SINGAPORE: It’s been nearly a year since the Corrupt Practices Investigation Bureau (CPIB) announced in July last year that then-Transport Minister S Iswaran was assisting with an investigation into a case uncovered by the agency.
Many people were shocked at the time. Public interest in the case was – and still is – high. It is rare for a Cabinet minister in Singapore to be linked to corruption.
In January this year, Iswaran was handed 27 charges, the bulk of which were for receiving items worth hundreds of thousands of dollars from Mr Ong Beng Seng, most notably in relation to Formula 1’s Singapore Grand Prix.
He was handed another eight charges in March for obtaining items such as bottles of whisky, golf clubs and a Brompton bicycle from Mr Lum Kok Seng, the managing director of Lum Chang Holdings.
The prosecution had proposed that the trial of the eight charges over his dealings with Mr Lum be heard first, followed by the 27 charges related to Mr Ong. Iswaran has pleaded not guilty to all the charges.
On May 8, Iswaran won a bid to have all 35 of his charges heard in a single trial, instead of two separate trials.
Why was such an application by Iswaran necessary, and why weren’t all the charges fixed to be heard together in the first place?
WHO DECIDES WHEN AND HOW TO PROSECUTE?
As a starting point, under Article 35(8) of the Constitution, the Attorney-General, who is also the Public Prosecutor, has the power to “institute, conduct, or discontinue” all criminal proceedings in Singapore.
This means that the Public Prosecutor decides what and how many charges are to be brought against an accused person, and when those charges are brought against him. This is known as prosecutorial discretion.
However, section 132 of the Criminal Procedure Code also mandates separate charges and trials for each offence.
This requirement exists for the accused’s benefit. A joint trial for multiple charges may unfairly prejudice an accused’s defence in several ways.
First, if a defendant has multiple charges heard at the same trial, this may lead a judge to perceive that he is of a general criminal bent.
Second, if the evidence for one charge is inadmissible in another trial, having the charges heard together may unfairly prejudice the accused.
Third, a defendant who wishes to testify on one charge but remain silent on another (as is his right to) would be unable to make this decision if the charges were heard at the same trial.
WHEN A JOINT TRIAL IS AND ISN’T APPROPRIATE
However, if each charge is tried separately, this would lead to a gargantuan number of trials.
For example, John Soh Chee Wen, the mastermind of a scheme that led to the S$8 billion penny stock crash in 2013 had been convicted of a total of 180 charges. Having 180 separate trials in this matter, which already required almost 200 days of trial in the High Court, would be unthinkable.
To ensure efficient handling of cases, the Criminal Procedure Code allows certain charges to be heard jointly. These include, among others, charges related to offences of a similar nature, or those forming part of the same transaction.
Combining similar charges for separate offences into a single trial has certain advantages. It streamlines the judicial process and conserves court resources by avoiding repetitive testimony from witnesses. In such instances, witnesses would not have to attend separate trials to testify repeatedly about the same background facts or provide the same or similar evidence. This is especially important for victims of sexual offences, sparing them the trauma of testifying multiple times.
However, even if the charges are similar or linked, such that a single trial would be suitable, this does not override the need to ensure fairness to the accused. If a joint trial risks prejudicing the defendant, the court retains the discretion to order separate trials.
CONCURRENT SENTENCES REDUCE TOTAL DURATION OF IMPRISONMENT
Given that the rule requiring separate trials for separate charges is intended to ensure fairness to the accused, why then would a defendant apply for a joinder of charges?
More often than not, it is the prosecution who typically applies for multiple charges to be heard at the same trial. Indeed, in Iswaran’s case, the prosecution had gone as far as to (unsuccessfully) argue that only the prosecution could apply for a joinder of charges under the Criminal Procedure Code.
Just as efficient court proceedings would save court resources, having a single trial for all charges would also allow for the accused to save on legal costs. It could also reduce the emotional toll often associated with criminal proceedings.
Additionally, in some cases, instead of causing prejudice, having multiple charges heard together in the same trial may benefit the accused.
First, if the accused uses the same defense for all charges, a joint trial allows them to testify just once. Testifying across multiple trials can lead to inconsistencies in one’s testimony, even for a truthful witness. Such inconsistencies may be picked out and attacked by the prosecution.
Further, if the accused person is convicted of charges that are heard in the same trial, the judge can order some sentences to run concurrently, thereby reducing the total duration of imprisonment. This cannot be done for charges heard in separate trials.
BALANCING BETWEEN EFFICIENCY AND FAIRNESS
Critically, despite the prosecution having the power to start criminal proceedings against the accused, it is the Court that decides whether a joint trial ought to be held.
As Justice Vincent Hoong noted in Mr Iswaran’s case, once criminal proceedings begin, the Court holds the power to ensure that the prosecution’s decisions do not unfairly prejudice or oppress an accused.
Where it is the accused who is requesting for all charges to be heard together, and confirms that a joinder of charges would not cause any undue prejudice to his defence, it would be a strong reason for the court to order a joint trial.
Mark Yeo is a Director at Fortress Law Corporation. He was formerly a Deputy Public Prosecutor with the Attorney-General’s Chambers.
