Godfrey Gerald, Queen's Counsel v UBS AG and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 15 April 2003
• Neutral Citation: [2003] SGCA 16
• Date: 15 April 2003
• Subject Matter: Legal Profession,Appeals,Exercise of discretion,Costs,Civil Procedure,Whether circumstances of case attracted exercise of judicial discretion,Costs against person not party to proceedings,Whether issues raised sufficiently difficult and complex points of law and/or facts,Ad hoc,Whether applicant suitable for admission,Admission,Legal Profession Act (Cap 161, 2001 Rev Ed) s 21(1),Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) First Schedule para 13,Discretion exercised by trial judge-Interference by appellate court.,Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 59 r 2(2)
• Docket Number: Civil Appeal No 114 of 2002
• Published date: 17 December 2003
• Defendant Counsel: Wilson Hue Kuan Chenn,Davinder Singh SC, Hri Kumar (Drew & Napier LLC),Laurence Goh Eng Yau
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Anthony Wee Soon Kim in person, on behalf of the appellant

Delivered by Yong Pung How CJ

1 This was an appeal by the appellant, Mr Gerald Godfrey QC, against the decision of Judicial Commissioner Tay Yong Kwang (as he then was) (‘the judge’) denying him admission as an advocate and solicitor of the Supreme Court for the purpose of appearing on behalf of Mr Anthony Wee Soon Kim, the plaintiff in Suit No. 834 of 2001/R (‘Suit No. 834’). After considering the submissions for the appellant, we unanimously agreed that the appeal should be dismissed without calling upon any of the respondents to respond. We now give our reasons.

The facts giving rise to the application to admit the appellant

2 Mr Wee is a 72 year old retired lawyer suffering a serious heart ailment complicated by diabetes and renal failure. UBS AG (‘UBS’), the first respondent in this case, is an international private bank carrying on business in Singapore in accordance with the Association of Banks in Singapore’s Code of Conduct.

3 In August 1997, Mr Wee’s son, Richard, received a tip that the Malaysian ringgit (‘RM’) was likely to strengthen and decided, with his father’s consent, to use his father’s account with the bank to purchase RM35 million against a US$ loan. However, the RM weakened instead against the US$. By December 1997, Mr Wee was deeply concerned about the mounting losses he was suffering as a result of that transaction. He therefore asked the bank for suggestions on how he could effectively manage his losses.

4 The bank offered him the following three alternative strategies:

(1) keep his existing RM position and do nothing;

(2) cut his RM position immediately and convert it into US$, realising his losses; or

(3) adopt the ‘DFF Strategy’ which consisted of an investment in the bank’s US$ denominated SBC Dynamic Floor Fund (‘DFF’) and a 12-month Forward Foreign Exchange trade buying RM against the US$.

After several meetings, Mr Wee decided to adopt the DFF Strategy.

5 Around the middle of 1998, interest rates for the RM shot up to almost 30% per annum as the Malaysian government aggressively raised interest rates in order to fend off speculative attacks on the RM. Mr Wee would have been much better off financially had he kept his RM position intact in December 1997. In September 1998, as a result of the capital measures imposed by Bank Negara, the bank converted Mr Wee’s RM deposits at US$1 to RM4, the rate adopted by the Association of Banks in Singapore.

6 On 4 July 2001, Mr Wee commenced Suit No. 834 against the bank, alleging that the bank’s representatives misrepresented the DFF Strategy to him. He also claimed that the conversion of his RM deposits was wrongful and took issue with various charges and fees debited against his account. The issues arising out of Suit No. 834 will be dealt with in greater detail below. The trial of that action has commenced but was adjourned due to Mr Wee’s health problems. In Originating Motion No. 22 of 2002, the appellant applied under s 21 of the Legal Profession Act (Cap 161) to be admitted as an advocate and solicitor of the Supreme Court for the purpose of representing Mr Wee in Suit No. 834.

7 The judge below held that an application for admission of a Queen’s Counsel (‘QC’) under s 21 of the Legal Profession Act (‘the Act’) was governed by a three-stage test, following the principles in Re Caplan Jonathan Michael QC [1998] 1 SLR 432 at 435. At the first stage, the applicant must demonstrate that the case in which he seeks to appear contains issues of law and/or fact of sufficient difficulty and complexity to require elucidation and/or argument by a QC. Such difficulty or complexity is not of itself a guarantee of admission, for the decision to admit is still a matter for the court’s discretion. At the second stage, therefore, the applicant must persuade the court that the circumstances of the particular case warrant the court exercising its discretion in favour of his admission. Finally, the applicant has to satisfy the court of his suitability for admission. The judge refused to admit the appellant because his application failed every stage of the three-stage test. The judge found that:

(1) the facts and the legal issues in the action were not of sufficient difficulty and complexity to warrant the admission of a QC;

(2) the circumstances of the case did not warrant the court exercising its discretion in favour of admission because it was Mr Wee’s own unjustifiable stance which caused him to be without legal representation in Suit No. 834; and

(3) despite the appellant’s very impressive achievements and ability, his qualifications and experience did not quite meet the requirements of the action before the court.

In addition, the judge ordered Mr Wee to pay $5000 in costs to the first respondent, UBS. The appellant appealed against both the judge’s decision denying him ad hoc admission, as well as the award of costs.

The intervening developments

8 Subsequent to the filing and service of the appellant’s case and the record of appeal, the appellant’s then counsel, Mr Goh Aik Leng (who also represented Mr Wee), informed the respondents in a letter dated 5 February 2003 that Mr Wee was no longer desirous of seeking ad hoc admission for the appellant. Counsel therefore did not wish to pursue the issue of the appellant’s suitability for admission. However, he wished to proceed with the remainder of the appeal to prevent Mr Wee from being estopped by the findings of the judge below should he decide to hire another QC.

9 In the interim period before the hearing of this appeal, Mr Goh sought ad hoc admission for another QC, Mr Richard de Lacy, again for the purpose of representing Mr Wee in Suit No. 834. The application came before the same judge who had heard the appellant’s application. The judge rejected Mr de Lacy’s application because his application failed the first two stages of the three-stage test (see Re Richard de Lacy QC [2003] SGHC 55).

10 When the present appeal came on for hearing, Mr Goh applied for leave to discharge himself as counsel for Suit No. 834 and its related matters on the ground that he was "not capable" and did not "possess the requisite skill or resources to lead and conduct" the case. Mr Goh indicated that Mr Wee was ready and willing to argue the appeal in person and that Mr Wee was now desirous of seeking ad hoc admission for the appellant. We granted Mr Goh leave to discharge himself and Mr Wee proceeded to argue the appeal based on a new set of submissions.

11 In the premises, two main issues arose for our consideration:

(1) Whether the judge erred in refusing to grant the appellant ad hoc admission under s 21 of the Act; and

(2) Whether the judge below erred in ordering Mr Wee to pay $5000 in costs to the first respondent.

Whether the judge erred in refusing to grant the appellant ad hoc admission under s 21 of the Act

12 Under s 21(1) of the Act, the court —

… may, for the purpose of any one case where the court is satisfied that it is of sufficient difficulty and complexity and having regard to the circumstances of the case, admit to practise as an advocate and solicitor any person who —

(a) holds Her Majesty`s Patent as Queen`s Counsel;

(b) does not ordinarily reside in Singapore or Malaysia but who has come or intends to come to Singapore for the purpose of appearing in the case; and

(c) has special qualifications or experience for the purpose of the case.

As the judge below held, s 21 of the Act embodies a three-stage test for admission (see e.g. Re Caplan Jonathan Michael QC [1998] 1 SLR 432 at p 435).

13 The decision whether to admit a QC under the three-stage test is one involving the exercise of discretion. According to The Vishva Apurva [1992] 2 SLR 175 at p 181, it is clear that an appellate court will interfere with an exercise of discretion on only three grounds. These are —

(1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion has to be exercised;

(2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or

(3) where his decision is plainly wrong.

In our judgment, there was no reason for us to interfere with the manner in which the judge applied the three-stage test to the present case.

Whether the case contained issues of law and/or facts of sufficient difficulty and complexity to require elucidation and/or argument by a QC

14 Mr Wee submitted that the judge below fell into error because he construed the first-stage of the test to require that the case be both difficult and complex, when it should be sufficient that the case was either difficult or complex (emphasis added).

15 We note that s 21(1) of the Act expresses the two terms conjunctively. In The Law of Advocates and Solicitors in Singapore and West Malaysia (2^nd ed, 1998) at p 69, Professor Tan Yock Lin is of the opinion that this holds some significance. As he puts it:

The conjunctive in the phrase ‘difficult and complex’ must also not be overlooked. Not only must the law be difficult, it must also be complex. So a law may be difficult in that there are conflicting authorities but it must also be complex in the sense, for instance, that the development of the law has ramifications for other branches of the law or in the sense that it has been modified by statute in some convoluted fashion or that its policy or rationale may not be suitable for or congenially followed in Singapore.

We are inclined to agree with the view expressed in this passage, with the qualification that there is no requirement that the requisite difficulty and complexity must pertain to the law as opposed to the facts (see e.g. Re Fenwick QC [1995] 3 SLR 89; Re Caplan Jonathan Michael QC (No 2) [1998] 1 SLR 440 at p 445; The Law of Advocates and Solicitors in Singapore and West Malaysia at p 70.

16 A perusal of the case law in this area reveals that the terms...