CLD Interest Pieces

Interview with Derek Kang, Defence Lawyer

How did you first become interested in criminal practice?

I mostly became interested in the criminal practice during the course of my work. However, I did very much enjoy studying criminal law during my first year in law school, even more so than some of my other subjects. I suppose the other thing is that when I was growing up, I watched some TV shows featuring lawyers, such as Matlock, a fictional lawyer who defended clients. These shows totally coloured my view as to what law entailed: I entered law school without any real understanding that a lawyer did anything else besides litigation. It was only when I got in that I realised that there are people who do things such as conveyancing, IPOs, trademark registration and so on.

Of course, my aforementioned first job was in the AGC, simply because I was on a PSC scholarship. There was nothing else I could do short of breaking my scholarship bond. Not that I was interested in breaking it at the time: I saw it as a good opportunity to see what working as a lawyer in the government’s service would be like. I very much enjoyed the work that I did – I would say the camaraderie in AGC is second to none, and perhaps even more so when I was there simply because of how small my unit used to be. I don’t think there were more than 50 to 60 prosecutors in the Criminal Justice Division back then, from the junior ones all the way up to the head of the division (excluding the AG, of course). Today, as far as I know, the division has more or less doubled in size.

One can really get a real sense of purpose in working as a DPP. However, not all of the attitudes that I had there were absolutely spot on. Most of us were probably underexposed to what things were like on the other side, and by that, I really mean the accused person’s point of view. While we would take into consideration mitigating factors when we made our prosecutorial decisions on what type of charges to prefer, the severity of the charges to prefer, the type of sentence and the severity of the sentence to push forward in court, it was not always easy to put yourself in the shoes of an accused person. Perhaps I was, in retrospect, more sceptical about things than would’ve been ideal. I say that now only with hindsight, having done criminal defence work since I left the AGC, and having had a lot of interaction with various clients for criminal cases.

When you say you were sceptical as a DPP, you mean to say that you were sceptical of the “other side”?

Yes. I would be sceptical about the extent to which an accused person could be said to be a certain way, perhaps less malicious than I believed at that point in time. Now I have seen clients go to jail for many years: in one case, just because they had helped to guarantee a friend’s illegal loans from a loan shark, had gotten harassed when a friend didn’t pay up, and misappropriated money from their employer just to make good on that guarantee, for a loan that they did not even get one cent’s worth of benefit from. And now, they are in jail for a very long time. Of course, the jail sentence is a lot less than if they had misappropriated the money to buy luxury goods. Still, you can see that oftentimes the motivations of accused persons are not always as terrible as one might think.

Besides this shift in perspective that you just described, were there any technical challenges that you faced during the switch from a DPP to a defence lawyer?

Absolutely. As a prosecutor, you do not have to do any “running” wherever investigations are concerned, other than thinking and asking for it. You can ask the police to perform various tasks for you: this is all part of their role in the criminal justice system. If you, as a prosecutor looking at the files, feel as though certain witnesses need to be interviewed, or that some other documents need to be reviewed (telephone records etc.), the police will get it done for you. There is no such comfort for a criminal defence lawyer. Either you do it on your own, or you get your client to get it done (of course within the limits of your client’s ability). For example, if you want telephone records between A and B, whom you suspect have conspired to frame your client, you have no legal right to get that as a lawyer for the accused person. However, the police do have the statutory power to get any document that they want. You will never get the document that proves that although A and B profess not to know each other, telephone records show that they have been speaking to each other once a day for a week before they made a police report against your client. I think that is one major change.

I don’t think I have ever had to face a huge moral dilemma in that sense as it’s pretty straightforward for me. If the client is guilty, we do what we have to do to help the client get an appropriate sentence. In cases where I have claimed trial for the client, the instructions to me have been that from the start they deny what they did, and I had no reason to disbelieve them. I think you’ll learn when it comes to professional ethics later on for your bar exam that by and large you take your client’s instructions at face value, unless it is apparent on other evidence that your client is not telling the truth. I don’t think I’ve got a lot of other things to say about differences between working or one side or the other. The other aspects of the job are pretty much the same: you still cross examine the witnesses, and you still give closing submissions in a trial, no matter which side you’re on.

Perhaps, however, there is one more difference in relation to trial, where the prosecution has the police statements of clients and various witnesses, and you have no such statement of the prosecution or witnesses. Through the new criminal discovery process that came about with the last major revision of the CPC in 2010, you now have access to your client’s previous statements to the police. However, you don’t have the previous statements of witnesses, and while the prosecution will probably give you (or your client) hell during cross examination when they point out how every little aspect of their testimony in court is different from their testimony or their story in their police statements, you don’t have that privilege of doing the same to the prosecution’s witnesses because you don’t have their witness statements, even if their witness statements might be different from the evidence that they give in court.

The Court of Appeal has ruled that the prosecution has a duty outside of statute to give materials to the defence that would materially contradict or undermine their case. But it’s all a “good-faith” kind of duty. There’s no real way to enforce it because you don’t even know what they’ve got in the first place. If they’ve got the complainant’s statement saying that when she was sexually assaulted her left breast was squeezed, but in court she says it was her right breast that was squeezed (a very fundamental difference), you would not be able to exploit that. Whilst a very strong case could be made that that kind of material should be disclosed to the defence, so it could be used in the interest of justice to highlight to the court that the complainant’s version of defence is not entirely sound, you are in no real position to tell whether or not that kind of information has been suppressed by any individual prosecutor.

This is not a satisfactory state of affairs, and I have, during trials over the last few years, clashed with the prosecution on this, taking issue with the way the charge was framed, initially, to how it was amended later on. So, using this analogy, it would be you (the accused), did molest this complainant by touching her left breast on this day at this place and at this time. Halfway through the trial, because the complainant changes from left breast to right breast, the prosecution would ask the court for permission to amend the charge, and I might have in a situation like that said that this suggests that she did once say that it was her left breast, so I think we should have a look at her statements to the police. The prosecution declined to give those documents to me, and we had to argue it out in court until the judge finally ruled that she would look at it herself, without showing it to me, to determine whether or not there was an inconsistency such that the prosecution would be compelled to give it to me. Eventually, the judge looked at it and decided it wasn’t that material, so that was that: I left it as it was without having seen what the document contained.

So you’re saying: trials are often skewed too far in favour of the prosecution, and that this is not a satisfactory state of affairs?

I feel you’ve got to understand that they (the prosecution) have a heavier burden of proof anyway, where they have to prove a case beyond reasonable doubt, as opposed to on a balance of probabilities where the court only needs to say, in a civil case: on a balance of probabilities, I think A is just a little bit more credible to me than B, so I think A is telling the truth. This does not work in a criminal case. If the complainant is just a little bit more credible than the accused person, the right thing to do would be to acquit and say that the charge has not been proven beyond a reasonable doubt.

So, it does make sense that they have more things stacked in their favour, so to speak. But I think a little bit more could be done, especially with regard to this problem of disclosure of potentially damaging materials by the prosecution, which is one aspect I think we could do better in. If you speak to enough criminal practitioners, you will realise that they will all tell you that clients aren’t always telling the truth. Not that it only applies to criminal cases, it also applies to civil cases. The move toward video recording of police statements is currently in progress, and I think the plan to enact this change may have been announced some time back last year or even the year before. I think it’s not that easy to implement, and we all understand the government’s perspective on this. I have to qualify that I do know more than others because I am part of the Criminal Practice Committee of the Law Society’s delegation that interacts a lot with the Ministry of Law on all these matters. We understand their problems, and we’re here to help by giving our input on how things can be tweaked for the better.

That’s not to say this will eliminate all possible allegations of impropriety when it comes to statement recording. All it does is that it rules out what happens when a statement is being recorded. You can’t prevent a threat, inducement, or promise being made at night when the suspect has been brought back to the cell. At the end of the day, you have to ask yourself: do you want to end up in a situation where because the odds are stacked against the prosecution, you have so many instances of sexual assault not being proven, or do you want to give the police and prosecution a little bit more authority and power such that you have more convictions for the guilty? I don’t know if in your study of criminal law so far, you have gone into concepts such as the due process model and the crime control model. That is a simple way of stating the two extremes: one is entirely authoritarian where you make sure you suppress crime as much as possible, while the other is where you give suspects their full rights, and the system is entirely fair for them, but inevitably you get more convictions in the crime control model and more acquittals in the due process model. Every society has to decide for itself where it wants to sit. It’s clear in Singapore that we are closer to the crime control model. It drives legislation and the attitude of the prosecution. But in terms of process, most of the time I would say that accused persons are given every right, with some exceptions where for example they are deprived of access to a lawyer.

You will probably learn more about this in your second year when you learn more about constitutional law. But yes, there is really no right or wrong answer on this. I would say that I am reasonably satisfied with the present state of affairs, although there is definitely some room for improving the system. All the stakeholders are trying their best to work to improve the system.

Have you ever had a client placed on death row?

Yes, but not for long. The charges were dropped to non-capital charges. It was a murder case, and after I sent in representation, after a few months the charges were dropped to a lesser charge of culpable homicide. So from that point onward, the client was off death row, so to speak. He wasn’t out of the woods, by any means, and we went for trial after that, and we got an acquittal even on the culpable homicide charge, and a conviction on a lesser charge. I won’t say more about this now, because this case is still under appeal right now by both sides: the prosecution, who believes that he should still have gotten culpable homicide, and us, because we think that the client shouldn’t even be found guilty of that lesser charge.

The closest I have ever come to a death row situation has been as a prosecutor. There was one drug trafficking case I did where the accused person was facing a capital drug charge. That was my one and only brush with the death penalty, I would say. I have actually consciously tried not to take on such cases, remembering how I had felt, perhaps, when my colleague and I got a successful conviction, and the judge stood up to pronounce that he could only sentence him to the only sentence that he could pass under law, which is the death penalty. So I think it took me a good ten years out of AGC before I took on this case. But to be fair, when I decided to take on this case, based on what I knew of it, I didn’t think that a murder charge would stick anyway. I was confident then that we would soon be able to convince them to move away to something less severe. Unfortunately, it seems things didn’t move away far enough, and therefore we had a big fight about it. Going forward, we’ll have to see where things end up.

How do clients typically react when you break good news of an acquittal or bad news of a conviction to them?

Some of them are overjoyed are relieved (for the good news). For the bad news, we’ve already prepared them and given them proper advice on what the possible outcomes and worst-case scenarios will be. We paint what we think is the likely outcome and tell them what the reasonable worst-case scenario is and what is the reasonable best-case scenario, what are not likely but absolute worst case, and what are not likely absolute best-case scenarios.

One thing I learned though, is that it’s not good to be too successful in a particular case sometimes. I had a case where a young guy who was in full time National Service was driving his vehicle over the weekend and he had an accident with another car and someone died. The passenger in the other car, who was not wearing his seatbelt, passed away. I managed to get a fine for him, instead of a jail term, which these days, with recent judgements in the last few years, might not be the case because sentences have increased for such traffic negligence cases. But when it came to the disqualification period, I manged to convince the court to disqualify him for one year only, when you would think a three to four-year disqualification period would be more appropriate for him. It was better than I had hoped for, but at the same time I had a sinking feeling that this was not going to be the end of the matter. True enough, the prosecution appealed, and this time, the High Court judge hearing the appeal was a lot more circumspect and increased the disqualification period to five years. So it was really a huge waste of time and money. The judge should just have passed the more appropriate sentence the first time round instead of just, ironically, being too persuaded by me, such that he gave too lenient of a sentence, a sentence that I would describe as unreasonably good.

In the same vein, one of the approaches that I take toward sentencing of a client is not to ask for a bare minimum slap on the wrist. I know that if I succeed, it’s going to be appealed against anyway, because I know that almost every judge, unless the judge is for some reason taken in by what is said, more so than one would expect, would just give short shrift to you. This doesn’t just apply to the defence, it applies to the prosecution as well. When the prosecution asks for a sentence that is too harsh, way more than what is reasonable, the judge is not going to be inclined toward your proposition and is just going to be listening to the side that is more reasonable. You want to always be perceived as more reasonable in order to be persuasive. But there’s a range of what might be considered reasonable, the low end to the high end. I would tend to peg my sentencing submissions at the low end of what is reasonable because I feel that that is justifiable, and I feel like that works a lot more than asking for something that the client says they want. When they ask for something unrealistic, you need to tell the client: ‘No, you’re not going to get off that easily because the last ten people in your situation did not get that, and you are not in a special situation. So there’s no reason why you should be treated any differently under the law.’ That’s about it.

Do you think there is a shortage of students who aspire to enter the criminal practice these days?

I don’t know about that because I don’t have that much interaction with the students in the local universities, but I can say that almost every intern that I have had has expressed interest in criminal matters that they’ve been tasked to help out on, sometimes even more so than on commercial matters. I don’t know if that is an indication of there being a substantial amount of interest, it could also be that they were interested in that already, hence if they knew that they got an internship with me they would be getting some exposure to that, and that’s why they sought me out in the first place. I don’t think I could say that I am aware of any lack of interest in criminal practice among undergraduates.

Do you think the public tends to overromanticize criminal practice?

Yes, I think maybe the public is heavily influenced by what they read. After all, you need to understand that the job of a journalist is to capture the attention of the readers, so they also are not interested in reporting about the really dry aspects of a trial. They only deal with the sensational and exciting aspects. You read about these, but there is probably a huge 80 or 90 percent that is a lot more routine.

Also, they tend to go for sensational crimes, as opposed to boring ones. However, some of the hardest battles can be fought in very non-descript cases, where the public wouldn’t otherwise have interest in it, but a lot is really going on in court itself. It’s difficult to write too much about commercial cases, except maybe in The Business Times, where from time to time you talk about really big fights and commercial disputes. The mainstream newspapers tend to focus on criminal cases. They are easier to understand. Not everyone can appreciate a dispute over a bill of lading, or a breach of warranties under a shareholder agreement. Some people do not even understand the concept of a shareholder of a company. But everyone understands what it means to steal, to rape, to murder, take drugs, and so on. So it’s very easy for them to think that things are a lot more exciting than they are. There are also a lot more criminal cases in Singapore: we’re talking thousands of charges every year. You can’t possibly write about them all. You may be reporting on trials that are sensational, but there actually only about ten percent of them go to trial. As for the rest, the accused pleads guilty, because they actually are guilty, and they have admitted to it from the start. In these cases, perhaps the police did a good job in arresting the right people, and the prosecution made the right call in charging them based on the evidence that the police found.

You were a student at NUS Law and part of the graduating class of 2000. What was life as a law student like back in the day?

It was a lot easier. I can say that anyone who went for an internship during the school holidays was probably viewed as a pariah. Like, “siao-on” or whatever. The prevailing mentality was along the lines of: come on, it’s the holidays, just relax! However, today, if you don’t seek out an internship, you might be viewed as a slacker, someone who is probably not serious about a career in the law. I must say that I am shocked by how much things have changed.

I don’t remember being too laden with assignments. Sure, there was preparation for classes, but it wasn’t too difficult if you split up the work with a few friends. You prepare this class, I’ll prepare for that other class, and we’ll share the notes after that. Certainly there wasn’t that mental pressure that all of you have these days. Maybe if you’re in NUS you feel that you are in a better position than someone studying overseas. Truth be told, you probably are, as a lot of employers in the industry are still having a very good impression of NUS graduates.

Exams were mostly closed book back then. Maybe you might have been able to get by with a good memory as compared to today when you might need to be a bit more analytical, possibly, but I think you can learn to be analytical, especially during the course of your work. I have to say that my time in the AGC has taught me to be very analytical of scenarios and analysing whether on the facts this falls within the prohibited conduct of the law. Sometimes it’s straightforward, like shoplifting, but other times you may have to consider some other obscure act, like whether or not something violates the Customs Act, for instance. Well, the Customs Act isn’t that obscure, but I’m just saying that perhaps it is less common relative to the Penal Code.

What about your extra-curricular activities in law school?

I spent some time doing those, but it was all recreational. I did ACTUS!, which was the drama group of law school. I was also involved in Law Camp for four years. I was one of the super seniors who was always helping out. I enjoyed myself so much during Law Camp when I was a freshman that I wanted to be involved in Law Camp every year after that. So that took up a lot of my midyear vacation time. That’s pretty much it, I think. I wasn’t involved in ELSA. There certainly wasn’t any Criminal Justice Club back then. I think one of the big things was the elections for Law Club. I wasn’t involved, but some of my friends were. I think it is a heavy commitment, in the same vein that being on the council of Law Society today is a heavy commitment. I spent a year as an honorary council member of the Law Society a few years back. Normally, elections are for two-year terms, but someone got elected and left after a year because she was going to an in-house job. If you weren’t going to continue practicing, you would have to step down from the council. I was recommended to take the place of that departing council member by some people on the council who knew me. I was brought on, I did a year, and I would say it was a huge eye opener, although it demanded a lot of commitment.

For students who are aspiring to become criminal defence lawyers, what attributes do you think they should begin to develop?

I think with the type of clients that you will meet in criminal practice, it would be good for you to brush up on your second language skills. In fact, if there is one thing that I could advise any law student, it would be: brush up on your second language skills. I have to speak Mandarin now at a level that I did not think I was capable of. I consider myself to be a barely competent Mandarin speaker, but in the course of my practice I have had to deal more and more with clients who are either exclusive Mandarin speakers or who are much more comfortable in Mandarin. In any case, you have to do what you can to ensure the client feels comfortable. So I guess I have had to bone up on my oral Mandarin skills. I suppose there’s no hope for my written Mandarin, but luckily, I can just leave that part to a colleague who is way more competent than me. But at least in your interactions with the clients, you have to speak well.

You should also be inquisitive, and it would be good if you could show some empathy to your clients rather than just looking at their conduct through very privileged lenses. I know not every law student comes from a privileged background, but the majority do, and even those that are less privileged are in all likelihood more privileged than most clients for criminal cases. I have encountered a client who has had to steal milk powder for his infant son, and that’s not something that you even have to contemplate if you are going to university. I think those are useful skills to have.

Nothing beats doing it for building up ability, so it would be good. Even if you want to do defence work, you can consider doing a stint in AGC because the training there is really good: you are immersed in criminal work over there. A lot of criminal practitioners do not do 100% criminal work anyway, myself included. Sure, there are some that do, but these lawyers are by no means the norm.

Try to get yourself a good boss as well. I’ve found that a lot of generalisations about what this and that firm is like is, as I have said, just a generalisation. What is far more likely to have an effect on your growth and development as a lawyer and your experience in practice is the person or persons that you are working for. It’s not always comfortable to choose, but you should always try to move yourself into that situation.

You will probably find that so many things in life probably just happen because of fate. It sounds scary to say that things are beyond your control, but I could not have anticipated that when I agreed to my father’s suggestion to apply for a PSC scholarship, that I would be in the situation that I am today. Even when I went to the AGC, I didn’t even see myself leaving the AGC, especially after my second year there, when I found myself starting to like the work and all that. Of course, the circumstances I was in then with the structure of the legal service was such that JLCs were very heavily favoured for promotions. This made the situation unacceptable to me and made me want to try my luck in the far more egalitarian environment of private practice. That situation exists to a much lesser extent today. If you’re good, they don’t care too much about grades when you enter the legal service as they believe you’ll do well anyway. Just being put on a particular file allows you to learn so much. Being introduced to a particular person who turns out to be such an important mentor or client for you next time, so many things happen that are just not within your control. You just have to adapt and best make use of the circumstances that you are in, and I would say that your attitude is critical. You’ve got to be willing to put in the hours to be interested in learning more, doing more, because you know that only by doing so will you become better and better. When I came out to private practice at Rodyk the last time, stuff came, and I would volunteer for this and that. It meant more work for me, but I wanted to do it as I knew that doing so would make me a better lawyer overall.

So yes, I believe these are the key things I can think about that would be important attributes for a law student who wants to be a successful lawyer. This actually applies across the board for all areas of law, not just for a law student aspiring to enter criminal practice.

What about one’s advocacy skills?

I’m a prime example of someone whose advocacy skills could improve. I was never a shrinking violet, but I was also never in any debating club and had never represented any school in any competitions. In fact, I had a very terrible experience in my second trial as a DPP. I was told off very severely by the judge for repeatedly doing the wrong things. During my first trial, I had a senior colleague to sort of chaperone me and provide advice, but on my second trial, I was entirely on my own. The case was not an easy one to handle, and I was up against two very experienced defence lawyers on the other side.

It was no joke: I wanted to quit. I was telling myself that I was not cut out for it, I had made a mistake taking the scholarship, and I wanted to leave the AGC, go into private practice and do corporate work. But then I realised that it wasn’t just a matter of paying off the bond. I would also have to resign and serve one month’s notice, meaning that even if I tendered my resignation, I would have to go to trial the next day and receive the same grilling that I was getting from the judge for making mistake after mistake, all because I did not know how to question the witness properly, and my advocacy skills were not good enough. That was the situation that I was in. I just had to soldier on when I realised I couldn’t get out of it and tried my best to do my job till the end.

About a year later, I was doing another trial, where I found myself internally criticising the defence lawyer for the same mistakes that I had made one year earlier in my second trial. It then struck me: I had actually improved as an advocate. It was a surprise to be sure, but a welcome one. Of course, I feel that I am even better today than when I was one year into my job. There is always clear room for improvement as long as you work hard and correct your mistakes. The only question is whether you will actually have the opportunity to practice that.

But one thing you must know, especially in private practice, is that written advocacy is probably much more important than oral advocacy. You may not be fluent when you speak, but if you can write a good mitigation plea to the judge, the judge can read it, and if the points you make inside are of good substance, I would say that would be quite ideal, and that is far more important than whether or not you are verbally fluent in conveying those points in court. After all, they are in writing, and the judge has to refer to them in considering what the proper sentence should be.

Interviewed by Eugene Tai

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