5 Taking Instructions

Taking Instructions Obligations and relationship Being a lawyer means that there are certain obligations to upkeep. o “The Client is the most important visitor on our premises (apart from the Devil). He is not dependant on us. We are dependant on him. He is not an interruption. He is the purpose of it. He is not an outsider on our business. He is part of it. We are not doing him a favour by serving him. He is doing us a favour by giving us an opportunity to do so (and in the process, help pay our high wages).”1 The Solicitor Client relationship is all about client confidence that the solicitor will be able to do the job trust in the solicitor held by the client the independence of the advice given the fact that our advice and service is confidential the fact that the solicitor/client relationship is privileged; and the fact that the solicitor is accessible, has a good knowledge and understanding of the client’s needs and interests. The proper discharge of your duty begins with your ability to record (efficiently) and understand your client’s instructions. Take specific and detailed instructions with regard to all the facts and circumstances of the case including the client’s background, his personal history, his part in the alleged offence, his relationship with the complainant, or other witnesses and particulars of potential witnesses for the defence. Very often, the client will size you up from the moment he steps into your office/calls you/sends you a letter. Remember that your job is all about service – communicate to him regularly. Regarding a second opinion, you should never give one unless you know the full facts. Rondel v Worsley: • “a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case” R v McFadden and others: • “is not his function to determine the truth or falsity of that defence, nor should he permit his personal opinion of that defence to influence his conduct of it” Overview Responsibilities of Defence Counsel 1. Acting for the defence, you: 2. should satisfy yourself, if briefed to represent more than one defendant, that no conflict of interest is likely to arise; 3. should arrange a conference, and if necessary, a series of conferences with your professional and lay clients; 4. consider whether any enquiries or further enquiries are necessary and advise in writing as soon as possible; 5. consider whether any witnesses for the defence are required and which; 6. consider whether a Notice of Alibi is required and draft an appropriate notice; 7. consider whether it would be appropriate to call expert evidence for the defence, and notify the prosecution of the contents of the evidence to be given; 8. ensure that you have sufficient instructions for the purpose of deciding which prosecution witnesses should be cross-examined; 9. consider whether any admissions can be made with a view to saving time and expense at trial, with the aim of admitting as much evidence as can properly be admitted in accordance with your duty to your client; 10. consider what admissions can properly be requested from the prosecution; 11. should decide what exhibits, if any, which have not been or cannot be copies you wish to examine, and should ensure that appropriate arrangements are made to examine them as promptly as possible so that there is no undue delay in the trial 12. advise lay client generally about his plea in strong terms, but make it clear that your client has complete freedom of choice and that responsibility is on your client; 13. advise client as to whether or not to give evidence in his own defence; 14. where client tells you that he did not commit the offence but still insists on pleading guilty to it for own reasons, must continue to represent him, but only after advising what the consequences will be and what can be submitted in mitigation 1

Please note that the bracketed portions are personal views of the author (of the notes, not the speech!).

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Confessions of Guilt (pg. 110) 1. every punishable crime is a breach of statute law committed by a person of sound mind and understanding; 2. issue in a criminal trial is always whether your client is guilty of the offence charged, never whether he is innocent; 3. burden of proof rests on prosecution •1st Interview. Overview of the case and the fees. (fees per day if the matter goes to trial, fees if he pleads guilty before that, fees for the mitigation plea, your billing rates). Photocopy Annex E on page 124 of manual for a checklist of the fourteen tasks to cover during the first interview. After he agrees to brief you, get client to sign a Warrant to Act. Make sure its interpreted and explained to him in a language that he understands, and make him sign (especially at the part with regards to fees). • 2nd Interview By this time, you should have details of the following in your file: 1. Personal particulars 2. Academic Background 3. Employment Background 4. Family Background 5. Previous Antecedents, if any – solicitor client basis, shld have all info. Ask him! Client may not tell you everything. They may not think that it is relevant. a. helps you to prepare for the plea in mitigation and b. also for making representations to the PP (e.g. they may help in reducing a charge from Section 380 to 379). c. Explain to client why you are finding out about his previous criminal record (if client has one) as it may be relevant for additional punishment or the prosecution may use it to show a pattern of behaviour. 6. any awards or testimonials received 7. Wherever possible, should obtain documentary evidence in support e.g. medical records, school certificates, letters from employers, charities support, community help etc. 8. Medical background – part of defence or mitigation. 9. The Present Charge (s) 10. Statement (s) to Police 11. Alibi Notice, if any 12. Instructions i.e. whether to plead guilty (PG), claim trial (CT) or write to AGC to review evidence or charge 13. Exhibits for Defence. Produce early. If necessary send to Health Sciences Authority for analysis and testing, or Document Examiner for analysis, 14. Should have received sufficient instructions for purposes of deciding whether appropriate to call expert evidence for the Defence, e.g. medical evidence 15. If possible get written instructions from Client -

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by this time, should have given him a copy of the Annex A checklist (see page 116 to 118 of manual) – expand on the points there. Should have gotten written instructions from client by now. Advise him on maximum sentence and likely range of sentence he will get. And never tell him that he will only get a fine when the statute clearly says jail or a fine. You must inform client if there’s a possibility of a jail term or caning. Can advise him that we will ask the court to consider imposing a lower sentence for him (out of the likely range). If client got prior sentences advise him of possibility of heavier sentence. Also advise client on the concept of concurrent and consecutive sentencing. If proceed only on two charges the 2 sentences can run concurrently. If 3 sentences then at least two of them must run consecutively.

Consecutive sentences in certain cases. 18. Where at one trial a person is convicted and sentenced to imprisonment for at least 3 distinct offences, the court before which he is convicted shall order that the sentences for at least two of those offences shall run consecutively. • 3rd Interview Confirm instructions eg before going to trial, whether want to go to trial

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The number of interviews is not conclusive. It depends on the nature of the case, instructions and Client. What is important is that Counsel must spend quality time with Client so that Client “knows” that his case is well attended to. The accused may admit to you that he committed the offence but nevertheless intends to plead not guilty and wishes to claim trial. After having given him your best advice, he still decides to claim to maintain his plea of not guilty that is his right, since he has complete responsibility for and complete freedom of choice in his plea. Defence Counsel should advise client generally about his plea in doing so, he may if necessary express his advice in strong terms But Defence Counsel must make it clear that the Client has complete freedom of choice and responsibility for the plea is the client’s. See Rule 75 Legal Profession (Professional Conduct) Rules.

Advising client to plead 75. An advocate and solicitor may advise a client to plead guilty to a criminal charge but the client must be allowed complete free dom of choice whether to plead guilty or not guilty. -

Archbold, Criminal Pleading, Evidence and Practice 1999 Edition Vol. 1:

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Para 4 – 104  “responsibility of pleading guilty or not guilty is that of the defendant himself but it is the clear duty of defending counsel to assist the defendant to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as to impress on the defendant what the result of a particular course of conduct is likely to be” Pressure to plead guilty seems undue only where it emanates from the Court Counsel, on the other hand, may advise in strong terms legal practitioners owe a duty to the court not to bring improper pressure on clients to plead guilty Lee Weng Tuck v PP: a plea of guilty must be valid and unequivocal safeguards: a) court must ensure that it is the accused himself who wishes to plead guilty; b) court must ascertain that the accused understands the nature and consequences if his plea; c) court must ascertain that the accused intends to admit without qualification the offence alleged against him; d) in capital cases a plea of guilty might be accepted by the court if proper safeguards were taken to ensure that the plea was valid and unequivocal. Whether a guilty plea was valid and unequivocal was a question of mixed law and fact but the validity of the plea must first be established before the plea could be said to be unequivocal in capital cases, a trial judge had the discretionary power to permit and accused person to change his plea at any time before sentence, but discretion must be exercised judicially and on valid grounds

funnelling exercise – do not go to court if client is lying. Cross-examine him and find out whether he is telling the truth on the primary ingredients of the case. Tedious, long and embarrassing but you will get a feeling of whether he is guilty. 90% concede facts and plead guilty. If he confesses, 2 stages: charge bargain with the PP; plea of guilt immediately.

From briefing to acting (1) Meeting (A) Client comes to see you in 2 situations: (i) Before he is charged - i.e. investigations on-going - to ask him to recall hours he spent in CID etc, document the time he spent, what happened, first qn, journey fr home to police station etc, the qns asked, then recording the statement, the time. - Have indication of events and interviews that occurred. Get client to DOCUMENT what transpired. Then fax to you as some sort of document. After interview, he must read through the statement and sign it. Info in statement must be exactly what he told the officer – exact? or summary? Usually not verbatim.

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On first interview, to get this info. (ii) After he is charged and when he is out on Bail B) or family member sees you to engage your services and represent his family member. - Where in remand, not in bail. How do you see the client? Write to prison authorities,. - First ascertain where client is – ie queenstown remand prison or changi female prison. get permission to see client. Must have three full days otice at least. Go to computer, give IC etc. they will respond and give room number. Get permission, grnted. Then send form that you are solicitor and advocate. This is why impt to get warrant. Family member may instruct and sign the warrant on behalf. Then prison will give time and date, fill up the form. If you have assisstnat following, then must write down and get declarationb as well. Then go and see the client in remand. Once there, can take instructions. No tape recording and laptops! By hand. when client in remand after arrested, unable to raise bail, may not have seen family member but latter have come and seen you. o Client may tell you prob when you go and see him. Client is person who engages you, signs the warrant. o Person you are representing also your client. But ACTUAL client is the one who briefed you. Socliitor privilege – can you tell client about subject? o Whose interests shld you give priority to? Tell your client you have seen subject, say that he has given instructions not to disclos at this stage. o Then say that you can only disclose at later time. Ie priority to your subject. Be mindful. Can give details of charge etc but not details., o Then take further instructions - In either scenario, you have to be briefed by your client – get warrant to act. That you are proper auth to act for party concerned. (1*) Take instructions from Client in person. Do not give advice or receive instructions over the phone; or via fax or email unless of course, these mode of communication, if need be should always be a follow-up from previous meetings. When taking instructions from clients or potential clients be careful, some of them come with tape recorders. Try to interview clients alone cos clients may not tell you everything truthfully if other people are around. Ask the others to be excused (even if relative or parents are paying the bill). To gain trust of client, assure him that whatever he tells you will be kept confidential, nevertheless when taking action to help him you may have to divulge some information (but never more than necessary) e.g. when referring to psychiatrist for evaluation may have to tell parents. (2) Advise him on importance of the Statement (s) recorded; s 122 (6) CPC, his Defence of alibi, if any. • • •

Get client to tell you in detail what he said in long statement, which cannot be obtained. Don’t assure him that he can get off the charge etc Also cannot collude with client

(3) In the first scenario: before he is charged, you need to obtain: a. Client’s background (see below for details); b. Client’s instructions in relation to the Charge  Must have a thorough understanding of the charge and identify the facts in issue as your client’s story unfolds. This will enable you to focus on the Prosecution’s case as you record your client’s instructions.  Should explain the charge against him. Should also contain details of any connections he has had with the complainant, witnesses for the prosecution, and co-accused persons, if any. Should also include details of his denial of or explanation to the offence.  From the instructions given to you, you can then advise him on (1) the elements of the charge and (2) the background of the charge on the basis of the facts.  The latter will form the basis on which you will put forward your client’s case in relation to the prosecution’s case (per the principle in Browne v Dunn) Therefore important to ensure that you do not

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misunderstand your client – clarify any areas of doubt before the trial begins, and before making any representations on behalf of the client. (For the importance of “putting your client’s case see the notes for Criminal Procedure (11) – The Defence Case.) Arts Niche Cyber Distribution v PP [1999] 4 SLR 111 at 125. o The appellant company was Arts Niche Cyber Distribution Pte Ltd (‘Art Niche’) charged in the subordinate courts with three counts under s 58(b) of the Central Provident Fund Act (‘CPF Act’) of failing to pay contributions to the Central Provident Fund (‘CPF’) for January 1998 in respect of three employees (‘Ong’, ‘Wan’ and ‘Aw’). The only issue at trial was whether Ong, Wan and Aw were in fact employees of Arts Niche in January 1998 within the meaning of the CPF Act. The trial judge found that Ong, Wan and Aw were employees of Arts Niche in January 1998. Accordingly Arts Niche was convicted as charged and fined $1,500 on each charge, ordered to pay arrears of $3,199 to the CPF Board and prosecution costs fixed at $6,500. Arts Niche appealed against conviction and sentence, arguing that the trial judge erred in his finding of fact and that the repeated failure of Arts Niche lawyers in putting significant portions of the company’s case to the prosecution witnesses violated the rule in Brown v Dunn. o Held, dismissing the appeal: (2) During the trial, much of Art Niche’s defence was not put to prosecution witnesses during cross-examination, resulting in a breach of the rule in Brown v Dunn. This failure implied acceptance of the prosecution witnesses’ evidence-in-chief. Although the trial judge had the discretion to recall the prosecution’s witnesses for cross-examination under s 300 of the Criminal Procedure Code (Cap 68), such discretion was to be exercised sparingly. It was not appropriate for the trial judge to exercise it in the present case, as there were too many instances of failure to put Arts Niche’s case to the prosecution witnesses for such omissions to be inadvertent and Arts Niche’s defence was self-contradictory and inherently incredible. If you “put” your client’s case wrongly, a reasonable inference that may be drawn from such an error is that your client has shifted in his defence, and that his oral evidence in court is a recent fabrication. The failure to cross-examine a prosecution on any area amounts to an acceptance of that part of the evidence as presented. A failure to understand your client’s instructions may result in a failure to crossexamine a witness on a crucial issue to the detriment of your client’s case.\ In order to avoid such a situation, you should always check your instructions with your client well before the trial. It is in your interest to clarify the client’s intention, and confirm whether he intends to say what he says. Any failure to understand a client’s instructions can give rise to serious problems. In the event that a claim is made against you for negligence, you may not be able to rely on the client’s instructions as a shield. Fact management process – construct an chronology and dramatis personae before the trial, listing people involved and the events in the order in which they occurred, drawing a plan of the locus in quo, going to the scene of the alleged crime etc. Update this chronology and dramatis personae as new facts come in during the trial.

c. The Statements he would have given in any event to the Police or any other investigation agencies, and whether the statements are voluntary.  Explain to the client that there are 2 types of statements that would have been recorded from him – Section 122(6) and Section 121 statements. Note that other statutes also provide for statements to be taken for the purpose of investigations  See chapter on statements  Any allegation of assault ought to be substantiated by medical evidence, and as is reasonably possible, a report of his assault to the Police. Must advise the client to seek medical help as soon as possible. Nowadays threat, inducement or promise tends to be psychological, and in such cases, you can recommend that the client gi and see a psychiatrist for evaluation. however, the failure to send an accused, for a medical examination does not in itself raise any doubt as to the voluntariness of a statement: Lim Swee Thong v Public Prosecutor particular attention to the manner in which the statement was recorded 

Whilst Section 122(6) statement can be obtained from the police upon payment of the prescribed fee, the Section 121 statement is quite often not available to the defence, and if so, only on the day of the hearing or at a PTC. o S 121 stmt is confidential and will only be released to defence at the discretion of PP. usually prior to trial or on the first day of trial. If not released,

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can make application under s 58(1) and this application must be made to the trial court or the court conducting the PI. Application should be made after the PP calls evidence. o Therefore it is important for the client to recall all circumstances pertaining to the recording of the statement and its contents. Best to record these at the first opportunity, while it is still fresh in his mind. Better still, get client to put down in writing the Section 121 statement which he gave to the policeman – this stimulates client’s mental thought processes. Otherwise you’ve got to spend a lot of time trying to obtain a coherent statement from him. In addition to obtaining from the client the nature of the admission or confession, must also obtain instructions on how the statement was recorded i.e. whether there was any inducement, threat or promise made to him at or about the time the statement was recorded, and if so, who made the inducement threat or promise: Seow Choon Meng v Public Prosecutor: Note that if the admissibility of the Section 121 statements is going to be challenged then it is incumbent on defence counsel to give the prosecution notice, if not the court may take adverse inference from the accused’s earlier non-disclosure. Precise and detailed instructions are required as this is the sole criterion for determining the admissibility of confessional statements.

(3*) Ancillary advice Do not advise him to collude or destroy evidence; - Do not advise him to conceal evidence or do anything to conceal information or screen him or any person from legal punishment. This is an offence under s213 Penal Code. NEVER EVER TELL CLIENT HOW HIS DEFENCE SHOULD BE. Severe violation of Professional Conduct rules. Further, client might say “my lawyer told me I should say it this way” cos he wants to save himself and in turn get you into trouble. You can advise him whether his defence has merits but you cannot tell him what his defence should be. There is however an exception for capital offences. But otherwise do not create a defence for your client. Advise client if he really did it, don’t postpone the inevitable. Its like going to the dentist. - Remember when you see client, 1. Do not concoct or adduce evidence for Client to conceal him from offence; 2. Do not make representations or advice to him matters which you know is not true, e.g. Advise Client in OM case, that he will be sentenced to a fine only or that in an assault case, of causing grievous hurt, he will be sentenced to a fine only. You must be able to advise Clients from nature of offence committed, whether the sentence be a fine only or where there will be a period of imprisonment, taking into account of precedent cases. 3. Do not make promises or give assurances which you know you cannot keep or perform. (3**) It is important to note that when taking instructions from the Client always pay attention to possible defence available to him, based on facts, or instructions received. - e.g. Alibi evidence (s.155 & 182 CPC); or if the case falls within any of the general exceptions to the Penal Code. See s.107 & 108 Evidence Act. o S.107: Burden of proving that case of Accused comes within exceptions in Penal Code: (s.76 – 106 Penal Code) is on Accused o S.108: Burden of proving fact especially within the knowledge of any person, is upon him. Notice of alibi. 155. —(1) On a trial before the High Court, the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi. (2) Without prejudice to subsection (1), on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless — (a) the notice under subsection (1) includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness; (b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained;

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(c) if the name or the address is not included in that notice, but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, he forthwith gives notice of the name, address or other information, as the case may be; and (d) if the accused is notified by, or on behalf of, the Public Prosecutor that the witness has not been traced by the name or at the address given, he forthwith gives notice of any such information which is then in his possession or, on subsequently receiving any such information, forthwith gives notice of it. (3) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi. (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall, unless the contrary is proved, be deemed to be given with the authority of the accused. (5) A notice under subsection (1) shall either be given in court during, or at the end of, the proceedings before the examining Magistrate or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor, and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor. (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him, or by leaving it at his office, or by sending it through the post by a registered letter addressed to him at his office. (7) If the Public Prosecutor interviews any witness who is named in a notice given under this section, the accused or his advocate shall be entitled to be present at the interview. (8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the hearing of the preliminary inquiry and if it is satisfied that the accused was not aware of this section. (9) In this section — "evidence in support of an alibi" means evidence tending to show that by reason of the presence of the accused at a particularplace or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission; "prescribed period" means the period of 14 days from the end of the proceedings before the examining Magistrate. Notice of alibi. 182. —(1) In any summary trial, the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi. (2) Without prejudice to subsection (1), on any such trial the accused shall not without the leave of the court call any other person to give such evidence unless — (a) the notice under subsection (1) includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness; (b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained; (c) if the name or the address is not included in that notice, but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, he forthwith gives notice of the name, address or other information, as the case may be; and (d) if the accused is notified by, or on behalf of, the Public Prosecutor that the witness has not been traced by the name or at the address given, he forthwith gives notice of any such information which is then in his possession or, on subsequently receiving any such information, forthwith gives notice of it. (3) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi. (4) Any notice purporting to be given under this section on behalf of the accused by his advocate shall, unless the contrary is proved, be deemed to be given with the authority of the accused. (5) A notice under subsection (1) shall either be given in court during, or at the end of, the proceedings before the Magistrate on the occasion that the accused is charged in court for the first time with the offence in respect of which he is raising the defence of an alibi, or be given in writing to the Public Prosecutor or to the officer in charge of the prison where the accused is kept for him to forward to the Public Prosecutor, and a notice under subsection (2) (c) or (d) shall be given in writing to the Public Prosecutor. (6) A notice required by this section to be given to the Public Prosecutor may be given by delivering it to him, or by leaving it at his office, or by sending it in a registered letter addressed to him at his office. (7) If the Public Prosecutor or any investigating officer interviews any witness who is named in a notice given under this section, the accused or his advocate shall be entitled to be present at the interview.

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(8) The court shall not refuse leave under this section if it appears that no advocate has been instructed to act for the accused at any time prior to the trial of the accused and if it is satisfied that the accused was not aware of the provisions of this section. (9) In this section — "evidence in support of an alibi" means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission; "prescribed period" means the period of 14 days from the end of the proceedings before the Magistrate on the occasion that the accused is charged in court for the first time with the offence in respect of which he is raising the defence of an alibi. Burden of proving that case of accused comes within exceptions 107. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code (Cap. 224), or within any special exception or proviso contained in any other part of the Penal Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances. Illustrations (a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act. The burden of proof is on A. (b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of selfcontrol. The burden of proof is on A. (c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances, bringing the case under section 335, lies on A. Burden of proving fact especially within knowledge 108. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. PP v Abdul Naser bin Amer Hamsah [1997] 1 SLR 73 The respondent was charged with the murder of one Fujii Isae, a Japanese tourist. Ms Isae was attacked by the respondent while her companion, Ms Miyoko, was attacked by one Abdul Rahman as they entered their hotel room. Both women were knocked down to the floor and their valuables were taken by the assailants before they fled from the scene. Ms Isae succumbed to her injuries and died. The prosecution’s case was that the respondent had stamped on her face during his assault on her and this had proved fatal. The respondent made several statements in the course of investigations. In two of the statements, he was recorded as saying that he had ‘stamped’ his right foot on the face of the deceased. The Malay interpreter who recorded the latter statement testified that the respondent had used the Malay word for ‘step on’ but she had recorded it in English as ‘stamped’ because of the demonstration the respondent had given. She had however used the Malay word for ‘step on’ when reading back the statement to the respondent as she did not think the respondent would understand the Malay word for ‘stamp’. In a later statement made when he was in custody pending trial, the respondent stated that he had lost his balance and had to support himself by pressing his hand against the wall and in so doing, had accidentally stepped on the deceased’s face. The trial judge accepted the respondent’s evidence that he had accidentally stepped on the deceased’s face. The respondent was acquitted on the charge of murder but convicted for robbery with hurt. The issue in this appeal was whether the trial judge had erred in finding that a reasonable doubt had been raised as to whether the fatal facial injuries were caused intentionally. Held, (by a majority, LP Thean JA dissenting) dismissing the appeal: o (1) Section 108 of the Evidence Act (Cap 97) and illustration (a) could not be invoked to place the burden on the respondent to prove on a balance of probabilities that the injuries sustained by the deceased were caused by the respondent accidentally stepping on her face. The provision would be applicable if the defence was that the respondent did stamp his foot on the deceased’s

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face but that the intention was not to cause those injuries. In such a case the act of stamping was done ‘with some intention other than that which the character and circumstances of the act suggest’. But that was not the defence. (3***) Documents to get • Can obtain 1. FIR 2. 122 (6) CPC, defence of alibi if any – then pay on undertaking of search fee. Get client to name alibi, if notice of alibi, this shld be given to prosecution immediately. • Docs apply fr police – 122.6 and FIR. Write to police station for this where accused person was charged. Don’t write to PP’s office! They will refer to police anyway. • Statements of witnesses – they will not give anyway, no pt asking for them.\

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If any matter prior to trial after case set down, then write to PP’s office. Remember to cc copy to investigating officer!!! Eg want inspection of weapon. ALSO CC ALL CORRESPONDENCES TO CLIENT! Warrant to act – client is person who briefed you. The family member. But make clear that acting FOR the subject. Also obviously the person in remand cannot pay fees. If applying for medical records fr hospital etc, remember to get instructions fr client. Client must write declaration authorizing the lawyer the get the information. Where the officer is and what station – find out fr the charge. Get name of accused and his IC number. If don’t have charge, ask family for where he is. Also check what division based on the type of crime. If don’t have charge, you only know when he was charged. Go down to sub courts, give name and IC of person, and they will give you case number and they will tell you the charge. Write to registrar and sub courts and ask for copy of the charge. Pay about 50cents or ne dollar for charge. If ask police, need to pay a lot more for the charge copy!

(4) When you first see Client, give him an estimate of your legal costs: a) fees for trial – if not done at the meeting, write to them and tell them this is the scheduled costs for acting. b) if he pleads guilty – mitigation fee c) if he is not charged in Court or charge is withdrawn on Day 1 of hearing – the Charges (5) See Rules 72-82 Legal Profession (Professional Conduct) Rules 1998 and s.83 Legal Profession Act -

Must remember to act in accordance with the Rules. If you are briefed to represent more than one defendant make sure that no conflict of interest arises. Must not make submissions or adduce evidence, which you know to be false; applies to pleas in mitigation and where representations are made to the PP. Qn usu is this – client commiting robbery, caused hurt – if know that accused has commited offence, and wantto raise defence – eg sudden fight/ private defence/ not own weapon. These are defences that you can raise. But it client says that he robbed injured etc, then you CANNOT invent a defence for him.

DEFENDING ACCUSED PERSONS Defending accused regardless of personal opinion 72. Subject to these Rules, an advocate and solicitor shall defend any person on whose behalf he is instructed on a criminal charge irrespective of any opinion which the advocate and solicitor may have formed as to the guilt or innocence of that person. Duty of defence counsel 73. When defending a client on a criminal charge, an advocate and solicitor shall endeavour to protect the client from being convicted except by a competent Court and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Confession by client 74. An advocate and solicitor to whom a clear confession of guilt has been made by a client — (a) may, if the confession is made before the proceedings have commenced; or (b) should, if the confession is made during the proceedings,

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continue to act but shall not set up an affirmative case inconsistent with the confession by, for example, asserting or suggesting that some other person committed the offence charged or calling evidence in support of an alibi. Advising client to plead 75. An advocate and solicitor may advise a client to plead guilty to a criminal charge but the client must be allowed complete freedom of choice whether to plead guilty or not guilty. Absence from criminal trial 76. An advocate and solicitor appearing for a client on a criminal charge shall not absent himself from a trial unless — (a) there are exceptional circumstances which the advocate and solicitor could not reasonably have foreseen; (b) he obtains the consent of his client; and (c) a competent assisting counsel, who is well informed about the case and able to deal with any question which might reasonably be expected to arise, takes over the conduct of the case from the advocate and solicitor. Continuing to act if accused absconds 77. If during the course of a criminal trial and prior to final sentence, the accused absconds, the advocate and solicitor may continue to act and, if he does so, the advocate and solicitor shall conduct the case on the basis of the instructions he has received as if the client is still present in Court but had decided not to give evidence. Disclosure of previous convictions 78. Where a client who has a record of previous convictions is convicted of an offence and the prosecution — (a) does not put the record before the Court; (b) puts only part of the record before the Court; or (c) puts before the Court a record containing errors that favour the client, the advocate and solicitor acting for that client is under no duty to make any disclosure to the Court if the disclosure would be to his client’s detriment, except that the advocate and solicitor shall not lend himself to any assertion that the client has no convictions nor ask a prosecution witness whether there are previous convictions against the client in the hope of receiving a negative answer. Evidence from accused 79. An advocate and solicitor may advise a client about giving evidence in his own defence but the client must be allowed complete freedom of choice whether to give evidence or not. Mitigation plea 80. An advocate and solicitor shall not in a plea in mitigation make an allegation that is scandalous or calculated to vilify or insult any person. Acting after conviction and sentence 81. An advocate and solicitor shall continue to reasonably assist his client after conviction and sentence. Bail 82. An advocate and solicitor shall not post bail for the client in a case where he is personally conducting the defence on behalf of the client. s83 of Legal Profession Act (Cap 161) Power to strike off roll or suspend or censure 83. —(1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the roll or suspended from practice for any period not exceeding 5 years or censured. (2) Such due cause may be shown by proof that an advocate and solicitor — (a) has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession; (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor; (c) has been adjudicated bankrupt and has been guilty of any of the acts or omissions mentioned in section 124 (5) (a), (b), (c), (d), (e), (f), (h), (i), (k), ( l) or (m) of the Bankruptcy Act (Cap. 20); (d) has tendered or given or consented to retention, out of any fee payable to him for his services, of any gratification for having procured the employment in any legal business of himself or any other advocate and solicitor; (e) has, directly or indirectly, procured or attempted to procure the employment of himself or any advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given; (f) has accepted employment in any legal business through a person who has been proclaimed a tout under any written law relating thereto;

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(g) allows any clerk or other unauthorised person to undertake or carry on legal business in his name, that other person not being under such direct and immediate control of his principal as to ensure that he does not act without proper supervision; (h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; (i) carries on by himself or any person in his employment any trade, business or calling that detracts from the profession of law or is in any way incompatible with it, or is employed in any such trade, business or calling; (j) has contravened any of the provisions of this Act in relation thereto if such contravention warrants disciplinary action; or (k) has been disbarred, struck off, suspended or censured in his capacity as a legal practitioner by whatever name called in any other country. (3) Pupils shall, with the necessary modifications, be subject to the same jurisdiction as can be exercised over advocates and solicitors under this Part; but in lieu of an order striking him off the roll or suspending him, an order may be made prohibiting the pupil from petitioning the court for admission until after a date specified in the order. (4) The jurisdiction given by subsection (3) shall be exercised by a single Judge. (5) In any proceedings under this Part, the court may in addition to the facts of the case take into account the past conduct of the person concerned in order to determine what order should be made. (6) In any proceedings instituted under this Part against an advocate and solicitor consequent upon his conviction for a criminal offence, an Inquiry Committee, a Disciplinary Committee and a court of 3 Judges of the Supreme Court referred to in section 98 shall accept his conviction as final and conclusive. Law Society of Singapore v Ong Ying Ping [2005] SGHC 120 - Accused was found guilty under s. 83(2)(h) LPA for failing to disclose that one Mrs Tan Teck Cheng Linda is related to the prisoner he was interviewing and mislead the prison officers to believe she was his assistant. Held: Suspended for 2 years from practice. Law Society of Singapore v Chen Kok Siang Joseph [2006] 1 SLR 273. Inmate involved in aggravated offence committed in prison, lawyer requested to interview inmate, denied permission because this was institutional disciplinary matter. No provision for counsel to enter and interfere. Lawyer shd htave taken matter to AGC/ DPP or go to court and get nec action. But he went with grandma on visit, grandma introd him as friend of inmate. As friend, he went there and got instructions. Then got into quarrel with warden, and found out. - Held: Suspended for four years. (6) Useful to have a checklist of what you want to ask client, e.g.: a. information on case you need from Client; b. details of witnesses, if any; c. documents to be produced; d. Medical report, need for. (7) KEEP ATTENDENCE NOTES of your interview(s) with your Client. - Remember: A Client comes to see you for a service – your professional advice The Client will seize upon any assurances he receives from you. There must always be communication with the Client and it is preferred that such communications should be documented, either as: o attendance notes; or/and o written confirmation with the Client attendance notes impt for purposes of evidence later. Enquiries may be made later. In both interest of yourself and your client. If client tells you how to conduct defence – you can 1. go along with client. Write to him: according to our attendance note, facts are this. Our advice is this, 1,2,3.. however you have instructed us to the contrary, etc etc. HAVE IT IN WRITING. 2. you can discharge yourself. (8) follow ups: Making Representations: Plea/Charge Bargaining

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then representations to DPP after visiting your client: Defence counsel may write representations to the Public Prosecutor on behalf of their clients to withdraw or reduce the gravity of the charges against them before the trial.

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Since the PP has control and direction of criminal prosecutions and proceedings, can try to make representations to PP on behalf of client.

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Public Prosecutor. 336. —(1) The Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code.

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Reasons for making representations: (1) Withdraw the charge against the accused (2) Reduce the charge to a lesser offence (3) Reduce the number of charges proceeded on with a view to taking a certain course of action • Representations are important cos if successful the sentenced imposed could be lighter. E.g. consolidation of charges. Let us suppose there’s a woman client who took $150 per month for 10 months out of a cashier’s till, and she faces 10 separate charges of criminal breach of trust (CBT). If the DPP proceeds on 2 charges and Take Into Consideration (TIC) the rest during sentencing, the sentence imposed on your client would be higher (because of the TIC consideration). Therefore, you could write and ask the DPP to proceed on a single charge of CBT for $1500, which would subsequently allow the client in mitigation to ask that the punishment imposed on her be a fine. •

See Pg. 119 of the Manual for format of representations (introduced in February 1998). Advised to provide the following particulars: (a) the case number (MAC, DAC, or TAC number) (b) name of client (c) status of the case (e.g. next mention date) (d) Enforcement Agency’s reference number (the IP number) (e) name of the Enforcement Agency (e.g. the Police, CPIB or CNB) (f) name of the investigating officer

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Prepare a draft of the representations and after explaining the draft to your client, get the client to initial the draft after he has approved it. Must send a copy of the representation to the Investigating Officer and state the date this was done in the representations to the PP.

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Contents of the representation depends on the purpose the representation to the PP. E.g. if you are asking for the charge to be withdrawn because he is a young offender and it was his first offence which was committed in a moment of rashness, may wish to highlight the following: (a) his previous good conduct (b) educational qualifications (c) good family background (d) reasons why he committed the offence (e) that it is a minor offence and a stern warning may suffice

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May or may not wish to address the merits of the evidence against the client. Can ask for certain offences to be compounded. Should support the representation with documentary evidence whenever possible. And always obtain the client’s approval of the draft representations before sending it off to the PP. Any false representations made to the PP may render the client to prosecution for an offence punishable under Section 182 of the PC (Must remember to draw client’s attention to it) To include the warning to client tt any info found to be false in representation cld lead to crim charge of giving false info to public servant under section 182 PC: - to state in single para of repns tt has drawn client attention to this False information, with intent to cause a public servant to use his lawful power to the injury of another person. 182. Whoever gives to any public servant any information orally or in writing which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is

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given were known by him, shall be punished with imprisonment for a term which may extend to 6 months, or with fine which may extend to $1,000, or with both. •

Note that in Singapore, there is no plea-bargaining in the sense that the court bargains with the accused as to the sentence - Chua Qwee Teck v PP [1991] 3 MLJ 411 Note that the representations should be made in clear, simple language and kept succinct.

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PP v Knight Glenn Jeyasingam [1999] 2 SLR 499: Whether representations made by any person and communicated by him or on his behalf to the Public Prosecutor, in connection with any investigation into an offence or any criminal proceedings, might be used against him at any trial for the following purposes: o (a) cross-examining him on his testimony; o (b) impeaching his credit; and o (c) as substantive evidence. ‘without prejudice’ – they are privileged. “The extension of the “without prejudice” rule is limited to representations made in plea negotiations. No such privilege disturbs the existing common law and statutory provisions concerning admissibility of statements as admissions under the Evidence Act or statements such as those secured pursuant to s 122 of the Criminal Procedure Code. Accordingly, representations made in plea negotiations may not be used for the purposes raised in the case stated.” (1) Statements made in the course of plea negotiations encompassed all representations made to the AGC with a view to consensual case disposal without trial, including those made before an accused was charged. These included representations for withdrawal of charges, reduction of charges, compounding offences, amalgamation of charges or taking charges into consideration. (2) Other jurisdictions had held that plea negotiations were “without prejudice” to the parties’ rights. Statements made in this context were privileged from disclosure and inadmissible. This was found to be necessary for maintaining a policy of keeping statements made in the course of plea bargaining confidential. The court accepted this principle and found that offences of giving false evidence under the Penal Code were sufficient safeguards to ensure that the public was aware that the criminal justice system would not suffer perjury. (3) Statements made in the course of plea negotiations constituted an earnest attempt to dispose of the criminal prosecution without trial. Such statements should not alter a party’s ability to discharge the evidential burden at the criminal trial of the offences charged. A broad policy objective of consensual case disposal must be recognised to give effect to our courts’ policy of giving sentencing discounts. The rationale underlying this policy is the same as that of plea bargaining. (4) A purposive interpretation of the EA as a facilitative statute encouraged the consistent extension of the consensual case disposal policy recognised under s 23. It became necessary to apply this policy to the plea negotiations process. The same premise of irrelevance would operate to make representations made to the AGC inadmissible as substantive evidence of the guilt of the offence charged. The ruling did not introduce a “without prejudice” rule to the laws of evidence applicable to the substantive criminal trial. The privilege only applied to representations made in plea negotiations because such statements were made “without prejudice” to the rights of the parties seeking consensual case disposal. The privilege attached to the representation and was lifted after the determination of criminal culpability or after the negotiated plea had been made.

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cj stated that public policy encourages compromise and this is furthered by prxting fr disclosure at trial the offe and statements made during negotiations – privilege of confid attaches to repn and can only be lifted after determination of crim culpability or after negotiated plea made because nature of repns and conds under which given means tt given privilege of confid till no longer harmful tt content is disclosed

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notwithstanding this however, devpt in last 2 yrs tt nec defence exg caution in what to include and double checking withaccused tt contents are accurte and correct – section 182 warning

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note that mere denial of guilt or plea for leniency on basis of personal circumstances will not suffice; repn must consider issues tt weaken pros case or signif pt of law overlooked or improperly drafted charge – test is whether repn justifies ex of prosecutor’s discretion to withdraw, reduce or amend the charge

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lawyers must ONLY act on client’s instructions when making repns – be cautious and prudent so as not to make unnec admissions because may reveal nub of defence case can also make oral repns to duty PP in sub courts on day of trial

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counsel can make representations to the prosecution any time after he has been briefed by the accused even before the accused is formally charged in court representations should be addressed to the AGC and concurrently copied to the investigating officer or police division concerned PP v Knight Glenn Jeyasingam [1999] 2 SLR 499: courts do recognize the benefits of this process to optimize the use of court and public resources, statements made in the course of plea bargaining are confidential and privileged from disclosure and inadmissible - Schedule A 6th Column CPC: defence may in the representations raise the possibility of offering composition to the aggrieved party (composition generally means a private settlement of a criminal offence usually by way of payment or compensation) Ultimate decision whether to consent to composition is a judicial one: s. 199 CPC & PP v Norzian Bin Bintat [1995] 3 SLR 462 Facts The respondent Norzian was charged with voluntarily causing hurt to one Leow. Leow informed the court that he was willing to compound the offence on certain terms. Norzian made an offer to Leow, which was accepted but the DPP objected to the composition. The district judge gave his consent under s 199 of the Criminal Procedure Code (Cap 68) (CPC) despite the DPP’s objection and the Public Prosecutor appealed, arguing that: (a) s 199 of the CPC was ultra vires the Constitution unless it was construed such that it applied only to cases of private prosecutions; or alternatively, (b) the district judge exercised his discretion wrongly to allow composition. Held, dismissing the appeal: (1) Article 35(8) of the Constitution only applied where the Attorney-General or Public Prosecutor voluntarily terminated criminal proceedings. Article 93 of the Constitution vested the judicial powers of the state in the courts. Where the courts made a decision, there was no question of the Public Prosecutor’s discretion being fettered. Whatever the ambit of the Public Prosecutor’s discretion, the Public Prosecutor could not use it to substitute a judicial decision made by the court with his own views on the matter. This appeal did not raise a constitutional point and the present case only involved the interpretation of s 199 of the CPC. (2) Only the person vested with the power to compound may do so. This principle also applied to the Public Prosecutor. Unless expressly provided, the Public Prosecutor had no power to compound. Subject to the consent of the court, where required, the decision whether to compound or not lay with the person aggrieved. (3) The decision whether to allow composition was a judicial one. Once the criteria laid down in s 199 were fulfilled, the court had the power to acquit. (4) In exercising its discretion whether or not to grant consent to composition, the court was not acting as a rubber stamp. It had to exercise its discretion judicially. In a case where the public interest was involved, it was proper to withhold consent to composition. On the other hand, in the absence of aggravating factors, the courts should lean towards the granting of consent in cases where the public interest did not figure strongly. (5) Applying the principles to this case, this was not a suitable case to refuse consent to compound the offence. The injury suffered was minor and the parties had patched up their differences. Compelling the parties to go through a criminal trial would only serve to open up old wounds and was not conducive to the parties living in peace and harmony. It was not in the public interest to make a mountain out of the proverbial molehill. The district judge exercised his discretion impeccably and there was no basis for disturbing his decision. Once court has cognizance of an offence, there can only be “composition” as defined in s. 199(4), in the sense of having the effect of an acquittal, only if the court grants its consent Without such consent, the “personal settlement” between the parties will not be regarded by the courts as a “composition”, with the effect of acquittal as defined in s. 199(4)

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Courts generally lean against composition for cases involving public interest like maid abuse (Kee Leong Bee v PP [1999] 3 SLR 190; Facts The appellants were charged with voluntarily causing hurt to their domestic maid. They appealed against the trial judge’s refusal to consent to their application for composition under s 199 of the Criminal Procedure Code (‘CPC’). The appellants had a settlement with the victim six weeks after being charged. Held, dismissing the appeal: (1) In a criminal matter, an appeal could only be lodged against a judgment, sentence or order of finality. The test of finality of an order was whether its operative effect was to result in a conviction, sentence or acquittal. The operative effect of the judge’s refusal to a composition was to continue the trial. It was not an order of finality and was not appealable. (2) But the court had power of revision. Once formal proceedings had been commenced, the offence under the Sixth column of the Sch A of the CPC could be compounded only if the court agreed to it. (3) The district judge was correct to withhold his consent to composition as there was a public interest in protecting domestic maids from their employers  Jill Ho Yean Theng v PP [2004] 1 SLR 254), Facts The appellant was convicted on five charges of voluntarily causing hurt under s 23 of the Penal Code and sentenced to a total of four months’ imprisonment. The victim was an Indonesian domestic maid whose work permit was registered under the name of the appellant’s ex-husband. The victim worked in the appellant’s household and took instructions from the appellant at all material times. Before the commencement of the trial, the appellant offered to compound the offence. The Prosecution objected to the composition and the magistrate withheld his consent to the compounding of the offences. The appellant filed a criminal motion for leave to file a supplementary petition of appeal on whether the magistrate erred in withholding his consent. The Prosecution did not object to this application. The appellant also contended that the magistrate erred in allowing the trial to proceed on five charges instead of two charges for composite offences, and that the sentence imposed was manifestly excessive. Held, allowing the criminal motion but dismissing the appeal: (1) The fact that the appellant was the victim’s de facto employer and not her de jure employer had no bearing on whether the courts should lean in favour of granting consent to allow composition of the offences. The public interest element present in cases where a foreign domestic maid had been abused warranted a departure from the general principle that the courts should lean in favour of granting consent for composition of minor offences. There were also aggravating factors, including how the appellant inflicted the injuries on the victim. The magistrate did not err in law when he withheld the consent to compound the offences: at [34] to [35] and [47]. (2) Section 170 of the Criminal Procedure Code allowed each of the distinct offences to be brought against the appellant. This was so even though the first three charges and the latter two charges appeared to refer to actions done at around the same time. The magistrate was bound by s 18 of the Criminal Procedure Code to order that two of the sentences run consecutively. As the two charges for which the sentences were ordered to run consecutively related to distinct offences which happened on two separate days, there was no breach of s 71 of the Penal Code: at [52] to [53]. (3) The two most pertinent facts were that the appellant was in a position of authority and that the victim was a vulnerable victim. The magistrate correctly applied his mind to these aggravating factors and meted a sentence within the limits of s 323 of the Penal Code. The sentences meted out in cases involving s 323 read with s 73 of the Penal Code were relevant, even though s 73 of the Penal Code did not apply, because the aggravating factors were similar and the need for general deterrence was just as strong. The sentence imposed was not manifestly excessive: at [57], [61] and [65].  and road bully (Wong Sin Yee v PP [2001] 3 SLR 197), Facts

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In a road bullying incident, the accused Wong shouted insulting words at Chou and hit Chou's husband Mok on his mouth with a handphone. Later, Wong gave Mok $1,000 as compensation in an attempt to settle the matter. Subsequently, two charges were brought against Wong: (1) under s 13A(1)(a) of the Miscellaneous Offences (Public Order & Nuisance) Act (Cap 184) for intentionally causing alarm to Chou; and (2) under s 323 of the Penal Code (Cap 224) for voluntarily causing hurt to Mok. The judge withheld his consent to the composition and convicted Wong on both charges. Wong was fined $2,000 and ordered to pay $1,000 in compensation to the complainant in respect of the first charge. He was sentenced to three months' imprisonment in respect of the second charge. Wong appealed against his conviction. Wong submitted that, on the proper construction of s 199(1) of the Criminal Procedure Code (Cap 68) (“CPC”), consent of the court was needed for compounding an offence only “if an arrest has already been effected or if an application has already been made for the issue of a warrant of arrest or summons”. He argued that if composition was reached before the court took cognizance of the offence, the consent of the court was not required. The prosecution cross-appealed against the sentence for the second charge on the ground that it was manifestly inadequate. At the end of the appeal, Wong applied under s 60 (1) of the Supreme Court of Judcature Act (Cap 322, 1999 Ed) (C’SCJA’) by way of criminal motion for referring to the Court of Appeal, the question of whether consent of the court was required for the compounding of an offence even though the person hurt and the accused had agreed to a composition before the date of the arrest or application for summons or warrant of arrest. Held, dismissing Wong’s appeal, allowing the prosecution’s appeal and dismissing the criminal motion: (1) The problem with Wong's reading of s 199(1) of the CPC was that serious offences such as grievous hurt, endangering life and outrage of modesty would be compoundable without the consent of the court. If s 199(1) was not read to mean that consent was needed “whenever an arrest has been effected or whenever an application has been made for the issue of a warrant of arrest or summons”, it would lead to very wrong results. Accused persons, faced with the prospect of humiliation and punishment, invariably felt the desire to pressure the victim into settlement. If such settlements were allowed as compositions without the consent of the court, it would undermine the entire basis of criminal jurisprudence. Not only that, it would lead to an inequitable legal system where the rich could avoid criminal sanction by paying off the poor. For these reasons, Wong's appeal was dismissed. (2) There could be no place in our roads for road bullies and imprisonment should follow in such cases where the charge was under s 323 of the Penal Code. In this case, Wong brought with him a string of colourful antecedents, and no signs of remorse. His antecedents showed a blatant disregard for human decency and civility. Through these and the present offence, he had shown himself to be extremely abusive and highly prone to violence. He behaved like an absolute gangster throughout the incident. Three months’ imprisonment was manifestly inadequate in the light of all these factors. The sentence was therefore increased to one year’s imprisonment and a fine of $1,000, with six months’ imprisonment in default. (3) It was imperative that s 60 of the SCJA was utilised only in exceptional cases so as to ensure that the of the section was not abused to serve as a form of “backdoor appeal”. As the question raised had been settled conclusively by the High Court in Kee Leong Bee v PP, the court saw no basis to exercise its discretion to allow the question to be referred to the Court of Appeal.  or where strong aggravating factors are present in the case (PP v Mohamed Nasir Bin Mohamed Sali [1999] 4 SLR 83) Facts

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The respondent, a religious teacher, faced three charges of outraging the modesty of the complainant who was his niece. The incidents contained in the charges spanned a period of three years. The respondent applied to compound the offence, and the complainant accepted. The district judge consented to the composition under s 199 of the Criminal Procedure Code (Cap 68). The Deputy Public Prosecutor appealed, arguing that the facts of the present case involved issues of public interest and aggravating circumstances such that consent should not have been granted for composition, and instead a thorough investigation and a full trial should be held. Held, allowing the appeal: The three charges faced by the respondent were extremely grave and serious, particularising an outrage of modesty to the severest degree. In addition, the respondent abused the close relationship of trust between himself and the complainant over a protracted period of three years. These aggravated circumstances precluded disposal of the matter by composition. Accordingly the appeal was allowed and the case remitted to the lower court for trial. Per curiam The respondent’s position as a religious teacher did not concern the court as an issue of public interest. His profession did not affect his position in law any more than if an accused were an unemployed atheist. Compounding of offences under Penal Code 199. —(1) The offences punishable under the Penal Code shown in the sixth column of Schedule A as being compoundable may be compounded by the person mentioned in that column provided that when an arrest has been effected or an application has been made for the issue of a warrant of arrest or summons the consent of a Magistrate or, if the offence is not triable by a Magistrate’s Court, of a District Judge, shall first be obtained. (2) When any offence is compoundable under this section the abetment of the offence, or an attempt to commit the offence when the attempt is itself an offence, may be compounded in like manner. (3) When the person who would otherwise be competent to compound an offence under this section is a minor, an idiot or a lunatic, any person competent to contract on his behalf may compound the offence. (4) The composition of an offence under this section shall have the effect of an acquittal of the accused. -

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There will be next mention date. If CCM, later date will be given so that defence can ask further info fr prosecution. Call prosecution and ask, hold meetings or write in. whatever info you require, write down eg 122.6, FIR, any other docs referred to or mentioned in the charge. Discovery – must write to prosueciton. Depends oin nature of case and investigating agencies. If after accused charged, then write to PP’s office, if manpower case, write to MOM. Also ascertain if any defences. If so, then advise client and act on that and look up relenvat auth. See if facts of case presented require defence. Do not create defence for your client!

(9) As Counsel, you must have a competent understanding of the procedural aspects of a trial, law of evidence and the legal ingredients that constitute the offence. (10) Inform agencies concerned, put them on notice as soon as possible! a. Eg if client exposed to physical violence, humiliation, psychological pressure to sign statement. Must ascertain the circumstances that prompted him to sign the statement. With info, put prosecution on notice immediately! If on trial already, and adduce this, looks bad. Shld have pursued matter earlier! - Consider also whether it is necessary to call expert witnesses. If so, you are required to notify the prosecution of the contents of the evidence to be given. - Consider also if there are any exhibits which have not been or cannot be copied that you wish to examine, and ensure that appropriate arrangements are made to examine them as promptly as possible so that there is no delay in the trial.

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Consider whether any admissions can be made with a view to saving time and expense at trial, with the aim of admitting as much evidence as can properly be admitted in accordance with your duty to your client. Alibi Notice  When taking client’s instructions, particular attention ought to be paid to the defence of alibi. This is because sufficient notice is required to be given to the Prosecution before such evidence may be adduced in the course of the trial – Sections 155 and 182 CPC above.  The purpose of the notice is to enable the Prosecution to verify the accused’s account so that they are able to challenge the accused’s version of event if it is appropriate to do so. There remained a judicial discretion to allow alibi evidence to be adduced even when the statutory provision has not been complied with. Undoubtedly, this discretion must be exercised judiciously, based on the facts and circumstances of each particular case.  Criminal Procedure, Tan Yock Lin, Vol 2 Chapter XV, para 3451 & 3451.1 - “There is no automatic exclusion if no notice is given as prescribed. But where no notice has been given as prescribed, leave of the court must be obtained to adduce the alibi evidence. 2 Leave of court is also necessary notwithstanding a notice but where the notice is a prescribed sense defective; First, where the notice did not give the name and address of the alibi witness and the court is not satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name and address would be ascertained; second, where after the accused subsequently discovered the missing name or address or received other information which might be of material assistance in finding the witness, he failed forthwith to give notice of his discovery; third, where after notification by the Public Prosecutor to him of the inability to trace his alibi witness by the name or at the address given, he failed to give notice of any such information which is then in his possession or of any such information which subsequently came into his possession. 3 But the court shall not refuse leave if it appears that no advocate has been instructed to act for the accused at any time prior to the trial and if it is satisfied that the accused was not aware of the provisions of Section 155 or 182, as the case may be.4 - In Singapore, the exercise of the court’s discretion to give leave to adduce alibi evidence despite the absence of such a notice has been exhibited in several recent cases. Guided by the principle that verification of the accused’s alibi is the principle purpose of the alibi notice,5 the court will certainly deny leave in the case of a deliberate attempt to subvert the notice requirement. Short of that, the accused’s explanation for the failure to give the requisite notice may be crucial. If he claims that he omitted to give notice because he was unsure of the willingness of his alibi witnesses to testify on his behalf, he will seldom succeed in obtaining indulgence from the court. The reason is the simple one that he can always subpoena witnesses who are competent to give evidence on his behalf. Certainly, an explanation of this sounds very lame when the accused knew of the identity of the witnesses and of their whereabouts.6 However, leave applications tend to be favourably regarded when alibi witnesses were unknown to the accused and their identities could not at the relevant time have been discovered by him or his legal adviser acting with due diligence. The seriousness of the charge is another factor to take into consideration when giving or denying leave to give alibi evidence despite the absence of a notice.7 Leave to give alibi evidence is usually granted where the accused himself desires to give the alibi evidence. The reason is that there is no danger of overrating his evidence since he will also have to explain why he made no mention of his alibi evidence at the time of the charge.8 But it does not follow at all that if the accused is given leave to give his own alibi evidence, he must also be given leave to call alibi

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In PP v Kadir bin Awang [1989] 2 MLJ 33 no notice of alibi was served and as the DPP did not object to the admissibility of the accused’s alibi evidence, the court allowed the evidence to be given by the accused. 3 Section 155(2)(b), (c), (d) & Section 182(2)(b), (c), (d) 4 Section 155(8) and Section 182(8). Note that if the PP or any investigating officer interviews an alibi witness, the accused or his advocate has a right to be present. 5 Lee Choon Chee v PP [1996] 1 SLR 264 at 268. 6 Lee Choon Chee v PP [1996] 1 SLR 264 at 268. 7 Panya Martmontree v PP [1995] 3 SLR 317 at 357. 8 Panya Martmontree v PP [1995] 3 SLR 317 at 357.

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witnesses other than himself. The trial judge has an independent discretion under Section 182(2) whether to allow other alibi witnesses to give evidence.9 Lee Choon Chee v PP [1996] 1 SLR 264 The appellant Lee was convicted of a charge of cheating a taxi driver. His defence was that he was, at the material time, at the home of a close friend, and that he was not involved in the offence in any way. Lee did not give an alibi notice under s 182 of the Criminal Procedure Code (Cap 68) (CPC). After Lee gave evidence, his counsel applied for leave of court to adduce evidence from Lee’s wife Chua and a friend Cheong who were with him at the close friend’s home. The trial judge rejected the application and Lee’s defence. Lee appealed arguing that the trial judge: (a) erred in refusing him leave to call the two alibi witnesses; (b) erred in rejecting his defence; and (c) failing to consider the implausibility of the victim’s evidence. Held, dismissing the appeal: (1) There was no merit in Lee’s first ground of appeal. The primary purpose of the statutory requirement of an alibi notice was to enable the prosecution to verify the accused’s account so that the prosecution was able to challenge the accused’s version of the events if it was appropriate to do so. The availability of the two witnesses was well within Lee’s knowledge, yet he refused to mention his alibi witnesses, either to defence counsel or to the police. Spectacularly, he changed his mind at the last minute. In these circumstances, there was no reason why leave should have been granted. Moreover, in a case of this nature, the credibility of the witnesses, especially the alibi witnesses, was important. The prosecution should have been given an opportunity to investigate the matter. Garmaz s/o Pakhar v PP [1995] 3 SLR 703 The two appellants were former police officers. The first appellant Garmaz was charged under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Ed) (PCA) with corruptly accepting $2,000 from one Tan, through one Leong. This was allegedly an inducement for Garmaz to recommend that no further action be taken on a complaint against Leong which he was investigating. The second appellant Jaswinder was charged with abetting Garmaz in committing the offence by intentionally arranging with Tan to give the money to Garmaz through Leong. Tan and Leong were both prosecution witnesses and their evidence materially implicated the appellants. However, Tan’s oral testimony contradicted his written police statement. The prosecution applied to treat Tan as a hostile witness. The district judge allowed the application and ruled that Tan’s credit had been impeached and he proceeded to call for the appellants’ defence. The district judge accepted Leong’s testimony in the main and parts of Tan’s testimony and convicted both appellants and sentenced to six months’ imprisonment. On appeal, the appellants argued inter alia that adverse inferences pursuant to s 123 of the Criminal Procedure Code (Cap 68) (CPC’) were erroneously drawn for the appellants’ alleged ‘non-compliance’ with s 182 CPC, as notice of alibi was not required; alternatively, sufficient notice was constituted as the appellant’s evidence had been given within 14 days from the time the amended alternative charges were preferred Held, dismissing the appeals: Section 182 of the CPC did not say rule alibi evidence admissible simply because it was adduced in court within the prescribed 14-day period. The purpose of s 182 was to enable the prosecution to verify the accused’s account. On the evidence, there was no reliance on an alibi defence at all. As such, there could not have been any material non-disclosure. The trial judge wrongly invoked s 123 of the CPC. A notice of alibi is only required when evidence in support of an alibi is to be adduced in evidence. An assertion by an accused that he was not at the scene of the crime, and could not remember where he was, was held to be evidence of a denial only and not in support of an alibi. Panya Martmontree & Ors [1995] 3 SLR 341 (CA) The four appellants were convicted under s 396 of the Penal Code (Cap 224) of murdering two persons in the course of gang robbery. The only material evidence against them comprised the statements of the first, second and fourth appellants. The third appellant argued that he could not remember where he was, and that he could not to be implicated by the other appellants’ statements. Para 60 The next issue to be considered is the evidence of the third appellant that he was not in Singapore during the material times. There was some question whether this amounted to evidence in support of an alibi, or that it was simply a denial. If it was the former, leave of

Lee Choon Chee v PP [1996] 1 SLR 264 at 269.

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the court would have been required under s 155(1) of the CPC as no notice had been given to the prosecution within the prescribed period. At trial, it was held that the third appellant was simply saying that he was not in Singapore. He did not know where he was so this was not evidence in support of an alibi and thus did not require notice to be given under s 155(1) of the CPC. If this were all, then on the plain words of s 155(9) which defines the phrase ‘evidence in support of an alibi’, this holding was correct. Section 155(9) reads: ‘[E]vidence in support of an alibi’ means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission … . - Para 61 If an accused does not remember that he was at a particular place or in a particular area at a particular time, then that evidence would not be evidence in support of an alibi. The learned judge agreed with that distinction as drawn in Vasan Singh v PP. He found that the third appellant’s claim, relying on his passport, that he was not in Singapore was a denial only. Held: The third appellant’s defence that he was not in Singapore at the time, and could not remember where he was, was evidence of denial only and not evidence in support of an alibi. The judge was correct in regarding the passport as unreliable evidence in support of that denial. Detailed instructions from your client ought to be taken, and preferably interview all alibi witnesses before giving the Alibi Notice to the Prosecution. Once given, the Notice cannot be retrieved. (See Section 155(4) of the CPC, above) Moreover, such a Notice may amount to a previous inconsistent statement against the accused which the Prosecution is entitled to take full advantage of, which includes using the alibi notice as part of the Prosecution’s case (See R v. Brigden [1973] Crim. L.R. 579 and R v. Rossborough [1985] 81 Cr.App.R 139)

(11) Pre-Trial Conference (PTC) -

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Generally, the aim of a PTC is to reduce and eliminate delays in the commencement of criminal trials occasioned by last-minute adjournments, late application for documents or statements, late representations made to the PP etc. It is to expedite proceedings and to obtain information from the parties to determine the status of their case before trial. The court would want to ensure that the parties have complied with or will comply with the CPC. The Criminal Procedure Code does not provide for any procedure for pre-trial conferences. However, pre-trial conferences have become an integral part of the efficient administration of criminal justice. Conduct of PTCs by video-conferencing. The PTC ensures that all pre-trial matters are dealt with before the trial proper. Issues may be narrowed down and matters of the trial may be eliminated at the PTC. In order to avoid delays, you are expected at the PTC to be able to inform the court of all relevant information which includes: o Whether the defence is ready to proceed for trial o The list of defence witnesses (and whether all witnesses are available) o Whether the statements of the accused are being challenged (including the grounds of the challenge in general terms) o An estimation of the duration of the trial o Whether interpreters are required by the defence witnesses or the accused Adjournments are very rarely granted – and only if there is good and sufficient reason. Balasundaram v PP [1996] 2 SLR 331 o Comments: An accused’s right to be represented by counsel of his choice was not an unqualified right. He was only entitled to be represented by counsel of his choice if that counsel was willing and able to represent him. If counsel failed to turn up or was not willing or able to act, the accused person could not by virtue of that fact alone claim that his constitutional right had been violated and as such any proceedings against him would be rendered null and void. o Facts: The appellant was convicted of giving false information under the Prevention of Corruption Act (PCA). First day of trial, he requested for an adjournment as his counsel was not able to represent him but his counsel had made provisions for another one of his colleague, a Ms. D, to represent him instead. She was a sick cow and so asked for another several days for her to be brought up to speed. At the subsequent first day of the new adjourned trial, he wanted to sack Ms. D and asked Mr. JBJ to

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represent him instead but Mr. JBJ not free at that time. Mr. JBJ asked for an adjournment but was refused. Unless full instructions from your client are obtained in advance, it will be very difficult, if not impossible to inform the court of the defence position at the PTC. Note that under Rule 55(b) and (c) Professional Conduct Rules: Duty to Court 55. An advocate and solicitor shall at all times — (b) use his best endeavours to avoid unnecessary adjournments, expense and waste of the Court’s time; and (c) assist the Court in ensuring a speedy and efficient trial and in arriving at a just decision.

Fr ting’s notes PTC – judge will fix dates depending on likely duration of trial, narrow down areas of disputem give accused info abt pros case No of charges, no of witnesses, duration of their evidence, interpretation or not, whether voir dire to determine voluntariness of accusd’s statements Use of conditioned statements – section 371 CPC Statement of agreed facts For prosecution – approp charge? Whether legal and non legal factors. Defence representations. Obtain fullest instructions fr client. Verify instructions. Hammer home section 182, 191, 193 to client Advise to claim trial or plead guilty innocent – reps or claim trial guilty – reps or plead guilty; compoundable? If claiming trial – verify version, alibi defence – must notify court within 14 days of first mention 0 sub court or 14 days of PI – high court. If challenging confessions, get fullest details abt circumstnacs of recording Defence relying on other evid – physical evid eg photo, sample – secure this. Oral evid 0 record their statement. Pros tendering expert evid – get your own expert to give report, assit you to cross examine prosecution expert PTC – make sure witnesses ready and willing to tesify tor accused; availabilikty; language Other wvid secured and shown to PP (12) Plea in Mitigation -

Always know: (a) the sentence that the charge(s) attract(s) (b) the principles of sentencing (c) the concept of consecutive and concurrent sentencing

Section 18 CPC Consecutive sentences in certain cases. 18. Where at one trial a person is convicted and sentenced to imprisonment for at least 3 distinct offences, the court before which he is convicted shall order that the sentences for at least two of those offences shall run consecutively. (d) (e) (f) (g) (h) (i) -

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the norm in sentencing for the kind of offence(s) your client is facing the statement of facts that the prosecution is relying on the admissions or denials to the statement of facts the previous antecedents of your client (if any) whether the prosecution is introducing victim impact statements, and the impact of such statements whether the prosecution is addressing on sentence

Never apologize for committing the offence if he had previously denied doing the offence during the trial – you undermine your client’s chances of a future appeal. Counsel is also bound by professional ethics not to make an allegation that is scandalous or calculated to vilify or insult any person in a mitigation plea: rule 80 Legal Profession (Professional Conduct) Rules Mitigation plea 80. An advocate and solicitor shall not in a plea in mitigation make an allegation that is scandalous or calculated to vilify or insult any person. Emphasise mitigatory factors of case e.g. client was provoked, whether injuries to voctim minor, if theft, whether financial restitution has been made etc.

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With regards to (e) admissions or denials to the statement of facts:

Chota bin Abdul Razak v PP [1991] 3 MLJ 77 The appellant Chota was charged with trafficking in 2.6kg of cannabis and later released on bail. On 22 December 1988, he was arrested and charged for two offences, one of trafficking and another of possession of drugs. No bail was granted and he was remanded. On 10 May 1989, Chota pleaded guilty to all charges but disputed the facts in the first case, claiming that he did not commit this offence in common intention with one Tan although he admitted to trafficking in the amount of cannabis charged. All three charges were adjourned. On 17 May 1989, Chota was produced in court and asked to plead to the latter two charges only. He pleaded guilty and was sentenced to three years’ imprisonment and three strokes of the cane on the trafficking charge and to one year imprisonment in respect of the possession charge, the sentences to run consecutively. On 20 February 1990, Chota was produced in court again and he pleaded guilty to the first charge and sentenced to five years’ imprisonment and three strokes of the cane. The sentence of imprisonment was ordered to commence on 20 February 1990 pursuant to s 234(1) of the Criminal Procedure Code (Cap 68) (CPC). Chota appealed against the sentence, claiming that he had been prejudiced by the adjournment of 10 May 1989 and having to plead to the charges separately. Held, dismissing the appeal: o There was no express provision in the CPC requiring an accused to admit a statement of facts presented to court before his plea could be accepted. The practice of presenting a statement of facts setting out the circumstances in which the offence was committed and the accused admitting such facts enabled the court to ascertain that the accused understood the nature of his plea and intended to admit without qualification the offence alleged against him. It was not essential that the accused admit to every iota of facts contained in the statement. If what he admitted contained all the ingredients of the offence and what he disputed or did not admit was irrelevant or immaterial to the offence, such an admission, was sufficient and the court should accept the plea. Mok Swee Kok v PP [1994] 3 SLR 140 The appellant Mok was charged with abetting a robbery with hurt. He pleaded guilty to the charge and was duly convicted. Mok appealed against sentence. On appeal the Court of Appeal referred to the statement of facts presented in the court below. Concern arose as to whether that statement of facts sufficiently supported the charge of abetting robbery with hurt to which Mok had pleaded guilty. The court was faced with the question of the legal status of a statement of facts and its power to re-open an appellant’s conviction where he has pleaded guilty and was appealing only against sentence. The court reserved judgment on 16 January 1992 and on 10 August 1993, a five-judge Court of Appeal was convened to hear further argument on these two issues. Held, allowing the appeal: o (1) In Singapore the statement of facts was that the court bore a legal duty to record a statement of facts following an accused’s plea of guilt and to scrutinize the statement for the express purpose of ensuring that all the elements of the charge are made out therein. o (2) To constitute a proper plea of guilt, the accused must admit without qualification. It was not necessary, however, for the accused to admit every fact alleged in the statement of facts, as long as what he admitted contained all the essential ingredients of the offence he was charged with and what he disputed (or did not admit) was irrelevant or immaterial to the offence. o (3) Once an accused pleaded guilty and was convicted on such a plea, s 44(2) of the Supreme Court of Judicature Act (Cap 322) (“the Act”) prohibited an appeal against conviction. However, this did not preclude the possibility that the issue of his conviction may come to the notice of the Court of Appeal in the course of an appeal against sentence. The court may in hearing the appeal come upon material which induced serious doubts as to the legality of the appellant’s conviction. In such a situation, its powers were governed by s 54(1) of the Act. Section 54(1), properly construed, empowered the court to inquire into the propriety of the conviction even where an appellant pleaded guilty. o (4) Section 54(1) did not, however, give the Court of Appeal the sort of far-reaching revisionary jurisdiction exercised by the High Court over the subordinate courts. Nor does it alter the stringent rule in s 44(2) of the Act barring appeals against conviction by accused persons who pleaded guilty. o (5) Applying the above principles to the present appeal, the court was empowered to re-open Mok’s conviction for abetting robbery with hurt. Having regard to the full records of appeal, including the statement of facts and the verbatim notes of proceedings, it was clear that Mok’s conviction for abetting robbery with hurt could not be sustained. It was accordingly quashed and a conviction for

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abetting house-breaking in order to commit theft was substituted. The original sentence of 7 years’ imprisonment and 12 strokes of the cane. was accordingly altered to a sentence of 5 years’ imprisonment (with effect from 23 September 1991). Ng Ban Leong v PP [1993] 2 SLR 621 The petitioner Ng pleaded guilty in the district court to a charge of possessing an offensive weapon – a wooden pole – in a public place. Upon conviction, Ng sought to quash the conviction set aside the sentence on the grounds that his plea of guilt ought to have been rejected because his plea in mitigation constituted an assertion that he was carrying the pole for lawful purposes. The prosecution argued that: (a) Ng ought to have given relevant and admissible evidence of his lawful purpose in possessing the wooden pole; (b) the lawful purpose was implausible; and (c) the alleged lawful purpose had no relevance to his possession of the pole at the time and place stated in the charge. Held, granting the petition: Evidence was never required for the process of taking a plea. It was the accused person’s right to plead guilty or not, as he chose. It was not for the court to investigate the truth of what he elected to say at that stage. The court only decided if his plea amounted to a guilty plea or not. The truth or relevance of Ng’s assertions in response to the charge was a matter for testing at trial, not at the stage when his plea was taken. Ganesun v PP [1996] 3 SLR 560 The appellant Ganesun was charged under s 57(1)(e) of the Immigration Act (Cap 133) (‘the Act’) for employing a Sri Lankan national who overstayed on his visit pass. He pleaded guilty, and a second charge was taken into consideration. At the, Ganesun applied to retract his guilty plea, but the trial judge disallowed his application. Ganesun appealed against the trial court’s refusal to allow him to retract his plea. Held, dismissing the appeal: o (1) The trial judge exercised his discretion properly in refusing the allow Ganesun to retract his guilty plea. This discretion must be exercised judicially and for valid reasons. An accused person could not be permitted merely at a whim to change his plea, except upon valid and sufficient grounds which satisfy the Magistrate that it was proper and in the interests of justice that he should be allowed to do so. o (2) The discretion existed so long as the court was not functus officio. The court should adhere to following safeguards in determining the validity of a plea of guilt: (a) the accused himself wished to plead guilty; (b) the accused understood the nature and consequence of his plea; and (c) the accused intended to admit without disqualification the offence alleged against him. In the present case, there was no doubt that Ganesun wished to plead guilty, and the evidence showed clearly that he understood the nature of the charge and the consequences of his plea. There was nothing to suggest that he failed to appreciate the material facts of the case. It was clear that Ganesun intended to admit without qualification the offence alleged against him. The statement of facts was interpreted and explained to him, the mandatory sentence of imprisonment was also explained. o (3) The court was satisfied that the trial judge applied his mind to the relevant criteria in determining whether to exercuse his discretion to allow Ganesun to retract his plea, and as such exercised this discretion correctly. -

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The plea in mitigation is a gentle, sophisticated and vital art. Many of the above, if not all of the factors attributed above, can be known in advance – even in a “cracked trial”. Do seek to be helpful to your client as well as being realistic – it can make all the difference between prison and non-custodial sentence, depending on the section/ charge. Always put instructions in writing and advise the client in strong terms. But must make it clear that he has complete freedom of choice and that the responsibility of the plea is his, not yours. There are many options to sentencing available to a court. Note that the accused will be concerned with the sentence or fine. If it is a fine, will usually be able to find the money to pay, but if not, make an application for him to pay in instalments (2-3 months). If client is going to be sentenced to jail, ask court to exercise discretion to backdate sentence to take into account period on remand. But note that period out on bail is not to be taken into account Tan Kim Seng [1997] 1 SLR 486. Ask DPP whether he is going to apply for deterrent sentence. You are fully entitled to suggest an appropriate sentence provided that it is realistic and sensible – see Practitioner’s Library – Sentencing Practice in the Subordinate Courts for sentencing norms.

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(13) Discharge - In giving advice to your client, it is your duty to assist your client to enable him to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as to impress upon him what the result of a particular course of conduct is likely to be – R v Hall [1968] 52 Cr App R 528. But note that the court cannot give or be perceived to give indications that on a guilty plea a lighter sentence will be meted out. Brook [1970] Crim LR 600, Inns [1975] Crim LR 182, Turner [1970] Crim LR 417. As such, counsel must be careful not to give such an impression to his client. - In Lee Weng Tuck v PP [1989] 2 MLJ 143, it was held that a guilty plea must be valid and unequivocal and in order to determine the validity of a plea of guilty the following safeguards which must be followed are: o the court must ensure that it is the accused himself who wishes to plead guilty. o The court must ascertain that the accused understands the nature and consequences of his plea. o The court must ascertain that the accused intends to admit without qualification the offence alleged against him; o In capital cases a plea of guilty might be accepted by the court if proper safeguards were taken to ensure that the plea was valid and unequivocal. Whether a guilty plea was valid and unequivocal was a question of mixed law and fact but the validity of the plea must first be established before the plea could be said to be unequivocal. To protect yourself, its recommended that you advise client of his options in writing and make him sign a statement saying that he has read and understood his options and that his subsequent decision as to what he does is his own. In capital cases, a trial judge has the discretionary power to permit an accused person to change his plea anytime before sentence, but the discretion must be exercised judicially and on valid grounds. Where however, the accused wished to change his plea of guilty for reasons which give rise to a reasonable doubt as to the validity or unequivocality of the guilty plea due to failure to take proper safeguards, then the court has no discretion but to permit the accused to retract his plea. Although an accused who pleaded guilty could usually expect a discount, it does not follow that the court could impose a heavier sentence merely because he elected to contest the charges instead. The mere fact of claiming trial is not an aggravating circumstance. The mere fact that the client has admitted to the commission of the offence to you does not preclude you from acting for him. Rule 74 Professional Conduct Rules. Confession by client 74. An advocate and solicitor to whom a clear confession of guilt has been made by a client (a) may, if the confession is made before the proceedings have commenced; or (b) should, if the confession is made during the proceedings, continue to act but shall not set up an affirmative case inconsistent with the confession by, for example, asserting or suggesting that some other person committed the offence charged or calling evidence in support of an alibi. -

You need not discharge yourself if you are able to continue with your obligation to represent your client to the best of your ability. However, in such a circumstance it is your duty to tell the client that you can only conduct the defence subject to strict limitations. (e.g. the defence lawyer to whom a confession has been made “may not assert that which he knows to be a lie. o He may not connive at, much less attempt to substantiate, a fraud”, Boulton, Conduct and Etiquette at the Bar at page 70. He may not call or rely on any evidence which he knows from the confession to be false. He may not knock down any prop which supports the prosecution’s case or set up a defence against it. He must not (whether called by the client or otherwise) set up an affirmative case inconcistent with te confession made to him. o During cross examination, he is entitled to test the evidence given by each individual witness, and to argue that the evidence taken as a whole is insufficient to amount to proof that his client is guilty of the offence charged. However he should not go further than that.) o It is then up to the accused person to retain another lawyer or to continue having the lawyer to whom he has confessed guilt conduct the case subject to certain limitations. In cases where the confession is made during proceedings or at such a late stage that the lawyer cannot retire from the case without seriously compromising the position of the accused, he must proceed subject to strict limitations, but if the accused will not agree to the lawyer proceeding to the limitations mentioned above, the lawyer cannot act further for the accused in the case.

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However, should you decide to give up the brief (having first explained to your client your reasons for doing so and obtaining his consent), you should make your application for a discharge as soon as possible so as to give him an opportunity to engage another counsel. See also Rule 42(2) Professional Conduct Rules.

Rule 42(2) - Where an advocate and solicitor withdraws from representing a client, he shall take reasonable care to avoid foreseeable harm to the client, including — (a) giving due notice to the client; (b) allowing reasonable time for substitution of a new advocate and solicitor; (c) co-operating with the new advocate and solicitor; and (d) subject to the satisfaction of any lien the advocate and solicitor may have, promptly paying to the client any moneys and handing over all papers and property to which the client is entitled.

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You are precluded from disclosing your client’s instructions to anyone: Section 128 EA and Rule 24 Professional Conduct Rules. In your application to discharge, ought not to disclose any of the client’s instructions, especially if it may adversely affect his case. Confidentiality continues even after your employment has ceased.

Evidence Act Professional communications 128. —(1) No advocate or solicitor shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate or solicitor by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment. (2) Nothing in this section shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. (3) It is immaterial whether the attention of such advocate or solicitor was or was not directed to such fact by or on behalf of his client. Rule 24 of the Legal Profession (Professional Conduct) Rules Confidentiality 24. —(1) An advocate and solicitor shall not in any way, directly or indirectly — (a) disclose any confidential information which the advocate and solicitor receives as a result of the retainer; or (b) disclose the contents of the papers recording such instructions, unless with the consent of the client or is required by law or order of court (2) Notwithstanding paragraph (1), an advocate and solicitor may use the confidential information to reply or defend any charge or complaint as to his conduct or professional behaviour brought against him whether in Court or before a disciplinary tribunal of the Society. PROFESSIONAL RESPONSIBILITY IN CRIMINAL CASES 1. CONFESSIONS OF GUILT prudent lawyer will conduct the defence in the realistic knowledge that he instructions of the accused may turn out to be erroneous hence, defence counsel will refrain, for eg, from probing in cross-examination areas in which the answers given may tend to point to the guilt of his client it does occur that an accused person informs the lawyer of his guilt, in these circumstances, the duty if the lawyer is to tell the client that he can only conduct the defence subject to strict limitations accused person is given a choice of 2 courses: may retain another lawyer or he may have the lawyer to whom he has confessed guilt conduct the case subject to strict limitations 1) every punishable crime is a breach of he common or statute law committed by a person of sound mind and understanding; 2) the issue in a criminal trial is always whether the accused is guilty of the offence charged, never whether he is innocent 3) the burden of proof rests on the prosecution. Upon the clear appreciation of these points depends broadly the true conception of the duty of the advocate for the accused

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r. 74 Legal Profession (Professional Conduct) Rules 1998 states that an Advocate and Solicitor to whom a clear confession of guilt has been made by a client – (a) may, if the confession is made before the proceeding’s have commenced; or (b) should, if the confession is made during the proceeding’s, continue to act but shall not set up an affirmative case inconsistent with the confession by, for eg, asserting or suggesting that some other person committed the offence charged or calling evidence in support of an alibi

2. PREJURED EVIDENCE defence counsel should tell accused that he has committed perjury and that it is the duty of the accused to correct the false evidence which has been given if accused is not prepared to correct the false evidence, defence counsel must continue to conduct the case and must not disclose that the accused has committed perjury, but must not in his address or in any other way place any reliance upon the evidence which he knows to be perjured 3. CROSS- EXAMINATION AS TO CREDIT - proper for counsel to put questions suggesting fraud, misconduct or the commission of any criminal offence if he is satisfied that the matters suggested are part of his client’s case and has not any reason to believe that they are only put forward for the purpose of impugning the witness’s character if imputation conveyed by the question relates to matters so remote in time or of such character that it would not materially affect the credibility of the witness, the questions should not be put r. 61 of the Rules states that in all cases an Advocate and Solicitor shall: (a) not make statements or ask questions which are scandalous or intended to insult or calculated to vilify insult or annoy (b) exercise his own judgment both as to substance and the form of the questions put or statements made

4. LEGAL PROFESSIONAL PRIVILEGE -

communication between client and lawyer privileged privilege breached if lawyer discloses information without client’s consent

5. CITATION OF AUTHORITY found to be good advocacy because if a lawyer seeks to conceal from the Court a binding decision which is against him, the odds are that his opponent or the judge will know if it anyway r. 60(c) of the Rules r. 60(c) Legal Profession (Professional Conduct) Rule (Cap. 161, Rule 1) Conduct of Court proceedings 60. An advocate and solicitor when conducting proceedings in Court — (c) shall inform the Court of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues; 11 – Guidelines for the Appointment and Responsibilities of Assigned Counsel in Capital Cases GUIDELINES FOR THE APPOINTMENT AND RESPONSIBILITIES OF ASSIGNED COUNSEL IN CAPITAL CASES 1. INTRODUCTION these Guidelines issued jointly by the Registrar of the Supreme Court and the Council of the Law Society is to be read together with the Legal Profession (Professional Conduct) Rules where charge has been reduced from a capital charge, the Registrar, Supreme Court, may, in his discretion, allow the assignment to continue for the purposes of representing the Accused person in pleading guilty to the reduced charge and mitigation where the Accused person intends to claim trial to the reduced non-capital charge, the assignment will not be continued

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where a case does not warrant assigned Counsel, the Accused person will be invited to apply for legal representation under the Criminal Legal Assistance Scheme 2 categories of assigned Counsel: (a) Leading Counsel (b) Assisting Counsel

2. ASSIGNMENT all advocates and solicitors in practice, who have expressed their willingness to do so to the Registrar, Supreme Court may be assigned the conduct of capital cases Corruption, Drug Trafficking And Other Serious Crimes (Confiscation of Benefits) Act, as well as assist the prisoner in filing for an Appeal and a Petition for Clemency to the President Discharged jointly Leading Counsel are assigned by the Registrar, Supreme Court, and should have been in practice for at least 5 years and involved in at least 3 capital trials Leading Counsel are to propose the name of an Assisting Counsel Assisting Counsel should have been in practice for at least 3 years, and have been involved in at least 3 criminal trials (not plead guilty cases) Both shall work as a team and attend together – as far as is possible – all the meetings with the Accused person, the DPP, and the Court proceedings, pre-trials, or Preliminary Inquiries (PI), or otherwise 3. ACCEPTANCE OF ASSIGNMENT duty of advocate and solicitor to ensure that he has sufficient ability, and a thorough, comprehensive and up-to-date knowledge of criminal law, procedure and practice, including evidential law endure that he is available to present the Accused person at all stages of the criminal proceedings assignment of a Leading Counsel should be done as soon as the Accused person is charged with a capital offence, and a date for a PI has been fixed

4. RESPONSIBILITIES OF ASSIGNED COUNSEL to protect the Accused person from conviction, except by a competent court and upon legally admissible evidence sufficient to support a conviction for the offence - Assigned Counsel, with Assisting Counsel, shall: a) No conflict of interest is likely to arise, are prepared to give diligent and effective representation at all material times to the client b) Carry out series of interviews with Accused person to obtain complete instructions c) Consider whether any witnesses for the defence are required d) Consider whether a Notice of Alibi is required e) Call expert evidence f) Consider whether any facts can be agreed with the prosecution g) Whether any representations ought to be made to the prosecution and, if so, t make them within reasonable time h) Convey to the Accused person any communication with the Prosecution, and keep records i) Convey to the client nay offers of a negotiated plea j) Ensure that the Accused person is able to follow the Trial k) Ensure that the Accused person understands the consequences of a conviction l) Not discriminate between briefed and assigned Counsel m) Not further assign the case to another Counsel 5. ATTENDANCE OF COUNSEL IN COURT shall be present throughout the Trial or Appeal 6. APPEALS shall not include any grounds of appeal in the Petition of Appeal unless he considers such grounds properly arguable 7. CRIMINAL MOTIONS/PETITIONS OF REVISION should be made where it is proper to do so

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8. REMUNERATION paid an honorarium from State funds as the honorarium claims are processed and paid on the basis of work done, Assigned Counsel are required to keep a record of time spent in Court, interviews with Accused persons and/or relevant witness outside the Court, a description of the amount of paperwork done and copies of submissions and skeletal arguments tendered in Court Assigned Counsel may seek reimbursement of expenses that have been reasonably incurred Advisable to seek approval from the Registrar, Supreme Court before expenses that is substantial or not normally required Assigned Counsel shall not accept any remuneration or any other form of consideration from the family or friends of the Accused person for representing the Accused person, except the honorarium made by the Registrar, Supreme Court 9. INTERPRETERS services to be used when accused and counsel do not speak same language 10. DISCLOSURE OF DEFENCE(S) counsel must advise the Accused person of all possible defences 11. NON-TESTIMONIAL EVIDENCE counsel ensure all procedures conducted properly during investigations 12. RESIDUAL MATTERS where not covered by these Guidelines, counsel to act in best interested of Accused person 13. REVIEW OF REGISTRAR may in his discretion, remove any name from the Registers of Leading and Assisting Counsel

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