Video of Minister delivering the answer in Parliament
Mr Desmond Lee Ti-Seng, Jurong GRC
To ask the Minister for Law in view of the Court of Appeal’s recent ruling in the case of Muhammad bin Kadar & Anor v PP  SGCA 44, whether there have been any changes to the operating procedures of the prosecution and law enforcement agencies on the disclosure of unused material in criminal cases and, if so, what are these changes.
Sir, I thank Mr Lee for his question. The Ministry of Law introduced a disclosure regime in the Criminal Procedure Code 2010. This change in the law was generally welcomed.
During the Second Reading, I had said the following, in respect of general disclosure obligations:
“… lawyers appearing in Court, whether Prosecution or defence lawyers, are officers of the Court. If they deliberately suppress material evidence, they will be acting in gross breach of their duties. One cannot put forward evidence in Court while holding back other evidence which could put a different complexion on the evidence that has in fact been tendered in Court. I have no doubt that the Court will take a serious view of such conduct.”
In Muhammad Kadar’s case, the Court of Appeal referred to and relied on this statement, and explained the nature and extent of the Prosecution’s duty, to disclose material in its possession which it does not intend to use as part of its case.
The Court of Appeal held that the Prosecution is under a legal duty to disclose two types of unused material in its possession.
Unused material which is likely to be admissible and might reasonably be regarded as credible and relevant to the guilt or innocence of the accused.
Unused material which is likely to be inadmissible, but would provide a real chance of pursuing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused.
Any doubt on these issues is to be resolved in favour of disclosure.
Mr Speaker, Sir, the Government, the Judiciary and the Public Prosecutor are all charged with and concerned that each and every accused person have available all relevant and credible material in the Prosecution’s possession that may aid his or her defence. The application of the principle is a matter of judgment in each case. The Prosecution must assess its disclosure obligations professionally and in good faith.
In the Kadar case, the Kadar brothers, Muhammad and Ismil, were initially charged for the murder of the victim in the flat she shared with her husband. The husband of the victim told the police that there was only one assailant. This was recorded in a statement dated 4 September 2005.
The Prosecution did not, at first, disclose the husband’s statement. The presence of both the accused persons at the scene was not initially disputed (though later, Ismil disputed this, when he gave notice of an alibi). Second, the husband was in poor health and immobile at the time of the alleged crime. He was in the bedroom while the victim was killed in the living room. And he could only give his statement through gestures; he could not speak. The Prosecution took the view that the husband was in no position to know how many assailants there were and that his evidence was unreliable.
In March 2007, while the trial was ongoing, counsel for Muhammad and Ismil informed the Prosecution for the first time that Muhammad was taking sole responsibility for killing the deceased. The trial was stood down for the Prosecution to consider its position. Separately, defence counsel also applied to discharge themselves. The Prosecution decided to proceed against Muhammad and Ismil as charged. Given Muhammad’s position, the Prosecution, on 4 September 2007, disclosed Mr Loh’s statement which had been made on 5 September 2005 to the defence. This was six days before the trial resumed on 10 September 2007. Two sets of interview records (which were made before the statement was recorded, and were in the same terms as the statement) were also subsequently disclosed.
The Court of Appeal took the view that on the facts, the husband’s statement and the interview records should have been disclosed earlier. I think the conclusion is one which most lawyers would agree with.
I have consulted with the Attorney-General on the changes in prosecutorial practice arising from Kadar. The Attorney-General’s Chambers have taken into account the Kadar judgment when assessing the disclosure obligations in each case. The process begins early on at the pre-trial stage and continues until the conclusion of the case.
Prosecutors have also been briefing investigators on the requirements laid down in Kadar. Investigators who are alive to the issues can effectively assist the Prosecution in fulfilling its disclosure obligations.
Since the enactment of the CPC 2010, the Attorney-General’s Chambers have been working on a joint Code of Practice for prosecutors and defence counsel, which will carry general guidance on disclosure. At the same time, the criminal bar and prosecutors from the Attorney-General’s Chambers have also engaged in discussion to work out guidelines on the Prosecution’s disclosure obligations under Kadar.