Iswaran back at court, tries to compel prosecution to hand over statements of all 56 witnesses

Former transport minister S. Iswaran, who faces 35 charges, on July 5 tried to compel the prosecution to provide conditioned statements for all 56 prosecution witnesses.

A conditioned statement is a mode of giving evidence by written statement, rather than by oral testimony.

Iswaran, whose charges involve more than $400,000 worth of items, arrived at the High Court with his defence team at around 9.30am.

The prosecution team argued they had provided a list of the 56 witnesses and their roles in the case, and are not obliged to provide the conditioned statements of these witnesses.

One of the seven prosecution witnesses named in court documents was Iswaran’s wife, Taylor Kay Mary.

The prosecution said she had seven statements recorded by the Corrupt Practices Investigation Bureau during investigations.

Of the 35 charges Iswaran faces, 27 relate to hotel and property tycoon Ong Beng Seng.

Eight charges relate to Mr David Lum Kok Seng, the managing director of mainboard-listed Lum Chang Holdings.

Of the charges relating to Mr Ong, 24 are under Section 165 of the Penal Code, while two are for corruption and one is for obstructing the course of justice.

Section 165 makes it an offence for a public servant to accept or obtain any valuable thing, for free or for inadequate payment, from anyone connected with his official duties.

Under the law, the prosecution has to produce a list of exhibits, conditioned statements of witnesses that the prosecution intends to admit at trial, and investigation statements made by the accused.

Iswaran’s legal team, led by Senior Counsel Davinder Singh, had earlier argued for the High Court to order the prosecution to file and serve statements of all the witnesses whom it intends to call at the trial.

This application before the Assistant Registrar was dismissed on June 11.

The Assistant Registrar found that the law did not require conditioned statements to be recorded for every witness the prosecution intended to call at the trial. It was also not a requirement for hostile witnesses and those who refuse to provide such statements.

But the defence filed a criminal revision on the decision. This was heard during proceedings on July 5.

The defence also called for the High Court to order the prosecution to ask each of the trial witnesses whether they were willing to provide conditioned statements, and to record and serve conditioned statements for all willing witnesses.

The defence’s position was that, if any of the witnesses did not agree to provide a conditioned statement, the prosecution must provide the defence with draft conditioned statements detailing the evidence that it intended to focus on.

They must also produce a letter stating the witnesses’ names and their reasons for not agreeing to provide a conditioned statement.

In their written submissions, the prosecution team led by Deputy Attorney-General Tai Wei Shyong said they had already made clear their intention to rely on oral testimony during the trial and to not provide evidence via conditioned statements.

Mr Singh said the prosecution had previously been ready to provide the conditioned statements relating to the charges of Mr Lum.

But that was before the High Court ruled in May for the two sets of charges Iswaran faces to be dealt with in a joint trial.

Mr Singh argued that following this development, the prosecution then said it was under no obligation to provide the conditioned statements of the witnesses.

He said the prosecution has provided the defence with only the charges, a list of exhibits – not the exhibits themselves – a list of witnesses, and statements recorded from Iswaran.

He added: “How are we going to file our case in the light of that? How can we prepare the defence?”

Mr Singh said it was fundamental to transparency and fairness that there may be pre-trial disclosure, and that facts and evidence are shared, as opposed to the defence being taken by surprise during the trial.

He argued that Iswaran was entitled to the prosecution’s facts and evidence supporting the charges, including statements from its witnesses. He said the prosecution should not have the discretion to decide what to share.

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Addressing Justice Vincent Hoong, Mr Singh asked: “Why is the prosecution doing this? Why is my client being singled out? And with the effect that he would be discriminated against, by him being refused what everybody else gets?”

In response, Senior Counsel Tai said he did not accept more than half of what Mr Singh had said in his arguments.

Mr Tai told the judge: “He has been putting words in our mouths... and he’s been paraphrasing and totally mischaracterising what we said.”

When proceedings continued at 3pm, Mr Tai told the court that Mr Singh had made many strong statements about disclosure, transparency and a level playing field.

He added: “My learned friend has portrayed the prosecution as trying to take advantage of legislative provisions. I want to categorically say there is no such intention.”

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Mr Tai said the prosecution has provided the defence with more than enough material to enable it to prepare its case.

This includes the 35 charges, the prosecution’s list of witnesses and list of exhibits, and 66 statements recorded from Iswaran.

Mr Tai said the prosecution has no intention to surprise, ambush or discriminate against the defence.

He added: “The present application is in reality an attempt to broaden the disclosure obligations of the prosecution beyond what is required under the statutory disclosure regime enacted by Parliament and at common law.

“If they were to get what they’re asking for, they would be awarded special treatment, which I think is unfair.”

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The prosecution noted it had already disclosed messages between Iswaran and several of the prosecution witnesses. These included WhatsApp chat messages that Iswaran had with Mr Ong and Mr Lum respectively.

The prosecution had also provided the defence with 37 witness statements recorded from seven prosecution witnesses, said Mr Tai.

Maintaining his argument that his team should have sight of the conditioned statements, Mr Singh said: “My client is facing many charges, and he has made it clear from day one that he is going to fight them.

“It was he who sought an early trial. He was also the one who wanted to meet all the charges head-on, as soon as possible, so the court can come to a decision.”

Justice Hoong reserved judgment and adjourned the hearing to a later date.

This article was first published in The Straits Times. Permission required for reproduction.