Singapore Law Gazette (April 2015)

ES_Law Gazette_April 210x280p.indd 1 12/3/15 5:33 pm

Continued on page 4

Th e Phantom Menace of OversupplyI have over this period been asked, what is the Law Society going to do about this problem?

Im probably going to making myself extremely unpopular for saying this, but from the perspective of the legal profession problem, what problem? Were actually quite sanguine about the situation as it has become an employers market. I can still remember the time, less than 10 years ago, when the aggregate demand of the four largest Singapore fi rms could absorb the entire local cohort, which at that time, was exclusively from NUS. The numbers from the bar were also limited. This experiment to restrict the supply of lawyers went horribly wrong, and associate starting pay ballooned. Many small and medium sized fi rms simply could not recruit, and their adaptive response was to structure their processes, to the extent that they could, to reduce or obviate the need for young associates. This may also explain their present mindset, where in spite of the oversupply, some of the smaller fi rms have got used to not needing associates, so no additional hiring takes place.

It is true that the current supply of potential lawyers exceeds demand, which should restore some sanity to pay scales, though there will be a time lag, as salaries have a tendency to ratchet upwards, but develop stickiness going downwards. This is happening today; there is a gradual rationalisation of associate pay, but the starting pay for lawyers still signifi cantly exceeds that of other professionals.

The occasional commentators on this issue have said there will be an oversupply or surplus of lawyers. I beg to differ, respectfully. The legal profession will hire the exact number of lawyers that it needs, and that it can afford. Statistically, we have absorbed between 400 to 500 new lawyers annually for the last few years. This number not only accounts for law fi rm growth, but also attrition. By attrition I mean those that do not renew their practising certifi cates for a variety of reasons some retire or leave, some go in-house, and others go to international fi rms. This means that you cannot really count on in-house teams or international fi rms to mop

The current and foreseeable surplus of law graduates has caused much collective angst and gnashing of teeth. There is a palpable desperation to secure training contracts, to the extent that applicants are offering to work for free as long as they are given one. `The problem is in two parts. Part one is that there are just too many law students chasing too few training contracts. Part two is less obvious, but just as troubling for those currently studying law. There will likely be too many trainees chasing too few actual jobs in the profession. Both of these will be exacerbated year on year as the law students who didnt get training contracts will try again the following year, and the trainees that didnt get jobs may still be in the market competing with the next batch of trainees.

This cocktail of insecurity was further stirred when the SILE reduced the number of UK Overseas Scheduled Universities (OSU) from 18 to 11.

In any periodic and systematic review of the list of OSU, one would consider, and expect additions or subtractions. Given the prevailing perception and reality of oversupply, the contracting of the UK list was probably not illogical. That didnt ameliorate the controversy, prompted by the comparison with Australian Universities on the OSU list none were cut.

But that differential in treatment is unconnected with quality, but by reason of an existing FTA between Australia and Singapore which mandates the recognition of certain Australian Universities.

Skeptical observers have disagreed with this approach; they say that the foreseeable consequence of reducing the number of UK OSUs is that the number of law graduates will continue unabated as the supply will migrate south. They advocate a free market approach no OSU list quality control will be in the form of tougher domestic bar examinations. After that, let economic forces establish the equilibrium.

01Presidents

Message

Singapore Law Gazette April 2015

The Phantom Menace of Oversupply 01Presidents Message M

Diary and Upcoming Events 05Council and Committee Bulletin 06From the Desk of the CEO 08Part B of the Singapore Bar Examinations 2014 09The Ethics of Criminal Practice 12

NewsN

Beyond Professional Courtesy: Reappraising the Rationales of the 24No-Contact Rule in Singapore Absconded Accused: Show Cause, Mitigation and Forfeiture 31De-Coding Anti-Competitive Agreements: The Indian Approach 38

FeaturesF

The Young Lawyer Amicus Agony 45The Young Lawyer A Good Lawyer: A Primer 46

ColumnsC

Alter Ego Oh No, Another Festival! 48Food Scotts 27: Dining with Distinction, Amongst Friends 50

LifestyleL

Notices Professional Moves 54Information on Wills 55N 57Appointments

ACover Illustration: Gwenyth Leong

Contents

Th e Singapore Law Gazette

An Offi cial Publication of Th e Law Society of Singapore

Th e Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

Th e Council of Th e Law Society of SingaporePresident Mr Th io Shen Yi, SCVice Presidents Mr Kelvin Wong Mr Gregory VijayendranTreasurer Ms Kuah Boon Th eng

Mr Lok Vi Ming, SC (Immediate Past President), Mr Lim Seng Siew, Mr Adrian Tan, Mr Steven Lam, Ms Parhar Sunita

Sonya, Ms Lisa Sam, Mr Anand Nalachandran, Mr Chiam Tao Koon, Ms Usha Chandradas, Mr Sunil Sudheesan, Mr Yeo Chuan Tat, Ms Katie Chung, Ms Wendy Lin, Mr Paul Tan, Mr Arvindran s/o Manoosegaran, Ms Simran Kaur Toor, Mr Grismond Tien

Editorial BoardMs Malathi Das, Mr Rajan Chettiar, Ms Celeste Ang, Ms Simran Kaur Toor, Mr Benjamin Teo, Mr Cameron Ford, Ms Debby Lim, Mr Evans Ng, Mr Kishan Pillay, Ms Lye Hui Xian, Mr Marcus Yip, Mr Prakash Pillai, Ms Shen Xiaoyin, Mr Vincent Leow

Th e Law Society SecretariatChief Executive Offi cer Ms Tan Su-YinCommunications & Membership Interests Mr Shawn TohCompliance Mr Kenneth GohConduct Ms Ambika Rajendram, Mr K GopalanContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Cliff ord HangInformation Technology Mr Michael HoPro Bono Services Mr Tanguy Lim, Ms Babara Seet, Mr Choy Weng Leong, Mr Eoin MuimhneachinPublications Ms Sharmaine LauRepresentation & Law Reform Ms Delphine Loo Tan,Mr K Gopalan

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up the surplus. Their hires are already indirectly accounted for in the number of new jobs going to new entrants. They tend to recruit further along the pipeline, from the ranks of junior or senior associates. I have not included in this discussion academia and the legal service; the universities take too few to be signifi cant, and the legal service hiring policies and trends are not available to me.

There are some factors that may help to alleviate this issue. Many of them are connected.

1. Reduction in pay: Higher supply should lead to lower starting pay. Lower pay should in theory mean higher demand from the law fi rms. But this is not a two dimensional analysis. For a law fi rm, young lawyers are an investment. The investment costs may outweigh the salary for the fi rst two years so a reduction of salary may not have that big an impact on the larger fi rms when considered against the total annual outlay on a new lawyer.

2. Increased demand from smaller fi rms: This requires a double mindset change. Young law graduates must be willing to apply to the smaller fi rms. Despite the competition, some sort of inertia prevents them from applying, and the big fi rms are still fl ooded with applications, and smaller fi rms, not. The smaller fi rms also need to re-evaluate the market. As I have said above, by necessity, many have learnt to operate effi ciently even without young associates. They need to rediscover the benefi ts of leverage. Use the trainee or new associate to do the more routine work, thus freeing up the partner to focus on work which carries a higher charge out rate, but that pre-supposes that the work is there in the fi rst place, or will be there, and there may be a reluctance on some of the smaller proprietors to take the economic risk.

3. Increase in demand for legal services: I have no doubt that the legal services sector will expand and grow. It is the rate of growth that is the issue. Will this be accretive, mirroring the population growth and hopefully economic growth, or exponential? The latter depends on how successful Singapore can position itself as the legal hub and dispute resolution center of this region, and how successfully Singapore lawyers regionalise. Will it be suffi cient to mop up the additional supply?

4. More international fi rms setting up in Singapore: Given the maturity of legal markets in the West, Asia is the new legal El Dorado and we are at the centre of the activity. I believe that there will be an increase in demand,

though it will be accretive in nature, and unlikely to be signifi cant. New international fi rms will initially be populated by lawyers from the home jurisdiction. What may be more signifi cant is the increased localisation or glocalisation of international fi rms. This happens when international fi rms with regional work feel that it makes more sense to hire Singapore lawyers than to fl y in lawyers on expatriate packages.

5. More, or bigger in-house team: The lower cost of lawyers may incentivise corporations to build up their in-house capability. Currently, most in-house teams prefer to hire Singapore lawyers who are already called to the Bar. Functionally, there is no compelling reason for them to do so. There is no reason why they cannot hire direct from law school. The conventional wisdom may have to be reset. If that happens, more lawyers may be absorbed in-house. There is, however, a countervailing impact, larger in-house teams re-absorb work that would otherwise be outsourced to practitioners, then reducing demand for private sector lawyers.

There are other potential unintended consequences. Might the very existence of the hungry hordes of potential lawyers induce a perceptional shift in those currently working as associates and senior associates? Taking a break from practice for a year or two may unintentionally become more permanent, as the new (and cheaper) lawyers fl ood to fi ll the gap and there are no positions left to come back to. It may be harder to job hop at a junior level, as fi rms have an easy supply of fresh graduates.

To those running law fi rms, this increased supply is clearly positive and wholly welcomed. For the law graduate, things just got tough, but you still control your own destiny. Do something that you are passionate about being a lawyer is not the only option, and not being a lawyer is not a waste of that law degree, which remains in my view, one of the most rigorous intellectual courses available to the young mind. In the words of Oliver Wendell Holmes Jr, Every calling is great when greatly pursued. For those determined to press on in this profession, it is ultimately the quality of your performance that determines your success as a lawyer, not the identity of your alma mater. Grab whatever opportunities come your way, learn continuously, get better, and dont retire the fi eld. Then you can, as Steve Jobs said, trust that the dots will somehow connect in your future.

Thio Shen Yi, Senior Counsel President The Law Society of Singapore

Continued from page 1

04Presidents Message


Diary3 March 2015Written Advocacy Workshop (Module 1)Organised by the Continuing Professional Development Department6.00pm-7.30pmThe Law Society of Singapore

5 March 2015Lunar New Year Luncheon12.30pm-2pmState Courts Bar Room

13 March 2015Small Law Firms and State Courts Committees Luncheon Organised by the Small Law Firms and State Courts Committees 12.30pmState Courts Bar Room

13 March 2015Pro Bono Networking EventOrganised by the Project LawHelp Committee6.30pm-9pmArt Plural Gallery

16 & 17 March 2015Litigation Conference 2015Organised by the Civil Practice Committee9am-6pmSands Expo and Convention Center, Marina Bay Sands

20 March 2015Book-keeping for Law Practices CourseOrganised by the Continuing Professional Development Department2.00pm-4.45pmThe Law Society of Singapore

25 March 2015Family Law Practice Seminars Series 1 Organised by the Family Law Practice Committee 4.00pm-6.00pm100 High Street

Upcoming Events7 April, 12 May, 17 June & 21 July 2015Written Advocacy Workshop

13 & 14 July 2015Mediation: Strategic Confl icts Management for Professionals (Module 1)

3, 4 & 5 August 2015Mediation: Strategic Confl icts Management for Professionals (Module 2)

13 November 2015Law Society Annual Dinner & Dance

05News


Diary and Upcoming Events

Council and Committee UpdateMemorandum of Understanding (MOU) Signed with Daini Tokyo Bar Association

Chairman of the International Relations Committee and Immediate Past President Mr Lok Vi Ming, SC, recently represented the Law Society in Tokyo, Japan to sign an MOU with the Daini Tokyo Bar Association. The MOU aims to promote greater collaboration between the two Bar associations.

Social Media Committee

A Social Media Committee chaired by Council member Mr Adrian Tan is working on recommendations to use feasible forms of social media to reach out to members.

Engagement of Young Lawyers

The Young Lawyers Committee is working on a proposal to connect and engage with younger members of the Bar.

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Council and Committee Bulletin

From the Desk of the CEO

Dear Member

The copy of the Singapore Law Gazette (SLG) you hold in your hands today, or the online version of SLG which you are viewing on your screens, is proudly brought to you by the Publications Committee and the Publications team of the Law Society Secretariat and a team of dedicated volunteers who contribute articles to the Gazette.

On 26 and 27 March 2015, the Publications team worked with our Membership Services team to coordinate all aspects of the condolence book signing for the late Mr Lee Kuan Yew, the founding father of Singapore and the Law Societys fi rst honorary member. We had a steady stream of members fi ling through our premises at 39 South Bridge Road on both days, to pen tributes and personal thanks to the great man who made modern Singapore. After just two days, the condolences and tributes had overfl owed into three large books, testament to the outpouring of gratitude from the Legal Profession. These books have been presented as a gift from members of the Legal Profession to the family of the late Mr Lee. Some of these messages will be reproduced in a later edition of the SLG.

I am extremely grateful that our team quickly rose to the task of coordinating the condolence book signing despite the short notice. This was especially important given that the authorities were unable to accede to our requests for an organised Law Society group visit to Parliament House for members to pay their last respects, in light of the

tremendous volume of requests for such group visits and the unprecedented crowds which streamed into Parliament House throughout the duration of the Lying-in-State. This condolence book has allowed many of our members to pay personal tribute to Mr Lee Kuan Yew.

We are proud of our extremely lean Publications Team of two, who have a combined total of 25 years of experience at the Law Society between them. The team works quietly behind the scenes to bring you the weekly eJus news via e-mail and the monthly SLG in print and online. Much of the Societys website content is also managed by this team. Through our publications, we bring members updates on practice information, Committee updates as well as membership news and privileges.

Unbeknownst to many, the Societys publications team is also kept extremely busy with the following publications and related services to support the work of the Society:

1. Directory of lawyers and fi rms;

2. Specialist Services Directory;

3. Annual report for the Society;

4. Mass call magazine for newly called lawyers;

5. E-classifi eds service for recruitment advertisements;

6. Firm closure dissemination service;

7. Information on wills service;

8. Ad hoc publications of the Society; and

9. Legal writing seminar (organised by the Publications Committee).

When asked what motivates the team, the unanimous reply is: Communication with members is key and it is important for the Society to get information and news to members in an effective and timely manner. We are happy that we are able to play a role to bring this about.

Tan Su-Yin Chief Executive Officer The Law Society of Singapore

08News


CEO's Message

Part B of the Singapore Bar Examinations 2014Commendation List

The list of top 19 candidates was based on the distinctions awarded to candidates.

Name No. of Distinctions

Position in Class

Lee Hui Ling, Jayne 4 1stKoo Chieh Yao 3

Joint 2ndTeh Joo Lin (Zheng Yulin) 3Stacey Anne Fernandez 2

Joint 4th

Yu Kexin 2Leow Jiamin 2Tao Tao 2Chua Wei Yuan (Cai Weiyuan) 2Han Shurou 2Lian Kangling, Yvonne 2Lu Huiru Grace 2Ong Liang Zhen 2See Tow Ting Xuan, Shaun 2Tan Chun Wen, Scott (Chen Junwen) 2

Teo Ee Nah, Vivien 2Wong Shi Xiong 2Yao Qinzhe 2Cephas Yee Xiang (Yi Xiang) 2Yeo Gek Min 2

Prize Award List

Pursuant to s 4(1)(g) of the Legal Profession Act (Chapter 161), the Singapore Institute of Legal Education has resolved to award the following prizes:

The Singapore Institute of Legal Education Prize for the Best Student on the Course

Lee Hui Ling, Jayne

The Singapore Institute of Legal Education Prize for the Best Student in Ethics & Professional

ResponsibilityYu Kexin

The Singapore Institute of Legal Education Prize for the Best Student in Criminal Litigation Practice

Stacey Anne Fernandez

The Singapore Institute of Legal Education Prize for the Best Student in Insolvency Law and Practice

Tao Tao

The Singapore Institute of Legal Education Prize for the Best Student in Family Law Practice

Leow Jiamin

The Singapore Institute of Legal Education Prize for the Best Student in Real Estate Practice

Ang Mian (Hong Mian)

The Singapore Institute of Legal Education Prize for the Best Students in Civil Litigation Practice

Pereira Danielle LouiseTan Xian Ying

Singapore Institute of Legal Education

09News


Part B Examinations

Introduction

1 The year was 1820. Queen Caroline of England was charged with adultery by no less than her husband, King George IV, with whom she was estranged. George IV attempted to introduce an Act of Parliament, curiously named the Pains and Penalties Bill, to declare that the Queen had committed adultery and that he ought to be granted a divorce. If passed, the Queen would have faced not just divorce and the loss of her title but perhaps much worse. The debate in the House of Lords was effectively the trial of Queen Caroline. Witnesses were called, cross-examination was conducted, and the public watched with bated breath as the drama unfolded.1

2 In her defence, her advocate, Lord Brougham (who subsequently refused the post of Attorney-General and eventually became the Lord Chancellor), raised the right of recrimination: a defence that the King, by having engaged in adultery himself, had lost the right to a divorce. More powerfully, Lord Brougham announced that he intended to adduce evidence that the King had, when he was the Prince of Wales, married one of his mistresses, a Roman Catholic widow named Maria Fitzherbert. If proved, George IV would have to forfeit his crown, plunging the country into a constitutional crisis unlike any other. It will not escape your attention that what Lord Brougham had sought to do was essentially blackmail. Many dissuaded Lord Brougham from proceeding with his threat (or, as Lord Brougham would later term it, his menace) but he persisted.2 When he rose to deliver his opening statement on the fi rst day of the trial, he gave what is now considered the classic statement of an advocates duty to his client:

[A]n advocate, by the sacred duty which he owes his client, knows, in the discharge of that offi ce, but one person in the world, THAT CLIENT AND NONE OTHER. To save that client by all expedient means to protect that client at all hazards and costs to all others, and among others to himself is the highest and most unquestioned of his duties; and he must

not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his clients protection! (original emphasis in bold and in upper case; added emphasis in bold).3

3 Unsurprisingly, the King caved in. The Bill was withdrawn and Queen Caroline remained on the throne until, sadly, she passed away a year later.4 Lord Broughams argument was as simple as it was powerful. As an advocate, he stood not as a citizen, not as a patriot, but as the zealous champion of his clients interests. 130 years later, Charles P Curtis would write that [there is a] special moral code which governs a man who is acting for another. Lawyers in their practice put off more and more of our common morals the farther they go in a profession which treats right and wrong, vice and virtue, on such equal terms.5 The practice of law is vicarious, not altruistic,6 he counselled. For Lord Brougham and Curtis, to be an advocate is to have no identity, no affi liation, and no allegiance but that of your client. To them, central to the practice of the law is the elision of the self and a complete submission to the clients cause.

4 Let me be clear, this is an extreme view of an advocates duty which I do not subscribe to. Curtis articulation of an advocates duty has been received with amazement and indignation by lawyers and academics. Some have portrayed his view satirically as Lowering the Bar. One lawyer described it in somewhat withering terms when he observed I am indeed glad that fi fty-one years ago when I was wavering between law and medicine, this article was not given me by one on whom I relied, as a fair statement of the ethics of advocacy. Had I then read and believed it, I might not have chosen a profession which, as misrepresented by Mr Curtis, I could never respect.7

5 The identity of a lawyer is one that the advocate carries with him in all his professional dealings. In 2005, the High

Th e Ethics of Criminal PracticeLecture by the Honourable Justice Steven Chong, Supreme Court of SingaporeSingapore Academy of Law Biennial Ethics Lecture 2015Singapore, 20 March 2015

12News


SAL Biennial Ethics Lecture

Court noted that solicitors, qua offi cers of court have an absolute and overriding duty fi rst and foremost to the court to serve public interest by ensuring that there is proper and effi cient administration of justice.8 Although that statement was made in the context of a civil suit, in my view it applies with equal, if not greater, force in the context of the criminal law where all of societys most vital interests lie: blame and punishment; liberty and its deprivation; life and death.

6 Today, I would like to advance a simple proposition: and that is that all criminal practitioners, be they on the side of the Prosecution or the Defence, ought to see themselves ultimately as offi cers of the Court whose ultimate allegiance is to the cause of justice. It is the advocates core identity as an offi cer of the Court which is the fountainhead of all his ethical duties, including his duty to advance his clients interests to the best of his ability. To that end, I will suggest that this demands that we start thinking not in terms of ethics of the Prosecution, and ethics for the Defence Bar, but a unifi ed ethics of criminal practice. In my view, this is not controversial, especially in the local context, given the unique Joint Code of Practice for the Conduct of Criminal Proceedings which I had the distinct honour and privilege to launch in May 2013 when I was the Attorney-General.9

Antinomy: One Master, Two Servants

7 Let me begin with a clarifi cation. When I speak of the ethics of criminal practice, I do not mean to say that Prosecutors and Defence Counsel have the same duties in all situations. This is clearly not the case. After all, even the Professional Conduct Rules distinguishes between the duties of defence counsel (in Part V) and that of prosecutors (in Part VI).10 Rather, what I mean is that there is a single ethic, a single cause, which pervades all of criminal practice. This is the pursuit of justice. Justice is the master of the Prosecutor and the Defence Counsel alike. To some, this might sound trite. But on the other hand, it might come across as odd. After all, Prosecutors seek a conviction while the Defence seek an acquittal can one speak sensibly of both being servants of the same master? As I hope to explain, I think this reaction is founded on the erroneous notion that the goal of the Prosecution is to secure a conviction at all costs; whereas the goal of the Defence is, conversely, to secure an acquittal at all costs. Both, in their unadulterated form, are untrue.

8 Let me start with the Prosecution. In a talk I gave to the Attorney-Generals Chambers as a Judge well before

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Eligibility. The scholarship to be awarded in 2015 is open to NUS/SMU LLB graduates from the classes of 2008 to 2014 who will pursue an LLM degree at an accredited law school in the United States.

Application forms are available from:

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I had any inkling that I would come to occupy that offi ce,11 I reminded the Prosecutors that they have been called ministers of justice12 in recognition of the fact that they do not act as counsel for any particular person or party they serve neither the Government of the day nor the victim of the crime. The Prosecutors client, insofar as he can be said to have one, is society. In the resonant words of Justice Rand,

.. [t]he purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty13 (emphasis added in bold).

9 The goal of the prosecution is not to secure a conviction at all costs. However, that is not to say that the Prosecutor should not care about the outcome of the case. Because the decision to charge an accused is made after a process of careful consideration, the Prosecutor would be expected to pursue the case with vigour to secure the conviction of one whom he sincerely believes to be guilty. Yet, the point is that the desire to secure a conviction fl ows from his basic commitment to justice: the Prosecutor desires to convict the guilty only because that is what justice demands. The fact that the Prosecutors ultimate duty is to justice also means that the Prosecutor has a duty to withdraw a charge or, even, to apply for a criminal revision if clear evidence emerges to disprove the guilt of the accused.

10 How about the Defence? In the case of clients who are innocent, there is no controversy. In that case, the Defence Counsels ethical obligations towards justice are coterminous with his obligations towards his client: both demand that the innocent person be acquitted. However, the concern lies in the case of the putatively guilty. How can you defend a person you know is guilty? is the question that laypersons inevitably ask criminal lawyers. The problem with that question is that it equates defence with securing an acquittal (at all costs). The two are not necessarily the same.

11 Let me fi rst clarify that the goal of criminal defence is not to secure an acquittal at all costs. In this regard I can do no better than to refer to r 73 of the PCR, which reads, [w]hen defending a client on a criminal charge, an advocate and solicitor shall endeavour to protect the client from being convicted except by a competent Court and upon legal evidence suffi cient to support a conviction for the offence with which the client is charged.14 The duty of the Defence Counsel is to ensure that no conviction is entered unless it is done: (a) by a competent Court; and (b) upon legal

evidence suffi cient to support a conviction. This gives us two important reasons why a lawyer defends the guilty.

a) The fi rst relates to substantive justice. Where there is a disputed question of guilt the only institution that can legitimately make a fi nding of guilt is the court, and only at the end of a trial, and only upon proof beyond a reasonable doubt. It is not for any person, least of all the lawyer of the accused, to arrive at a conclusion of guilt outside of the forensic process.15 As the late Subhas Anandan, with his customary acuity and candour, put it, [t]he system says that he (a criminal) must be tried in court. So as a lawyer, our job is only to prepare the best defence for him, not decide if he is guilty or not. If he is found guilty, then fi ne, punish him. I walk away with a clear conscience.16

b) The second relates to procedural justice. The law gives many rights to a criminal defendant based on values independent of guilt or innocence. These intrinsic procedural rights include the right to plead not guilty and to put the prosecution to strict proof,17 the right to prevent the retention of unlawfully seized evidence,18 and the right to counsel.19 These rights are secured and realised through representation.

12 Among the many reasons that have been proffered for a lawyers obligation to defend all clients,20 these two reasons, both of which are grounded in the quest for justice, have always impressed me the most. Like the prosecutor, the Defence Counsel advances his clients case because that is what justice demands justice demands that an advocate, skilled in the law and committed to the defence of the accused stands ready to argue the negative case. The Defence Counsel has a duty to his client because he fi rst has a duty to justice. This explains why r 74 PCR provides that defence counsel cannot mislead the court by setting up an affi rmative case inconsistent with his clients clear confession of guilt.21 The explanation is simple: a lawyers duty to his client cannot rise higher than its source, which is the court.22

13 To many laypersons, this seems absolutely paradoxical: how can the same master Justice command the loyalty of two servants (Prosecution and Defence) with opposing objectives? This is the antinomy that lies at the very heart of our adversarial system which all lawyers are familiar with. It is a system which demands that forensic truth and legal guilt be ascertained through this complex and rigorous contest between two opposing parties. The upshot of this is that both Prosecutors and Defence Counsel have essential, though different, roles to play in the pursuit of justice. And, it demands that both, as offi cers of the court, must remember

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that their ultimate master is justice, and not their clients nor their superiors in the prosecution service.

14 What does this mean for the ethics of criminal practice? For a start, I think it puts paid to the fi ction that the prosecution and the defence ought to be held to different ethical standards. This assertion rests on the easy confl ation of the proposition that prosecutors and defence counsel have different ethical duties (which is true) with the altogether different and false notion that they ought to be held to different ethical standards. If both prosecutors and defence counsel are offi cers of the court, then to suggest that one should be held to a higher ethical standard than another is both patronising and pernicious.

15 I hope, in the remainder of my speech, to show how this reorientation towards justice affects our understanding of the ethical obligations of a criminal practitioner at each stage of the criminal justice process, from the making of the charging decision to post-trial matters such as sentencing and appeals.

Th e Trajectory of Criminal Practice

Th e Charging Decision

16 Let me begin fi rst with the making of the charging decision. Of the many questions that have to be answered in the course of the criminal justice process, the decision of whether to charge (and, if so, for what) is probably the most diffi cult. In our system, the charging decision is ultimately reposed with the offi ce of the Public Prosecutor. Unlike the United States, there is no provision for this decision to be delegated to a grand jury. While such an option might be politically expedient, as the recent example of the grand jury hearing in connection with the shooting of an unarmed African-American teenager in the US town of Ferguson illustrates, remitting the question to a grand jury does not necessarily lend the eventual decision any greater degree of legitimacy. 23

17 Under established case-law, the prosecutors discretion in this area cannot be impugned except on proof of (a) bad faith or (b) unconstitutionality.24 However, these legal rules only circumscribe the limits of what is legal. It does not tell us what is ethical. Ultimately, prosecutors must remember that they are the gatekeepers of the criminal justice process if no charging decision is made, the case never enters the system and the courts cannot even take cognisance of the offence. This is a weighty responsibility. Irrespective of whether it ultimately results in an acquittal or a conviction, the mere entry of the case into the criminal justice system exacts a tremendous cost to all concerned: to the accused and his family, to the victim who might have to testify, and to

society at large, which bears not just the fi nancial cost of the criminal proceedings but also the moral cost of any error.

18 Given the tremendous consequences of a charging decision, all prosecutors necessarily have a duty to give each case their fullest attention. They must ensure that great care and consideration is given to each decision beyond being satisfi ed that the accused is factually and legally guilty. This process of determining public interest in the prosecution entails the consideration of manifold imponderables.25 From my personal experience, I can say that prosecutorial decisions invariably undergo several levels of critical internal evaluation. The reason is obvious. There is simply no margin for error. Wrong charging decisions will lead to unmeritorious prosecutions which will in turn lead to erosion of public confi dence in the criminal justice system. Therefore, in arriving at any charging decision the prosecutor must resist viewing the process as a mechanical implementation of internal prosecutorial guidelines. It is certainly not an exercise of ticking the right boxes. Guidelines are vital to maintain institutional consistency but they supplement, instead of supplant, the prosecutors careful analysis of each case. Furthermore, the Prosecutor must give unbiased consideration to every offender, he must avoid irrelevant considerations, and he must treat like with like.26 However, the point is that charging decision is made because there is a sincere belief that it is ultimately the right thing to do. In this connection, I can do no better than to quote the then-Attorney-General Mr Chan Sek Keong who stated:

We have no interest in prosecuting the factually innocent. We do not prosecute unless we are satisfi ed that there is a reasonable prospect of a conviction. We do not prosecute weak or unmeritorious cases in the hope of getting a conviction. It is only too easy for us to prosecute all cases and cast the responsibility on the courts. Furthermore, it is an abuse of public trust and may undermine confi dence in the system.27

19 I would encourage the Criminal Bar to see themselves as indispensable parts of the charging process. As the advocates of the accused, they play a vital role because they have access to a side of the story which the prosecutors do not. When I was the Public Prosecutor, I recognised that there was cynicism in some sections of the Criminal Bar about the extent to which representations ever made a difference. For my part, I always instructed the DPPs under my watch to read and consider each set of representations carefully and I have every confi dence that they did and will continue to do so under the current AG. After all the prosecution relies only on the investigation papers prepared by the investigative agencies and this, by necessity, may present a narrow picture of the facts,

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focusing primarily on the offending behaviour and the harm it has caused. Defence Counsel can widen the fi eld of vision by drawing attention to relevant facts which might otherwise go unconsidered: these could include the background to the commission of offence, the personal circumstances of the offender, and developments that have transpired after the commission of the offence. For my part, I can certainly recall instances in which charging decisions in individual cases were changed or varied as a result of constructive representations submitted by the Defence or even the accused person.

20 With that in mind, the sending representations should no longer be viewed as a pro forma appeal for leniency but as a vital and important part of the dialogue that takes place in the ongoing conversation about justice and the public interest in the criminal justice process. Defence Counsel have an ethical duty to inform the charging process by bringing all relevant considerations to the attention of the prosecutor and, where appropriate, to suggest alternative decisions which are supported by cogent reasons. Part of this ethical duty would, I think, also entail being circumspect about the use of representations. To send multiple sets of representations devoid of new and material information would only serve to delay proceedings to little profi t.

Pre-trial Matters

21 I now turn to pre-trial matters. The decision of the Court of Appeal in Kadar has been held up by many commentators as being one of the most signifi cant decisions in our jurisprudence.28 I am sure it has not escaped your attention that the last two Public Prosecutors were part of the coram who decided Kadar. The decision in Kadar, coupled with the advent of the Criminal Case Disclosure Conference regime found in the Criminal Procedure Code 2010 (CPC 2010),29 has inaugurated a sea change in the criminal discovery process, with the tide shifting towards greater transparency and parity between the parties so as to help them prepare for trial.30 The disclosure requirements introduced by both are familiar to all of us so I shall not dwell on them. Rather, my focus will be on the ethics of disclosure.

22 I think that all criminal practitioners have an ethical duty to embrace disclosure as part of their collective commitment to justice and the truth. As noted by the Court of Appeal in Li Weimings case, the dynamics in criminal proceedings have now shifted from a purely adversarial model akin to a game or sporting contest to a truth-seeking model.31 The ethical basis for disclosure is not fair play but justice disclosure should not be seen as an annoying but necessary incident of playing the game of litigation, the same way that the offside rule is an annoying but necessary part of the game of football. Rather, disclosure is at the very heart

of the purpose of criminal litigation, which is to secure the conviction and punishment of the guilty and the acquittal and vindication of the innocent in short, to achieve a just outcome by means of a fair trial.32 Proper discovery advances justice, which is to the advantage of both the Prosecution and Defence alike. Reciprocal discovery, such as that present in the CCDC regime, enhances the reliability and transparency of the criminal justice process in searching for the truth.33

23 In our current system, the Prosecution bears the primary though not exclusive burden of disclosure. And this is in keeping with the presumption of innocence: we want the Prosecution to lay its cards on the table and invite the accused to enter his defence. This process of discovery should not be seen as a handicap to the Prosecution. After all, the Prosecutions duty, as stated above, is not to secure a conviction at all costs. Rather, it is to assist the Court in the determination of the truth through the presentation of all relevant material34 and, to that end, it should be committed to the process of discovery. I have heard of more than one story in which Defence Counsel have, after viewing CCTV footage of an offence during a Criminal Case Management Conference returned to advise their clients to plead guilty, thereby saving time and expense for all concerned.

24 Of course, this does not mean that the structure of our adversarial system is to be abandoned entirely. The Court of Appeal in Kadar No. 235 clarifi ed that the duty of disclosure does not require the Prosecution to search for additional material. However, the court was also quick to add that the prosecution has a duty to comply with the spirit of the disclosure obligation rather than the mere letter.36 The point is that our current system of reciprocal and sequential discovery serves a commonality of interests and is to the advantage of both the Prosecution and the Defence.

Conduct of Trial

25 I now move to the conduct of the trial itself. The trial is the focal point of the criminal justice system; and the Courtroom is its dramatic face. David Marshall, possibly the most famous criminal lawyer ever to practice in Singapore, saw the common law adversarial trial as the trial of the person, in which the inquiry of the truth was conducted through an examination of persons as compared to the civil law inquisitorial investigation, which he described as the investigation of an offence.37 A consummate trial lawyer, he expressed his preference for the magnifi cent trial system but opined that, the trial process must still take place within the framework of human dignity.38 Building on his comments, I believe that all criminal practitioners have an obligation to conduct themselves in ways which affi rm the values of the criminal justice process: an unswerving

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Continued on page 20

commitment to the truth, an unwavering pursuit of justice, and a resounding commitment to human dignity.

26 Let me share some thoughts on how this works out in practice. Punctuality is a precious commodity in modern life and it is particularly prized in the Courts. Justice delayed is justice denied, as the old adage goes. To that end, unnecessary adjournments should be avoided and both sides should undertake to inform the other if, for some reason, the trial is unable to proceed. Punctuality is a sign of respect not just for opposing counsel and for the Judge but also for the criminal justice process itself: it signals that the determination of the innocence and guilt of an individual is a matter of utmost importance and should be accorded priority. During cross-examination, attempts at humiliating or intimidating the witness are to be deprecated. We are all familiar with the rule that no questions are to be asked without a reasonable basis and that questions which are indecent, scandalous, or calculated only to insult, embarrass, and annoy are to be avoided.39 However, I think our ethical commitments extend deeper than that. Witnesses are there to give evidence about facts and not to lay bare the most intimate details of their private life. An inquiry into the credit of a witness can be conducted without unnecessary demolition of his dignity. The trial is after all a forum for the examination of the truth.

27 Let me elaborate by reference to a recent example. The Court of Appeal recently released its decision in PP v Muhammad Farid bin Mohd Yusop.40 In that case, the Prosecution had appealed against the High Court Judges decision to acquit the Respondent of traffi cking in a capital amount of methamphetamine (386.7g) and to convict him of a non-capital charge (249.9g) instead. In the Court below, the Respondent testifi ed that he had on three previous occasions traffi cked in non-capital quantities of drugs and had no reason to suspect that this the 4th delivery would be any different. The High Court Judge accepted the Respondents argument and held that, on a balance of probabilities, there was an agreement between the Respondent and his supplier of the drugs, one Bapak, that the Respondent would not be required to deliver more than 250g of Ice for each delivery job;41 thus, the Respondent only had the mens rea to traffi c in a non-capital quantity of methamphetamine.42 For present purposes, what is relevant is the way the Court of Appeal dealt with the Prosecutions argument that an adverse inference ought to be drawn against the Respondent for electing not to call Bapak as a witness in his defence.

28 In the Court of Appeal, Mr Amolat Singh, counsel for the Respondent, did not avoid the issue but dealt with it with commendable frankness. Mr Singh did not seek to avoid

the problem but freely admitted that the Defence did not call on Bapak because of a fear that Bapak might, in an attempt to absolve himself of responsibility, turn hostile. This was a simple tactical decision, Mr Singh informed the Court. This candour is refreshing and the Court singled him out for praise, writing that Mr Singh had, in his conduct of the matter, exhibited a characteristically candid style (which has now become a sterling hallmark all criminal practitioners would do well to emulate). I respectfully agree. Candour is a close ally of honesty, and honesty is the cornerstone of justice. I can also recall many instances, during my fi rst stint on the Bench, when Deputy Public Prosecutors who have appeared before me in Magistrates Appeals have candidly and fairly accepted that sentences meted out by the lower Courts might have been too high or inappropriate because particular mitigating circumstances had not been taken into account and I varied the sentences accordingly.43 Mr Singhs conduct, and that of the DPPs who had appeared before me in the past, were in the best traditions of the Bar.

Sentencing

29 The next area I will focus on is the sentencing process. I would fi rst like to clarify that criminal practitioners should shed any notion that the sentencing process is a negotiated settlement, with the Prosecution submitting for one extreme; the Defence for another, and the Judge fi nding a landing point somewhere in the middle. This is clearly wrong for two reasons. First, it is clear that the Court is not bound by the range of sentences offered by counsel; where appropriate, it can and should reject submissions from both the Public Prosecutor and the Defence.44 Second, and perhaps more importantly, the most glaring problem with strategic submissions of the sort described above is that they are unhelpful: to put it bluntly, they are more akin to bids at an auction rather than carefully reasoned submissions grounded in an analysis of the facts and circumstances of the offence.

30 In my view, the duty of both the Prosecution and the Defence is to make submissions that are fair, accurate, measured, and refl ect the justice of the case.45 This was recently the subject of judicial comment in the case of Ghazali bin Mohamed Rasul v PP. In that case, the accused faced a total of two charges under s 6(1) of the Estate Agents (Estate Agency Work) Regulations 2010 (S 644/2010): the fi rst for introducing his client to a licensed moneylender and the second for collecting a referral fee of $150 for the introduction. In the Court below, the prosecutor for the Council of Estate Agencies had pressed for a deterrent sentence, arguing that the accuseds act in introducing his client to a moneylender was more serious than an act of corruption.46 Judicial Commissioner See Kee Oon categorically rejected

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that submission (which, I will stress, was not made by a DPP). In the course of doing so, See JC observed that the submission was unmeritorious because the present offence involved a breach of a confl ict of interest, and not any actual dishonesty, which is what offences of corruption are concerned with. However, he also noted that the Defences submissions, which charged the Prosecution with making a concerted attempt to demonise the accused, were also overstated and needlessly pejorative.

31 The prosecution and the defence both offer unique perspectives that inform the sentencing process. Just as an example, the Prosecution, though independent, works closely with the law enforcement agencies and has an understanding of operational issues and offending trends that the Courts might not. This was of critical importance in the case of PP v Yue Liangfu47 where SDJ See Kee Oon (as he then was) elected to increase the benchmark sentence for Theft on Board Aircraft cases in response to the Prosecutions submission that there had been a startling increase in the commission of such offences from 2011-2013 and that a strong deterrent message needed to be sent.

32 In the fi nal analysis, when parties fail to offer appropriate submissions on sentence, the sentencing process as a whole suffers. This is because the sentence a person is given is the end product of the system and it represents the collective wisdom and values of the prosecutor, defence, and the Judge. All stakeholders therefore have a duty to make balanced, fair, and temperate submission that ensures that the sentence fi ts the crime and when meted out is consonant with justice. Submission by either the Prosecution or the Defence to leave sentencing to the Judge was frowned upon by me both in my capacity as a Judge and as the PP.

Appeals and Post-trial Applications

33 The next area I will turn to concerns the bringing of appeals and other post-trial applications. The primary purpose of appeals, criminal motions, and criminal revisions, is two-fold. First, they exist as a means of error correction48 they are an acknowledgement that, despite our best efforts, errors can infect the trial process but must be corrected. Second, they exist to lend legitimacy and enhance respect for the criminal justice system. This is because litigants (and the public) who see that their matter has been heard by a different and neutral Court will have more reason to believe that their case has received adequate consideration and is the right one on the facts. To that end, I believe that criminal practitioners have a duty to be circumspect with their use of

the appeals process, and to use it only in furtherance of the two purposes I identifi ed. Let me give you two examples of how these reasons feature in practice.

34 The fi rst reason, error correction, featured prominently in Thomas Tays case. In 2007, Mr Thomas Tay was the CEO of Airocean Group Limited. He pleaded guilty to two charges under the Securities and Futures Act (Cap 289, 2006 Rev Ed),49 the fi rst for non-disclosure of certain information and the second for the making of a false statement. He was fi ned S$240,000/-. Following the decision of the High Court in the related matter of Madhavan Peter v PP,50 it became clear that crucial elements of both offences were now missing and the conviction was therefore unsustainable. In light of that, the Prosecution, of its own volition, elected to bring a criminal revision51 to quash the conviction and to refund the fi ne which he had paid. This application was granted.52 The point here is that a practitioners duty to justice does not end with the disposal of the case, but extends towards the correction of post-conviction errors. In the case of Defence Counsel, this is enshrined in r 81 of the PCR, which provides that advocates and solicitors are to continue to reasonably assist their clients even after conviction and sentence.

35 I will address the second, the legitimacy of the process, from a different direction. When speaking of Thomas Tays case, I talked about a practitioners positive duty to bring applications to correct error; now, I will address the practitioners duty to advise his clients against the fi ling of unmeritorious appeals and applications. It is clear that all solicitors have an obligation to carefully assess the merits of their clients cases before engaging in court proceedings.53 It goes without saying that this means that the practitioner has a duty to advise his client not to pursue a case if the application is baseless, illogical and/or unsupported by evidence. Indeed, I would go as far as to say that a practitioner has a duty to refrain from acting where to do so would, in his assessment, amount to an obstruction of due process, for example where it would only serve to distract the court or delay the conclusion of the case through the introduction of irrelevant and baseless issues.54

36 Let me elaborate by reference to an example. In Ng Chye Huey v PP [2007] 2 SLR(R) 106,55 the applicants were charged with the display of insulting writing under s 13B of the Miscellaneous Offences Act.56 During the course of the trial in the Subordinate Courts, the applicants argued that their display was not insulting because it was true. They then attempted to exhibit a UN Report which purported to substantiate that claim. The trial Judge refused to admit the UN Report as it was hearsay and the applicants fi led a criminal motion with the High Court seeking either a

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mandatory order that (a) the police or AGC was to ascertain the veracity of the report or (b) that the trial be adjourned to grant the applicants time to call the maker of the report as a witness. The High Court dismissed the motion and the applicants fi led a further criminal motion to the Court of Appeal.

37 In the course of dismissing their application, the Court of Appeal remarked that the applicants conduct bordered on an abuse of process. The Court of Appeal observed that the applicants would, in any event, have been afforded an opportunity to seek redress by way of a substantive appeal against the trial Jjudges decision and that its fi ling of not one but two criminal motions amounted to an attempt to have no fewer than three bites of the proverbial cherry.57 The Court observed that it was astounding and wholly unacceptable that litigants who ostensibly extol and advocate the need to uphold rights and fairness could so blatantly indulge in conduct which contradicts the very ideals they purportedly espouse and stand for.58

38 The point is this: every individual has a right to exhaust his legal remedies. However, this must be done within the bounds of reason and justice. The bringing of unmeritorious appeals and the fi ling of unnecessary applications impoverishes us all it is not only a waste of Court resources but it also makes a mockery of the enterprise of which we are all part. Of course, I must pause to stress that a Court can, after reviewing a matter which has been sincerely and faithfully argued, decide that there is no merit in the case. This is not the situation I am concerned with. It is clear that lawyers cannot always get it right. Rather, I want to stress that lawyers must independently consider the merits of their clients cases and cannot act merely as their parrot.

Conclusion

39 I began this address with a tale of one king King George IV. I will now end it with reference to another king. This king has no crown and no throne; no subjects and no vassals; he is the king of liberty, of equality, and of moral courage.

40 On 25 March 1965, at the height of the Civil Rights Movement, Martin Luther King Jr. faced a crowd of thousands while standing on the steps of the State Capitol in Montgomery, Alabama and said:

How long? Not long, because no lie can live forever How long? Not long, because the arc of the moral

universe is long but it bends towards justice.59 (emphasis added in bold),

41 While he was speaking in the context of the struggle for an end to racial segregation, Kings general point was that history would be justices vindication eventually, justice would triumph. What King said of history is true, also, of the criminal justice process. Those of you who practice criminal law know that the trajectory of the criminal process can sometimes be long, tedious, and somewhat cumbersome. However, the raison dtre of criminal litigation is justice. To that end, all criminal practitioners should see themselves not as pugilists tugging at opposite ends of a rope. Rather, they should see themselves as the servants of justice, each with their distinct duties but all with a common vision: to bend the arc of criminal justice slowly, painstakingly, ceaselessly but surely towards justice.

42 I hope that nothing I have said in this address has come as a surprise to anyone. After all, the points I have raised are simply grounded on common sense, fair play and a genuine desire to do the right thing. With experience and good mentorship, each of you should be able to navigate the ethical obstacles intuitively whenever they crop in the course of your career in the law. That is my hope, my sincere wish, and my parting thought.Thank you.

* I would like to record my appreciation to my law clerk, Scott Tan, for his assistance in the preparation of this address.

60

Notes

1 Th e debate in the Houses of Parliament over the passage of the Pains and Penalties Bill of 1820 served as a public trial of the Queen, during which the Government called witnesses against the Queen who could be cross-examined by the Queens legal counsel.

2 Monroe H. Freedman, Henry Lord Brougham and Zeal, 34 Hofstra L. Rev. 1319; Gerald F. Uelmen, Lord Broughams Bromide: Good Lawyers as Bad Citizens, 30 Loy. L.A.L. Rev 119.

3 Henry Brougham, Th e Life And Times Of Henry, Lord Brougham Vol. 2 (Harper, 1871) (Th e Life and Times of Lord Brougham), pp 308-309; available at: (accessed 12 February 2015). Th is extract was taken from Lord Broughams autobiography. Freedman (ibid) has pointed out that the text of his actual speech diff ers slightly from the account in his autobiography but the diff erences are minor.

4 Th e Government eventually withdrew the bill. See Th e Life and Times of Lord Brougham, pp 316-317.

5 Charles P Curtis, Th e Ethics of Advocacy, (1951) 4 Stanford Law Review 3, 16 (Curtis).

6 Curtis, p19.

7 Henry S. Drinker, Some Remarks on Mr. Curtis Th e Ethics of Advocacy, (1952) 4

Justice Steven Chong*

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Stanford Law Review 349, 349.

8 Public Trustee v By Products Traders Pte Ltd [2005] 3 SLR(R) 449 at [35].

9 Attorney-Generals Chambers and Law Society of Singapore, Code of Practice For the Conduct of Criminal Proceedings by the Prosecution and Th e Defence; available at: (accessed 5 March 2015).

10 Professional Conduct Rules (Cap 161, R 1, 2010 Rev Ed) (PCR).

11 Steven Chong, Th e Role and Duties of a Prosecutor Th e Lawyer Who Never Loses A Case, Whether Conviction or Acquittal, speech delivered on 10 November 2011.

12 American Bar Association, Commentary On Th e Model Rules Of Professional Conduct, r 3.8; available at: (accessed 13 February 2015).

13 Boucher v Th e Queen [1955] S.C.R. 16 at pp 23-24.

14 Rule73 PCR.

15 William H. Simon, Th e Ethics of Criminal Defence, (1993) 91 Michigan Law Rev 1703.

16 Matthias Tay, Second Chance Lawyer went the extra mile for his clients, Today (8 January 2015); available at: (accessed 13 February 2015).

17 Kuek Ah Lek v PP [1995] 2 SLR(R) 766 at [65].

18 SM Summit Holdings Ltd and Anor v PP [1997] 3 SLR(R) 138 at [104].

19 Article 9(3) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint).

20 For an excellent summary see Barbara Allen Babcock, Defending the Guilty (1983-1984) 32 Clev. St. L. Rev 177-179.

21 See r74 PCR, which provides that where a clear confession of guilt has been made to a lawyer, the lawyer cannot set up an affi rmative case inconsistent with the confession.

22 Curtis, supra (note 2 above), p7.

23 Monica Davey and Julie Bosman, Protests Flare After Feruguson Police Offi cer Is Not Indicted, New York Times (24 November 2014); available at: < http://www.nytimes.com/2014/11/25/us/ferguson-darren-wilson-shooting-michael-brown-grand-jury.html> (accessed 16 February 2015).

24 Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 at [149]; Ramalingam Ravinthran v AG [2012] 2 SLR 49 (Ramalingam) at [51].

25 Inmates of Attica Correctional Facility et al v Nelson A Rockefeller et al 477 F 2d 375 (1973) at 380.

26 Ramalingam at [51]-52].

27 Chan Sek Keong, Rethinking the Criminal Justice System of Singapore for the 21st Century in Th e Singapore Conference: Leading the Law and Lawyers into the New Millenium @ 2020 (Butterworths, 2000), pp 49-50.

28 Muhammad bin Kadar and Anor v PP [2011] 3 SLR 1205 (Kadar); see generally Denise Wong, Discovering the Right to Criminal Disclosure, (2013) 25 SAcLJ 548; Michael Hor, Th e Future of Singapores Criminal Process, (2013) 25 SAcLJ 847.

29 Criminal Procedure Code (Cap 68, 2012 Rev Ed).

30 Li Weiming v PP [2013] 2 SLR 1227 at [17] (Li Weiming (HC)).

31 Li Weiming v PP [2014] 2 SLR 393 at [26] (Li Weiming (CA)).

32 Kadar, supra (note 22 above) at [86].

33 Li Weiming (CA) at [26].

34 Rule83 PCR, Kadar at [200].

35 Muhammad bin Kadar and Anor v PP [2011] 4 SLR 791 (Kadar No. 2).

36 Kadar No. 2 at [14] and [20].

37 David Marshall, Facets of the accusatorial & inquisitorial systems [1979] MLJ xxix.

38 See also Chan Sek Keong, David Marshall and the Law Some Refl ections on His Contributions to Criminal and Civil Justice in Singapore, Speech delivered on 12 March 2008; available at: < http://www.google.com.sg/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB0QFjAA&url=http%3A%2F%2Fwww.sal.org.sg%2FLists%2FSpeeches%2FAttachments%2F50%2FDavid%2520Marshall%2520Symposium%2520-%2520CJ%2527s%2520speech%2520FINAL.pdf&ei=N_v4VK2nC4OauQTh nYGgCg&usg=AFQjCNFNqG6j6qLgR2awCxtaq38q9SVXKQ&sig2=9bP9QjVlzfvj4VXzpqXfww&bvm=bv.87611401,d.c2E> (accessed 6 March 2015).

39 Sections 152-154 Evidence Act (Cap 97, 1997 Rev Ed).

40 PP v Muhammad Farid bin Mohd Yusop [2015] SGCA 12 (Muhammad Farid).

41 Muhammad Farid at [18(a)].

42 Muhammad Farid at [19].

43 See eg Goh Teck Meng v PP convicted of money laundering. He was sentenced to 30 months per charge. However the main protagonist was separately sentenced before another District Judge to 18 months per charge. Th e DPP, Mr David Chew of the relative culpability of the appellant to that of the main protagonist, Mr Chew accepted the appellant was less culpable and that the sentence was indeed on the high side and I varied it accordingly.

44 PP v Development 26 Pte Ltd [2015] 1 SLR 309 at [24].

45 Ghazali bin Mohamed Rasul v PP [2014] 4 SLR 57 at [77] (Ghazali).

46 Ghazali at [75].

47 Brief grounds in MAC 4821/2013.

48 Steven Shavell, Th e Appeals Process as a Means of Error Correction, (1995) 24 Journal of Legal Studies 379 (1995).

49 PP v Th omas Tay *(DACs 46677 and 46678 of 2006).

50 Madhavan Peter v PP and Other Appeals [2012] 4 SLR 613.

51 PP v Th omas Tay (CR 12/2013).

52 Selina Lum, Former Airocean chief cleared of charges, Th e Straits Times (7 October 2013); available at: < http://news.asiaone.com/news/crime/former-airocean-chief-cleared-charges> (accessed 17 February 2015).

53 Zhou Tong v PP [2010] 4 SLR 534 at [19] (Zhou Tong).

54 Zhou Tong at [20].

55 Ng Chye Huey v PP [2007] 2 SLR(R) 106 (Ng Chye Huey).

56 Miscellaneous Off ences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed).

57 Ng Chye Huey at [65].

58 Ng Chye Huey at [72].

59 Martin Luther King Jr., How Long, Not Long (Speech delivered on 25 March 1965, Montgomery, Alabama); available at: < http://mlk-kpp01.stanford.edu/index.php/kingpapers/article/our_god_is_marching_on/> (accessed 6 March 2015).

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Beyond Professional Courtesy: Reappraising the Rationales of the No-Contact Rule in Singapore

This article reappraises, in the light of a recent disciplinary decision, the rationales of the ethical rule that a lawyer is generally not permitted to communicate with a client represented by another lawyer in the same transaction.

Introduction

In 1835, a curious case was decided by the Court of Kings Bench in England. A 75-year-old woman, who had obtained judgment by default, in ejectment, against a tenant in possession was visited by two lawyers. They informed her that she had no claim to the land and that she would be put to great expense. They asked her to give up the land as otherwise proceedings would be delayed. Alone, and not in the habit of managing her own affairs, the woman did not know that possession of the land had been obtained on the judgment and told the lawyers that she wished to consult her lawyer. But the lawyers objected to the delay and persuaded her to sign a paper which set out her consent for the judgment to be rescinded and the title decided without reference to the previous ejectment proceedings. Subsequently, she successfully applied to the Court of Kings Bench for the lawyer who was in possession of the paper to deliver it up to be cancelled.

Who were the lawyers who attempted to procure the elderly womans consent to rescind the judgment?

As you may have guessed, the lawyers had been engaged by the tenants landlord to set aside the judgment and to have the landlord made a party to the proceedings. The Lord Chief Justice, Thomas Denman, held that it was an absolute rule that it was improper for the landlords lawyers to obtain her signature, when she had mentioned that she had a lawyer whom she wished to consult and her lawyer was absent.1 If their actions were permitted, a very impure, and often a fraudulent, practice would prevail.2

This English case, In the Matter of Ann Oliver, has been said to be the likely origin of the well-known ethical rule that a lawyer is generally not permitted to communicate with a client represented by another lawyer without that lawyers consent or presence.3 Commonly referred to as the no-contact rule in American legal ethics literature, a form of

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this rule is found in r 48 of Singapores Legal Profession (Professional Conduct) Rules (PCR).

A disciplinary decision published in January 20154 (the Disciplinary Decision), opined, possibly for the fi rst time in Singapores legal history, on the rationales of r 48 PCR. Given that the purposes of the no-contact rule have often been criticised in American legal ethics literature, the Disciplinary Decision provides a useful platform to reappraise the rationales of the no-contact rule in Singapore, which had hitherto only been articulated in local academic commentary.

Rule 48 PCR

Rule 48 PCR, which was enacted in 1998, is a deceptively simple ethical rule comprising a general prohibition against a lawyer communicating with a represented client together with three exceptions. It states:

No communication with represented clients

48. (1) An advocate and solicitor shall not, directly or indirectly, communicate with a client of another advocate and solicitor in the same transaction, except

(a) with the express approval of such other advocate and solicitor;

(b) where it is not reasonably practicable to communicate with the other advocate and solicitor; or

(c) where the interests of the advocate and solicitors client will be severely prejudiced if the communication is delayed.

(2) In the case of paragraph (1)(b) or (c), the other

advocate and solicitor must be informed as soon as possible.

Interestingly, only the fi rst exception to r 48 PCR is within the control of the represented clients lawyer. The other two exceptions would appear to depend on the professional judgment of the lawyer seeking to communicate with the represented client, although the latters lawyer must be informed as soon as possible of the contact.

For half a century or more, the no-contact rule has been internalised in the Singapore legal profession. It dates back at least to a 3 March 1962 Circular (the 1962 Circular) issued probably by the Singapore Bar Committee. That version of the no-contact rule only contained one exception the consent of the represented clients lawyer:

Members of the Bar are reminded that the general rule of etiquette about communicating with the clients of other solicitors is that a solicitor should not interview or otherwise communicate with the client of another solicitor, particularly in pending proceedings, without the consent and approval of that solicitor.5

The 1962 Circular was most likely derived from Sir Thomas Lunds commentary in A Guide to the Professional Conduct and Etiquette of Solicitors, although the words highlighted in bold below were missing from the 1962 Circular:

What is the etiquette about communicating with the clients of other solicitors? The general rule is very well known; it is that a solicitor should not interview or otherwise communicate with the client of another solicitor, particularly in pending proceedings, without the consent and approval of that solicitor, even if the interview or communication is only with a view to obtaining information as to the clients ability to pay costs6 (emphasis added).

Two local commentators have sought to explain the rationales underlying r 48 PCR. In The Law of Advocates and Solicitors in Singapore and West Malaysia, Professor Tan Yock Lin formulated three purposes of Singapores no-contact rule:

1. the danger of unfair or undue pressure is presented; 2. the appearance of sharp practice is created; and

3. the respect and courtesy to be shown to his advocates judgment is violated.7

Similarly, Professor Jeffrey Pinsler SC suggests in Ethics and Professional Responsibility: A Code for the Advocate and Solicitor that r 48 PCR has several purposes:

It is intended to protect the person against inappropriate interference or infl uence from or by an advocate and solicitor whose client has an opposing or different interest. The provision also avoids the appearance of improper intervention in the affairs of a person who has already engaged an advocate and solicitor to advise him. In the context of the relationship between advocates and solicitors, the rule sets a standard of professionalism by requiring the advocate and solicitor who seeks to communicate with the person to obtain the express approval of the latters advocate and solicitor.8

It is useful to compare the above brief commentaries on the purposes of r 48 PCR with the extensive jurisprudence on the

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functions of the American no-contact rule, as represented by Model Rule 4.2 of the American Bar Associations (ABA) Model Rules of Professional Conduct. The general no-contact prohibition in Model Rule resembles that in r 48 PCR but the exceptions in Model Rule 4.2 rest only on consent or authority. Model Rule 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.9

According to the famous American legal ethicist Geoffrey Hazard, the purposes of Model Rule 4.2 are to protect: (i) the client; (ii) the lawyer; and (iii) the lawyer-client relationship.10 This three-pronged framework will be used in comparing the rationales of r 48 PCR and Model Rule 4.2.

First, the language of the phrases unfair or undue pressure and protect the person against inappropriate interference or infl uence indicate that a primary function of r 48 PCR is, at least according to these commentators and like one of the purposes of Model Rule 4.2, to shield the client from the opposing lawyers improper approaches.11 One criticism of this function is that it favours clients who are wealthy or sophisticated enough to have a lawyer on retainer.12 In other words, only people who can afford to engage lawyers may obtain the benefi t of r 48 PCR.

Second, the phrases appearance of sharp practice and, perhaps to a lesser extent, appearance of improper intervention suggest a tendency towards protecting the lawyers interests. From this perspective, taking advantage of the opposing lawyers absence to communicate with the represented client should not be condoned as it hinders the opposing lawyer from performing his proper role for his client.13 Yet, this function can also be criticised, as requiring the clients lawyer to be present whenever the client communicates with the opposing lawyer will only increase legal costs.14

Finally, it is striking that none of the purposes stated in the local commentaries refer overtly to protecting the client-lawyer relationship from interference by opposing counsel.15 It has been argued that the protection of the lawyer-client relationship is in fact the core function of the American no-contact rule, as it preserves legal professional privilege by precluding inadvertent or legally imprudent disclosures of privileged information.16

Instead, the third purpose of r 48 PCR stated by both commentators focuses on the respect and courtesy and

standard of professionalism that would be breached by violating the rule. In America, whilst professional courtesy used to underpin the no-contact rule, the American Bar Association has moved beyond this traditional rationale.17 Comment 1 to Model Rule 4.2 states that the purpose of the rule is to:

[contribute] to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.18

With this background in mind, we turn now to the rationales of r 48 PCR enunciated in the Disciplinary Decision.

Th e Disciplinary Tribunals View

The Disciplinary Decision concerned fi ve charges faced by the respondent lawyer in the context of a conveyancing transaction. The Disciplinary Tribunal found that only the third charge, which alleged that the respondent lawyer had committed a breach of r 48 PCR in the course of the sale of a HDB fl at up to the time of completion, was made out and determined that the respondent lawyer be reprimanded.

The salient facts relating to the third charge were as follows. A couple was going through an acrimonious divorce in the Syariah Court, which had ordered the sale of their jointly owned HDB fl at and the division of the sale proceeds. The respondent lawyer acted for the wife in the sale, but delays in completion ensued because his clients husband refused to co-operate in effecting the sale. The buyers of the fl at were another couple and the complainant (the husband) called the respondent lawyer on several occasions to enquire about the delay in the completion of the transaction. It was undisputed that the respondent lawyer knew that the buyers were represented by another law fi rm in the sale.

During these telephone conversations, the respondent lawyer told the complainant of the problem with his clients husband, that he was doing his best to complete the transaction and that the complainant should refer to his own lawyers. However, the respondent lawyer did not inform the complainants lawyers about the conversations or ask them to advise the complainant to stop calling him.

The Disciplinary Tribunal found that it was clear that the respondent lawyer had breached r 48 PCR on the facts, as he had spoken directly with the complainant on repeated occasions and did not seek approval from the complainants lawyers or inform them of the calls.19

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The Disciplinary Tribunal observed that r 48 PCR:

embodies the rule of etiquette that it is discourteous for a lawyer to communicate with the client of another lawyer behind his back. The rule ensures that an advocate and solicitor does not obtain any advantage from by-passing counsel and dealing directly with the client. This rule applies even when there is no intention to seek any advantage, as there is the risk that advantage is obtained even though it is not sought.20 (emphasis added)

Accordingly, the Disciplinary Tribunal regarded the following factors as merely mitigating:21

1. The respondent lawyer had not initiated the communications;

2. He had not gained any advantage or caused any prejudice by the conversations;

3. He had told the complainant to speak to his own lawyers; and

4. He had not acted in bad faith.

In particular, although it was the complainant who had initiated the communications, the Disciplinary Tribunal noted that the respondent lawyer should have told the complainant not to call him or inform the complainants lawyers of the calls.22

It is submitted that three key points arise from the Disciplinary Decision:

1. In its grounds of decision, the Disciplinary Tribunal did not expressly refer to the views of the local commentators on the rationales of r 48 PCR. However, the Disciplinary Tribunal espoused the professional courtesy rationale

Singapore Law Gazette (April 2015)

Documents

Transcript of Singapore Law Gazette (April 2015)