SUPREME COURT OF SINGAPORE
30 January 2024
Case summary
Kassimatis, Theodoros KC v Attorney-General and another and another matter [2024] SGHC 24
-------------------------------------------------------------------------------------------------------------------------------------
Decision of the General Division of the High Court (delivered by Justice Woo Bih Li):
Outcome: The High Court dismisses two applications for the ad hoc admission of King’s Counsel and sets out its reasons for upholding a preliminary objection that the King’s Counsel were not entitled to address the court on the applications.
Pertinent and significant points of the judgment
• In considering whether an applicant for ad hoc admission falls within the exception in s 34(1)(e) of the Legal Profession Act 1966 (2020 Rev Ed) (the “LPA”), the court should consider the underlying matter which the applicant seeks ad hoc admission for. If the applicant is seeking ad hoc admission to act for someone else, then the applicant is not acting personally for himself in the application for ad hoc admission within the meaning of s 34(1)(e) of the LPA: at [31].
• While a special reason for the ad hoc admission for foreign counsel may exist where a litigant shows that he cannot find any competent local counsel to represent him, the reasons why local counsel have decided not to act are relevant. It will be incongruous to allow foreign counsel to be admitted when local counsel are of the view that there is no merit on the facts and there is no suggestion that these local counsel do not have adequate experience: at [67]–[69].
Background
1 HC/OA 696/2023 is an application by Mr Theodoros Kassimatis KC (“Mr Kassimatis KC”) for ad hoc admission to act for two persons, Jumaat bin Mohamed Sayed (“Jumaat”) and Saminathan Selvaraju (“Saminathan”), in the matters of CA/CA 2/2023 (“CA 2”) and CA/SUM 16/2023 (“SUM 16”). HC/OA 811/2023 is an application by Mr Edward Fitzgerald KC (“Mr Fitzgerald KC”) for ad hoc admission to act for two other persons, Datchinamurthy a/l Kataiah (“Datchinamurthy”) and Lingkesvaran Rajendaren (“Lingkesvaran”), in the same matters of CA 2 and SUM 16. Both King’s Counsel are referred to as the “Applicants” or individually the “Applicant”, and their applications as the “Applications” or individually the “Application”.
2 The respondents in each Application are the Attorney-General (“AG”) and the Law Society of Singapore (“LSS”) (collectively, the “Respondents”).
3 Each of the four persons (the “Claimants”) whom the Applicants seek to act for was accused of an offence under the version of the Misuse of Drugs Act 1973 (2020 Rev Ed) (the “MDA”) that was in force at the material time. Each of the Claimants was convicted at trial and sentenced to suffer the death penalty, and their respective appeals against their convictions have been dismissed.
4 Following the dismissal of the respective appeals, various civil applications were filed by one or more of the four persons. Subsequently, on 22 August 2022, the Claimants filed HC/OA 480/2022 (“OA 480”) seeking permission to commence judicial review proceedings. This was on the basis that ss 18(1) and 18(2) of the MDA, which provide for the presumptions of possession and knowledge respectively, were incompatible with the presumption of innocence that is protected under the Constitution of the Republic of Singapore (2020 Rev Ed).
5 OA 480 was dismissed by Valerie Thean J on 25 November 2022. Among other reasons, Thean J found that the subject matter of OA 480 was not susceptible to judicial review. She held that if there was proper reason to reconsider the Claimants’ convictions, the proper forum to do so was a review application under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”), but the Claimants did not meet the requirements under the CPC for commencing a review application.
6 On 23 December 2022, the Claimants filed CA 2 to appeal against the decision of Thean J. As the Claimants failed to file the requisite documents for the appeal within time, CA 2 was deemed withdrawn on 14 March 2023.
7 Subsequently, on 31 March 2023, the Claimants filed CA/SUM 8/2023 (“SUM 8”) for CA 2 to be reinstated. SUM 8 was dismissed by Steven Chong JCA on 25 May 2023. Chong JCA agreed with Thean J that the correct procedure was for the Claimants to commence a review application under the relevant provisions of the CPC, but that they did not satisfy the requirements under the CPC to do so.
8 On 6 June 2023, the Claimants filed SUM 16 for the full court of the Court of Appeal to set aside the decision of Chong JCA, for CA 2 to be reinstated and for consequential orders.
9 The Applicants subsequently filed the Applications for ad hoc admission. Written submissions were filed by the Applicants and the Respondents. The Respondents took a preliminary objection that the Applicants were not entitled to address the court on the Applications, given that they had not yet been admitted to practise as advocates and solicitors of the Supreme Court of Singapore (the “Preliminary Objection”). This objection was upheld by the court on 16 October 2023.
10 As the Claimants indicated that they wished to address the court on the Applications, they were given directions to file their submissions, and they duly did so. The Claimants contend that the Applications should be granted as the requirements under s 15 of the LPA have been satisfied. After the Applications were heard on 23 November 2023, the court invited further submissions on a question, ie, whether the Applicants have special experience on the issue of whether the Claimants are correct to proceed with a judicial review application (instead of a review application under the CPC), which were filed on 12 January 2024.
Decision of the court
The Preliminary Objection
11 Section 32(1) of the LPA provides that a person who is not on the roll of advocates and solicitors, or who does not have in force a practising certificate, is an “unauthorised person”. Section 33 of the LPA makes it an offence for any unauthorised person to act as an advocate and solicitor. The Applicants’ position was that they did not fall foul of these provisions, as they came within an exception in s 34(1)(e) of the LPA which states that s 33 does not extend to “any person acting personally for himself or herself only in any matter or proceeding to which he or she is a party” (the “Exception”). The Applicants claimed that they were acting personally for themselves in the Applications: at [20]–[27].
12 However, the court should consider the underlying matter of the Applications. It is clear that each Application is for the Applicant to act for someone else. In that sense, neither Applicant is acting “personally for himself” within the meaning of the Exception, and to adopt the Applicants’ argument would be to circumvent s 33 of the LPA: at [31].
13 The case of Re Nicholas William Henric QC and another application [2002] 1 SLR(R) 751 (“Re Henric”) did not assist the Applicants and arguably assisted the Respondents instead. The court in that case did not state that an applicant may address the court in an application for ad hoc admission, and instead said that it was the litigant-in-person who may address the court. The court in Re Henric also construed s 34(e) of the Legal Profession Act (Cap 161, 2001 Rev Ed), which is identical in substance to the Exception, to refer to a litigant-in-person rather than an applicant for ad hoc admission. Significantly, the Applicants did not argue that the Exception allowed both the Claimants and the Applicants to submit on the Applications. The Exception would have to be amended if that effect was intended. The court therefore upheld the Preliminary Objection for the reason that the Exception did not apply: at [32]–[39].
Whether the applicants should be granted ad hoc admission
14 The ad hoc admission of foreign counsel is provided for in s 15 of the LPA. Under that provision, the court must first consider certain requirements set out in s 15(1) of the LPA (the “s 15(1) Requirements”), as well as the threshold requirement under s 15(2) of the LPA of whether a special reason must be shown and if so, whether it has been. It is only if all these requirements are met that the court will proceed to consider the further matters specified in the Legal Profession (Ad Hoc Admissions) Notification 2012 (collectively, the “Notification Matters”): at [40]–[44].
15 In the present case, the Respondents accept that the s 15(1) Requirements that the Applicants must hold a patent as King’s Counsel, and ordinarily reside outside of Singapore or Malaysia but intend to come to Singapore for the purposes of appearing in the case (pursuant to ss 15(1)(a) and 15(1)(b) of the LPA), are met: at [46].
16 In relation to the requirement of special qualifications or experience pursuant to s 15(1)(c) of the LPA, the court accepts that the Applicants have special experience to make submissions on the constitutionality of the presumptions in the MDA. However, there was a threshold issue with the Claimants’ case in OA 480 which was whether the Claimants had chosen the wrong route to pursue the reliefs they sought. The Claimants would have to persuade the court that they are entitled to proceed with a judicial review application in the circumstances notwithstanding the CPC. While Mr Fitzgerald KC has special experience in cases involving judicial review, the requirement of special qualifications or experience was not satisfied in respect of Mr Kassimatis KC: at [56]–[63].
17 The Claimants accept that CA 2 and SUM 16 fall within the prescribed areas of law set out in r 32(1) of the Legal Profession (Admission) Rules 2011, ie, constitutional and administrative law as well as criminal law, and that there must therefore be a special reason for the admission of the Applicants. Nevertheless, they have failed to show that a special reason exists. The Claimants submit that there is a special reason as CA 2 and SUM 16 concern issues of public importance that extend beyond the facts of their respective cases. However, the mere existence of “macro” issues is insufficient, as otherwise a special reason would exist in every constitutional case. The fact that CA 2 and SUM 16 raise issues of public importance does not, without more, satisfy the special reason requirement: at [64]–[65].
18 The Claimants contend that a special reason also exists as they have been unable to find local counsel to represent them. However, the reason why their efforts in securing local counsel have been unsuccessful is relevant. The Claimants disclosed one explanation given by local counsel who were prepared to act in principle and were of the view that there was a good arguable case on the issues raised about the MDA, but decided not to act only because of a lack of merit on the facts of the case. It will be incongruous to allow foreign counsel to be admitted when local counsel are of the view that there is no merit on the facts and there is no suggestion that these local counsel do not have adequate experience: at [66]–[72].
19 It is important to bear in mind that the Claimants’ challenge on the law will have to be applied to the facts. However, the Claimants have not elaborated on how their challenge on the law, if successful, would likely lead to a successful outcome on the facts. There should at least be some elaboration on the eventual outcome to persuade the court that it will not be academic to grant the Applications, especially at such a late stage when the appeals have already been disposed of: at [73].
20 The Claimants have been able to access substantive legal assistance, even without formal representation. The documents for OA 480 had been drafted by a Malaysian lawyer, and the submissions filed by the Claimants in SUM 8 and SUM 16 were likewise drafted with legal terms and arguments. In the circumstances, even if the Claimants were not formally represented by the Applicants, they have access to legal resources. The appellate process in Singapore has also evolved to focus more on written advocacy than oral advocacy, and there is nothing to prevent the participation of foreign counsel in the preparation for the written submissions for an appeal. This applies to CA 2 and SUM 16: at [76]–[77].
21 In all the circumstances, there is no special reason to grant the Applications. As there is no special reason to grant the Applications, it follows that there is no need to consider the Notification Matters: at [78]–[79].
22 The court therefore dismisses the Applications: at [83].
This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.