THE Court of Appeal on Tuesday (Sep 3) dismissed former transport minister S Iswaran’s request for it to weigh in on whether the prosecution should produce witness statements for the upcoming graft trial.
It was Iswaran’s third attempt at getting the prosecution to produce witness statements for the trial, in which he stands accused of obtaining more than S$403,000 worth of items during his time as a public servant.
His lawyers, led by Senior Counsel Davinder Singh, sought permission to make this application under Section 397 of the Criminal Procedure Code (CPC), which allows parties to refer any question of law of public interest which has arisen, and will affect the matter, to the Court of Appeal.
Singh was seeking the judges’ consideration of whether the prosecution is obliged to disclose the facts and evidence behind the charges in witness statements, or any other form.
But the court refused to weigh in on the matter, arguing that the defence has not met the conditions for the criminal motion application, namely that the legal questions raised in it are not of public interest.
A different regime
In the Tuesday hearing, Singh argued that under the current regime of the criminal case disclosure conference, and Section 214(1)(d) of the CPC, his client is worse off now than under the committal hearing regime, which was abolished after legal reforms were passed in 2018.
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Singh argued that under the earlier regime, an accused would have been given all the facts and evidence which the prosecution led with at the hearing.
He further argued that the way Section 214(1)(d) is drafted leaves too much to the discretion of the prosecution on when it intends to use written statements in a criminal trial.
Chief Justice Sundaresh Menon noted that what Singh is asking for goes beyond a plain reading of the law.
“I’m struggling to see where you find a statutory basis that can accommodate the much broader scope of discovery that you are suggesting is contemplated under the CPC,” he said.
CJ Menon also noted that Singh was essentially asking for the apex court to craft a new discovery proceeding that is faithful to the procedure of the old committal hearings.
Request dismissed
CJ Menon, Justice Woo Bih Li and Justice Steven Chong presided over the hearing, and gave their judgment the same day after a brief adjournment.
It is clear that the matters raised by the defence are not questions of law of public interest, the judges said.
They were not convinced by Singh’s argument that the committal hearing regime is comparable to the discovery regime in place now for criminal trials. “The point is, we are dealing with a different regime altogether,” said CJ Menon.
Parties must disclose relevant evidence to each other before a trial in a process known as pre-trial discovery. Pre-trial discovery is required for civil cases, but not for criminal ones. In Singapore, discovery for criminal trials is formalised under the criminal case disclosure conference regime.
If Parliament had wanted to broaden the scope of discovery obligations, it had the opportunity to do so when the legal reforms were made, yet did not do so, he added.
The judges were also not satisfied with Singh’s interpretation of Section 214(1)(d) and disagreed that it obliges the prosecution to supply written statements or any other forms of evidence, such as draft outlines.
The trial is expected to proceed on Sep 10, with the first tranche of dates to end on Sep 13.
Iswaran’s first attempt at getting the prosecution to produce witness statements was denied by assistant registrar Janice Wong. His lawyers made a second request, which was denied by Justice Vincent Hoong in a hearing in July.
Iswaran, 62, faces a total of 35 charges, including two counts of corruption. The charges relate to his dealings with billionaire hotel and property tycoon Ong Beng Seng, as well as David Lum, the managing director of Singapore-listed Lum Chang Holdings.
