Re Lord Goldsmith Peter Henry PCQC

• Jurisdiction: Singapore
• Judgment Date: 19 September 2013
• Date: 19 September 2013
• Docket Number: Originating Summons No 586 of 2013
• Court: High Court (Singapore)

Re Lord Goldsmith Peter Henry PCQC

[2013] SGHC 181

V K Rajah JA

Originating Summons No 586 of 2013

High Court

Legal Profession—Admission—Ad hoc—Appellants seeking admission of foreign senior counsel for purposes of oral arguments before Court of Appeal in constitutional challenge—Local Senior Counsel already engaged by Appellants to argue appeal—Whether ‘twin key’ requirements for ad hoc admission in restricted area of constitutional law made out—Whether factual and legal issues involved were complex—Whether services of foreign senior counsel necessary—Whether local Senior Counsel or other counsel with appropriate experience available—Whether, having regard to circumstances of case, it was reasonable to admit foreign senior counsel—Whether there was ‘special reason’ to grant ad hoc admission—Section 15 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—Effect of context of appellate advocacy—Scope for involvement of expertise of foreign senior counsel in writing-centred appellate context

Words and Phrases—‘Special reason’—Section 15 (2) Legal Profession Act (Cap 161, 2009 Rev Ed)

On 30 November 2012, Lim Meng Suan and Kenneth Chee Mun-Leon (‘the Appellants’), filed an application seeking declarations that s 377A of the Penal Code (Cap 224, 2008 Rev Ed) was void for inconsistency with Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint). The High Court judge hearing OS 1135 (‘the Judge’) dismissed the application. The Appellants had appealed against this decision. To represent them as co-counsel in the appeal, the Appellants sought the ad hoc admittance of Lord Peter Henry Goldsmith PCQC (‘Lord Goldsmith’) pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed’) (‘the LPA’). Ms Deborah Evaline Barker SC (‘Ms Barker SC’), a Senior Counsel, had earlier been engaged to argue the appeal. Both the Law Society of Singapore and the Attorney-General objected to this application.

Held, dismissing the application:

(1) The applicable legal principles governing applications for the ad hoc admission of foreign senior counsel were contained in ss 15 (1), 15 (2) and 16 (5 A) of the LPA. Pursuant to s 15 (2) of the LPA, read with r 32 (1) of the Legal Profession (Admission) Rules 2011 (S 244/2011), a ‘special reason’ was required to admit foreign senior counsel in the areas of criminal law, family law, and constitutional and administrative law. Also to be considered were the four factors under para 3 of the Legal Profession (Ad Hoc Admissions) Notification2012 (S 132/2012), read with s 15 (6 A) of the LPA, viz, (a) whether the nature of factual and legal issues merited admittance of a foreign senior counsel; (b) whether the services of a foreign senior counsel were necessary; (c) the availability of any Senior Counsel or other counsel with appropriate experience; and (d) whether, having regard to the circumstances of the case, it was reasonable to admit a foreign senior counsel: at [19] , [20] and [21] .

(2) In an appeal, these factors had to be considered in the context of appellate advocacy. The distinctiveness of appellate advocacy lay in its role in the development of the jurisprudence of the court and skill in the presentation of cogent legal arguments. The real value of having a foreign senior counsel admitted to argue an appeal was in the quality of his oral advocacy, his ability to respond to queries from the Bench and his capacity to generate further thought. The admittance of a foreign senior counsel was not necessary for the preparation of the written appellate brief (‘Case’) and there was therefore no bar to Lord Goldsmith applying his expertise in the drafting of the Appellants' Case in the appeal: at [23] and [25] to [27] .

(3) There were marked differences in the practices of Singapore appellate courts as compared to other common law court systems. While oral advocacy was not unimportant, the appellate process in the Singapore Court of Appeal had evolved such that the written medium occupied a central role in the appellate process. In more complex cases, the Court of Appeal had also adopted the practice of calling for further written submissions and adjourning the matter for further deliberation before delivering its determination. This mitigated the infirmity of relying on spontaneous responses made during oral arguments and gave counsel time to make well-considered responses to unanticipated queries from the court: at [29] to [31] and [33] .

(4) The more focussed written process in the Singapore appellate context permitted input from experts who had mastery of the fields of law involved in that case and also provided opportunities for effective deployment of a foreign senior counsel's skills in crafting cogent and persuasive legal arguments. The necessity for the admission of a foreign senior counsel purely for the purposes of oral appellate advocacy would be less apparent as the ability to meaningfully participate in the appellate process was always present in Singapore's more written-centred procedures: at [36] to [38] .

(5) Whilst there might be some degree of overlap, the ‘special reason’ requirement in s 15 (2) of the LPA had to present some criterion over and above the Notification factors. The appellate nature of the present case merely provided the context for an assessment of the Notification factors and did not, of itself, constitute a special reason. This applied a fortiori as some features of an appeal might provide reasons which militated against the admission of a foreign senior counsel. Viewed in the context of its enactment, the ‘special reasons’ requirement presented a high threshold for admittance of foreign senior counsel: at [41] and [43] .

(6) Almost all constitutional challenges would be macro in nature as they would be challenges to laws drafted in a general manner and targeted either at the population at large or at a section of the population. A ‘special reason’ had to thus be a reason that was unique to the circumstances of that case rather than one which was inherent in the nature of all constitutional cases: at [44] , [46] and [47] .

(7) The legal issues in this case were of a more complex nature than the average case. However, there was no necessity for the services of a foreign senior counsel. Necessity would imply that there was some chance that the issues in the case would not be properly ventilated or framed without the participation of foreign senior counsel or that there was inequality of arms. There was no intimation that the Appellants would suffer any prejudice or injustice if Lord Goldsmith was not admitted for the purpose of presenting oral arguments. Ms Barker SC was acknowledged to be ‘more than competent’ to present the Appellant's case. The breadth and depth of local academic expertise in Singapore, the opportunity for the participation of Lord Goldsmith in the preparation of the written legal arguments, the engagement of Ms Barker SC, and the lack of any other serious concerns such as inequality of arms all pointed to the conclusion that there was no necessity for Lord Goldsmith to be admitted for the purposes of oral argument in the appeal: at [51] , [54] , [55] and [59] .

(8) There was no ‘special reason’ to justify the admission of Lord Goldsmith. The macro nature of the application was a factor which was common to almost all constitutional applications. The issues in this case were not of such a particularly complex nature that they presented a case which was out of the ordinary from a legal perspective. The Appellants were essentially seeking a development of constitutional law and the court was not being invited to depart from or overhaul existing jurisprudence but rather to build upon existing legal foundations: at [63] and [64] .

(9) The application had failed the applicable twin-key requirements for ad hoc admission in the restricted areas. At its highest, the applicant's case was that two were better than one and it would be better to have the benefit of Lord Goldsmith's expertise and oral advocacy as well as Ms Barker SC's competency as co-counsel. However, this did not satisfy the statutory test: at [65] .

Andrews Geraldine Mary QC, Re [2013] 1 SLR 872 (refd)

Beloff Michael Jacob QC, Re [2000] 1 SLR (R) 943; [2000] 2 SLR 782 (refd)

Caplan Jonathan Michael QC, Re [1997] 3 SLR (R) 404; [1998] 1 SLR 432 (refd)

Caplan Jonathan Michael QC, Re [2013] 3 SLR 66 (folld)

Lim Meng Suang v AG [2013] 3 SLR 118 (refd)

Platts-Mills Mark Fortescue QC, Re [2006] 1 SLR (R) 510; [2006] 1 SLR 510 (refd)

Seed Nigel John QC, Re [2003] 3 SLR (R) 407; [2003] 3 SLR 407 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Arts 9, 12, 12 (1) , 12 (2)

Legal Profession Act (Cap 161, 2009 Rev Ed) ss 15 (1) , 15 (2) , 16 (5 A) (consd) ;ss 15, 15 (6 A)

Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) para 3 (consd)

Legal Profession (Admission) Rules 2011 (S 244/2011) r 32 (1) (consd)

Penal Code (Cap 224, 2008 Rev Ed) s 377A

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 15 r 16

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 36 (1)

Women's Charter (Cap 353, 2009 Rev Ed)

Criminal Law Amendment Act 1885 (c 69) (UK)

Shashidran Nathan, Tania Chin Li Wen and Shen Peishi Priscilla (Khattar Wong LLP) for the applicant

Aedit Abdullah SC, Jeremy Yeo Shenglong, Sherlyn Neo Xiulin and Jurena Chan Pei Shan (Attorney-General's Chambers) for the Attorney-General

Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP) for the Law Society of Singapore.

Judgment reserved.

VKRajah JA

1 This is an application made pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the LPA’) for Lord Peter Henry Goldsmith PCQC (‘Lord Goldsmith’) to be admitted on an...