Re Lasry Lex QC

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 20 November 2003
• Neutral Citation: [2003] SGHC 287
• Docket Number: Originating Motion No 26 of 2003
• Date: 20 November 2003
• Published date: 08 December 2003
• Year: 2003
• Plaintiff Counsel: Joseph Theseira and Tito Isaac (Naidu Mohan & Theseira)
• Citation: [2003] SGHC 287
• Defendant Counsel: Han Ming Kuang,Laurence Goh Eng Yau
• Court: High Court (Singapore)
• Subject Matter: Whether res judicata applicable when constitutional argument could and should have been raised in previous application,Res Judicata,Whether exercise of judicial discretion in applicant's favour justifiable,Ad hoc,Whether special reasons exist to admit,Matters which could and should reasonably have been raised in earlier proceedings,Legal Profession,Admission,Section 21 Legal Profession Act (Cap 161, 2001 Rev Ed)

1 This is an application under s 21 of the Legal Profession Act, Cap 161 by Mr Lex Lasry, a Queen's Counsel from Australia, for an ad hoc admission to appear as counsel on behalf of the accused Mr Nguyen Tuong Van in Criminal Case PI No 211 of 2002. Mr Nguyen was charged with a capital offence under The Misuse Of Drugs Act, Cap 185. He was arrested at the Changi International Airport on 12 December 2002 and found to be in possession of 396.2g of heroin. Mr Nguyen is an Australian citizen and his family instructed Mr Lasry QC to represent him at trial. Justice Tay Yong Kwang heard an application by Mr Lasry QC by way of Originating Motion No 7 of 2003 on 22 April 2003 for leave to be admitted to represent Mr Nguyen at his trial. Justice Tay dismissed that application. There was no written grounds in respect of that decision, but Mr Lasry QC deposed in his affidavit supporting this present application that the court (Justice Tay) was of the view that what was to be done by him (Mr Lasry QC) 'as a member of the Australian team could be done in Australia and relayed to [his Singapore counsel] to conduct the trial'. I agree with that view entirely.

2 Mr Lasry QC now seeks leave before me 'to make a new application, namely to be admitted on an ad hoc basis solely for the purpose of arguing a pre-trial argument'. The object of the application was to ask for the trial 'to be permanently stayed or indefinitely postponed' on the ground that the only punishment should Mr Nguyen be found guilty, is death, and that that punishment is unconstitutional. He says that the arguments are 'complex and raise fundamental issues about the mandatory death penalty'. Relying on what was said in Re Caplan Jonathan Michael QC [1998] 1 SLR 432, Mr Lasry QC deposed that Mr Nguyen's case is not just a case on the particular set of facts, but 'broader and more fundamental issues' are being raised such that it conforms to the test of 'special reasons' for the admission of a QC. The three stage-test under the Caplan ruling appears to have been applied when Mr Lasry QC made his first application before Justice Tay, as he himself conceded that the matters under the first application 'had been resolved'. He thus made this application strictly on the basis of the 'special reasons' test in criminal cases, namely that there is a constitutional point concerning the mandatory nature of the death penalty.

3 An applicant is entitled to appeal to the Court of Appeal when his application has been dismissed. But he may not make a second application before another judge because the matter is res judicata, any such application really is not a new application but, in fact, an old one. Mr Lasry QC attempts to overcome this by predicating his second application as 'a pre-trial legal argument'. This is not very accurate because there is no special and distinct application for the purposes of making the pre-trial argument. The pre-trial argument as it appears here, is really a preliminary point to be argued before the trial judge. I will accept, however, that the point to be made is ideally taken as a preliminary point as opposed to leaving it as part of the final submission although the focus of the argument is on the sentence, which is normally the tail end of the trial. I see some merit in the preliminary nature of the argument in that the applicant is proposing that by the unconstitutionality of the sentence the entire offence is affected and thus the charge cannot properly be maintained from the outset. However, an application...