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Olympian. World record holder. First male swimmer to earn Olympic and World Championship gold medals for every freestyle distance from 200 to 1500 metres and dubbed the “greatest freestyle swimmer of all time” by NBC Sports. These facts clearly point to an athlete of exemplary talent and tenacity; a true “shark” in the pool.

But who is he? He is none other than Sun Yang, the same Chinese athlete who was issued a reprimand in 2020 and sanctioned by the world swimming body, FINA, for (a) refusing to sign paperwork required in the doping control process and (b) refusing to submit samples of his blood as required by an Anti-Doping Organisation (ADO). But which anti-doping rules did Sun Yang violate? Isn’t doping about the consumption of prohibited substances to boost an athlete’s performance?

This article seeks to clarify:
  1. What anti-doping rules are;
  2. Who sets them;
  3. What constitutes doping in sports; and
  4. How urine and/or blood samples are collected by an ADO.

What are anti-doping rules and who set them?
The World Anti-Doping Agency (WADA) is a foundation initiated by the International Olympic Committee (IOC) in 1999 to promote, coordinate and monitor the fight against the use of drugs in sports. In line with the purpose of an anti-doping programme – which is “to protect the athlete’s fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide” – the WADA created the World Anti-Doping Code (WADC), which is akin to a global rule-book for administering the anti-doping movement.

The WADC prescribes a set of punishments which applies to every athlete who flouts any of the 11 anti-doping rules or Anti-Doping Rule Violations (ADRVs), as they are known in the doping circles. Since WADA’s primary role is to develop, harmonise and coordinate anti-doping rules and policies across all sports and countries, this means that the same set of punishments apply to all atheletes worldwide. All recognised National Olympic Committees and International Federations under the IOC’s ambit are signatories to the WADC.
 
What constitutes doping?
ADRVs occur when an athlete or athlete support personnel (e.g. coach/trainer/team doctor) commits a doping offence when his/her urine or blood sample returns from the laboratory with an Adverse Analytical Finding. Should he/she be found guilty, there will be consequences or sanctions to that person.
 
There are 11 ADRVs in total.


It is important to note that the principle of strict liability applies to all anti-doping violations. This means that it is not necessary for the athlete to have intended to use the substance for him/her to be found guilty. Regardless of whether there was truly an intention to cheat or not, the athlete will be held responsible for any prohibited substance which is found in their body.

However, the degree of fault will be taken into account when determining the punishment the athlete will receive. An athlete may typically receive a period of ineligibility from competing as the punishment and the period of ineligibility could vary depending on the degree of fault. For instance, if the athlete is found to bear no fault or negligence, there could very well be no period of ineligibility for the athlete. If found to bear no significant fault or negligence, they could be rendered ineligible to compete for up to 2 years.
 
How are urine and/or blood samples collected by an ADO?
Every in-competition or out-of-competition testing begins with the provision of a urine and/or blood sample by the athlete. This is done under the strict supervision of a Doping Control Officer (DCO), who is of the same gender as the athlete.

During the process of testing, the athlete will urinate into the sample collection vessel right in front of the DCO so that the DCO has a clear view that the urine comes from the body of the athlete and not from any other source. The athlete will take the necessary steps to remove any clothing which may impede the line of sight of the DCO.

Similarly, for blood samples, the athlete typically rolls up his/her sleeves so that the instruments used will not be impeded. For this reason, DCOs work in pairs so that the other DCO (known as the Lead DCO or supervising officer) can act as witness to the entire process and record any anomalies in the process.

There is only 1 standard testing regime used to collect/analyse an athlete’s urine sample and the steps are as follows:
  1. Athlete selection – An athlete may be selected for testing at any time and place (e.g. whilst at home/ at the office/at his training venue or at the competition venue)
  2. Notification – A Doping Control Officer (DCO) will notify the athlete of his/her selection and reads them their rights and responsibilities. The DCO will then follow the athlete closely, to wherever he/she goes (warm down / medal ceremony / press conference / medical treatment etc).
  3. Reporting to Doping Control Room (DCR) – The athlete should report to the DCR as soon as he discharges his other responsibilities, as above.
  4. Sample collection equipment – The athlete will be given a minimum of 3 sealed sample collection vessels and kits to choose from. If he/she is unhappy with the chosen vessel or kit, he/she may request another to his/her satisfaction.
  5. Provision of sample – The athlete will then provide a urine sample under direct observation of a DCO of the same gender.
  6. Sample requirements – A minimum of 90ml of urine is required for urine samples. If the sample that is provided is not 90ml, the athlete may be asked to wait 1 hour before providing an additional sample. This additional sample will then be mixed with the earlier sample.
  7. The athlete will split the urine sample into Bottle A (minimum 60ml) and Bottle B (minimum 30ml).
  8. The athlete will then seal the bottles according to DCO’s instructions.
  9. The DCO will then measure the specific gravity of the sample to ensure that it is not too diluted to be analysed by the WADA accredited laboratory. The minimum is 1.005.
  10. The athlete will be asked to check and confirm that the information listed on the Doping Control Form is correct. This includes but not limited to his/her contact details, the medications / supplements / blood transfusion that he has had in the last 7 days.
  11. The urine samples will then be sent to WADA accredited laboratories for analysis.

If the athlete is found to have a prohibited substance in his sample, he/she will be invited to the testing laboratory where his/her sample from Bottle B will be opened in his/her presence and analysed. If the analysis from his/her Bottle B sample confirms the initial Adverse Analytical Finding (usually it does since it is from the same sample provided by the athlete on that particular day/time), the case will then be referred to the next stage, which is referred to as Results Management.

The athlete in question will then likely appear before a Disciplinary Hearing convened by the ADO and his/her National Sports Association (NSA). With possible assistance from his/her counsel, the athlete will now need to prove on a balance of probabilities that it is possible and plausible (i.e not a mere speculation) that there could have been an act of sabotage, manipulation, contamination, pollution or accidental use and that he/she did not knowingly commit the ADRV. The athlete has the option of choosing whether he/she would like to be legally represented.

Where possible, the athlete could list the possible source of the prohibited substance (e.g. adulterated meat) or even highlight any departure from the international standards that could possibly have contributed to the AAF.

Following which, the athlete may reach an agreement to conclude the case IF he proves his case successfully. There are 2 types of agreements – the results management agreement and the case resolution agreement:


If the athlete in question wishes to contest the charges, the case will proceed to the Court of Arbitration for Sports (CAS), as wase the case for Sun Yang.

What is CAS?  
CAS is an institution independent of any sports organisation which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world.

Created in 1984 and located in Lausanne, Switzerland, CAS has 300 arbitrators from 87 countries, chosen for their specialist knowledge in arbitration and sports law.

It should be noted that the award pronounced by CAS is final and binding on parties. It is enforced in accordance with the New York Convention which has more than 125 signatories.
 

What actually happened in Sun Yang’s case?
It started out like any other routine Out-Of-Competition Test (OOCT). Somewhere during the sample collection, Sun Yang noticed that one of the members of the Anti-Doping team was taking pictures of him. He immediately asked for the DCO’s Accreditation Card, to ascertain his identity but was rebuffed. This led Sun Yang to suspect that the testing personnel did not possess proper credentials and thus, his refusal to cooperate further. In anger, Sun Yang also smashed the vials containing samples of his blood which had been taken earlier.

As the test was authorised by the International Swimming body, FINA, a tribunal was convened to discuss the manner in which the sample collection had taken place. It concluded with the finding that “any blood sample collected without proper authorisation cannot be considered a sample and therefore, there was no anti-doping rule violated.”

However, WADA did not agree with FINA’s decision and appealed to CAS. A panel of three arbitrators then unanimously found Sun Yang guilty of refusing to cooperate with the DCO and of refusing to provide a sample. Following this, Sun Yang was issued an 8 year ban from swimming.

However, following accusations that Sun Yang’s testimony was lost in translation during the 2019 trial, CAS convened a new panel of arbitrators who then handed a 4 year 3 month ban to Sun Yang thereby ruling him out of the Tokyo 2020 Olympics and possibly ending his swimming career.

But… what happened to Joseph Schooling in August 2022?
On 30th August 2022, news broke that 2016 Olympic Gold medallist and national swimmer, Joseph Isaac Schooling confessed to smoking cannabis during an overseas training stint in preparation for the 31st South-East Asian Games.

Whilst there was a huge public uproar about Schooling’s smoking of cannabis in anti-drug Singapore, the question remains: did Joseph commit an ADRV?

The simple answer is no as there was no mention of any AAF from the SEA Games swimming competition. This means that Joseph was either not tested during the Games (the Games organisers have neither confirmed nor denied this) or he was tested and his test(s) came back negative.

Either way, this means that he was never caught with a prohibited substance (cannabis) in his urine during any in-competition testing conducted recently and thus, does not face any ban or sanction from competition. In fact, the news of his smoking of cannabis only broke because he made a confession to the Central Narcotics Bureau just before submitting to a random urine test under CNB’s watchful eyes. The test came back negative for all known prohibited drugs, including cannabis.                

Whilst this confession may be evidence of a breach of Article 2.2 of the WADA Code i.e. the “use” of a prohibited substance, it is only applicable if and only if there was evidence that the “use” occurred in-competition during the SEA Games.

One must bear in mind that cannabis is indeed a prohibited substance as per WADA’s prohibited list but only in-competition. This means that if Schooling had smoked cannabis a couple of days prior to any anti-doping test during the Games, his sample would have definitely been flagged as AAF as the single usage of cannabis can be detected up to 3 days after one’s last use. Therefore, it is this author’s firm belief that Schooling only smoked cannabis during the R & R period before his return to Singapore, after competing in the SEA Games.

His NSA, the Singapore Swimming Association and the Singapore National Olympic Council are expected to reprimand him for conduct unbecoming of an elite athlete and sports icon. But, to reiterate, it is highly unlikely that he will be facing a ban from competition since none of his urine samples from in-competition testing contained prohibited substances.

However, as Schooling is currently a conscript with the Singapore Armed Forces (“SAF”), he will be dealt with in accordance with Military Law. From recent news reports, we learn that Schooling will be subjected to 6 months of supervised urine tests and will no longer be allowed to take leave from his military duties to compete in overseas competitions.

Hence, whilst Schooling faces no immediate anti-doping bans from swimming competitions, it seems unlikely that Schooling will feature in 2023’s Asian Games in Hangzhou, China and the 32nd SEA Games in Phnom Penh, Cambodia since the SAF ban will prevent him from taking leave from military duties to compete in future overseas competitions thereby pushing the pause button on his swimming career.

Conclusion
The anti-doping movement exists to keep sports on a level playing field for all athletes. Hence, the strict enforcement and the constant and regular testing of athletes in and out of competition keeps elite sports competitive but fair. Nevertheless, athletes should always be aware of their rights and responsibilities as elite athletes and be guided by the strict liability rule that governs the anti-doping movement for a small mis-step can spell the end of their sporting careers.
 
Authors’ Biographies
Zaher Bin Wahab (“Zee”) is a Sophomore at the SUSS School of Law and also serves as a Doping Control Officer with Anti-Doping Singapore. He looks forward to practising Community Law (Criminal, Family and Sports Law) when called to the Bar. Concurrently, serves as President of the Asian Law Students Association S’pore (ALSA SG) and strives for greater interaction and collaboration between students from the 3 Law Schools in Singapore. This is his first published article.
 



Alyssa Phua is a fourth year NUS undergraduate pursuing her double degree in Law and Business. As a strong believer in the need to promote greater appreciation of forensic evidence, she founded CJC Forensics (CJC-F) in 2020. As the director of CJC-F, she directs, coordinates and oversees all activities, events and projects.
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About the prosecutors

A fingerprint on a dusty windowsill – the sole evidence used in nabbing the accused of a housebreaking incident. “That case stuck with me because of how meticulous the crime scene experts were,” Ms Grace Lim recalls from her time as a young prosecutor.

“I wanted to be a police officer,” she also shares. However, her parents thought that it was a risky job. In turn, she applied for law school, and was pleasantly surprised that “mooting and cross examination were quite fun”.  

Following a degree in law at the National University of Singapore (NUS), Ms Lim became a Deputy Public Prosecutor (DPP) at the Attorney-General’s Chambers (AGC), where she joined the State Prosecution Division, and was later posted to the Financial and Technology Crime Division. She then held an appointment of Director (Legal) at the Health Sciences Authority (HSA).

Currently, she takes on the role of a Deputy Director in the Crime Division of the AGC and specializes in financial crimes.

Also with us is Mr Eugene Lee, a senior state counsel at the AGC, now primarily prosecuting sexual crimes. He is concurrently an esteemed lecturer in forensic science at NUS.

When asked about his most unforgettable case involving forensic science, Mr Lee hesitates, “quite difficult to say”. At our insistence, he reveals that it was the first case he handled as a prosecutor, a grievous murder at the Drug Rehabilitation Centre. Provoked by the deceased over a game of table tennis, the accused covertly “sharpened his toothbrush into a sharp point”. It was then used as the fatal weapon which pierced the deceased’s carotid artery, regrettably leading to his death. “The blood spatter was all across the wall,” Mr Lee recalls.  

On what was the most impactful, Mr Lee recollects words from the deceased’s family, “Thank you for seeking justice for my son.” “And that I remembered all my life. It is all about seeking justice for people,” he says.


Role of prosecutors

Although fiction and television might make it seem that prosecutors who specialize in a certain field will only be assigned cases in that cluster, the reality is much more fluid. A prosecutor who primarily does homicide cases can be assigned a sexual assault case, or even a financial corruption case from another cluster. “Even though I specialize in corruption, I have just been assigned to assist in a capital drug trafficking trial,” Ms Lim shares.

“While the subject matter of what we handle is different, the type of work that we do is really not that much dissimilar,” she explains, describing the way cross-handling occurs on the job. “We look at the files that come in and assess whether there is sufficient evidence collected by the police or other investigative agencies to make out the charge. Then we decide whether to charge, warn or take some other action against the offender. We render advice to law enforcement agencies as well,” she adds.   

The only difference between being a prosecutor and a lawyer in a law firm, Ms Lim jokes, is that prosecutors cannot decline cases. Mr Lee qualifies this by adding that DPPs do so in special circumstances, such as when the accused is known to them. They would then declare the existence of a personal interest for impartiality’s sake. Notwithstanding such conflicts of interest, prosecutors generally do not decline cases, and are assigned cases based on “their level of seniority and how complex the case is”. 


Use of forensic science in cases

Many cases require some degree of forensic science. The classic application of forensic science is common in homicide, drug and sexual offence cases, with digital forensics having a paramount role in modern investigations.

What exactly is digital forensics? Mr Lee summarizes it as investigations relating to mobile phones, email correspondence, social media and other digital platforms that likely hold valuable information concerning the case at hand. Not only will there be a sheer amount of evidence to go through, much of it is often irrelevant, making it an extremely tedious exercise. “Sometimes you strike a gold mine,” he points out, with the discussion of crimes captured in online correspondences, but such occurrences are rare.

Ms Lim also remarks, “Digital forensics is like a workhorse, we use it to plough through all the evidence and tie together the threads of different things one has.” The need to synthesize is thus imperative in digital forensics.

Ms Lim illustrates this with the case of Public Prosecutor v Ding Si Yang [2014] SGDC 295. Ding, the accused was found guilty of providing “girls” to three Lebanese referees in exchange for match-fixing. The incriminating evidence was collated by sieving through the match-fixer and referees’ emails and WhatsApp messages. It revealed how they were introduced to each other and the type of corrupt offers made. The match-fixer’s call logs were also used to corroborate how and when the girls were provided to the referees. As Ms Lim sums up, “The digital evidence in the form of emails, messages, and call logs were thus important evidence that helped to piece together and explain the purpose of disparate meetings between the key players.”

Undoubtedly, with the prevalence of smartphones, even in cases like murder and rape (which physical evidence predominates), one cannot exclude the use of digital forensics, with “phones now important in every single type of crime handled”.


Expert witnesses

In relation to presenting forensic evidence in court, the role of expert witnesses is vital. Prosecution evidence is for the most part processed by forensic scientists from HSA. Sometimes, external consultants are also involved. Before forensic scientists testify in court as expert witnesses, they have to be trained. “With their basic knowledge of law from the TV, they have to go to court and testify. That’s not enough,” Ms Lim says.

HSA has their own internal training to help expert witnesses better understand the court process, and the legal department also steps in to run mock testimony practices for them. “My role in relation to expert witnesses is really to advise them on the law and help them to understand the whole criminal process,” Ms Lim adds, providing an insight into her experience in training expert witnesses as a former Director of the legal department at HSA. 

Apart from addressing questions expert witnesses often have, her role includes analysing the reports expert witnesses have prepared and predicting possible issues that might arise. More importantly, she arranges mock testimonies for the expert witnesses. “They are trained in Science while lawyers are trained in law, and when we come together, we need to understand what each other is doing,” Ms Lim shares. 

She then points out, “As legal counsel when we try to do the mock testimony for them, we have to come out with the facts. Otherwise, it is impossible to do any sort of examination-in-chief or cross-examination without a case theory.” This comes with the fact that the expert witnesses have no knowledge of the background of the case to ensure impartiality.

Perhaps the most important in a mock testimony is restricting the use of extensive technical jargon by expert witnesses. “Forensic scientists must be able to explain the concepts in a simple manner such that lay persons with no background in Science will be able to understand,” Mr Lee says. With the prosecution, defence and judges comparatively having a limited understanding of Science, it is essential for expert witnesses to explain their analysis in a simple manner.


However, “It is not easy for them because they speak to each other every day in jargon. Lawyers use the terms like ‘negligence’, and ‘ameliorating the damage’. It is the same problems that scientists will have,” Ms Lim remarks. Also, “Singapore is quite insulated in this aspect,” Mr Lee adds. “In the US, they have a jury system, and they are neither trained in science or law, so the explanation has to be simplified even further, or the jury will not be convinced.”

Moreover, expert witnesses have to deal with the pressure of being in court. As such, part of the training includes “making sure they are more confident, that they can explain themselves clearly and be unrattled by the barrage of questions coming in from different angles. There won’t really be concerns with the content of their work, but more of how they carry themselves in court. Little things to tweak their presentation, ensuring that their evidence comes across as convincing,” Ms Lim says.

Prosecutors also have a role in preparing expert witnesses. Mr Lee explains the process, “First, they come up with a report. After we read through the report and if we need clarification from them, we will set up an interview with them and ask them about specific parts and sometimes when we realize that the particular issue may be very complicated, we might ask them to create slides to help present that concept in court.” Certain aspects of their testimony are then evaluated, like the extent of technical jargon being used, how the results were derived and whether there is any possibility of mistake.

However, such discussions can only happen after the expert witnesses have done their analysis and written their final reports. “We only talk to them after that to understand what they are doing for the trial.” Notwithstanding the liaison between the HSA and the prosecution in prepping the expert witnesses for trial testimony, both parties still work relatively separately. Singapore’s criminal justice system is such that the scientists in HSA are insulated from the criminal investigations, so that they can maintain their independence in arriving at their scientific conclusions.

As Ms Lim explains, “It’s not like TV where you see the prosecutors, police and scientists sit together to discuss what to put in the report. Because they are experts, they have to have their own opinion and do the analysis themselves and be able to back it up.”  


Challenges in the use of forensic science

In using forensic science as the basis for evidence, it is foremost imperative for everyone to come to the same understanding. However, it is often not the case. “People make a lot of assumptions about Science because if you know a little bit of Science, you kind of jump the gaps between understanding and assuming that if I know theory A, it should apply the same way to what the scientist is talking about that is kind of similar. But that may not necessarily be true,” Ms Lim says. 

To this, Mr Lee concurs, illustrating this with a High Court case that he handled. “There was a lot of blood over. They swabbed for DNA, but there was no DNA. So the judge said, how come there is no DNA?” he says. The answer lies in the low proportion of nucleated white blood cells in blood available for DNA extraction. “The judge did not know this. A lot of assumptions are made about Forensic science because of CSI. Previous episodes of CSI are very inaccurate.” It is thus imperative for mock testimonies to be arranged so that scientists are aware of explaining the step-by-step process of their analysis, debunking any possible assumptions made.

To narrow the scope of discussion, we further explored the limitations of both DNA and pattern recognition evidence. 


DNA evidence


The media quite glorifies the use of DNA analysis in solving criminal cases. Almost everything can be solved by a single DNA swab, with instant results. The reality, however, is quite different. 

To begin, Mr Lee points out, “DNA is obtained from the nucleus of cells, and cells will die with exposure to bacteria, heat and UV lighting.” DNA evidence is thus ideally analysed as soon as possible. However, if HSA is overwhelmed with many cases and the submission of multiple exhibits, it will take a long time to process the samples.

To avoid compromising on the integrity of DNA, the evidence is stored in the fridge. However, this cannot account for how long the police takes to the find the piece of evidence, swab it and send it to HSA for analysis.

Ms Lim adds that with forensic evidence, there is usually a “trade-off between accuracy and reliability against how quickly the results can be obtained”. Rapid DNA analysis can definitely be done, but parties might be uncomfortable using such results in court. Explanations will have to be given to further convince the court that the results are reliable. Instead, a thorough analysis done over a longer period of time would most likely give fool-proof results.

Similarly, for digital forensics, a brief preview of mobile phones and hard drives can produce useful information. However, information hidden in encrypted folders or deleted can only be found through a fully digital forensic analysis where the information is put through a forensic software, allowing a complete investigation.

Mr Lee then advises that DNA evidence is not an absolute requirement in cases. “In the 90s, we did not use forensic evidence, we used confessions due to the limited forensic evidence one could obtain,” he explains. However, in the past decade, the focus shifted to the use of forensic evidence in court, where judges prefer objective evidence to verify the veracity of witness testimonies.

Mr Lee remarks, “DNA evidence has only one purpose – to link the suspect to the victim by the showing that the suspect was at the scene. Other than that, DNA cannot tell you what the suspect did, what time the suspect was there, and how long the suspect was there… In most cases, DNA evidence does not really play a crucial role that makes or breaks the case.”

He illustrates this with the case of Public Prosecutor v Wang Wenfeng [2011] SGHC 208, which he personally worked on. In this case, the accused’s DNA was not found in the taxi in which the deceased was killed. The defence then attempted to argue that the deceased stabbed himself, which led to his own death. However, despite the lack of DNA evidence,  the accused was eventually found guilty of murder. Evidently, “Forensic evidence cannot be seen in isolation. It has to be seen in the wider context, regardless of whether it aids the prosecution or the defence.”  


Pattern recognition evidence

Apart from DNA evidence which is perceived as the gold standard of forensic science, there are other forms of evidence, like pattern recognition. Pattern recognition evidence broadly encompasses fields like tool marks, bite marks, firearms analysis and even fire reconstruction.

The use of pattern recognition evidence is however controversial, with courts pushing for a statistical basis of such evidence, as can be applied to DNA. “Unfortunately, all the pattern recognition experts are largely unable to come up with such statistical basis, causing it to be termed ‘junk science’,” Mr Lee remarks.

A prime example is bite marks. Although Mr Lee highlighted that bite marks can be individualistic, Ms Lim points out that “It would be almost impossible to conduct a thorough study on the whole universe of bite marks, and thus a statistical analysis would be very difficult to do.”

Regardless, Mr Lee shared that bite marks may be relied on for elimination rather than specifically identifying a suspect as the accused. He specifically referred to the case of Public Prosecutor v Sundarti Supriyanto [2004] SGHC 212. In this case, there were bite marks on the accused, and three persons who could have inflicted them: the employer (deceased), a toddler and an 18-month-old baby. The accused claimed that the bite mark belonged to her employer, but after close examination, forensics experts ruled that the size of the bite mark belonged to a toddler rather than an adult. The bite mark evidence was thus used to discredit the accused’s account.

Nevertheless, compared to bite mark evidence, fingerprint evidence is widely regarded to be a reliable form of pattern recognition evidence. In fact, “Fingerprints have become the accepted standard for identification by the government, banks, and even handphones.” Since fingerprints are individualistic, it would also be simpler to do a statistical analysis compared to bite mark evidence.


Forensics in Singapore and the United States of America

We also took this opportunity to ask Mr Lee about his experience in the US, where he studied forensic science under Dr Henry Lee, a renowned Taiwanese-American forensic scientist. Mr Lee identified two key differences between the practice of forensic science in Singapore and the US.

Firstly, it is relatively easy for the defence to obtain forensic experts in the US. In Singapore, however, forensic experts from HSA largely work with the prosecution and the police. The defence has access to a smaller pool of forensic experts and they may even need to engage forensic experts from overseas.

Secondly, “Prosecution expert evidence is constantly being challenged in the US, ” remarks Mr Lee. US attorneys tend to attack not just the forensic reports, but the expert witnesses themselves. There are even courses organised by defence lawyers on how to tackle forensic experts, starting with the report, then quickly moving on to the “witnesses’ history, work and love life”. The situation is such that more forensic experts in the state and federal courts are afraid of being sued. Although such a phenomenon is not currently present in Singapore courts, Mr Lee cautions that this practice might be gradually adopted here.


Future of forensic science

How will the use of forensic science in Singapore continue to develop? Mr Lee believes it will become more commonplace as prosecutors increasingly rely on forensic science to prove that their “evidence is objective and reliable as possible”.

“Of course, we have to go with the times,” Ms Lim adds, explaining that with the increasing expectation to use forensic evidence in court, the onus is on the prosecution and HSA to produce such evidence in trial.


Concluding remarks

Although both Mr Lee and Ms Lim acknowledged that their journey as prosecutors is not smooth sailing, their purposeful work is what keeps them going.  

“I persevere and think that the work is very meaningful. It is something that we do, to give people a voice,” Mr Lee says. Ms Lim then adds, “The work that I do has an impact on real people, their lives, the people around them. I think it is very fulfilling when you see victims getting justice.”

As a concluding statement, both our guests shared that if you are interested in forensic science and want to deal with it on a more regular basis, the AGC is the place to be.

We would like to extend our utmost gratitude to both Mr Lee and Ms Lim for taking their time out to be part of this meaningful interview.



Authors’ Biography

Jeslyn Tan is a Y2 student at the NUS Faculty of Law. She is currently part of the Criminal Legal Aid Scheme, helping lawyers with pro bono criminal cases. She is also a part of CJC Forensics. In her free time, she enjoys reading fiction novels.











Phoebe is a final year undergraduate with a major in life science and a minor in forensic science. To pursue her passion in forensic science, she joined the NUS Criminal Justice Club.

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On the 22nd of October 2020, we had the pleasure of engaging with Mr Sunil Sudheesan and Ms Diana Ngiam to learn more about their experience as defence lawyers and the role of forensic science in their practice. Mr Sunil Sudheesan and Ms Diana Ngiam are both practicing criminal lawyers in Quahe Woo & Palmer LLC and had the privilege to work under the guidance of Mr Subhas Anandan.
 
What is the one thing you look forward to in each case?

Mr Sudheesan: While a win is ideal, we primarily look towards obtaining a good result.

Ms Ngiam: Yes, a win is a good result. In pleading of guilt scenarios (“PG”), the focus is more on ensuring that the accused receives a fair sentence.
 
Having done so many cases, what is the most memorable case that you were a part of?

Mr Sudheesan: For me, it is the case of Took Leng How v PP, which is also in Mr Subhas’ first book. In this case, the accused, Took, killed and stuffed the body of an eight-year-old girl in a cardboard box, before disposing of the box in Telok Blangah Park. Despite our expert saying that he was schizophrenic, the court disagreed with us, drew an adverse inference, and eventually convicted him. As a case that I undertook during my first year of practice, it was pretty traumatic.

Ms Ngiam: For me, there are a few memorable cases that come to mind. The one that hit me hardest was PP v BDB. In that case, the victim was abused by his mother to such an extent that he died. At the PG hearing, we engaged in a “hot tubbing” session and further discussed the issue of psychiatric evidence.  In the “hot-tubbing” session, both experts, the psychiatrist from IMH and our private psychiatrist, went to court and talked it out. Whoever had questions would ask the experts, and the experts would give their answers and exchange their views. These “hot-tubbing” sessions make it much easier for parties to understand and digest the information and make a decision as to what expert evidence to refer to.

The Judge that presided over the PG sentenced the mother to 8 years imprisonment. We were asking for less than 10 years, while the prosecution was asking for at least 12 years, so naturally the prosecution appealed.

The way the Court of Appeal works is that there are multiple judges asking the questions one after another, this required a lot of thinking on my feet. The Court of Appeal allowed the appeal and imposed a heavier sentence of 14 years and six months. The sentence hit me very hard because I didn’t know if I could’ve done better. I think such experiences are good because it makes you think and work harder.

[In the case of PP v BDB, the Court of Appeal allowed the Prosecution’s appeal, and eventually imposed a heavier sentence of 14 years and six months’ imprisonment.]
 
How do you use Forensic Science findings to aid your cases, and how often do you use it in criminal trials?

Mr Sudheesan: My experience is with 2 cases, Eu Lim Hoklai v PP, as well as PP v Constance Chee. That was quite early on in my practice, so I had to go and find the experts myself. For Eu Lim Hoklai, we flew in Johan Duflou from Sydney, and he came in twice to give evidence. We had to go and get his report to refute the prosecution’s experts and we succeeded in the end.

[In the PP v Constance Chee case, the accused, Constance Chee faced charges of kidnapping and causing the death of a four-year-old girl by causing her to fall from a HDB flat.]

For Constance Chee, the HSA experts used bags of pork to simulate the victim’s fall. On our end, I got a physics expert from NUS to create models on how the body fell. This is because the issue in that case was whether there was a struggle resulting in the fall or whether the young child was thrown over the ledge. In that case, we didn’t succeed, and it was accepted that Constance Chee intentionally killed the toddler. She was ultimately sentenced to 13 years’ imprisonment.

[Having been heavily involved in the case, Mr Sudheesan wonders if the HSA experiment could have been conducted in a more controlled and rigorous manner. Nonetheless, he acknowledges the importance of forensic science in criminal trials over the years and indeed, for the future].
 
As a defence lawyer, how do you get access to the findings of the forensic scientists? How do you then deal with the forensic evidence presented to you in the case?

Mr Sudheesan: Most times they give us the report that they are going to rely on. We then have to get our experts in and ask for the source material. The tricky part is when source material is missing or no longer available.

Ms Ngiam: The tricky part is also getting and locating private experts in Singapore. This is because there are many different aspects of forensic science and we don’t have many experts in Singapore apart from those working for the government. So, we are sort of at a disadvantage. There’s been a group of experts that have left the HSA to form their own team (TFEG), so that’s helpful for us, in terms of finding handwriting experts and so on.
 
Are there any difficulties in presenting forensic evidence in court? Do you then think that the use of forensic evidence in court can be improved in any way?

Mr Sudheesan: Ideally you have a slide presentation to bring the Court through your evidence. Some Judges are technical experts. For example, Justice Chan Seng Onn who was a former engineer and thus able to grasp the physics side of things pretty quickly. However, for others, it may be harder for them to understand how particular aspects of forensics (eg. blood spatter) work. In such cases, we need to get the expert to avoid convoluted terms and reduce the content to a form that can be easily understood.
 
How has the use of forensic science in court changed over the past years? How do you think forensic science will change in the years to come?

Mr Sudheesan: Over the years, scene reconstruction has been done less frequently; this is because the accused often agrees to a certain set of facts early on in the investigation stage. On a more general note, while forensic science will likely be used more frequently in the future, it is our hope that it is used in a controlled manner. 
 
Both of you worked on the case of PP v Kong Peng Yee together. Could you tell us a bit more about that case and how forensic science played a role?

Mr Sudheesan: The forensic evidence involved in this case was psychiatric evidence. There are 2 stages to things. Firstly, the information gathering conducted by the expert. This will depend on how meticulous they are and what questions they ask to get more information from the accused as to their state of mind at that time. The second stage is the analysis, where you get the facts you have and apply it to the Diagnostic and Statistical Manual (DSM). This will give you a general outline of what the symptoms reflect, and you form your conclusions on possible underlying psychiatric conditions. So for the hard sciences, most of the time you do reconstructions, what kind of angles, what kind of blood spatter patterns there are, and so on.

Ms Ngiam: So, for the case of PP v Kong Peng Yee, we didn’t have to get our own expert, because the reports prepared by IMH were favourable to the accused.
 
When do you decide to look into the psychiatric evidence?

Mr Sudheesan: In all capital offences the accused gets sent to IMH for a review. However, sometimes when there are a few indicators but IMH doesn’t say that there was a full psychiatric condition present, we can get a private professional to do a more in-depth study.
 
Is there a difference in the way you deal with the forensic evidence for rape cases (in terms of the sensitivity of the evidence) such as in the case of Ong Mingwee v PP?

Ms Ngiam: For rape cases I think it becomes more sensitive when for example the alleged victim says there was rape, while the accused says there was no sexual intercourse at all. Then it becomes a lot more sensitive because you have to look into possible injuries that were found on the alleged victim. But if the positions on whether there was intercourse are not that far apart and it goes down to a matter of consent, then it may not be as sensitive.

In the Ong Mingwee v PP case, the issue was consent, rather than whether there was sexual intercourse. Consequently, for that case, we focused more on the behaviour of the victim during and after the incident.
  
Is forensic evidence important in scene recreation of smaller cases, like road traffic accidents?

Mr Sudheesan: Extremely. Especially in accident reconstruction and in alcohol back-counting for drunk driving. Reconstruction is all your physics, and what control elements are there. There are multiple causative factors and multiple conclusions that can be drawn from a set of facts.
 
Closing the seminar, Mr Sudheesan and Ms Ngiam advised aspiring criminal lawyers to be ready to face failures, but to remain headstrong and keep working hard to achieve a good result for the defendant. Through our informative and engaging chat with Mr Sudheesan and Ms Ngiam, we learnt much about life as a criminal lawyer. We thoroughly enjoyed ourselves, as we also learnt more about working as a criminal defence lawyer. We would like to express our deep gratitude to both Mr Sudheesan and Ms Ngiam for taking the time and sharing their experiences.


Authors’ Biography

Megan is currently pursuing a double degree programme in Law and Life Science. Having completed 2 years in Life Science, she is now in her third year of the programme. Megan took an introductory module in Forensic Science in her 2nd year of university which sparked her interest in the field. She is currently pursuing this interest by being a part of CJC-F.











Kiria Tikanah is a Year 2 undergraduate at the Faculty of Science. She is a Chemistry major, minoring in Forensic Science. Studying Chemistry has helped Kiria to understand better the works of Forensic Science, and she hopes to put her knowledge and experience into good use as she aspires to pursue a career in Forensics. Kiria is also involved in the NUS Chemical Sciences Society as a Projects Executive, and is involved in planning and organising many projects like the Chemistry Camp. Outside of school, Kiria spends most of her time training, as she is part of Singapore’s National Fencing Team. As Singapore’s top fencer in her discipline, she has brought glory to Singapore and NUS, even being a SEA Games Champion in 2019.
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CJC-F Announcements, CJC-F Insights
On 30 October 2020, we completed our series of seminars by interviewing forensic experts Dr Michael Tay and Ms Lim Chin Chin, who are founding partners of The Forensic Experts Group (“TFEG”). Both have had extensive careers with the HSA and TFEG, and even pioneered the development of Bloodstain Pattern Analysis and Forensic Reconstruction in Singapore. In this seminar, we had the privilege of learning from their wealth of experience.


General Questions

Q: At our previous seminar, Mr Sunil Sudheesan said that he was grateful for TFEG. Was there a specific reason why you decided to create TFEG?

Ms Lim: There is a local need for an organisation like TFEG. While prosecutors have access to forensic experts in HSA who are able to explain the forensics report, we realised that defence lawyers do not have such a luxury. Defence lawyers were often required to outsource their experts from overseas. In addition to the cost of analysis, there was also the cost of flying the expert in for pre-trial discussions and the trial itself. Moreover, it was difficult to find a reliable expert as overseas experts are largely unbeknownst to local lawyers.

Dr Tay: It is important to look at things from a different perspective. We had this common goal of levelling the playing field by providing forensic resources for defence lawyers. Interestingly, Ms Lim shared with me before that Subhas Anandan had previously asked her why there was no independent agency for forensic science. After working at HSA for so long, I wanted to try something new, so we embarked on this bold adventure to apply our skills in different areas and contribute to the justice system in Singapore.

Q: Ms Lim and Dr Tay, you both co-authored the book Forensic Science-Briefs for the Legal Practitioner. What inspired you to be part of the team for this book?

Ms Lim: Locally, there weren’t any forensic books that talk about Singaporean cases. We wanted to provide some case studies, explain a little more of their contexts, and share about our experiences, knowledge and challenges in the job. When lecturing in NUS and NTU, there were no textbooks that we and the students could refer to. Additionally, we felt that it would be good to have the book to assist lawyers, especially defence lawyers.

Dr Tay: We did not want to write the book like any other forensic textbooks. We wanted to write something that is very localised, which people can relate to easily.

Ms Lim: In fact, we also wrote two other books (Discover Forensics 1 and Discover Forensics 2) catered to teenagers and young adults. Discover Forensics 2 was even shortlisted for the Best Education Title in the Singapore Book Awards this year. The book is filled with fun facts that are presented with a lot of graphics.  It aims to nurture the young minds to have an interest in science, to further pique their curiosity and to realise that certain experiments they learn in school can be applied to real cases. We’ve also received feedback from some of the lawyers that they liked the book and that it is an easy read.

Q: Are there any other future plans for nurturing aspiring forensic scientists, such as supervising more self-led forensic projects so that your legacy could be passed on?

Ms Lim: It is always exciting to nurture students. We wrote articles in the Law Gazette to share our knowledge. While we can sometimes get busy with work, we feel a social responsibility to nurture young minds. Unfortunately, the research projects that we do are very case-related. There are challenges related to confidentiality issues when we involve students in such projects. That said, we will consider your suggestion.


Technical Questions

Q: What has been the most important skill you have learnt in forensics?

Dr Tay: Observational skills are also very important. One should not just be satisfied with the obvious but go in-depth. It is not just having hard skills like how to operate an instrument for analysis.

Ms Lim: Interpretation. An expert may have access to the best equipment and know it inside out, but it is more crucial to be able to put things together and interpret the scientific findings from various perspectives. An open mind is needed to consider the various scenarios and possibilities.

Q: Which areas of forensic expertise are the most challenging in terms of analysis and interpretation?
Ms Lim: Reconstruction. There are many aspects to reconstruction; whether it is done on a limited or wider scale depends on the case and what the client needs. As forensic scientists, we have to address the main concerns and questions posed by the client and the court. Ultimately, the purpose of reconstruction is to assist the client and the court, and to focus on what is most important to the case.

Q: Are there any future forensic breakthroughs to improve the current criminal justice system?

Ms Lim: Technology. If you look at the police, they have used technology very well over the years (e.g. 3D scanners, sketch plan drawings). Instruments are getting better and more sensitive. Digital evidence was the last breakthrough, and before that it was DNA. More breakthroughs are bound to happen in the years to come.

In terms of gathering evidence, a lot has changed in the last decade, especially how evidence is displayed and illustrated. There are now also more checks and balances, which is important especially in criminal cases where a person’s life hangs in the balance and justice is at stake.

Dr Tay: Expert systems and technology have certainly improved. In the future, I believe we will see more AI and greater sensitivity of instruments. This may result in scientists who only know how to use the machine to get results but do not understand how the machine works. It is important to ensure that the user always understands the processes happening within the instrument. Essentially, experts cannot be overly reliant on technology.

Q: Dr Tay, while you were in HSA, you were the only traffic accident reconstruction expert. How often do you have to deal with such forensic evidence?

Dr Tay: Traffic accidents happen very often in Singapore. Considering the damages incurred, the insurance claims, and injury to people (e.g. on life support or permanent medical care), the cost can be much higher than death. We felt that in Singapore, we need strong capabilities in this area. We wanted to create and secure the reliability of this essential forensic capability.

In traffic accident reconstruction, the forensic work sometimes requires us to work with other agencies (e.g. traffic police). Even though I received my training overseas, we need to constantly adapt by designing and updating procedures that are more suited for Singapore. For Ms Lim and me, it is always interesting to start something new. Contrary to popular belief, forensic scientists do not work in the laboratory all day.

Q: What inspired both of you to pioneer the development of bloodstain analysis for forensic reconstruction in Singapore which has gained acceptance in court and is widely used in high-profile cases?

Ms Lim: It started off because of the dying trend of trace evidence. Many organisations felt that it was an area that requires extensive training, while its evidential value was lower than DNA. For several years, overseas examiners were worried because there were multiple closures of the trace evidence units. We saw that trend coming and were very concerned. Trace evidence still has its value, especially when we put things together during reconstruction because it allows one to have insights about association. For example, with bloodstain patterns, trace evidence (e.g. DNA), and pathologist or autopsy reports, you can paint a very big picture.

A forensic reconstruction gives a very holistic picture of what could have possibly happened. One case we did that comes to mind is the Yishun Triple Murder, where there were three deceased persons, a badly injured sole survivor and an accused person. For that rare case, we could validate the consistency of our forensic reconstruction report findings with the accused’s statements and the survivor’s statements. It was really satisfying when we found out that the survivor’s statements were consistent with our forensic report.

Q: Ms Lim, you were involved in several murder cases like Wang Zhijian. Did you go about the reconstruction process for these cases any differently from each other?

Dr Tay: We always start off with a blank canvas. We gather all the pieces of the puzzle and over time, we try to sort them out and then a pattern will emerge. We approach each case in an objective manner by gathering everything and then proceeding to analyse them.

Ms Lim: In terms of improvements in how things were carried out, the more you do, the better you become at it. Through practical experience, you will gain more knowledge to broaden your thinking. Sometimes gaps which were not addressed can be factored into future cases.

Dr Tay: We must still remember to always be open-minded and objective, by continuing to ask ourselves questions and look for some other forms of evidence at a scene. One must be open to other scenarios as well.

Q: When do you write research papers?

Ms Lim: Usually, research papers are written because of a case or a project. In the case of the murder of Huang Na (Took Leng How v PP), the police wanted to know specifically whether it was mango residue in the stomach content which was already a few weeks old. At that point in time, there was nothing related to this in the available literature because in forensic science, as we generally do not analyse partially digested food and decomposed materials.

Hence, we had to do a research project quickly to avoid any delays in the report findings. Although we could get a mango easily, it was difficult to simulate decomposed mango, like those found in Huang Na’s stomach. There are different species of mango and chemical compositions which needed to be differentiated from one another. In a research project, it is never one individual’s work. It is once again, teamwork. It is fun sharing the knowledge, learning, and brainstorming together throughout the research project.


Questions about the Legal Process

Q: How is a case typically allocated to you?

Ms Lim: First of all, there will be a request, for example, from the Singapore Police Force. With the information and nature of the exhibits collected for analysis, we will select someone who is an expert in that area while taking into consideration the number of cases they have at that time. When the exhibits arrive at the laboratory, a forensic scientist would have already been assigned. This expert will be the one coordinating and allocating the workload to the other scientists and laboratory officers in the team. This shows the importance of teamwork.

Dr Tay: The coordinating scientist plays a very important role as they need to have a broad overview of the case. There will be a lot of communication and dialogue within the team. The coordinating scientist will subsequently write the report and go to court to provide their testimony.

Q: How do you prepare for a court trial?

Ms Lim: We have to know our case inside out. Conclusions and opinions must be backed up. As a forensic scientist, we are expected to explain our report in layman’s terms so that everyone can understand. The questions asked may be broad or specific. We must be cautious of questions that are not within our areas of expertise.

Q: Would you also be questioned on non-scientific aspects of the case?

Dr Tay: Sometimes we may be thrown curveballs during questioning as we are focusing too much on the scientific aspects. We may be asked a “less scientific” yet legally relevant question (e.g. accuracy of the instruments in generating the results) along the way, so we also have to be prepared for that.

Q: Forensic experts keep case notes with detailed write-ups of the case. Is it common for forensic experts to refer to case notes during trials?

Ms Lim: At the witness stand, there will be a court bundle which contains sets of documents (e.g. reports, photographs) the lawyers have access to. The expert report is part of this court bundle. Everyone has the exact same set with the same reference number. In court, when expert witnesses explain their scientific findings, they may refer to their expert reports.

Any additional notes or documents brought to court that is not part of the court bundle will be considered ‘extra’. In the event expert witnesses need to refer to their case notes because some answers to the questions asked cannot be found in the reports (e.g. measurements), they will need to seek permission from the judge to refer to their case notes.

Q: How would you demonstrate simulation experiments in court?

Dr Tay: In the case of Chee Cheong Hin Constance, where a 4-year-old girl fell from a high-storey building, Ms Lim and I carried out simulation experiments. We simulated the weight of the child and how she would have fallen off the building. This determined the association between the amount of force and the distance the child has landed. When we testify in court, we demonstrate simulations using video aids, diagrams, and other tools.

Ms Lim: Simulation experiments may seem easy. But the process involves a lot of work such as getting the right materials, designing the experiments and how to record the experiments.
 
This peek into the practical side of forensic science in Singapore proved to be an extremely eye-opening experience. Our deep gratitude goes to Dr Tay and Ms Lim, who kindly shared their extensive knowledge and expertise with us.


Authors’ Biography

 
Nicole Teo 
is currently pursuing a degree in Law and in the middle of her second year of the programme. She is aspiring to be a prosecutor one day, which sparked her interest in all things related to criminal law, including forensic science. 











Sheryl Seet is a final year undergraduate, majoring in Life Sciences with a Minor in Forensic Science. An aspiring forensic scientist, Sheryl hopes to contribute her wealth of knowledge in forensic science and play a vital role in the criminal justice system.

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