SINGAPORE: In a full-day hearing on Friday (Apr 16), Ms Parti Liyani’s lawyer crossed swords with a deputy chief prosecutor in an unprecedented bid to seek a compensation order of S$73,100 for a “frivolous and vexatious” prosecution of Ms Parti.
Ms Parti, who returned to Indonesia in January, was convicted in March 2019 by a lower court of stealing items worth S$34,000 from then-Changi Airport Group chairman Liew Mun Leong and his family.
The High Court overturned her conviction in September 2020 and acquitted her of all theft charges.
In the aftermath, two prosecutors in charge of Ms Parti's trial at the lower courts are facing a disciplinary tribunal after Ms Parti sought an investigation into their alleged misconduct.
READ: Chief Justice grants investigation into Parti Liyani's complaint of misconduct against prosecutors
The sum of S$73,100 that Ms Parti is seeking includes salary losses of S$37,500 over 50 months, "ang paos" or red packets, pay increments and S$29,400 for her lodging provided by the Humanitarian Organisation for Migration Economics (HOME).
Lawyer Anil Balchandani sought the sum in the first application under Section 359(3) of the Criminal Procedure Code for compensation from the prosecution, citing various reasons on how the prosecution was “frivolous and vexatious”.
Section 359(3) of the CPC states: “If an accused is acquitted of any charge for any offence, and if it is proved to the satisfaction of the court that the prosecution was frivolous or vexatious, the court may order the prosecution or the complainant or the person on whose information the prosecution was instituted to pay as compensation to the accused a sum not exceeding $10,000.”
WHAT IS "FRIVOLOUS AND VEXATIOUS"?
The court appointed an independent party, Singapore Management University's Assistant Professor of Law Benjamin Joshua Ong, to give his views on various legal arguments.
Asst Prof Ong laid out the history of the particular section allowing compensation from the public prosecution: It was amended to allow for this in 2010, and before that, a person could get compensation from a complainant only in a private prosecution.
Up to 2010, it was thought that the public prosecutor could be relied on to never engage in frivolous or vexatious prosecutions, and this was a sufficient safeguard. However, that changed in 2010, explained Asst Prof Ong.
He gave his expert opinion that the legislative intent of the purpose of Section 359(3) is to create a new law. The prosecution's stance is that compensation can be sought from the prosecution only if it was malicious, but Asst Prof Ong said malicious prosecution is provided for under Section 359(5), and 359(3) refers to "frivolous and vexatious".
The phrase "frivolous and vexatious" has existed in law since the 1900s and has its roots in the law of striking out a civil action, explained Asst Prof Ong.
It refers to something that ought to be stopped and is "plainly unsustainable", whether legally or factually, he added.
LAWYER ANIL BALCHANDANI’S ARGUMENTS
Mr Anil called this "an exceptional case" that falls within the confines of what Section 359(3) is meant to address, with aspects of a "frivolous and vexatious" prosecution "spread throughout". Despite it being clear that prosecution was legally unsustainable, the prosecutors continued their case against Ms Parti, he charged.
READ: Timeline: How former maid Parti Liyani was acquitted of stealing from Changi Airport Group chairman's family
"The foundation that I wish to make is that the court found improper motive by ... Karl Liew specifically and this lays the foundation that there was indeed not just a matter of finding Parti not guilty beyond reasonable doubt but that the charges or the complaint, and of course the prosecution beyond that was indeed not done correctly," said Mr Anil.
He charged that the prosecutors in Ms Parti's case "lacked seriousness", giving an example of how the defence found the correct date of when Ms Parti ceased to be employed by the Liew family with "a few clicks of the button", when the prosecution got it wrong.
He also charged that the prosecutors had relied on improperly procured statements, which Ms Parti gave that were not in her own language, and photos of evidence shown to her that were blurred or taken in a rushed manner.
When they realised there were deficiencies in her statements, the prosecutors did not stop or withdraw, alleged Mr Anil.
Prosecutors Tan Yanying and Tan Wee Hao had also "withheld evidence" on the functionality of a DVD player Ms Parti was accused of stealing, he claimed.
The prosecution responded to this by saying that the defence had not been prejudiced by this, because they had allowed the defence to inspect the DVD player over lunch, and added that the defence had embarked on a lengthy demonstration showing the equipment's limitations after.
"It appears to be an answer created after the fact. It does not consider what would have happened if the defence counsel never bothered to perform a demonstration," said Mr Anil.
"Would the DPPs (Deputy Public Prosecutors) have in fact made the announcement? That the DVD player was not functioning? And we further state that this position of a lack of proper and full disclosure did not stop at the trial but continued before Your Honour at the High Court."
KARL’S LACK OF CREDIBILITY WAS PLAIN: ANIL
Another point Mr Anil made was on how the prosecution had continued with charges related to Mr Liew's son Karl "despite his lack of credibility as plainly evinced by his testimony".
"Karl's lack of credibility was evident perhaps from the moment he finished spelling his name," said Mr Anil, prompting a retort from Deputy Chief Prosecutor Mohamed Faizal on how this is "a massive overstatement".
Mr Anil pointed to a blanket that Karl said was from a store in the United Kingdom called Habitat, when it had an Ikea tag on it. He claimed that women's clothes in the theft charges belonged to him, even though they did not fit him.
Karl was charged in February with giving false evidence and information in the case, and is expected back in court in May.
"If this were a civil case, and counsel for the plaintiff or defendant were faced with this information, they would quickly advise their client to do something. But in this case, we are faced with the prosecution's mentality of 'full steam ahead', irrespective of whether the witness comes to court and says 'You're right, I made a mistake'.
"And so this case presents an exceptional opportunity for the court to address Section 359(3) ... for an appellant who is acquitted to seek redress for problems faced at trial," said Mr Anil.
Another point Mr Anil made was on how the prosecution allegedly rejected his attempts to introduce evidence of how Ms Parti was illegally deployed to other homes and offices to clean.
"It was one of the issues of the trial. It was relevant to show that Ms (Parti) had some reason to believe there was a motive behind her immediate termination. But the prosecution kept on objecting - tenaciously, fervently and consistently," he said.
"The prosecution's response to this in their submissions ... is that they are entitled to object to questions in a trial that appear irrelevant. Our case is that their objections were premised because they knew that the answers as a result of these questions would be unfavourable to them."
DEPUTY CHIEF PROSECUTOR INTERJECTS
At this, Mr Faizal interjected to say he took "great issue" with this, as Mr Anil had imputed motive and led no evidence to prove such an allegation.
"If he is going to make allegations in relation to motive in the manner he has just done, then I would ask him where is the evidence?
"And if the answer is there is no evidence, then what is the basis of that assertion?" Mr Faizal told Justice Chan Seng Onn, who presided over the hearing.
"It cannot be that - they say because they objected, I infer they acted in bad faith. By that definition the prosecution, and the applicant's counsel, by objecting to various lines of questioning, would be objecting in bad faith, because we can just impute bad faith. I have severe reservations as to what my learned friend said."
In response, Mr Anil said not all objections are similar, and that this issue on illegal deployment was one that was known at trial, because prosecutors had the information as Karl had said that Ms Parti had worked at his office only once. But the defence's case was that she did so for a full year.
In response to Mr Anil's arguments, Mr Faizal said "there is deep irony in the entire situation" as Mr Anil had claimed that the prosecution had not given the defence time to prepare for trial, when Mr Anil was making new points in his oral arguments when he had months to prepare written ones.
After Mr Faizal expressed his "grave reservations" to this, Mr Anil said Mr Faizal was "overreacting". Justice Chan interjected that it was not likely a deliberate suppression of information and that people tend to think of new information as time passes and "we can't know everything".
"'We can't know everything' will be the main thrust of what our argument will be," responded Mr Faizal.
Referring to how Mr Anil, in hindsight, was scrutinising the prosecutors’ conduct down to the minute detail, Mr Faizal said it is "always easy in a case involving 3,700 pages of notes of evidence to take a step back, look through the notes of evidence and then say this went wrong".
Mr Faizal said anyone could scrutinise trial notes for any acquittal and even conviction to look for missteps, but added that the reality of litigation is “fluid” and prosecutors work with imperfect information.
"The reality of litigation is - you never know how witnesses respond on the stand. That is the reality of how the criminal process works. All my learned friend has done is to effectively say: 'We should have known' ... What he is asking this court to do is to insist this court require the prosecution to have 20/20 hindsight."
Mr Faizal said it is in the nature of the findings of any conviction-turned-acquittal that there will be serious issues.
However, he said Mr Anil's application is "patently unmeritorious" and should be dismissed as he has fallen far short of showing how Ms Parti's prosecution was frivolous and vexatious.
Justice Chan adjourned the case to a date yet to be fixed for Mr Faizal to make his arguments and finish the hearing.
The disciplinary tribunal for the two prosecutors in Ms Parti's case is pending. If cause of sufficient gravity for disciplinary action is found, the Chief Justice could make orders for sanctions such as censures, being struck off the roll and penalties of up to S$20,000.