His parents told me they had no money to pay the legal fees. I assured them that as it was a capital case, the State would appoint two lawyers, a senior and a junior, to defend their son and that they didn’t have to worry. Both of them started to cry in the meeting room. They did not want to lose their remaining son to the gallows and pleaded with me not to abandon them just because they were poor. At the time of our meeting, the charge had not yet been reduced. Sunil and I looked at each other. My nephew is a very compassionate young man and when I looked at his face, I knew he was hoping I would do the case pro bono. I could read his mind. After all, he is my nephew.
Heng’s father reached into his pocket and took out a few $10 notes and a couple of $50 notes, totalling $200, and said, “This is all we’ve got. Please take this and help us.”
I didn’t want to take his money and told him, “Please keep your money. You need it more than I do. It’s okay.”
He insisted. “No, please. I will feel very happy if you take this money.” He pressed the money into my hand. We opened a file with the $200 and worked on the case.
It was not difficult to get the charge reduced because of his mental condition. Heng appeared before Justice Woo Bih Li, who is very fair and reasonable and always prepared to listen. We made our mitigation plea based on the fact that Heng was being treated for his disorder and was on his way to recovery. We felt that he should get only four to six years. The DPP, however, said it should be nothing less than 10 years. In fact, he said he would prefer a life sentence. But Justice Woo was not happy with the psychiatric report as it did not state how long it would take for Heng to be cured. He asked for a further report as he wanted to assess Heng’s latest psychiatric condition.
Heng seemed to suffer from many delusions, one of which was that he was the head of a gang of death comprising 30,000 to 40,000 members. The uncle he killed was said to belong to another gang which was trying to hurt Heng’s gang and get rid of its leader. Heng also believed his uncle possessed a gun which he wanted to get hold of to commit a robbery. He said he needed money to marry a girl who was supposed to have lived with him. In another delusion, Heng said that he had a girlfriend who had aborted their baby and went off to live in Malaysia. However, she had called him to say that she didn’t go through with the abortion and his child was alive. Heng was also convinced that his uncle was responsible for the death of his elder brother and his grandfather. He heard the voice of his grandfather telling him to kill his uncle. His was a classic case of paranoid schizophrenia.
Since the judge had asked for a further report, the psychiatrist treating Heng was produced in court. Dr Tan testified that it takes about a year for doctors to assess the optimum dosage of medication, and that Heng had been improving. She added that the next five years were crucial because that was when some 80 per cent of patients might go into a relapse. She stated that Changi Prison, where Heng was being kept, had better facilities for his needs and his parents would not have to monitor him. I asked Dr Tan if Heng had shown a marked improvement since he started treatment in October 2007. She replied that he had made a very great improvement. She also said that she did not see any reason why he should not continue to improve. Satisfied with her answers, I sat down and said “no further questions”. The judge looked at me with a smile.
On hearing Dr Tan’s testimony, the DPP stood up and said: “We are not asking for a life sentence, Your Honour. In this particular case, a deterrent sentence is not the objective because you never use mental illness as the basis for deterrence.”
I responded. “Even retribution in this particular case is limited because of his mental illness. The two aspects of punishment the court has to take are rehabilitation and protection to society. There is a possibility that this mental illness may have a relapse in five years’ time. We have to take it seriously because protection to society is very important. Not only is it protection to society, it is also protection for the accused because it is possible that he may commit suicide.”
I told the judge that my earlier assessment where I said the sentence should be four to six years was incorrect and that it should be higher than six years. Once again, Justice Woo smiled at me.
When I was reading the authorities and the psychiatrist’s report which had been given the night before hearing the case, I predicted that Heng should be sentenced to eight years in prison. In fact, I scribbled a calculation of how much time he had been remanded and noted that he should be there for another 54 months if he was given eight years. That was just my expectation and I did not dwell on it any further. So when the judge sentenced him to eight years and backdated it to September 5, 2007, I was rather pleased. I turned to Sunil and showed him what I had hastily scribbled the night before. Then I showed it to the DPP and he remarked, “Not bad, you know, Subhas. You should be a judge!” We all laughed.
As he was escorted out of the courtroom, Heng shook our hands but showed no emotion. His family was very happy. His parents hugged Sunil and I and gave each of us a hong bao to show their gratitude. As we left in Sunil’s car, I opened the red packets. In each packet was $100. I remarked to Sunil: “Look, as far as they are concerned, there is no such thing as lead counsel and assisting counsel. To them, the both of us are equally important and that should be the way.” Many people do not understand that it is the assistant who carries the workload. He has the unenviable task of doing all the work including preparing the submission. The lead counsel merely presents the submission in court, for which he gets all the credit, but actually in many instances, most of the credit must go to the assistant and the team that worked together.
I think when Heng’s parents gave us each $100, consciously or subconsciously they realised that Sunil had played an equally important part in their son’s case, and I was quite happy that they recognised Sunil’s efforts. I gave my share to Sunil and told him he deserved it. To me, it was the start of a good weekend. We managed to get what we wanted all because we had a judge who knew exactly what he should do and we had a prosecution team of Peter Koi and Winodan Vinesh who knew what to ask for and what their limitations were. They did not push for something they knew they would never get. If they had asked for life imprisonment, they would have been asking for trouble because this would have irritated the judge. So, they amended their request to 10 years. But I think eight years was a fair sentence.
REFLECTIONS
J B Jeyaretnam
and the Queen’s Counsel
Francis Seow and the Presidents
of the Law Society
David Marshall and the Jury System
Keeping a Promise
TWENTY-SIX
J B JEYARETNAM AND
THE QUEEN’S COUNSEL
Defending J B Jeyaretnam (JBJ) brought me into contact with many Queen’s Counsel. One of them was John Mortimer, the well-known playwright and author, whom I assisted in JBJ’s first criminal case in 1982. JBJ was charged with depriving his creditors of the assets of the Workers’ Party. It was a ridiculous charge and the case came up before Senior District Judge Michael Khoo, who was very well respected by the Bar for his righteousness and fairness. Leading the prosecution was Senior State Counsel Glenn Knight. Assisting him was Cambridge-educated John Koh, a very capable deputy public prosecutor.
Glenn Knight and I were classmates at university. We studied law together. Unlike me, he was a brilliant student. He worked very hard and got into the legal service. He was, at the time, an up and coming star in the Attorney-General’s Chambers. He was a very good prosecutor but an arrogant twit who thought he was better than he actually was. However, I must say that he was one of the rare prosecutors who had the courage to make decisions that were fair. When he was a DPP at the Subordinate Courts, many lawyers who had made representations to him came out happy because he had either reduced a charge or withdrawn it. He was one who would reduce a charge or even withdraw it if he thought it merited a withdrawal. In that sense, he was a very good DPP.
John Koh and Glenn K
night were the deputy director and director of the Commercial Affairs Department respectively. The fact that they were both capable and intelligent didn’t faze me because however good you are, you must have a good case to win. They say a lawyer is as good as his case.
JBJ’s trial was a very high profile case because he was then the only opposition member of parliament. The court was always crowded with local and foreign press. When I arrived at Court 1 at the start of the trial with John Mortimer, I asked Glenn Knight and John Koh if we could all see Michael Khoo in his chambers as I had something to discuss with him. They said that they themselves had tried to ask for an appearance in chambers but was told by the district judge that whatever they wanted to say could be said in open court. But I still insisted on seeing him. I went up to Miss Kong, Michael Khoo’s personal assistant, and told her the reason why I would like to see him in chambers: I wanted to introduce John Mortimer to him. It was a normal courtesy call.
Michael Khoo agreed to see us and the four of us walked into his chambers. Glenn Knight was peeved as his application to see the judge in chambers had been turned down. I introduced John Mortimer to Michael Khoo. They shook hands. Michael Khoo said: “Mr Mortimer, I’ve read your books and I find them very interesting. It’s a pleasure to meet you in person.” They exchanged pleasantries and then we left.
There were a total of four charges against JBJ, the Workers’ Party’s secretary-general, and Wong Hong Toy, the party’s chairman. Glenn Knight and John Koh were very meticulous in their work, but the evidence they produced was shabby. At the end of the prosecution’s case, Glenn Knight made a very strange application in court. He wanted to amend the charges without giving any notice of his intention to do so. I immediately asked John Mortimer to object. He stood up and objected very strenuously to the prosecution’s last minute amendment which he said was unfair, unreasonable and caught the defence by surprise. He said that this shouldn’t be the way things ought to be done. Senior District Judge Michael Khoo nodded his head and said: “Mr Mortimer, can you tell me what are your reasons? Give me the authorities.”
Without any hesitation, the QC replied, “Sir, I was told to object by my learned junior and I did. Will you allow me to give you the reasons after lunch?” The whole court laughed.
Michael Khoo just smiled and said, “Well, I’ll adjourn it to the afternoon and by that time you should give me the reasons.” John Mortimer agreed. He then told me that he was having lunch with our client and asked me to find the reasons why we were objecting. I immediately went to the Subordinate Courts library, took the precedents and authorities, and prepared the arguments. I only had a sandwich for lunch in the Bar Room that day. After his lunch, he came to the Bar Room and I gave him the authorities. He read it and said, “Well, it looks sensible, it looks reasonable. I think the judge will have to uphold our objection.” I smiled in agreement. He then added, “Do you know what’s funny about this whole thing, Subhas?”
“What, John?”
He laughed. “If our objection is upheld, people are going to say I’m a damn good QC but if it is not, they are going to say that his assistant is incompetent and didn’t furnish me with the sufficient materials.” I laughed nervously.
Back in court, we argued our objection and Glenn Knight was asked to reply. He was very upset with our objection and the way the case was proceeding. He stood up and said: “I do not know why Your Honour is asking me to reply. We have been doing it this way all the time. We have been amending charges whenever we feel like it, even at the end of the prosecution. If I’m not mistaken, even you, Sir, when you were a DPP, also amended charges at this stage. So, what is the problem?”
Michael Khoo simply looked at him and said: “Maybe I too did it when I was a DPP, but now I am being told by counsel for the defence that what we did was wrong. Instead of giving me the reasons why it is not wrong, you choose to talk about what I did when I was a DPP. As an officer of the court, I expect you to be of assistance.”
I could see that the judge was quite annoyed. Glenn Knight knew he had gone too far. He promptly apologised and assured Michael Khoo that he would return with arguments to counter our objections. But the arguments he brought forward were weak and did not throw any light on the matter. The judge rejected his reasons and disallowed his application to amend the charge. In fact, he dismissed one charge without calling for the defence which angered Glenn Knight even more. However, it was decided that JBJ could choose whether he wanted to give evidence in his defence. He said he would.
I have to say that I’ve never seen as vicious a cross-examination of anyone as I saw Glenn Knight cross-examine JBJ. Some of the questions were unwarranted. A lawyer himself, JBJ told Glenn Knight that the implications of the questions were very vicious and should not be asked. Michael Khoo was silent and stared at Glenn Knight. Halfway through the case, John Mortimer left for California where his book Rumpole of the Bailey was being launched as a TV programme. He told the judge: “Your Honour, I have to take leave at this stage because I have an important engagement in the States. I’m leaving the defence in the capable hands of my learned junior. I have complete faith in him. I wish Your Honour well.” Michael Khoo also bade him farewell. I was left alone to face Glenn Knight and John Koh.
When the evidence was completed, both sides made their submissions. Michael Khoo acquitted JBJ on all charges except one where he was fined $400. We came out of the court feeling very happy about the whole matter. Waiting outside the court were party supporters who garlanded JBJ, Wong Hong Toy and I. There was a big celebration, but I was not feeling very comfortable with it as I felt it would just make a lot of people angry.
True enough, the prosecution appealed against the acquittal and the case came up before then Chief Justice Wee Chong Jin. In the Petition of Appeal, the prosecution raised the point that Michael Khoo was wrong not to allow them to amend the charge. But strangely enough when it came to arguments, the appeal was argued by the head of crime, Tan Teow Yeow, because Glenn Knight had left for London for further studies. Tan was assisted by John Koh. Frankly, I did not understand what they were saying in support of the appeal. They were beating about the bush. They abandoned the ground about Michael Khoo not allowing the amendment.
I was arguing the case for JBJ, who in turn was arguing for Wong Hong Toy. We knew from the outset, from the way the Chief Justice was reacting to our arguments, that we were going to get a tough time. True enough, he gave us a difficult time. I remember particularly one instance in the appeal when I told him that it was very difficult to prove common intention between JBJ and Wong Hong Toy and the person who gave a particular cheque, which was the subject matter of the charge. The evidence was that both Wong Hong Toy and the donor of the cheque were speaking in Mandarin. It has never been proven that JBJ could understand or speak Mandarin. So we were out to prove that definitely he could not understand what the conversation was all about and as such his mere presence while Wong Hong Toy was talking to the donor could not make him guilty of the common intention charge.
Chief Justice Wee stopped me and asked, “Weren’t you counsel for the defendants in the lower court? Weren’t you present when evidence was given that they were speaking in Mandarin?”
To both these questions I said, “Yes.”
“Why didn’t you ask the witnesses whether JBJ could understand Mandarin or not? You could have clarified the situation then,” the Chief Justice said.
It was one of those rare times when I really lost my cool in court. I replied, “Is it my job to prove the prosecution’s case? Isn’t it their duty to prove that JBJ understood Mandarin? Why should I do the work for them?”
There was silence from the Chief Justice. After a while he raised his voice and said nastily, “Carry on.”
The trial went on. In the end, Chief Justice Wee gave judgment that the case should be sent back to the Subordinate Courts and that defence should be called for the charges where defence was not called originally and for the case to be heard again.
Our appeal against one conviction was dismissed. The cases were transferred back to the Subordinate Courts. Normally, the judge who heard the case earlier on would continue to hear the case and call for the defence as ruled by the Appellate Court. But in this instance, that could not be done because Michael Khoo, the judge who had originally heard the case, was transferred to the Attorney-General’s Chambers as deputy public prosecutor. He was no longer a judge and his transfer was actually a demotion. JBJ commented about the transfer and hinted that it was most probably due to the fact that Michael Khoo had acquitted him. JBJ also said that there was public disquiet. For making those statements, there was a parliamentary inquiry which got JBJ into further trouble. But that’s another story.
When the case came before the Subordinate Courts again, the next district judge to hear it would have been Chandra Mohan, who was the Second District Judge. Out of the blue, a day or two before the hearing, we were told the case would be heard by Errol Foenander, who had just been transferred to the Subordinate Courts as the Senior District Judge. We found this strange because Errol Foenander was the head of crime in the Attorney-General’s Chambers when JBJ was originally charged with the offences. It would not have been fair for him to hear the case as the judge. So when the trial commenced, I stood up and made a preliminary objection that he should not hear the case because of the previous position he held in the Attorney-General’s Chambers. I said that justice should not only be done but must be seen to be done fairly. I gave him the authorities and asked him to disqualify himself and transfer the case back to Chandra Mohan.
The Best I Could Page 22
