Public Prosecutors are essentially arguing for the threshold against the prosecution to held at a certain level or height, rendering anything they do something that cannot be faulted, said Mr Anil Balchandani.
This was said by Mr Balchandani in his closing oral submissions in the High Court on 26 April in the application to seek compensation from the state prosecutors under Section 359(3) of the Criminal Procedure Code.
The application by his client, former domestic worker Ms Parti Liyani, under this section, is the first in Singapore after it was introduced in 2010.
Ms Parti was accused of stealing items totalling S$50,000 from Mr Liew Mun Leong — her former employer — and his family members. Her case went to trial and she was found guilty by District Judge (DJ) Olivia Low, who sentenced Ms Parti to 26 months of jail in March 2019.
In clearing Ms Parti of her theft charges, Justice Chan Seng Onn in a written judgement observed that the prosecution had failed to demonstrate that there was no improper motive by the senior Liew and his son Karl in making the police report against Ms Parti.
At the start of the hearing, Deputy Public Prosecutor (DPP) Mohamed Faizal Mohamed Abdul Kadir argued that the DPPs were very serious in considering whether to call rebuttal witnesses to the Defence, as they had asked for time to consider whether to recall witnesses.
He said that the position taken by the DPPs here is a reasonable and tenable position to take.
In response to this, Mr Balchandani noted that the DJ did not call for a rebuttal witness, and therefore the ball was in the prosecution’s court.
What the evidence had shown is that the DPPs had the opportunity to call for rebuttal witnesses but decided not to do so, he said.
Bootstrapping to previous judgement by District Judge that was overruled
In his oral submissions, Mr Faizal referred to the prosecution’s various actions and compared them to the DJ’s written judgement, arguing that these would suggest that the prosecutors’ actions complained of by the applicant were reasonable.
On whether a reasonable person would have come to a view that the prosecution of Ms Parti was frivolous and vexatious, Mr Faizal argued that the DJ, in the written judgement, had accepted that the evidence presented by the Prosecution was more than enough to convict the accused.
Rising in objection to such line of argument, Mr Balchandani pointed out that the High Court has already overruled the judgement by the DJ and said that the DPP’s argument did not address the question of whether a third person could have come to the same decision as the Prosecution to prosecute Ms Parti.
Furthermore, Mr Balchandani also noted that it is very dangerous for the Defence to counter such a position, as he cannot say something that may verge into contempt of court.
Justice Chan chimed in at this juncture, saying that it is hard for the Defence to say the DJ is “so frivolous and vexatious”.
As for Ms Parti’s point on the chain of custody, Mr Faizal argued that the evidence — obtained from the Liew family — justified prosecution from the DPPs’ perspective.
He stated that there is no evidence before the DJ that clearly showed mixing of items from the black plastic bag, which was said to have been given to Ms Parti by another domestic helper, and that none of the prosecution witnesses asked whether they opened the black bag.
However, Justice Chan pointed out that the video played before the court had shown opened boxes and the black bag being opened — revealing the possibility of a mixing up of the items.
Mr Faizal claims that the DPPs relied on Karl Liew’s evidence that none of his items came from the black bag and that he would be well placed to say that the items were not from the said bag. Thus, in his view, the DPPs cannot be said to have acted unreasonably.
Mr Balchandani, however, questioned the Prosecution’s sense in deciding to prosecute Ms Parti solely based on what Karl told them without taking into account her side of the story.
Karl is currently charged for giving false evidence and false information to a public servant in Ms Parti’s case.
On how Prosecution valued the allegedly stolen items
Mr Faizal argues that the valuation of stolen items does not speak of the validity of the charge, but that of the sentence. It is not the DPPs who had made a random valuation of the items, but that the value of the items was based on the victims themselves.
Justice Chan responded by saying that the value should be respective to purchase price and not the Liews’ assessment.
He added that the witness’ credibility becomes an issue when something is highly valued but is actually hardly worth the estimated price.
Mr Faizal then argued on the rationale behind relying on the Liews’ valuation of the items.
Mr Balchandani countered him by saying that the prosecution came forward without any seriousness in the charges, placing value on the items without any serious justifications.
“What happens a person faces charges, he is already on the backfoot. When in the judge’s mind, you have stolen 53k of items, (and you have) already put the accused on the backfoot,” said Mr Balchandani.
He added that this is frivolous and that the prosecution cannot leave the defendant to prove the value of the items.
The machinery of the state must come to a standstill when someone’s life or liberty is at stake, Mr Balchandani said, stressing that the question of the valuation of the alleged stolen items in Ms Parti’s case is not a civil claim but a matter of life or liberty.
Mr Faizal countered by saying that it is not tenable for the prosecution to assess each item.
“Where there is a discrepancy, the court invites the prosecution to amend the charge. But cannot take this to an absurd outcome,” he said.
Mr Balchandani noted that the valuation of alleged stolen items has a direct colouration to the sentence.
Thus, if a person is charged and brought before the court, information pertaining to the evidence should be correct, he stated.
Referring to the alleged stolen watch that was originally valued at S$25,000 and then valued at S$500 by a horologist brought in by the Defence, Mr Balchandani noted that the value was changed by the DJ at sentencing to S$10,000 even though the Prosecution accepted that the watch was not working.
The prosecution, he stressed, should have amended the charges according to circumstances.
“This is an example of, what I believe, vexatious behaviour,” said Mr Balchandani.
On the matter of expert witnesses that could have been called by the DPPs in Ms Parti’s case, Mr Balchandani argued that none were called, as the prosecutors did not want to do so in the first place.
He further pushed a question to the Prosecution on what it chose for the charge when a damaged watch was allegedly stolen.
Mr Balchandani pointed out that the watch had a broken button and strap, and a few other things.
The horologist valued that it would cost S$3,000 to repair the watch to working condition and priced it to be S$3,500 if it is properly working. This is how the S$500 valuation for the alleged stolen watch came about.
Mr Balchandani implored the court to take a holistic view of what the DPPs should have done if they knew about what they should have disclosed.
“We don’t need to do anything, because the defence has done it. That is lowering the duty of the prosecutor, summarising the duty of prosecutor,” he remarked.
Hiding of crucial information by Prosecution
Mr Balchandani argued that it is not the damage stemming from the DPPs, for example, if there is abusive conduct that lasted for a day, as it will be missing the point of pursuing the disciplinary proceedings against the DPPs.
The real point, he emphasised, is their concealment of the faulty DVD player which led to the lower court finding Ms Parti guilty of the theft charges against her.
That information, in terms of the DVD player that was not working, corroborated Ms Parti’s evidence.
Ms Parti testified at trial saying she was told that it is was not working and that the family wanted to throw it away.
However, the DPPs did not provide this evidence.
“If we had not done the test, what would the prosecution have done? This is the issue of doing the right thing. Cannot hide behind the defence, that is the wrong answer. Leads the court needlessly to arrive at a conclusion that you did this for a specific case, promote a case of your victim, that the player was working.”
It was the corroboration of evidence that they were trying to avoid, said Mr Balchandani.
He argued that this is why the elements of frivolousness and vexatiousness exist, as this case should not have even made it to the court.
It ought to have been dismissed when certain evidence is weighed in, but the prosecution continued full steam ahead despite that, said Mr Balchandani.
In his conclusion, he remarked: “This Parti case provides, your Honour, this Court a new chapter in the criminal justice system, a chapter waiting to be rewritten …. We believe the elements for frivolous and vexatious have been made out and we leave it your honour and the wisdom of this court.”
Singapore Management University School of Law assistant professor, Benjamin Joshua Ong said that while the Prosecution argues that there is no rule and no case law for a line of questioning to be considered as frivolous and vexatious, at the same time, there is also no rule or case law for a line of questioning not to be considered as frivolous and vexatious.
In her submissions, Ms Parti quantified her losses at S$73,100, which includes S$37,500 in foregone salary; increments; and S$29,400 for the cost of lodging provided by non-governmental group Humanitarian Organisation for Migration Economics (HOME).
The AGC’s view is that the law only allows S$10,000 in compensation per trial, while Prof Ong opined that the compensation limit under this section should be S$10,000 per charge and not per trial.
Judgement was reserved by Justice Chan at 10am on Monday (21 Jun).
At least seven reporters from the media were at court for the hearing but no other report of the case has been made of the hearing.
- Public Prosecutors have nothing to fear if they do their job, says Justice Chan Seng Onn as Parti Liyani becomes first to seek compensation against AGC for “frivolous and vexatious” prosecution
- The case of Parti Liyani: All you need to know
Table of Conduct submitted to the Court by Ms Parti’s legal counsel[pdf-embedder url=”https://www.theonlinecitizen.com/wp-content/uploads/2021/04/Table-of-Conduct.pdf” title=”Table of Conduct”]