SINGAPORE, April 18 — Withholding evidence at trial. Making purposeless attacks. Going “full steam ahead” with charges even when evidence was insufficient.
On Friday, lawyer Anil Balchandani said that these were all behaviours that show “improper motive” and are not befitting of the public prosecutor’s role as “ministers of justice”, when the prosecution should provide as much information as possible to assist the court to arrive at a correct decision — not to secure a conviction at all costs.
“They wanted the court to see only what they felt was desirable for their case,” he added.
Balchandani was the defence lawyer for former domestic worker Parti Liyani, who was acquitted of stealing from the household of prominent businessman and former Changi Airport Group chairman Liew Mun Leong.
He is now representing Parti, 46, to seek S$10,000 compensation from the prosecution and the Attorney-General’s Chambers (AGC), in a first-of-its-kind application here.
Under the Criminal Procedure Code, Parti, an Indonesian, could get a compensation order of up to S$10,000 if the court is satisfied that the prosecution was frivolous or vexatious when she was on trial for stealing.
Balchandani revealed last October that his client has suffered losses of more than S$70,000 because she had been unable to work for the past four years due to the criminal proceedings.
Arguing that Parti’s prosecution fitted “squarely” into the definitions of frivolous and vexatious, Balchandani said at Friday’s hearing that this case presents an “exceptional opportunity” that can pave the way for other acquitted appellants to seek redress for problems they faced at trial.
However, Deputy Chief Prosecutor (DCP) Mohamed Faizal Mohamed Abdul Kadir argued that there is no credit to Parti’s application because the word “prosecution” in the Criminal Procedure Code relates to the decision to prosecute, instead of the prosecution’s conduct at trial.
He said that the charges brought against Parti were “not obviously unsustainable or wrong”, pointing out that there was no apparent reason for the complainants to frame her.
One aspect of the defence’s case, that she had been set up by the Liew family, was never mentioned in any of Parti’s statements to the police or in the case for the defence, and arose in a somewhat piecemeal and belated fashion during trial, he pointed out.
“It is always easy, Your Honour, in a case involving 3,700 pages of notes of evidence... to take a step back, look through the notes of evidence and then say, ‘This went wrong, this went wrong, this went wrong, and this went wrong,” DCP Faizal told the court.
“Any acquittal, you could engage in that exercise. Indeed, most convictions, you could still engage in that exercise. The reality of litigation is that it is fluid,” he added.
“The reality is that with litigation, you work with imperfect information. The reality of litigation is that you never know how witnesses respond on the stand. That is the reality of how the criminal process works.
“All (Mr Balchandani) has done is to effectively say we should have known… What (he) is essentially asking this court to do, despite not saying it, is to insist that this court require the prosecution to have 20-20 hindsight.”
DCP Faizal’s point was, however, countered by law professor Benjamin Joshua Ong of the Singapore Management University, who made representations in court as an amicus curiae appointed by the High Court.
An amicus curiae, which is translated from Latin as “friend of the court”, is sometimes appointed to assist the court on novel points of law or important issues of public policy.
Assistant Professor Ong was of the view that the “frivolous or vexatious” test covers the prosecutor’s conduct during the prosecution, as much as its decision to initiate or continue a prosecution.
Scenarios where the prosecutor’s motive is improper, such as to annoy, embarrass or harass, and where the prosecution is not conducted seriously, or has become legally or factually unsustainable — these all fall under “frivolous or vexatious” prosecution, he said.
Justice Chan Seng Onn, the judge who acquitted Parti last September, was presiding over Friday’s hearing that lasted more than five hours.
Submissions were still not completed by the end of the day, and another hearing date will be set for more points to be made.
Points made during hearing
Balchandani, who has represented Parti pro bono since her trial in the State Courts, listed 14 points to support his case based on Asst Prof Ong’s definitions.
Below are a few of his key assertions and what the prosecution said in response.
1. Withholding evidence on the functionality of a DVD player
Parti was accused of stealing a Pioneer DVD player, valued at S$1,000, which was said to have belonged to Liew.
Balchandani pointed out that Deputy Public Prosecutors (DPPs) Tan Wee Hao and Tan Yanying had already found that it was not fully functional, but did not disclose this in court and instead asserted during a demonstration in the trial that it worked properly.
The prosecution also vehemently objected to the defence conducting its own demonstration on the function of the DVD player, he said.
DCP Faizal and DPPs Kelvin Chong and Sarah Siaw argued in written submissions that the defence was not prejudiced because the prosecution had allowed the defence to inspect the DVD player over lunch on one of the trial dates.
Balchandani then said the consideration is what would have happened if he never bothered to perform a demonstration.
“Would DPPs in fact have made the announcement that the DVD player was not functioning?” he asked.
2. Repeatedly objecting to the introduction of evidence
Parti, who worked for Liew for about nine years until her employment was abruptly terminated on Oct 28, 2016, was illegally deployed to work in the home and office of Liew’s son Karl Liew.
Balchandani said that it was relevant to show at trial that Parti had some reason to believe that there was a motive behind her termination.
However, the prosecution “kept on objecting tenaciously, fervently and consistently” to his attempts to introduce evidence of illegal deployment and corresponding investigations by the Ministry of Manpower (MOM), he said.
This prevented the district court from hearing relevant evidence relating to the motive, which the High Court later recognised as a crucial factual circumstance that had implications for the prosecution’s case.
“Our case is that their objections were premised because they knew that the answers as a result of these questions would be unfavourable to them. As Your Honour had found out, there was an improper motive,” Balchandani said.
“That would have been made clearer had I been able to ask those questions.”
The prosecution argued in its written submissions that it was entitled to object to questions that appeared irrelevant.
It added that the prosecution’s objections then must be seen in the light of its understanding that Parti’s case at that juncture did not include any allegation of false accusations by the Liew family. There was not even a hint that this was the case, it said.
3. Purposeless attacks on use of supermarket shopping points
Parti was tried for possessing a ceramic pot on the basis that it was Karl Liew’s, and that it had been stolen from him.
Upon hearing that the pot was acquired through a combination of points collected from discarded NTUC FairPrice supermarket receipts and payment in cash, the prosecution changed its case to one that Parti had stolen the pot from Liew Mun Leong’s wife Ng Lai Peng, because it was bought with her points.
Using this example, Balchandan said that the prosecution frivolously and purposelessly “scraped the bottom of the barrel” in trying to malign Parti as dishonest.
As a result, his client was “hounded” and portrayed as having dishonestly misappropriated NTUC points, he said.
The prosecution stated in its written submissions that it was “fully entitled” to cross-examine Parti on the accuracy, veracity and credibility of her version as to how she obtained the pot.
“It is entirely legitimate for counsel to probe the versions given by the other party’s witnesses without necessarily accepting those versions as true, in order to expose inconsistencies or weaknesses in those accounts,” it said.
“Defence counsel did the same, as he should and as he was entitled to, by cross-examining the Liews on their accounts of the allegedly stolen items.”
4. Continuing with charges even though witness lacks credibility
Karl Liew is now facing charges of giving false evidence at a court proceeding.
The High Court had questioned Karl Liew’s credibility as a witness during the trial, including his claims that he wore women’s clothing.
Balchandani remarked that Karl Liew’s lack of credibility is evident, “perhaps from the moment he finished spelling his name”.
DCP Faizal protested this and called it a “massive overstatement”.
Balchandan then went on to raise the example of a blanket, which Karl Liew had claimed was from a store in the United Kingdom called Habitat, but was later found to be from Ikea furniture store as its label was still intact.
Balchandani said that the prosecution fell short by not acting on the revelation.
“They didn’t do anything about it. (There is) a lack of seriousness, a lack of duty to ask themselves, ‘There must be something wrong here’,” he said.
He added that “Karl seems to be talking nineteen to the dozen” when the man claimed that the women’s clothes in the list of items that formed Parti’s charge were his.
“If this were a civil case, and the counsel was faced with this information, they would quickly advise their client to do something,” he said.
“But in this case, we were faced with the prosecution’s mentality of ‘full steam ahead’, irrespective of whether the witness comes to court and said, ‘You are right, I made a mistake’.”
The prosecution has yet to respond to this point as the hearing was adjourned. — TODAY
