Free, yet faced with a mountain of debt

source: 'Today' newspaper, 5 June 2006

On August 4 last year , when Jagatheesan Krishnasamy met Gunaprakash N Thuraisamy to collect on a loan, little did he know that Central Narcotics Bureau (CNB) officers were watching and waiting to bust Gunaprakash the moment he delivered ecstasy pills to an undercover CNB officer, who had arranged a trap purchase. Following his arrest, Gunaprakash claimed that Jagatheesan had supplied the drugs. Seemingly on the strength of Gunaprakash's word alone, Jagatheesan was arrested -- even though he was not the target of the CNB operation and was never seen with any drugs. So began Jagatheesan's nightmare, which culminated in his being convicted and sentenced to five years' jail and 10 strokes of the cane for drug trafficking. 

On May 26 this year, Jagatheesan's ordeal finally ended when the appeal court quashed his conviction. He was a free man -- but not before having served months of imprisonment and being saddled with debts of tens of thousands of dollars for legal costs. Should Jagatheesan be left to bear the crushing burden of debt from legal costs? Although the High Court, after hearing appeals from the Subordinate Courts, has the power to order the prosecution to pay costs to a person who is acquitted, that power is practically never exercised. The situation is worse in the trial court. The law only allows recovery of costs by a person acquitted after a High Court or District Court trial if the prosecution was "frivolous and vexatious", making the right to costs practically illusory. The provisions relating to Magistrate's Court cases are even more archaic. The maximum amount that can be recovered upon acquittal is $50. 

It is anomalous that the Singapore courts routinely award costs to successful defendants in civil cases, but never to successful defendants in criminal cases. On the other hand, the law does not place any constraints on the power of the courts to award costs to the prosecution on conviction -- no $50 limit or requirement that the defence was "frivolous and vexatious", for example. In some cases, the courts have awarded costs of tens of thousands of dollars to the prosecution upon conviction of the accused person. 

"If the prosecution can get costs on conviction then even more so it is only right that an acquitted person should be entitled to costs. After all, what is sauce for the goose is sauce for the gander," said leading criminal lawyer Subhas Anandan, who acted for Jagatheesan. 

The position in Singapore contrasts sharply with that in England. The law in England states that if a person is acquitted, the court should normally make an order of costs in his/her favour unless there are positive reasons for not doing so. It would further the cause of criminal justice in Singapore if this approach were adopted here. Currently, many who are charged are reluctant to spend on legal costs to defend themselves when even a win means losing their savings. The outcome of a trial may be uncertain, but that they have to pay their lawyers is for sure. So, knowing that they have no prospect of recovering their legal costs may very well cause innocent persons to plead guilty. 

A person should not have to choose between a wrongful conviction and personal bankruptcy. There is no cogent reason why a person found innocent should have to bear the costs of his defence. The risk that a person can be wrongly charged cannot be altogether eliminated. The question is who should bear that risk. Surely, it is more apt for the state to do so. Since more than 95 per cent of cases end up in convictions, it is only in a handful of case that the state would have to bear such costs. Allowing an acquitted person costs would also signal to the prosecution that putting an innocent person through a trial has cost consequences. This is bound to serve as a healthy check on the prosecution. 

It is high time that the law in Singapore on costs in criminal cases was reviewed. Defence lawyers can take the lead by making more eloquent and forceful applications to the court when appropriate. But, ultimately, legislative changes are called for to make the criminal process more fair to serve us all. After all, the presumption of innocence probably sounds like a hollow promise to a person who walks out of a courtroom with the pyrrhic victory of an acquittal earned at the cost of a mountain of debt and without any compensation for the ordeal he/she has been through. 

The writer is a lawyer. This is his personal comment.

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