By Vincent Ho, Teo Ho Hong, Hoang Linh Trang and Stacey Lopez
Innocence Project Members Hoang Linh Trang and Johnson Teo had the opportunity to interview former judge of the Supreme Court of Singapore, Mr Kan Ting Chiu.
Mr Kan has had a long and illustrious legal career in both the private and public sector. In his judicial capacity, Mr Kan presided over many high profile cases, some of which continue to be studied by law students today. He eventually retired from the bench in 2011.
During the interview, Mr Kan spoke candidly about a wide variety of topics, including his experience with the criminal justice system, his concerns regarding young lawyers and law students, and his life after retirement.
THE CRIMINAL JUSTICE SYSTEM IN SINGAPORE
In your many years on the bench, you have presided over many landmark cases, some involving the death penalty. Can you tell us more about some of your more memorable cases?
It’s a tough question. Over the years I have dealt with many cases. Some of them stand out for different reasons. If I have to name one, I think it would be the one which involved a Vietnamese migrant from Australia who faced a capital charge for drug-trafficking (PP v Nguyen Tuong Van  2 SLR 328;  SGHC 54).
The accused and his brother incurred debts, which they needed to repay. The accused tried to raise funds by agreeing to carry drugs from Cambodia to Australia. He was arrested whilst he was in transit in Singapore with the drugs strapped to his body. There was considerable interest and sympathy for the accused from the Australian public because there is no capital punishment in Australia, and so there was concern over the mandatory death sentence the accused faced. The case was covered by the Australian press, which generally did not approve of the mandatory death penalty for drug trafficking. Australian journalists were in court during the trial. The case and the trial system came under scrutiny; but in the end, it came out alright. There was an acceptance of the death sentence that was imposed. Since then, there have been changes to our law with regard to mandatory death sentences in drug cases.
Do you think the modifications to the mandatory death penalty in drug trafficking cases is a positive development?
(Editor’s Note: The modifications referred to are as follows: Under the amendments to the Misuse of Drugs Act that was passed by Parliament on 14th November 2012, the death penalty will no longer be mandatory for drug trafficking under two specific conditions.)
The mandatory death sentence is a very serious matter. There will be cases where the judge may feel that the sentence is harsh on the facts, but the sentence has to be imposed as it is mandatory. Personally, yes. I think the removal of the mandatory death penalty in some circumstances is a positive development. The decision whether to take away a life as punishment for a crime should always be done with great caution, taking into account all the relevant facts of the case.
Which type of criminal cases do you find most difficult to deal with?
Murder cases are difficult, drug cases tend to be less difficult because the accused is normally caught with the drugs, and there are the various statutory presumptions which can operate against them. In murder cases, elements of fact such as knowledge and intention have to be proved. Murder trials therefore tend to be more concerned with such issues, and it can be difficult to make findings on them when severe consequences may follow.
In the Singapore context, dissenting judgments are not as common as compared to some other jurisdictions. What do you think is the value of dissenting judgments in a case?
It very much depends on the quality of the dissenting judgments. But of course there is some intrinsic value in it. Firstly, when dissenting judgments are made, it shows that there is openness in the system. Secondly, dissenting judgments allow the readers to consider the different points of view. A dissenting view may in time become the accepted law. When there is no dissenting judgment, prima facie, the judges are in agreement on the decision, and there is nothing wrong with that. But when a judge does not agree with the conclusion of the majority, he should be able to state and explain that. Besides that, a judge may take a position on a particular issue different from the position from the majority, but agree with the ultimate decision. In recent years, there have been cases where a judge states his view on a particular point without dissenting with the judgment. And I think this is good; it shows openness in the system, and gumption on the part of that judge.
|“Lawyers should conduct themselves as members of the legal profession, and when they appear in court, as officers of the Court. They must be equally conscious of their responsibilities to their clients. They must strive to uphold the integrity of the legal profession while looking after the interests of their clients.”|
THE TRIAL PROCESS
How do judges assess the credibility of individuals?
There are certain tests, such as whether the person is glib or whether the person is seeking only to give evidence which he thinks is going to be advantageous to his cause. An honest witness will be more open and agree with things that may not be beneficial to his case. You can sense the “clever” ones after a while, and you are more cautious when you review their evidence. However, I do not think many judges will say that they have mastered the art of assessing an individual’s credibility as this is a very difficult skill.
Should the courts readily draw an adverse inference against someone who refuses to testify during trial?
No, not readily. One should be slow to draw an adverse inference unless there is a reason to do so. An accused person has a right under the law to remain silent, albeit at the risk that the court may draw an adverse inference against him for doing that. The adverse inference is not set down as the default position. When the court has a power or discretion that should not be used readily without reason because there may be good grounds for an accused to decline to take the stand. Having said that, there can be situations where the adverse inference should be drawn, for example where the accused puts his case to the prosecution witnesses, but declines to give evidence when his defence is called.
In cases where the accused has some form of mental disability, both the prosecution and the defence will provide expert witnesses. They often disagree. How do judges choose which opinion to favour?
With patience and interest a judge can acquire knowledge on such issues from the cases and the expert witnesses he comes across. This accumulated knowledge will enable him to read the opinions critically and seek clarification before he makes his finding. Always remember that an expert has to justify his opinion.
Judges also look at the other relevant evidence. Is the expert opinion supported by or consistent with the prevailing authority? Is an opinion based on acceptable facts? If the expert gives an opinion on the basis that the accused had told him that he had a mental blackout, it is useful to look at the other statements which he had made to check that he had mentioned it before. If those statements detail everything that happened without any breaks, the judge can make a finding of fact on whether there was a blackout, and deal with the opinion accordingly. It is useful to question the experts. How many times has the expert witness seen the accused? Did he check with the accused’s family members? Did he check whether the accused has a medical history? All these questions are relevant in determining if an opinion is to be accepted.
TECHNOLOGY AND THE LAW
When you were a lawyer, you once argued against the use of a “kitchen blender” for forensic investigation. Can you tell us more?
Yes. The case is Public Prosecutor v Ang Soon Huat  SLR 915,  2 SLR (R) 246. It was a drug case, and I acted as counsel for the defendant. He was charged with trafficking 18.77g of diamorphine (15g and above attracts the capital punishment). The accused admitted that he was trafficking, and the only issue was the quantity of the drugs trafficked (and whether the death penalty would apply).
During the preliminary inquiry, I obtained the laboratory analyses of the drugs from the HSA. I was very fortunate when the Registrar gave me the funds to consult an expert from England. The documents should show what kind of equipment was used in analysing the substance. The drugs were stated to have been ground down and homogenised before they were analysed, but there was no information on the equipment used for that process. When we asked, they said they used “a kitchen blender”.
We picked up on that. Ordinary kitchen blenders are not good enough for the purpose (of analysing the drugs). For sensitive scientific analysis, you need to be mindful of the effect of electrical charge and ions, and the motor must be properly insulated, otherwise that may affect the distribution of the substance that is being blended. For such work, you need to use laboratory blenders which are designed for that purpose. A kitchen blender does not cut it. In that case, the unacceptably high variation in the test results from different samples of the blended drugs therefore added to the doubts on the accuracy of the analysis process.
In the end, the trial judges reduced the quantity of the drugs to below 15g, and the accused escaped the gallows. After that case, a thorough review and revision of the analysis process was carried out. The kitchen blender was replaced.
Do you think it is important to advocate the use of technology, while still adopting a vigilant and questioning attitude regarding scientific procedures in the law?
Yes. Mistakes happen when things are done behind closed doors. In Ang Soon Huat’s case, there was a protocol on how the analysis should be done. It was written down but was not circulated to the technicians, and was passed on by word of mouth, which the court found to be unsatisfactory. Of course technology must be used; but the technology and methodology used have to be scientifically sound and reliable – bad science is a dangerous thing. For that reason, the technology and methodology should be disclosed to the fullest extent possible so that they can be scrutinized by others and any issues can be brought out and dealt with.
The police have begun a pilot project to use body cameras during patrol. Do you think that the use of cameras should be extended to police interviews of people accused of crimes?
Yes, Many of the disputes regarding the recording process can dealt with, so why not, if taping can be done conveniently. If the taking of statements is taped, and that is made available to accused persons and their counsel, groundless allegations of inducement, threat and promise will not be made. On the other hand, if an accused is tired or has difficulty in understanding questions put to him, the tape will show that.
THE LAW AND MORALITY
Do you think that sometimes it is important for the judges to inject their own sense of morality when deciding cases?
I think it is inevitable, even if it may not be expressed or apparent from the judgments themselves. The law cannot be administered in a way that is entirely removed from one’s sense of morality, although one should not decide (purely) on the basis of morality and ignore the law – both can be applied together. If you ask an experienced practitioner, he will tell you that different judges will have their individual attitudes, and that is fine because judges are not expected to be clones. There will be a spectrum of attitudes present on the bench.
Do issues of causation involve value judgements?
Yes. There is almost always a factual element in any issue of causation, and a finding on the facts would involve value judgments. A judge has to use the best of his knowledge and experience to arrive at a finding on the facts in question and then decide on the issue of causation with reference to the finding.
ADVICE FOR YOUNG LAWYERS
You have been closely involved with the legal education in Singapore. What words of wisdom do you want to impart to young lawyers?
Enjoy your course! Some law students nowadays can be so intent on getting good grades that they do not take the time to engage in other enriching social and extra-curricular activities when they have the time and opportunity to do that. You are only here for 4-5 years – you might as well make good use of your time in law school!
In your role as a judge, what type of advocates do you respect the most? What are some of the good/bad practices that new advocates should adopt/avoid in order to become better officers of the court?
I respect lawyers who have a strong sense of responsibility. Lawyers should conduct themselves as members of the legal profession, and when they appear in court, as officers of the Court. They must be equally conscious of their responsibilities to their clients. They must strive to uphold the integrity of the legal profession while looking after the interests of their clients.
Having retired from the bench in 2011, how have you been spending your time?
I have been helping out at the Singapore Institute of Legal Education to review the syllabus and the conduct of courses for Parts A and B of the Singapore Bar Examinations. Perhaps, when your time comes, you may find me sitting at the back of your class observing and making comments.
I have completed a course in arbitration. I have also completed the mediators’ course, and act as a mediator when my services are required. I have also just taken on an appointment as a neutral evaluator.
I also sit on some disciplinary tribunals under the Legal Profession Act.
What do you think is the most rewarding part of your long career in the legal profession?
Having a role in the development of the content and practice of the law – to be able help to refine the law and make it clearer and to improve standards in the courts, and when matters go wrong, to set them right.
Vincent Ho, Teo Ho Hong, Hoang Linh Trang and Stacey Lopez are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).
 For more information, please refer to the Ministry of Home Affairs press release, which can be accessed from here. The Innocence Project (Singapore) has also previously written an article on these changes, which can be accessed from here.