Re Godfrey Gerald QC

• Judge: Tay Yong Kwang JC
• Judgment Date: 02 November 2002
• Neutral Citation: [2002] SGHC 260
• Citation: [2002] SGHC 260
• Defendant Counsel: Davinder Singh SC, and Hri Kumar (Drew & Napier),Laurence Goh,Pang Khang Chau
• Published date: 19 September 2003
• Plaintiff Counsel: Mark Goh Aik Leng (Goh Aik Leng & Partners)
• Date: 02 November 2002
• Docket Number: Originating Motion No 22 of 2002
• Court: High Court (Singapore)
• Subject Matter: Whether issues sufficiently complex to warrant admission of Queen's Counsel,Whether ability and availability of local counsel a bar to admission of Queen's Counsel,Whether Queen's Counsel had special qualifications or experience for the purpose of the case,Ad hoc,Admission,Legal Profession Act (Cap 161, 2001 Ed) s 21(1),Three-stage test for admission of Queen's Counsel,Legal Profession

Judgment

GROUNDS OF DECISION

1. This Originating Motion sought an order to admit Gerald Godfrey, Queen’s Counsel to practise as an Advocate and Solicitor of the Supreme Court for the purpose of appearing on behalf of Anthony Wee Soon Kim, the Plaintiff in High Court Suit No. 834 of 2001, against the Defendant, UBS AG. It was filed by Goh Aik Leng & Partners and supported by an affidavit by Mark Goh Aik Leng.

SUMMARY OF FACTS IN SUIT NO. 834 OF 2001

2. The following facts appear in the aforesaid affidavit as well as in the affidavit of Philippa Kilburn-Toppin, Executive Director of the Defendant, filed on 14 October 2002 to oppose the Originating Motion.

3. Anthony Wee Soon Kim is a 72 year old retired lawyer suffering a serious heart ailment complicated by diabetes and renal failure. UBS AG is an international private bank carrying on business in Singapore in accordance with the Association of Banks in Singapore’s Code of Conduct.

4. In August 1997, Anthony 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 against the US$. By December 1997, Anthony 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.

5. The bank offered him the following 3 alternative strategies :

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

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

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

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

6. 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. When Anthony Wee eventually unwound the DFF Strategy on 28 July 1998, it had yielded him a positive return of about RM915,000. He 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 Anthony Wee’s RM deposits at US$1 to RM4, the rate adopted by the Association of Banks in Singapore

7. On 4 July 2001, Anthony Wee commenced this action 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. Engelin Teh, SC and Thomas Sim represented Anthony Wee while the bank was defended by Davinder Singh, SC and his assistants.

8. The trial began on 26 February 2002. At the commencement of Anthony Wee’s cross-examination, his then counsel requested that he be cross-examined in the morning sessions only as he was not fit enough to continue the full day. That was granted by the trial judge. During the course of the cross-examination, Anthony Wee also asked for breaks on account of his medical condition. The cross-examination thus took up the three weeks fixed for the trial. The trial was then scheduled to continue for a further six weeks from 22 July to 30 August 2002.

9. In the meantime, Anthony Wee discharged his lawyers ‘because of differences with Mr Thomas Sim as to the conduct of the case.’ He then engaged the services of Goh Aik Leng & Partners who, on 9 July 2002, filed and served the Notice of Appointment of Solicitors to act for Anthony Wee. However, in their letter to the bank’s solicitors, the new solicitors stated that they were the solicitors on record and that Anthony Wee ‘will still be conducting his own case as counsel’ and ‘will be assisted by his co-counsel Mr Mohan Singh’.

10. On 15 July 2002, the parties appeared before the trial judge for the hearing of an interlocutory application. Anthony Wee turned up accompanied by Mark Goh and Mohan Singh. Mohan Singh informed the judge that he had been instructed to have conduct of the application in the event Anthony Wee was not medically fit to continue. Mark Goh told the judge that Anthony Wee would be arguing the application himself. The judge ruled that Anthony Wee could not do so as he had solicitors acting for him. He then stood the matter down for Anthony Wee and his solicitors to discuss the matter.

11. When the parties returned to the judge’s chambers, Mark Goh applied to discharge himself on the basis that Anthony Wee insisted on arguing the application himself. He was discharged accordingly but was permitted to remain to assist Anthony Wee as a ‘McKenzie friend’. The interlocutory application was subsequently dealt with.

12. On 19 July 2002, Goh Aik Leng & Partners filed a second Notice of Appointment of Solicitors but did not serve it on the bank’s solicitors.

13. The trial resumed on 22 July 2002. Anthony Wee was absent as he was unwell. Mark Goh and Mohan Singh attended the proceedings introducing themselves as the ‘friend’ and the ‘co-counsel’ respectively. Mohan Singh told the trial judge he had been instructed, in view of Anthony Wee’s age and condition, to assist him in the event he was unable to carry on and to cross-examine and re-examine such witnesses as directed by Anthony Wee, who would remain a litigant in person. The judge took issue with this. The hearing was then adjourned to 24 July 2002.

14. On 24 July 2002, only Mark Goh attended on behalf of Anthony Wee. He informed the judge that Anthony Wee had instructed Mohan Singh to withdraw from the action. The judge permitted Mark Goh to act as the ‘friend’ but refused his application for leave to address the court on Anthony Wee’s behalf. An appeal against this ruling is pending before the Court of Appeal in Civil Appeal No. 81 of 2002, due to be heard in November 2002. The judge also directed that a medical certificate in respect of Anthony Wee be produced.

15. On 26 July 2002, Mark Goh produced a medical certificate stating that Anthony Wee was unfit to attend court for 60 days from 24 July 2002 to 21 September 2002. The trial dates were thus vacated.

16. Later that day, Goh Aik Leng & Partners faxed the second Notice of Appointment of Solicitors to the bank’s solicitors. At around the same time, the parties were informed to attend before the trial judge again at 4 pm that day to clarify the position on the second Notice. When they attended before the judge, Mark Goh explained that the said second Notice was filed in error and that Anthony Wee remained a litigant in person.

17. Four days later, on 30 July 2002, the same firm of solicitors wrote to the Registrar of the Supreme Court on behalf of Anthony Wee to request further arguments on the interlocutory application. On 1 August 2002, the Registrar replied stating that the judge had instructed that such a request should come from Anthony Wee as he was a litigant acting in person.

18. Anthony Wee sent a response to the Registrar on 2 August 2002, arguing that his duly appointed lawyer had ‘the lawful right to act on my behalf, and on that footing to request for further argument regardless of my status as a litigant in person’. An exchange of correspondence between the Registry and Anthony Wee followed. On 12 August 2002, Goh Aik Leng & Partners wrote to the Registrar with the concluding paragraphs of that letter stating :

"In view of the uncompromising directions and our client’s life threatening heart disease aggravated by the difficulties thrown his way as regards the filing of the various Court documents, he has, with great reluctance, instructed us to advise you to treat his Notice of Intention to Act in Person as withdrawn so that the perceived legal impediments may cease to exist.

In the premises, we trust that we will now be able to represent Mr Wee to the fullest extent the Legal Profession Act (Cap 161) would allow."

19. On 2 October 2002, the present Originating Motion was filed by Goh Aik Leng & Partners.

THE DECISION OF THE COURT

20. The law on admission of Queen’s Counsel under section 21 of the...