SINGAPORE — Former transport minister S Iswaran on Tuesday (Sept 3) failed in his third attempt to compel the prosecution to provide statements of all its witnesses to the defence.

He did this by seeking permission to refer two related questions of law of public interest to the Court of Appeal: Whether the prosecution has to include in its case the facts and evidence supporting the charges in the form of witness statements, and whether the court can and ought to order the prosecution to do so.

Iswaran, 62, made two previous bids to obtain all the prosecution witness statements before his case goes to trial.

These attempts had been thrown out by an assistant registrar at a criminal case disclosure conference and by a High Court judge.

Iswaran faces a total of 35 charges comprising 32 counts of obtaining valuables as a public servant, two counts of corruption and one of obstructing justice.

These relate to his interactions with property tycoon Ong Beng Seng and Mr Lum Kok Seng, the managing director of Singapore-listed Lum Chang Holdings.

He is set to go on trial next week. When asked by CNA if the trial was proceeding as planned on Sept 10, one of Iswaran's lawyers Navin Thevar declined comment.

The defence lawyers, from Davinder Singh Chambers, premised their arguments on Section 214(1)(d) of the Criminal Procedure Code (CPC), which sets out the contents for the case for the prosecution.

The case for the prosecution is served on the defence before a trial begins.

Section 214(1)(d) of the CPC states that the prosecution must include in its case "the statements of the witnesses under Section 264 that are intended by the prosecution to be admitted at the trial".

Section 264 refers to conditioned statements — written statements that are admissible as evidence in a criminal proceeding.

The prosecution took this to mean that it must provide only the conditioned statements of witnesses it intends to admit at trial.

Senior Counsel Davinder Singh and his team, however, argued that it means the prosecution must provide all forms of statements of the witnesses the prosecution intends to call, including "draft statements".

ARGUMENTS ON TUESDAY

The appeal was heard on Tuesday morning in a packed courtroom before Chief Justice Sundaresh Menon and Justices Woo Bih Li and Steven Chong.

The Chief Justice and Justice Chong in particular had difficulty with Mr Singh's submissions, questioning him repeatedly about what he meant.

Justice Chong said he was "not even sure one can admit a draft statement", and that if Section 214(1)(d) covers draft statements like Mr Singh was saying, "in the first place, you can't intend to admit a draft statement".

Both Justice Chong and Chief Justice Menon repeatedly said they were not sure they followed Mr Singh's arguments - with the Chief Justice stating many times that he was "struggling" with his points.

He told Mr Singh that his suggested reading of Section 214(1)(d) meant that the prosecution must provide statements of witnesses that they intend to use for the trial at the point they file the case for the prosecution, as well as any statements that may come to form the case at any subsequent stage.

"So you're not fixing the intention of the prosecution to admit the statements at the time of the (filing of the prosecution's case), you are saying it's really irrelevant to ask if they have this intention today or not, as long as they have some conceivable evidence... at the time of the (filing of the prosecution's case) (they've) got to include all the materials, whether you have signed statements or draft statements, things you hope the witness might establish even if you don't know if they will — you've got to include that," said Chief Justice Menon.

"In effect, you're saying, it's the entirety of the (prosecution's) evidence." 

Mr Singh agreed. He said an intention can be formed at any time, and even if it is formed, it can be withdrawn.

"What I'm saying is — the law cannot leave this to the mind of the prosecution and when he forms that intention," said the veteran lawyer.

He referred to what actually happened in Iswaran's case.

"On Apr 2, the prosecution asked us — and it's in the transcript — will we consent to conditioned statements being filed? And they wanted us to consent to the conditioned statements, without even seeing those statements. So our position was — you can show us those statements before you ask us to consent. When we took that position, that we are entitled to see them before we would agree or not they changed their position and said we are not filing conditioned statements. So whatever one might make out of that, the point is intention is a moving target," said Mr Singh.

Chief Justice said he understood this, but said: "My difficulty is — the language of the statute (in Section 214(1)(d) is not a moving target. The language of the statute was chosen by the parliament and it constrains what the court can order."

He continued: "And to be honest with you, Mr Singh, if I can cut to the chase, I think the contentions you are putting forward on the interpretation of Section 214(1)(d), I'm struggling to see how we can sustain those contentions within the language of 214."

He added that he was "struggling to see where you find a statutory basis that can accommodate the much broader scope of discovery you are contemplating".

Discovery requires parties to disclose information and documents to the opposing party for a case and trial.

Mr Singh then showed the court a section which has been repealed along with committal hearings and replaced with the current criminal disclosure regime - where evidence and information are disclosed to the defence before a trial.

He said his client effectively has fewer rights now compared with the previous provisions governing committal hearings, as he has less access to the prosecution's evidence under the criminal disclosure regime.

Justice Chong told Mr Singh that his argument was "not a realistic one" because if the prosecution has the discretion not to admit certain statements, they will be "shooting themselves in the foot".

Chief Justice Menon said Mr Singh was asking the court to "effectively craft a discovery regime" that will be equal with what prevailed in the past when committal hearings were used, "and that's a danger when parliament hasn't dealt with it".

Instead, what parliament intended for the new criminal disclosure regime was laid out in Section 214, which states what the prosecution must include in its case to be given to the defence — including the statements the prosecution intends to admit at trial.

Iswaran resigned from his positions in government two days before he was first charged in court in January. He had previously been placed on a leave of absence pending the investigation by the Corrupt Practices Investigation Bureau (CPIB).

If convicted of obtaining a valuable thing as a public servant, Iswaran can be jailed for up to two years, fined, or both.

If convicted of corruptly obtaining gratification under the Prevention of Corruption Act, he can be jailed for up to seven years, fined up to S$100,000, or both.

If convicted of obstructing justice, he can be jailed for up to seven years, fined, or both. CNA