In September 2013, a student team from the Innocence Project (Singapore) took on the case of Abdul, who had been sentenced to imprisonment and caning for unlawful consumption of drugs. The team’s efforts played an integral role in overturning Abdul’s conviction and subsequent discharge amounting to acquittal.
None of this would be possible without the help of the Pro Bono lawyer who took up the case and ultimately worked with the Prosecutors to secure an acquittal. Today we talk with Mr Mervyn Cheong, from Eugene Thuraisingam, to find out more about him, his pro bono experiences and working with the Innocence Project (Singapore).
Today’s article marks the last of this three part series. For more updates from us, please hit the follow button located at the bottom right corner of your screen. We are also delighted to reveal that this case will be covered on a Channel 5 TV series called Verdict, which will be broadcast on 20 Jan 2015 at 10.30pm.
- What piqued your interest in criminal law?
When I was in law school, doing criminal law wasn’t a very glamourous or much talked about career path after graduation that students were particularly interested in. I came out to practise during this period and also the phrase “crime does not pay” truly has a literal meaning more often than not in criminal practice in terms of fee-paying work.
I did not come out into practice wanting immediately to do criminal law. I was working with Eugene [Thuraisingam] at my previous firm. He had been doing quite a lot of white-collar crime work and he was the one who introduced me to criminal work. Eugene is now the sole proprietor of the firm [that I am at]. My first taste of criminal law was helping Eugene with a pro bono case at our previous firm together, which involved a young man who was charged for housebreaking. The case and the satisfaction gained from helping that young man left a deep impression on me and it piqued my interest in criminal work. Thereafter, I took up my own Criminal Legal Aid Scheme (CLAS) cases and also started doing criminal work as an area of my practice.
Also, from a professional development point of view, doing pro bono work is good for young lawyers who want to gain practical advocacy experience in litigation. For one, I know a young lawyer at a big firm who is now currently conducting his own criminal trial under a CLAS assignment. But for the fact that he volunteered under CLAS, I suspect he may have had to wait for another five to six years of practise before being able to conduct his own trial. A second aspect is that if one does too much commercial litigation and it’s always all about money, sometimes you would want to do something different like saving someone’s liberty to a certain extent especially someone who may not have the benefit of legal representation but for CLAS. The latter especially is what has kept me going so far.
- Is it true the odds are usually stacked against defence counsels?
Yes, it is still stacked, although less so nowadays. In my experience, there are at least two areas where the odds are stacked against defence counsels. First, from the perspective of the law, there are several cases where the legal presumptions work against the accused persons — such as those found in the Misuse of Drugs Act. Recently, I have taken on a case involving an offence under the Moneylenders Act. I learnt that if one finds out that his ATM card had been used by an unauthorised moneylender, there is a presumption that he assisted with the unauthorised money lending business. In an instance like this, the odds are stacked against the defence because the burden is on the accused to prove on a balance of probabilities that he did not know therefore the offence is not established. In these situations, even though the burden of proof is on the prosecution to prove beyond a reasonable doubt that the offence was made out, practically, because of the presumptions, it becomes the case that the defence has to rebut the presumptions and prove his innocence.
The other area is in case preparation, but less so these days as there is now the Criminal Case Disclosure Conference (CCDC) process, introduced under the CPC (Criminal Procedure Code) 2010. It is a process where the prosecution will inform the defence what the prosecution’s case is, provide a list of witnesses and exhibits and statements by the accused person that they would rely on. That is the point in time in which we (defence counsels) will know what the accused has told the police in his statements. Thereafter, we file the defence case, and the prosecution then provides a supplementary bundle which consists of any or all of the accused’s statements which the prosecution is not intending to rely on to establish the case. However what is still unresolved is that statements given to the police by the prosecution witnesses are not disclosed to us. Hence, most of the time, we will not know how consistent the prosecution witness is in terms of what they had told the enforcement officers and what they actually testify in court. The difficulty lies in this: if the victim has been inconsistent in his statements, how are we — as the defence counsels — to challenge the credibility of the victim (which ultimately also affects the issue of whether our client is guilty or whether he should be exculpated of the offence)?
- To a layperson, a defence counsel is often seen as one who helps people who are actually guilty to get away scot-free. What do you have to say about that?
Yes, that appears to be quite a common sentiment. But to this, I think if defence counsels go in with the mindset that they want to get acquittal, they will get jaded really fast. To me, often, it is really about determining the appropriate offence, and then finding the appropriate and proportionate sentence that should follow from his actions. I mean, a simple theft offence comprises aberrated forms like theft simpliciter, theft in dwelling, theft by employee, snatch theft… At the end of the day, it is about finding the suitable form of the offence for the accused’s actions. I guess the layperson’s sentiment can be attributed to TV shows, but in reality, defence counsels do not go in to twist the facts or even give a different slant of the facts. Most times, it is just about finding an angle that gives a balanced view of what actually happened, and placing the right emphasis on mitigating factors, if any.
MERVYN’S EXPERIENCE WITH THE INNOCENCE PROJECT (SINGAPORE)
- You took up the case that IP had recommended to CLAS as meritorious. Could you tell us more about this case?
I still remember when I first read the report that the Innocence Project (Singapore) team had prepared. At that point, I already knew this case on drug consumption would be a tricky one; besides maintaining his innocence, the Applicant raised the issue of how his former lawyer had told him to keep silent throughout the trial and he was allegedly not advised as to the consequence of doing so, and also made allegations about the authorities that recorded his statements when he was in remand. Over and above these tricky issues, there was the issue of trying to get evidence in support of the Applicant’s defence which he said had not yet been obtained when I took on the matter.
- Given these difficulties, what ultimately motivated you to take up this case?
CLAS rarely takes up appeal cases. What’s more, this involved a drug consumption charge which made things even more interesting as conviction is almost a given when it comes to cases of this nature. Ultimately, I felt there must have been something extraordinary about the case, so I replied CLAS to take it up.
- Were there any challenges that you faced along the way?
The case was complex not just because of the legal issues, but also because it involved allegations against the Applicant’s former lawyer as I mentioned earlier and this tends to complicate things even more.
There was also the matter of obtaining the evidence that the Applicant had claimed could support his defence. While it was not easy to obtain the medical evidence at first, I think it eventually served as the turning point in the case when we finally managed to do so. One of the hospitals wrote back to say that the Applicant had, on two or three occasions (one of which was very close to the accused’s time of arrest), actually been prescribed medicine with codeine (which would metabolize into morphine) in it. Even at his first trial, analysts from the Health Sciences Authority (HAS) could not rule out that the traces of morphine in his urine may have indeed come from medication that contained codeine.
Even then, that was just the first hurdle to cross. I knew the real challenge was the very request of a retrial at his appeal — for the Applicant to have his chance to tell the court his side of the story. We successfully did so on appeal and his conviction was set aside for a re-trial to take place. In fact, the retrial had already been set, but the prosecution then applied to withdraw the charge a few days before the re-trial was scheduled to take place. This was the entire rollercoaster ride.
- Did you expect the final result?
I didn’t expect the discharge because I thought the case was at such an advanced stage, and the Applicant had already been in remand for close to three years. Furthermore, I thought the accused would want to have his day in court to explain his situation and allow him to feel vindicated.
- The Innocence Project (Singapore) acts as a complement to the existing criminal justice system, and aims to exonerate people who were wrongfully convicted. Do you think such an initiative is relevant in Singapore?
Yes it is, given that there is one successful case so far! I believe there is value in this project. Especially in criminal cases, the courts appear to be more prepared to revisit deserving cases — either in terms of developments in the law, or where new evidence that can exculpate the accused surfaces.
- Some people believe this project might undermine our justice system. Do you agree?
No, I don’t think so. There will always be allegations that the work done by the enforcement officers was not properly managed. So, if there isn’t the Innocence Project, or if people are absolutely unconcerned, then you will never be able to know when cases of wrongful conviction truly happen.
All you need is, perhaps, for there to be one successful instance of a wrongful conviction out of a hundred, and the project will be of value. Without such an initiative, this one instance will just go undetected. So, I don’t think it undermines our justice system — if anything, people will at least know that there is a safety net.
- Would you say that the experience with the Innocence Project (Singapore) had been different from your other pro bono experiences?
Yes, definitely. I saw how the students tried to conduct their own investigation in terms of finding out what actually happened. In terms of research, the focus of the issues were the same issues as those I had picked out, and some of the cases they found were also the same cases which I eventually relied on.
MERVYN’S PRO BONO EXPERIENCE
- Were there similar projects like the Innocence Project (Singapore) during your time in NUS?
No, though some students were actually keen to do pro bono work then, the scene was not as active and robust as what you have in school today.
- At the same time, the law schools in Singapore have recently implemented a mandatory pro bono. Do you think this is necessary?
If making pro bono work mandatory increases awareness, and at least stimulates people to think and experience it, and then decide if they like it or not, then I think it’s good. For me, I didn’t even think of doing criminal work but for my first experience helping Eugene on a pro bono case. So if it weren’t mandatory in that sense (because I had to report my work to him as one of the litigation directors in my previous firm), I wouldn’t have known if I liked it or not because I wouldn’t even have thought of giving it a try.
- Do you think there are enough lawyers doing pro bono work right now?
Actually, CLAS has quite a big pool of registered lawyers. But what we need is more of them to be active. I have also heard of some pro bono initiatives that are lacking in volunteers. However, from my personal experience, at the moment, I’ve seen about 80-85% of e-mail requests sent out by CLAS being taken up by lawyers. So, while the legal community is still actively encouraged to be more involved in pro bono work, I generally think the pro bono scene today is not in any dire situation. But of course, as you would have read in the news, there are plans to expand and enhance CLAS. Once these plans are rolled out, all the pro bono initiatives could definitely have more active lawyers and even students on board.
- Finally, would you encourage fresh law graduates to get their hands wet with pro bono work, or should they focus on their craft the first foundational years in practice?
I guess it depends on what they are really interested to do. If one wants to do corporate work, then there may be little value in doing criminal pro bono work. At the same time, there are pro bono projects where lawyers could, for example, help charitable organisations with transactional work such as setting up their trust funds. So there are actually various pro bono opportunities for lawyers who are keen in being active even if they are not keen to do litigation work.
I do feel that criminal pro bono work is a good place to start if you are thinking of doing litigation and wants to hone your advocacy skills. I say this because you would learn so much when you are the lawyer making the submissions before the court — your situational awareness would almost surely go into overdrive! Also, pro bono work allows you to experience a very different sense of achievement and satisfaction, especially when the family comes up to you and thanks you — that’s when you truly feel you’ve been given a pat on the back.
With that said, there have been recent developments in the pro bono scene for CLAS and it is exciting times for young lawyers who are interested to practise criminal law. As mentioned earlier, there are plans to expand the scope of CLAS; the expansion is not only in terms of the types of cases covered, but also the number of deserving applicants. These plans are also supported by the Government, both financially and in spirit, as you would have also read in the news. There are also now talks of possibly creating a prestigious CLAS fellowship scheme for young lawyers who are keen to do criminal work on a full-time basis specifically for underprivileged accused persons who otherwise have no means to get legal representation. There are also talks of possibly providing exclusive advocacy training for lawyers who actively volunteer with CLAS. Opportunities are definitely abound for young lawyers who are interested and once the expansion plans are rolled out, there will be a need for more lawyers to come on board and be active, and I will strongly urge young lawyers, particularly fresh graduates, to seize the opportunities offered then.
Alastair Simon Chetty, Benedict Teong, Chua Ting Fang and Elias Arun are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).
 The accused’s name has been changed to protect his identity.