Exclusive Interview with Dean, Faculty of Law, University of Hong Kong, Professor Michael Hor

By Chan Jian Da (Kenneth) and Rebecca Koh

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Innocence Project (Singapore) (“IP(SG)”) members – Chan Jian Da (Kenneth), Abhinav Mohan and Jaryl Lim had the privilege of interviewing Professor Michael Hor, the Dean of University of Hong Kong’s (“HKU”) Faculty of Law.

Prior to his current appointment as Dean, Professor Hor was a Professor of Law at the National University of Singapore’s Faculty of Law where he taught, researched, and published extensively in the areas of Criminal Law, Criminal Procedure, Constitutional Law and Evidence Law.

Professor Hor served as the Chief Editor of the Singapore Journal of Legal Studies and is a member of the editorial boards of the Singapore Academy of Law Journal and the Asian Journal of Comparative Law. He was also a consultant to the Ministry of Law and the Criminal Practice Committee of the Law Society of Singapore. Internationally, Professor Hor has also been appointed Distinguished Visitor at the University of Toronto’s Law Faculty and Visitor at Oxford Centre for Criminology.

During this exclusive interview, Professor Hor candidly shared his views on the Innocence Projects in different jurisdictions, specific law reforms, and his experience serving as the Dean of the HKU’s Faculty of Law.

THE INNOCENCE PROJECT (SINGAPORE)

Q: What were your thoughts when the idea of setting up IP(SG) was mooted to you back then? What made you believe in this project?

A: This project was first conceived when a student, Audrey, who went to the United States for her undergraduate exchange programme came to know of the work of Innocence Projects (IPS) in the US. When she returned, she emailed a few Criminal Law Professors at NUS, including myself, to set up an Innocence Project in Singapore, known today as Innocence Project (SG). I was prepared to help but at the same time, I was also prepared to see the Project fail. There were concerns that setting up IP(SG) could potentially be construed as an insult to Singapore’s criminal justice system which prides herself to be reliable and trustworthy.

However, the merits of this project could not be denied. In fact, which jurisdiction can say that there would be no merits to it? It can only be a good thing. The question, however, was whether this project is practically achievable within this political climate where we have a good and competent Government but any mistakes in convictions could be seen as an insult to that.

As such, we tried to engage the Minister for Law and the Attorney-General Chambers from the outset. It took a few years and a few changes of IP(SG) heads as it was a potentially sensitive matter. It was a long process, but to-date it has since been set-up. Now, it is a question of pushing IP(SG) forward.

Q: You played an instrumental role in guiding IP(SG) from an idea in its infancy to an established initiative today. What were some challenges that you faced in the early stages to launch IP(SG)?

A: The main challenge was to get the buy-in from persons and organizations who might potentially criticize the nature of work that IP(SG) does. However, our fears are probably unfounded because after our first meritorious case, there were no complaints made to the Government.

Q: Earlier this year, IP(SG) landed its first meritorious case and the student team successfully overturned the applicant’s wrongful conviction and secured a discharge amounting to an acquittal. What are your views on this?

http://news.asiaone.com/news/education/students-probe-claims-wrongful-conviction

A: I believe that IP(SG)’s first successful case epitomizes the project’s role of uncovering any miscarriages of justice in Singapore. It convinces the Attorney-General’s Chambers and other parties to support us. With all credit to IP(SG), in this case, it was good because the Attorney-General Chambers was co-operative in granting a discharge amounting to an acquittal. However, there may be other situations in the future where IP(SG) comes up with meritorious cases but the Attorney-General Chambers might still be opposed to it. Nevertheless, this is a good start!

Q: The Innocence Project (United Kingdom) has a very similar set-up to ours in that it is student-run but they have yet to see a single successful case. In fact they are thinking of shutting it down because of that. Do you have any
 idea what are the reasons for this?

A: The UK has other safeguard mechanisms to prevent miscarriages of justice. For instance, they have a formal review procedure where a case may still 
reviewed by the Criminal Cases Review Commission (“CCRC”) even though the case has been fully heard and closed. The CCRC is funded by the UK Government in recognition that mistakes can occur and it is the Government’s duty to uncover such mistakes.

Q: Do you have plans to similarly bring the Innocence Project network into University of Hong Kong (“HKU”)?

A: First of all, it was the students who brought the Innocence Project to Singapore and I believe this is a very good initiative because students have more faith and idealism than practitioners and academics. I will personally support such a project if a student brings it up in HKU.

THE CRIMINAL JUSTICE SYSTEM IN SINGAPORE & HONG KONG

Q: In Veeramani Manikam v Public Prosecutor [2015] SGHC 201 (“Veeramani”), Chan Seng Onn J identified several lapses that happened at trial and the investigation process that led to the accused being wrongly convicted. These lapses include the Investigating Officers’ omission to investigate and verify the accused’s statements. The risk of wrongful convictions in Singapore is real. What are your views on Veeramani?

http://www.straitstimes.com/singapore/courts-crime/mans-20-12-year-drug-sentence-overturned-on-appeal

A: I remembered reading about this case in the Straits Times. Over the years, some judges do come up with judgments which are explicitly or implicitly critical of the way that law enforcement offices have behaved. For instance, in Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32, V K Rajah JA (as he then was) was critical towards the investigations process as the police officer failed to comply with the rules. Such irregularities have been happening in Singapore, and it is necessary for judges, once in a while, to distance themselves away from law enforcement and demonstrate their neutral and independent stance in their judgments.

Q: What can be done to avoid a repeat of such lapses in investigations and trials leading to potentially wrongful convictions?

A: The issue of investigation and trial lapses arises mainly in the process of taking statements. I believe Singapore has much room for improvement in this aspect because it is presently a largely unregulated area. Unlike countries, such as the UK, where there are clear guidelines and rules as to when suspects are entitled to rest periods, and when they may seek their counsels, the general orders within the Singapore Police Force on this area remains a classified secret.

Singapore continues to adopt the traditional approach towards confession taking. It is a system where there are few rules in place, and judges do not interfere with the process in which police officers obtain confessions from suspects. However, the public is beginning to realize that there is no clear distinction between the pre-trial stage and the actual trial itself, as many salient facts are decided even before the trial. It is thus opportune time for this area to be reviewed.

Q: The Ministry of Law is intending to roll out a scheme where prison interviews will be recorded. What are your thoughts on this?

A: I believe this is a good initiative but it must be implemented properly. Presently, there is a comprehensive archive of what happens at the police station beyond the recording of statements. However, the purpose of such a scheme is defeated if the whole interrogation process spans across hours but only a portion of the statement or confession was recorded on tape.

Some years ago, there was also a pilot project on the right to counsel but there were no concrete outcomes achieved.

Q: The Misuse of Drugs Act (“MDA”) employs presumptions of knowledge, possession and trafficking on accused persons. Do these presumptions go against the sacrosanct principle that one remains innocent until proven guilty?

A: One of my earlier pieces of research was on this topic.  Personally, I am unhappy with the use of presumptions under the MDA. Presumptions are a breach of the presumption of innocence simply because it allows a conviction even where there is reasonable doubt.

If you are saying that a certain amount of drugs that an accused person is carrying is enough to establish that the accused is trafficking drugs, then the emphasis should be on the weight of the evidence itself. If presumptions are applied, this means that there is insufficient evidence. In most of the cases where I have seen presumptions being applied, the evidence was insufficiently strong.

Q: What are some reforms you want see to ensure our criminal legal justice system remains robust and prevent occurrences of miscarriages of justice?

A: Oh so many! My life’s work is almost on reforms.

Firstly, there should be a legal right to counsel. I do not see any good reason why an accused is denied access to counsel before he gives a statement.

Secondly, the presumptions under the MDA should be removed. As explained earlier, I feel that such presumptions are ineffective in crime control.

Thirdly, the mandatory death penalty system should be abolished. I feel that it is unnecessary to have the death penalty for crime control purposes. Previously, Singapore was hanging about 20 people a year; but now, about a couple a year. Is it really necessary to hang them? It is a good thing that the Government has restricted the scope of death penalty, but hopefully, they will completely do away with it.

I also feel that the current imprisonment terms are too long. The incarceration rates in Singapore are one of the highest in the world not because there are many prisoners, but because the prisoners are jailed for a very long time. However, from recent cases, it seems that the Singapore Courts are slowly moving towards reducing the duration of imprisonment terms.

Q: What about the justification that some of these penalties are necessary for their deterrence value?

A: As compared to the olden days, I question whether the imposition of such penalties has any real deterrent effect. Will reducing the severity of some punishments really result in more people committing certain crimes? The removal of caning today is unlikely to make any difference to the crime rates tomorrow. Similarly, I do not think that there is much difference in the deterrent value between a mere jail sentence and a jail sentence plus caning.

Q: Do you see it as an problem if the Government follows the philosophy that they will not fund the defence side in the form of legal aid?


A: If the prosecution and defence are both legitimate powers of criminal justice system, then how can one justifiably fund one but not the other? In developed democracies, such as the United States and Canada, the prosecution does not view projects like Innocence Projects antagonistically. In fact, Innocence Projects are quite common in the United States.

Q: How is the criminal legal system in Hong Kong? How different is it from Singapore?

A: Similar to Singapore, Hong Kong has a largely unregulated investigations process. Hong Kong does not have a Police Investigations Act or an Evidence act. However, Hong Kong has a very active judiciary who occasionally declares certain acts as unconstitutional.  As such, there are much higher chances of achieving change through constitutional litigation in Hong Kong than Singapore.

DEANSHIP IN HONG KONG UNIVERSITY FACULTY OF LAW

Q: Moving away from criminal justice, the big move has been your appointment as the Dean of HKU Faculty of Law. How has it been so far?

A: At the moment, I am an administrator handling the administrative and finance aspects of Law School which I previously never saw as a teacher. I have been too busy to teach and research but I hope to eventually start teaching again.

ADVICE FOR NUS STUDENTS

Q: Any words of wisdom for the students in NUS Law?

A: Do not be discouraged by what other people say you cannot do.

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