Iswaran turns to High Court to get prosecution to hand over statements of all its witnesses

SINGAPORE: Former Singapore transport minister S Iswaran, whose criminal trial for accepting gifts is looming, turned up at the High Court on Friday (Jul 5) in a bid to get the prosecution to hand over all the statements of the witnesses it intends to call at trial.

Iswaran's lawyers, led by Senior Counsel Davinder Singh, had already struck out once in this attempt in a June hearing not open to the public, but they mounted a second attempt in a criminal revision on Friday.

A team of prosecutors, led by Deputy Attorney-General and Senior Counsel Tai Wei Shyong, objected strongly to Mr Singh's case, saying the defence has been changing its position.

Justice Vincent Hoong reserved judgment after a full day's hearing and will deliver his decision at a later date.

Iswaran, 62, faces a total of 35 charges comprising 32 counts of obtaining valuables as a public servant, two counts of corruption and one of obstructing justice.
 
These relate to his interactions with property tycoon Ong Beng Seng and Mr Lum Kok Seng, the managing director of Singapore-listed Lum Chang Holdings.

Iswaran's lawyers - Mr Singh, Mr Navin Thevar, Mr Rajvinder Singh, Ms Sumedha Madhusudhanan and Ms Sheiffa Safi Shirbeeni - fought to have all of them heard in one trial instead of two separate ones.

The Davinder Singh Chambers lawyers had told the High Court previously that Iswaran had been dealing with "very, very dear and close friends" in the two men and did not know the gifts were "veiled gratification".
 
Iswaran had stated his intent to claim trial from the get-go - pleading not guilty when he was first formally charged in January.

WHY IS MY CLIENT BEING SINGLED OUT?

Mr Singh spent hours seeking to convince Justice Vincent Hoong to grant his request and order the prosecution to make available all statements from its witnesses.

Citing Section 214(1)(d) from the Criminal Procedure Code, Mr Singh argued that his client was entitled to the prosecution's facts and evidence supporting the charges, together with the statements he gave, and the prosecution did not have the discretion to decide what to share.

Mr Singh questioned how he was going to file the case for the defence based on the little provided by the prosecution.

"The whole point of pre-trial discovery is to respond in a fashion so that your honour knows what are the issues in the case," said the lawyer.

"And then your honour can then decide in what circumstances you would draw an adverse inference or not do so. But you can't even do that, if they don't give us the statements. In other words, they can on their own avoid an adverse inference, and avoid my ability to object to their evidence," said Mr Singh.

"Why is the prosecution doing this?" he asked. "Why is my client being singled out? And with the effect that he would be discriminated against, by him being refused what everybody else gets?"

Mr Singh alleged that this issue has not "come up in a vacuum". He said Iswaran was first charged with offences involving Mr Ong, but when both sides were discussing timelines, the prosecution "decided to invert the way they were going to prosecute this case", by pushing Mr Ong back and starting with Mr Lum instead.

"You will remember at that hearing we had complained that the way they were doing it suggested that they wanted this trial to go on in a way which would result in whether acquittal or conviction and appeal while Ong Beng Seng's case remains unresolved," said Mr Singh. "We've also drawn your attention to his health conditions and your honour recognised that as a possible prejudice to us."

The lawyer claimed that the prosecution was prepared to give the defence conditioned statements when they wanted to proceed with Mr Lum's case first. 

However, after the defence was granted its application for all charges to be heard together in one trial, the prosecution took the position for the first time that they were under no obligation to provide conditioned statements, claimed Mr Singh.

"Which means they were not even going to share the evidence with us for David Lum," said the lawyer.

"But clearly, they didn't want to share the evidence with us for all other witnesses, including Ong Beng Seng. This means that if they were going to lead oral evidence for 55 witnesses, this trial is going to go on for months and months and months into next year, and in my respectful submission, I'm not even sure it will be done next year."

Mr Singh said the inference to be drawn is that the prosecution came up with this idea of not giving the defence conditioned statements because it did not succeed in "pushing the Ong Beng Seng charges away to some indeterminate date".

PROSECUTION OBJECTS

Responding on behalf of the team of prosecutors - Chief Prosecutor Tan Kiat Pheng, Mr Christopher Ong, Mr Jiang Ke-Yue, Mr Kelvin Chong and Ms Sarah Siaw - Mr Tai said Mr Singh was putting words in the mouth of the prosecution in his over two hours of submissions.

"This is unfair ... I do not accept more than half of what he's said. He's been paraphrasing or totally mischaracterising what we said," said Mr Tai, asking for time to look through the notes of evidence before responding at 3pm.

When the court reconvened, Mr Tai objected to Mr Singh's allegation that the prosecution wants to "conduct trial by ambush" and to "surprise" the defence.

He said the prosecution has made the disclosures required, adding that "in no corruption case that I am aware of, has the evidence of the giver of corruption ever been given by conditioned statement".

Mr Tai said in most corruption cases, the giver and receiver of the corruption are "potentially hostile witnesses", making it very important for the court to hear the evidence orally.

As per its disclosure obligations, the prosecution has served on the defence the 35 charges, the prosecution's list of witnesses and exhibits, and 66 statements recorded from Iswaran, amounting to 1,156 pages and including exhibits like emails and messages.

The prosecution said they have also obliged the defence's request for some electronic evidence, such as messages and WhatsApp chats Iswaran had with Mr Ong and Mr Lum.

The prosecution has also provided to the defence 37 witness statements recorded from seven prosecution witnesses, including: 12 statements from Mr Ong, five statements from Mr Lum, two statements from Syn Wai Hung Colin, and other statements from witnesses Mok Chee Liang, Fu Christina, Chan Wan Hiang Ivy and Iswaran's wife, Taylor Kay Mary.

The prosecution said the defence was trying to go beyond the obligations placed on the prosecution and compel it to prepare conditioned statements for all its witnesses, when the prosecution had already stated its intention not to use conditioned statements to adduce their evidence.

Mr Tai said he did not think, "in the history of our office ... we have ever given the defence a draft statement the witness did not agree to".

"Towards the end, the defence made a statement that seems to imply that the AGC (Attorney-General's Chambers) does not believe in its own case," said Mr Tai. 

"I find this a very strong statement. We believe in our case. I would not stand before the court and bring a case we do not believe in," said the Deputy Attorney-General.

He said Mr Singh made another allegation - that the prosecution was engaging in an abuse of process.

"To me, this is a serious allegation," said Mr Tai. "I am perfectly sincere. You may not agree with me, but I am perfectly sincere. It's clear we have an arguable case, because the assistant registrar actually agreed with us. So we categorically reject any insinuation that this provision is an abuse of process."

Mr Tai said the trial is less than six weeks away, and the real issue is how the judge interprets the section.

Iswaran resigned from his positions in government two days before he was first charged in court. He had previously been placed on a leave of absence pending the investigation by the Corrupt Practices Investigation Bureau (CPIB).
 
If convicted of obtaining a valuable thing as a public servant, Iswaran can be jailed for up to two years, fined, or both.
 
If convicted of corruptly obtaining gratification under the Prevention of Corruption Act, he can be jailed for up to seven years, fined up to S$100,000, or both.
 
If convicted of obstructing justice, he can be jailed for up to seven years, fined, or both.