Re Caplan Jonathan Michael QC

• Jurisdiction: Singapore
• Judgment Date: 08 April 2013
• Date: 08 April 2013
• Docket Number: Originating Summons No 44 of 2013
• Court: High Court (Singapore)

Re Caplan Jonathan MichaelQC

[2013] SGHC 75

V K Rajah JA

Originating Summons No 44 of 2013

High Court

Legal Profession—Admission—Ad hoc—Amendment of Legal Profession Act (Cap 161, 2009 Rev Ed) with effect from 1 April 2012—Issuance of Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012)—Legal principles governing ad hoc admission of foreign senior counsel in criminal cases—Whether ‘special reason’ requirement mandatory—Whether ‘special reason’ requirement a prior mandatory threshold requirement—Meaning of ‘special reason’—Section 1 5 Legal Profession Act (Cap 161, 2009 Rev Ed) and para 3 Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012)

Legal Profession—Admission—Ad hoc—Accused facing charges of criminal breach of trust, falsification of accounts and conspiracy—Accused making attempts to find local lawyer to represent him—Most other co-accused persons being represented by senior counsel (‘Senior Counsel’)—Whether factual and legal issues involved were complex—Whether services of foreign senior counsel necessary—Whether local Senior Counsel or other local advocate and solicitor with appropriate experience available—Whether, having regard to the circumstances of the case, it was reasonable to admit foreign senior counsel—Whether there was ‘special reason’ to grant ad hoc admission

Words and Phrases—‘Special reason’—Section 1 5 (2) Legal Profession Act (Cap 161, 2009 Rev Ed)

On or about May 2010, the Commercial Affairs Department (‘CAD’) commenced investigations into Chew Eng Han (‘the Accused’), a fund manager of City Harvest Church (‘CHC’), in relation to certain transactions and/or events that CHC was involved in (‘the Transactions’). Four members of the Management Board of CHC and the Finance Manager of CHC (collectively, ‘the Co-Accused Persons), were also involved in the CAD investigations. Sometime after the CAD investigations commenced, the Accused unsuccessfully sought to engage a senior counsel (‘Senior Counsel’) to represent him.

In June 2012, the Accused was charged with six charges of criminal breach of trust (‘CBT’) under s 409 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (‘the current PC’) and four charges of falsification of accounts under s 477 A read with s 109 of the current PC. The Co-Accused Persons were also charged with similar offences in relation to the Transactions. The trial of the Accused was fixed to be a joint trial with the Co-Accused Persons.

After being charged, the Accused engaged a Senior Counsel to represent him although he knew at that time that one of the Senior Counsel's partners was advising the directors of a company involved in the Transactions. He subsequently became uncomfortable with the retainer as those directors could be potential witnesses in the trial and discharged that Senior Counsel.

Subsequently, the Accused engaged the services of a second Senior Counsel (‘Second SC’). Sometime later, the Second SC informed the Accused that he had to discharge himself due to a conflict of interest. Thereafter, the Accused claimed to have unsuccessfully approached a few other Senior Counsel to represent him, both directly and indirectly.

By about September 2012, the Co-Accused Persons had engaged lawyers from various law firms to act for them, most of whom were Senior Counsel.

Sometime before 31 October 2012, the Accused obtained Mr Jonathan Michael Caplan QC's (‘Mr Caplan QC’) confirmation that he was willing to act for him in the trial and any appeals therefrom (‘the Criminal Proceedings’). This led to the present application under s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the current LPA’) for Mr Caplan QC to be admitted as an advocate and solicitor of Singapore to represent the Accused in the Criminal Proceedings.

Held, dismissing the application:

(1) There was no reason to think that Parliament intended s 15 (3) of the current LPA to change the long-standing rule against affirming affidavits containing facts that were not within the deponent's personal knowledge and the related rule against counsel becoming witnesses. In ad hoc admission applications, solicitors should confine the contents of the affidavits that they affirm to: (a)the names of the parties and brief particulars of the case in which the foreign senior counsel concerned intended to appear; (b)a summary of the material facts; (c)specific reference to the legal and factual issues involved in the underlying case that were said to justify the admission of a foreign senior counsel; and (d)facts that were within their personal knowledge. When it comes to facts not within a solicitor's personal knowledge, the appropriate person to affirm the affidavit would be the person who had personal knowledge of those facts: at [20] and [22] .

(2) When it came to the applicant's ‘special qualifications or experience for the purpose of the case’ pursuant to s 15 (1) (c) of the current LPA, it was preferably the applicant, and not the solicitor or the client, who affirmed this in an affidavit. The applicant should also expressly confirm in his affidavit that he had considered the application and all the relevant material in relation to the underlying proceedings, and that he was able to expertly discharge his duties: at [22] .

(3) The full details of the party's efforts in securing local counsel should be presented to the court, including the nature of the contact between the party and the local counsel who was approached (whether personally or through a third party), the mode of contact (whether in writing, orally over the telephone or in person), the date (s) and duration (s) of the call (s) and/or meeting (s), the venue (s) of the meeting (s), as well as a summary of the discussion (s) held. In addition, the date of the local counsel's refusal to take on the party's case and the reasons given should also be set out in detail. This list was by no means exhaustive, and solicitors should endeavour to ensure that all relevant details were presented to the court and were supported by relevant documentary evidence: at [23] .

(4) A ‘twin key’ approach to the interpretation to s 15 (2) of the current LPA and para 3 Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) (‘the Notification’) was correct. A foreign senior counsel seeking ad hoc admission in a criminal case had to show that the ‘special reason’ criterion in s 15 (2) of the current LPA was met in addition to satisfying the court that it was appropriate to admit him having regard to the Notification matters: at [48] and [49] .

(5) The phrase ‘special reason’ in s 15 (2) of the current LPA envisaged an exceptional case. What was exceptional should be decided based on the facts and circumstances of each case. There could well be cases where the interests of an individual or issues pertaining solely to that individual were so out of the ordinary that they required special consideration and, hence, qualify as a ‘special reason’. In these exceptional cases, there could very well be some overlap between the Notification matters and the ‘special reason’ requirement in s 15 (2) of the current LPA: at [54] .

(6) The factual and legal issues involved in this case were not so complex as to justify the ad hoc admission of a foreign senior counsel: at [65] .

(7) There were two steps in the assessment of the necessity for the services of a foreign senior counsel and the availability of any local Senior Counsel or other local advocate and solicitor with appropriate experience. The first step involves ascertaining the relevant pool of local counsel to consider. Given the generally unpredictable nature of the trial process and the dire prejudice that would arise if a potential conflict of interest were to morph into an actual conflict of interest at a late stage in the Criminal Proceedings, the reasonable steps to be taken by the Accused did not include approaching the lawyers acting for the Co-Accused Persons and the other lawyers in their law firms. That said, the relevant pool of local counsel to consider includes not just local Senior Counsel, but also other local counsel with experience in commercial and/or criminal matters. The next step in the assessment involves determining whether the Accused made reasonably conscientious efforts to secure the services of local counsel in that pool. On a quantitative and qualitative assessment, the Accused did not do so: at [67] to [69] .

(8) There was no reason to extend the principle of equality of arms on the facts of this case to also include the consideration of the playing field as between fellow co-accused persons. There was no evidence that the defence of the Accused was not aligned with that of the Co-Accused Persons. If there was such evidence, then this could be a relevant, although by no means decisive, consideration: at [72] .

(9) The delay to the Criminal Proceedings that would result should this application be dismissed was not accepted since the Accused was the sole author of this predicament, having failed to make reasonably conscientious efforts to secure the services of competent local counsel from the available pool. The amounts involved in the Transactions, the severe potential penalties in the event of a conviction and the identity of the Accused and the other parties implicated were also not factors that made it reasonable for a foreign senior counsel to be admitted: at [73] .

(10) The Accused did not succeed in establishing that any of the factors listed in the Notification were made out. One of the two ‘keys’ in the ‘twin key’ approach therefore could not be engaged: at [74]

(11) No exceptional circumstances had been identified. The other ‘key’ in the ‘twin key’ approach therefore also could not be turned: at [75] .

(12) This was not an appropriate case for the ad hoc admission of foreign senior counsel. The application was therefore dismissed with the usual consequential orders.

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