Justice Must Not Only Be Served, It Must Be Seen To Be Served

Disclaimer: Opinions expressed herewith are strictly mine as a private citizen and has nothing to do with my employer, the National University of Singapore.

Our Law and Home Affairs Minister K Shanmugam made a very long and detailed Ministerial Statement about Parti Liyani in Parliament to make 3 points: (i) there was no “influence peddling” involved, aka the Police did not in any way “favour” the rich Liews to “oppress” the poor and weak; (ii) the Police and AGC acted in good faith though he admitted that there were procedural lapses; and(iii) the Government is committed to ensuring that all is equal under the law.

The reader can check out videos of his speech here:
(i) Part 1
(ii) Part 2
I found the Minister’s performance in Parliament to be fascinating to watch. Minister Shanmugam is considered one of the two legendary litigators in this country, and it was indeed clear from the way he argued his case in Parliament. I have little doubts that most fair-minded observers would conclude that the Minister has made his case most powerfully and convincingly. Chua Mui Hoong had also written a commentary, that summarizes the key points of the marathon Ministerial statement.

Unfortunately, I am somewhat troubled by one unintended outcome of this episode: while the lawyers in our midst (who are like 0.01% of the population) would clearly understand why things turned out the way they did, this affair raises an uncomfortable question: are the Courts wrong? Was Chan Seng Onn J wrong in acquitting Parti Lianyi?

The Ministerial statement seemed to suggest that with more thorough investigations, more evidence seems to have turned up that Justice Chan did not have access to and hence some of the findings in his judgment were inaccurate. But this raises an uncomfortable question: if a High Court Judge in an appeal is “wrong,” then how can we be convinced that we will get justice in our legal system?

To try to answer this question, I went to read the High Court judgment for myself. People who are interested in this case should also go and read it. It is surprisingly accessible to the layman. I also wanted to read the State Court judgment, but I couldn’t seem to find it online.

From reading the judgment and watching the Ministerial statement, I would like to say that I am still satisfied that Justice Chan had ruled in a manner that I could consider “fair and reasonable.” In other words, even given the additional “evidence” cited in Parliament, I would also agree with Justice Chan that it is right to acquit Parti Lianyi.

In this post, I would like to share my thoughts.

Why did the Liews Make a Police Report?

The Minister made the point in Parliament, quite correctly, that making a Police report will not prevent Parti from coming back to Singapore to work, or making a complaint to MOM.

However, if we read the excerpt of the transcripts of what Karl Liew said under cross-examination, he said:
(i) his family didn’t want the items back;
(ii) his family didn’t want Parti to go to jail; and
(iii) they didn’t want Parti to come back to Singapore to steal again.
In other words, while it is true that making a Police report will not prevent Parti from coming back to work in Singapore, one can possibly infer that the Liews likely didn’t know that.

While we are not mind-readers, it is not entirely improbable that both are right. The Minister is right to say that the Liews were not doing it to prevent Parti from complaining to MOM, but that the Liews could v well have made the police report to prevent Parti from coming back to Singapore, because they mistakenly thought that it would, and they wanted to do so not so much because of the fear of an MOM complaint, but simply because they wanted to “punish” her.

There is another curious thing: if it’s indeed true that the Liews terminated Parti because they thought that she was a thief, then why didn’t they search the things that Parti was packing to take home before she left the house? I understand that it is not uncommon for employers to search the helpers before they leave if termination is non-amiable. If one suspects the helper of stealing, wouldn’t this also be something quite logically and natural to do?

However, I am not sure I agree with Justice Chan’s inference that the Liews were fearful of Parti complaining to MOM. If I would have to hazard a guess, the more likely explanation for the chain of events is that the Liews have been quite unhappy with Parti for quite some time already, but it was leceh to find a replacement maid and they took their time…. and it eventually happened in Oct 2016. And they were irritated with her enough to want to ensure that she never gets to come back.

I actually agree with the Prosecution that there was no motive for the Liew’s to “frame” Parti in a criminal trial, because I don’t think that they were ever planning to get embroiled in a trial, at least not over items that they obviously didn’t care about. If Parti had stolen $50,000 or something, one might perhaps be upset enough to go to trial, but over “old stuff”? Kidding who?

Did Parti Steal or Not?

The Minister highlighted that Ms Parti had admitted to taking 10 to 15 items of male clothing without permission. To the best of my understanding, there does not seem to be any dispute over this statement, so prema facie, it seems like Parti might have actually taken items without permission (I would refrain from using the word “steal”).

However, if we look at what Justice Chan gets to work with, it was not to decide whether Parti has “stolen 10 to 15 items,” but to decide if the 4 charges preferred against Parti were substantiated. These 10 to 15 items of male clothing were bundled into Charge #2 (DAC 931428–2017) together with a whole bunch of other things that allegedly belonged to Mr Karl Liew.

Suppose I did steal a mango (and admitted to it), but when the AGC charges me in court, the charge says that “I stole a mango and a durian.” During the trial, the Judge suddenly realizes that it was not possible for the durian to be stolen because the victim never had a durian, can the judge in good faith convict me of this charge even if I did admit to stealing a mango? The charge could have been amended in the lower court but that’s not something that Justice Chan gets to work with. Hold that thought.

What is Justice?

First, let’s talk about why we even bother to throw people in jail for stealing or committing crimes? Mostly when people get caught, the stolen items will be recovered. Therefore, the reason why we jail the thieves is ostensibly for deterrence.

The layman typically thinks of crimes as a black or white affair. The accused either stole or didn’t steal. If he/she stole, then we should just throw the person in jail.

It turns out however that life is not so simple. We have the example of Les Miserables. In Les Miserables, we learn that Jean Valjean was imprisoned five years for stealing bread for his starving sister, and fourteen more for numerous escape attempts. There was no dispute that a crime was committed and the law had run its course, yet intuitively, we know that this is not what justice means.

Second, I think we need to appreciate the awesome responsibility that the judges have to discharge every day. No man is omniscient, so no judge can ever be sure that he will always be correct. “Mistakes” are possible, i.e. it is possible for a judge to convict wrongly, or for a judge to allow the guilty to go free. There is an appeal process to try to address this, but since there are only a finite number of levels, we will never have a perfect system.

What is true however is that convicting the wrong person and acquitting the guilty are not equivalent. Convicting the wrong person is a much more serious mistake since we would be unjustly depriving the liberty of a fellow man. On that note, the legal standard for criminal conviction is “beyond reasonable doubt.”

Ultimately, a judge needs to operate with clear conscience so that he can sleep well at night.

How Would Justice be Served?

Imagine the following: we have a helper working in a relatively rich family where relatively valuable (to the helper) items are routinely discarded. The helper has been working with the family for some 9 years and seen how the family operates.

Along the way, the helper has seen some items that she knows the family doesn’t care about. Many of these items are old and damaged. She decides that maybe she can take them and recycle them. She reasons that the family would not even notice (and we actually know that she’s right from reading the judgment).

Is this theft? Well, if we consider taking things not belonging to oneself without permission to be theft, then it is. But do we believe that justice is served by jailing the person?

In my youth, I once walked out of a store without paying (I was engrossed in something and wasn’t paying attention) and suddenly realised that I hadn’t paid for the items yet and went back to the shop to pay. Compare that with someone else who hides the items with the intention not to pay. In both cases, people are found outside a store without an item that was not paid for, but do we believe that they are equivalent?

Given that the facts of the case and all the evidence that has been revealed (including what we heard in Parliament), I am satisfied with the outcome where Parti is acquitted. Even if she did take some items without asking, do we honestly believe that justice is best served by throwing her in jail? People can disagree.

Were the Police, AGC and State Courts “Wrong”?

The problem with our society is that we are often excessively focussed on pointing fingers and apportioning blame. And the logic will go like this: if Minister Shanmugam is right, then Justice Chan must have made a mistake; if we then decide that Justice Chan was right, then the Police, AGC or State Courts must have messed up.

It was clear that the Police made some procedural mistakes as highlighted by Justice Chan and reiterated by the Minister, and we can probably agree that there was no undue influence by the Liew’s. But if we asked ourselves what really went wrong at the lower level, it was really that the Police and AGC had taken the word of the Liews at face value.

But we need to ask ourselves this: suppose we were the police and someone came to report that his/her helper had stolen A, B and C, would our first reaction be to cross-examine the complainant on whether he/she was lying about A, B and C in order to frame the accused? And when you asked the complainant and realized that the complainant was not v clear or precise about the details, what would your first reaction be? Would you be thinking “this one is rich and probably buys too much stuff and cannot remember properly” or would you be thinking “lying b*stard”?

People like to suka suka claim bias and privilege, but I would like to highlight that many so-called bias and/or stereotypes are actually reactions to common situations, leading to people operating with certain “reasonable” assumptions. Unfortunately, sometimes those assumptions do not pan out.

In general, I think it’s reasonable for the Police and AGC to take what is said by a complainant in good faith. I don’t want people who make Police reports to be cross-examined as liars even before we go to Court.

Closing Thoughts

There has been much unhappiness with the Government in recent years. That’s just how it is. I think people are fully entitled to criticize the Government.

However, I think people should be fair in their criticisms and not conflate our public institutions with the Government. Our public institutions and the public officers who discharge their duties within those institutions should not be attacked without just cause.

It is regrettable that the opponents of the Government have used this incident to attack the system and claim that it shows supposed bias towards the rich. It should have been clear that this claim is ludicrous from the fact that it took the Police 5 weeks to go to Liew’s house.

Think about it: suppose a theft was reported at 38 Oxley Road. Does anyone believe that the police would have taken 5 weeks to visit the house? What special treatment are we talking about? It seems more likely to me that the Police didn’t give a damn for the Liews. I hope that we can apply some common sense when we think about these things.

This incident also highlights that our judiciary is independent and not beholden to the rich or to the Government. In my opinion, much of Singapore’s success can be attributed to our fastidious efforts to uphold the Rule of Law. I have no doubts that the government agencies involved and also the judiciary have each played their parts, without fear or favour. The fact that the Minister made a statement in Parliament also underscores the Government’s commitment to upholding the Rule of Law.

At a more practical level, we also cannot evolve into a society where the helpers are emboldened to steal from their employers with impunity and then when the employers make police reports, they are subject to cross-examination to make sure that they are not trying to “frame” their helpers.

To conclude, allow me to disclose that I once worked with Justice Chan in my youth, when I was a young and insignificant civil servant and he was Solicitor -General (basically the AG’s right hand man). Notwithstanding that he was v v senior and I was v v junior, he was always kind, respectful and professional. He had no airs. He stood up for me when I was unfairly bullied at work.

Unfortunately, I think that the latest turn of events does not reflect well on him because it is not easy for the layman to understand some of the subtleties. Ironically, he is not in a position to speak up to defend himself.

I believe that it is the duty of those who can to defend those who are not in a position to defend themselves.

Justice Chan is a good judge. I am grateful that we have an honourable man serving this country on the bench. I am sure that he sleeps v well at night.

In case people want to post comments, the discussion is here.