SINGAPORE – A disciplinary tribunal will investigate the complaint of misconduct against two legal service officers who prosecuted Parti Liyani, the former domestic helper of ex-Changi Airport Group chairman Liew Mun Leong.
In judgment grounds on Friday (23 October), Chief Justice Sundaresh Menon said he had found a prima facie case for an investigation and will appoint the tribunal.
“It appears from the materials before me, that in broad terms, the alleged misconduct consists of a lack of candour on the part of the DPPs in the way they cross-examined the applicant and in the way they presented the position to the court, with the consequence that (a) the applicant was cross-examined unfairly; and (b) the applicant and possibly the court were misled,” he said.
Parti was last month acquitted by the High Court of four charges of stealing from Liew’s family.
Through her pro-bono lawyer Anil Balchandani, she applied to the Supreme Court under the Legal Profession Act earlier this year for leave, or permission, for an investigation to be made into her complaint of misconduct against Deputy Public Prosecutors Tan Wee Hao and Tan Yanying. The duo had prosecuted her case at the State Courts before District Judge Olivia Low.
Faulty DVD player
The alleged misconduct involved a faulty Pioneer DVD player which the DPPs sought to show was working. Parti said it had been thrown away by the Liew family as it did not work.
CJ Menon said the evidence suggested that the DPPs “could or might have had reason to think that there were issues with the device’s functionality” before they demonstrated its workability in court.
The evidence also suggested that the prosecutors did not make this possibility known to the district judge, Balchandani or Parti, he said.
Furthermore, the prosecutors might have misled the court. CJ Menon said, “it also seems arguable that the DPPs had gone further to suggest that there were no problems with the functionality of the device in at least three ways”.
Among other things, the prosecutors had sought to demonstrate that the DVD player was working by putting it in HDD mode, from which some images of a recording from the Discovery Channel could be played.
Based on the demonstration, they elicited an admission from Parti that the device was functioning as it should. DPP Tan Yanying then used the admission to put it to Parti that she had been lying and that her defence was false.
“The DPPs’ demonstration and the questions put in cross-examination could arguably be said to have created a misleading impression that there were no problems with the functionality of the device,” noted the Chief Justice.
“Cross-examination is a potent and critical instrument for eliciting the truth in the adversarial process. While leading questions are certainly permissible in cross-examination, they must not be used to mislead the witness,” he added.
The Evidence Act prohibits leading questions in cross-examination which “assume that facts have been proved which have not been proved”.
Said CJ Menon, “The crux of this provision is that it would be inappropriate and unethical for an advocate to base a question on a falsehood and the court should not accept evidence that has been elicited in this manner.
“On the evidence, it seems to me that there is a prima facie case that it was improper for Ms Tan (Yanying) to have put to the applicant that she had been lying based on an admission that might have been procured in an unfair and misleading manner.”
During re-examination, the prosecution also objected to Balchandani proposing a demonstration of the DVD player, saying that the judge had already seen it for herself; Parti had admitted to its workability; and that it would be introducing evidence from the Bar.
Said CJ Menon, “Given that there had been no disclosure by the DPPs up to this point of the possibility that the device might not in fact be able to play DVDs, it seems arguable that Ms Tan’s insistence that the device had been working during their demonstration was, prima facie, misleading and could have created an unfair picture of the evidence against the applicant.
“It might also be argued that the line of objection being taken would prevent discovery of the very difficulties that the DPPs had themselves encountered,” he added.
Finally, in their closing submissions, the DPPs said that any issues with the device’s functionality suggested by Balchandani’s demonstration was “probably” due to the DVD he used rather than with the device itself, suggesting that his DVD was damaged.
Said CJ Menon, “By taking this position, the DPPs arguably maintained the impression created during cross-examination that there were no issues at all with the device’s functionality. Yet, Mr Balchandani’s demonstration made clear that the device had difficulties playing not one, but two DVDs. The DPPs however, made no mention of the fact that they too had experienced difficulties with the ‘Capitaland’ DVD on the morning of 26 September 2018.”
Duty of DPPs
In his grounds, the Chief Justice pointed out that, “It is a basic proposition that the prosecution is under a fundamental duty to assist in the administration of justice, and must present the evidence against an accused person fairly and impartially, and without malice, fear or favour, in accordance with the law.”
The prosecution also has a mandatory duty to inform the court of any apparent error in fact or law, and any apparent omission of fact or procedural irregularity which ought to be corrected, he noted.
“In this regard, to the extent that the DPPs might have inadvertently failed to bring the difficulties with the device to the court’s attention during their own demonstration, it would have been incumbent upon them to do so once they became aware that there could have been issues with the device’s functionality,” he said.
“This arguably should have been apparent at least by the time of Mr Balchandani’s demonstration, which suggested that the difficulties with playing DVDs using the device were not confined to those they had themselves encountered using the ‘Capitaland’ DVD.”
As “ministers of justice who must always act in the public interest,” prosecutors must be willing to disclose all relevant material to help the court in determining the truth, even if it may prove unhelpful or detrimental to their case, said CJ Menon.
“The central consideration in the present case is the need to uphold the proper administration of justice and to safeguard the integrity of the public service. The alleged misconduct concerns DPPs acting in the conduct of a prosecution, when they have a particular obligation to assist the court, to act in the public interest, and to establish the whole truth in accordance with the law,” he said.
“The complaint that the DPPs may have knowingly omitted information and misled the court strikes at the very heart of these obligations,” he added.
The tribunal will submit its findings to the Chief Justice in the form of a report. If the tribunal finds sufficient cause for disciplinary action, the Chief Justice may punish the prosecutors in the form of a censure, prohibition from applying for a practicing certificate, or be struck off the roll.
The two prosecutors are represented by State Counsels Kristy Tan, Jeyendran Jeyapal and Jocelyn Teo.
‘Sleight of hand’
In his written judgment acquitting Parti of her charges last month, High Court judge Chan Seng Onn noted several issues with her conviction by the district court and how the case had been handled both by the prosecution and the police.
Balchandani had accused the prosecution of using a “sleight-of-hand” technique to demonstrate in court that the Pioneer DVD player was working.
The prosecution’s actions earned criticism from Justice Chan, who said that the trial court could be misled into thinking that the DVD player was in good working condition when “questions were (and unfairly) put to Ms Parti...on the basis that the DVD player was still in a good working condition after an incomplete demonstration of its important functionalities during the trial”.
Justice Chan added that the rule against introducing evidence from the Bar should apply equally to both the prosecution and defence, and said the DVD player incident was “particularly prejudicial” to Parti as she was not given a chance to test the player until the trial itself.
Among other things, Justice Chan also said that the Liew family may have had an “improper motive” in filing a police report against Parti. He also highlighted lapses in police procedures, such as a break in the chain of custody, while calling into question the credibility of Karl Liew – Liew Mun Leong’s son – as a prosecution witness.
In the wake of the acquittal, the Attorney-General’s Chambers said it would study the judgment and assess if any further action ought to be taken.
Meanwhile, Law and Home Affairs Minister K Shanmugam cautioned against a witch hunt, even as the government undertakes a review – in pursuit of public trust and accountability – of its shortcomings in prosecuting Parti.
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