Noticeboard
| DOI | 10.1350/ijep.2008.12.3.301 |
| Published date | 01 July 2008 |
| Date | 01 July 2008 |
| Subject Matter | Noticeboard |
NOTICEBOARD
NOTICEBOARD
NOTICEBOARD
Cases and Comment
Abuse of process, entrapment, discretionary exclusion of unfairly obtained
evidence—Singapore
In Law Society of Singapore vTan Guat Neo Phyllis [2007] SGHC 207 a solicitor was
incriminated in a sting operation executed by a private investigator. The investi-
gator had pretended to be a real estate agent with a client in need of a solicitor
to do a conveyance. In conversations which the investigator had secretly
recorded, the solicitor had agreed to pay the investigator a referral fee to get this
work. Afterwards the investigator had made a complaint to the Law Society
which had instigated disciplinary proceedings against the solicitor for profes-
sional misconduct. The Disciplinary Committee found against the solicitor
and the case was referred to the High Court. Before the court, the respondent
argued that the investigator’s evidence was obtained illegally or by entrapment
and should therefore not have been considered by the Disciplinary Committee.
The court held that there had been no entrapment and that the investigator had
not acted illegally or improperly, but even if the contrary were true, private
or state-sponsored entrapment was irrelevant in the context of disciplinary
proceedings.
The real importance of the case lies in the guidance which the High Court gave
about the doctrine of abuse of process, entrapment and the admissibility of
illegally and unfairly obtained evidence in criminal proceedings in Singapore.
In summary, the views of the court are that in Singapore:
(a) There is no discretion in criminal cases to exclude illegally or unfairly
obtained evidence (including evidence obtained by entrapment).
doi:1350/ijep.2008.12.3.301
246 (2008) 12 E&P 246–269 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
The admissibility of evidence is governed by the Evidence Act (Cap. 97,
1997 Rev Ed), a codifying Act which, although not exhaustive, only
permits common law rules of evidence to be applied that are consistent
with it. The overarching principle of the Act is that all relevant evidence
is admissible unless specifically expressed to be inadmissible. The only
incriminating evidence expressly denied admissibility by the Act is
admissions and confessions made involuntarily by an accused to a
person in authority. If entrapment evidence is relevant, it is therefore
admissible.
(b) It is not an abuse of process to bring a prosecution founded upon
evidence obtained by entrapment:
•entrapment involves an agent provocateur instigating or luring the
defendant to commit an offence which the defendant would not
otherwise have committed; if the agent provocateur is a state agent it
gives rise to a conflict between two public interests: conviction and
punishment of a wrongdoer and avoiding the impression that the
court condones state-sponsored illegal conduct;
• abuse of process is the instigation of a prosecution for an ulterior
purpose such as to harass the defendant or teach him a lesson
when there is insufficient evidence to justify the charge.
In our view, the true nature of abuse in state
entrapment cases is the abuse of state power … by state
agents deliberately breaking the law to instigate the
accused to commit an offence which he otherwise
would not have committed and then prosecuting him
for that offence. The nature of the abuse is not directed
at the process of the courts, whose function is to
determine the guilt or otherwise of the accused on the
evidence produced before the court. (ibid. at [138], per
Chan Sek Keong CJ)
(c) Decisions about the institution, conduct or discontinuance of criminal
proceedings are the concern of the Attorney-General, not the courts:
•under the Constitution, the judicial and prosecutorial functions
are separate and equal; it is unconstitutional for a court to
interfere with a decision to prosecute;
•if the public interest in the integrity of the legal process outweighs
the public interest in convicting and punishing the guilty, the
Attorney-General can stop the prosecution;
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 247
NOTICEBOARD
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