018, for example.

We may not know what exactly went wrong in Dr Yeo’s case.

The temptation to call for yet another independent inquiry, or to build more oversight into the process, may be strong, but it should be resisted.

Loading more work in the form of extra oversight onto already overworked police and prosecutors may result in more false positives, rather than fewer.

The solution has to be based on a rigorous understanding of how the system works and where improvements can be made without triggering unintended consequences.

First, prosecutors need to be given adequate time and resources to assess cases correctly.

When prosecutors are overloaded, it is inevitable that mistakes will be made.

Beyond a certain point, the volume of work begins to adversely impact the quality of work. Time pressure, fatigue, and stress are all likely to impair a prosecutor’s good judgement.

The data published by the AGC shows that the ratio of investigation papers to prosecutors has been steadily worsening over the last few years.

It fell to a low of about 220 investigation papers per prosecutor per year in 2011 but has since  increased to over 270 per prosecutor per year in 2018. Data for 2019 and 2020 is not publicly available.

This implies that the average prosecutor receives a new investigation paper every 1.3 days. However, these figures are misleading.

The average prosecutor actually works on far more investigation papers than is suggested by the raw data, as these papers may be worked on by more than one prosecutor.

It is common for them to be dealt with by teams of prosecutors or passed on from one prosecutor to the next for review or additional perspectives.

Prosecutors are also engaged with pre-trial conferences, trials, guilty pleas and appeals, the writing of legal advice, project work, and other pieces of miscellaneous administrative work.

Increasing the effectiveness of the first filter necessarily means reducing the per capita workload of the prosecutors who make up that filter.

Once the ideal ratio has been identified, AGC should take steps to reach and maintain that ratio.

There are many ways to achieve this: Manpower growth is one, but that is not sustainable in the long run.

Process improvement is a better option, by cutting out unnecessary administrative busywork.

Elimination of work is a necessity, so that prosecutors can focus on things that really matter.

For example, prosecutions related to intellectual property infringements of multinational giants like Apple and Samsung could be delegated to private prosecutors – the interests involved are fundamentally private ones and the victims have the resources to pursue a prosecution themselves.

Yet, such cases are common and take up the time and attention of public officers.

Introducing more checks and layers of clearance into the system guarantees there will be more work for every prosecutor, and paradoxically, may end up generating even more false positives. It also guarantees that cases will take longer to process, which is bad for the accused, who will continue to suffer the inconvenience and shame of being under investigation.

Attention should be devoted to making workloads more manageable so that the quality of decision-making can remain high.

These are the considerations that an effective review should focus on – not introducing more oversight.

Second, defence counsel should get involved earlier in the process. What is true for prosecutors is also true for defence counsel — court proceedings take up disproportionate amounts of time and energy.

There are not that many defence counsel available – only about 750 lawyers regularly practise criminal law in Singapore. It is imperative that they are employed wisely.

One possibility is to make representations to AGC prior to charging. Representations are communications to the prosecutor from the defence, setting out the defence’s position and attempting to persuade the prosecution to agree to something.

The value of good representations is that they set out the accused’s case clearly and help the prosecutor to identify legal issues relevant to the exercise of prosecutorial discretion.

Very often, accused persons are unable to put their case across in clear and relevant language — a lawyer can help with that.

It is inefficient for representations to come in after charging, as they usually do.

If there is a good reason not to lay charges, it should be made apparent to the prosecution before they have actually made the decision, rather than attempting to get them to roll back a decision already made.

Perhaps police procedures should be changed to allow accused persons earlier access to counsel, after their initial investigation statements have been made (to avoid allegations that evidence has been tailored) but before their cautioned statements are taken and they are charged.

No matter how we feel about perceived injustices, reforms to the legal system must be taken dispassionately.

What is effective is not necessarily popular, and what is popular is not necessarily effective.

Shoring up trust in the legal system cannot come at the cost of the actual effectiveness of the system itself.

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law. He was formerly a deputy public prosecutor at the Attorney-General's Chambers.