Re Millar Gavin James QC

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 01 June 2007
• Neutral Citation: [2007] SGHC 85
• Docket Number: Originating Summons No 621 of 2007
• Date: 01 June 2007
• Year: 2007
• Published date: 04 June 2007
• Plaintiff Counsel: Peter Cuthbert Low (Peter Low Partnership)
• Citation: [2007] SGHC 85
• Defendant Counsel: Valerie Thean and Leonard Goh,Davinder Singh SC and Jaikanth Shankar (Drew & Napier LLC),Pradeep Kumar
• Court: High Court (Singapore)
• Subject Matter: Ad hoc admission of Queen's Counsel,Three-stage test for admission,Admission,Whether issues raised in appeals sufficiently difficult or complex to warrant admission of Queen's Counsel,Legal Profession,Application of the principle of equality of arms,Section 21 Legal Profession Act (Cap 161, 2001 Rev Ed)

1 June 2007 Judgment reserved.

Tan Lee Meng J:

1 The applicant, Mr Gavin James Millar, a Queen’s Counsel (“QC”), sought to be admitted to practise as an advocate and solicitor of the Supreme Court of Singapore under s 21 of the Legal Profession Act (Cap 61, 2001 Rev Ed) (“LPA”). The application was made in order for him to be the leading counsel for Review Publishing Company Limited (“Review”), a Hong Kong company that publishes the Far Eastern Economic Review (“FEER”), and Mr Hugo Restall, the editor of FEER (both referred to as “the defendants”), in relation to two libel suits instituted against them by Mr Lee Hsien Loong, the Prime Minister, and Mr Lee Kuan Yew, the Minister Mentor (both referred to as “the plaintiffs”) and all other proceedings, including interlocutory or appeal proceedings, connected with the libel suits until their final disposal. For a start, Mr Millar wishes to represent the defendants in two appeals before the Court of Appeal in July 2007 regarding the jurisdiction of the High Court in relation to the libel suits.

2 The two libel suits in question, namely Suit Nos 539 and 540 of 2006, which were instituted by Prime Minister Lee and Minister Mentor Lee respectively on 22 August 2006, arose out of an article (“the article”) entitled “Singapore’s ‘Martyr’, Chee Soon Juan”, which was published in the July/August 2006 issue of the FEER. The article may also be read on the Internet. The plaintiffs, who asserted that certain parts of the article defamed them, have claimed damages from the defendants as well as an injunction restraining the publication, sale, offer for sale, distribution or other dissemination by any means whatsoever of the defamatory allegations, or other allegations to the same effect.

3 As Review, which is incorporated in Hong Kong, and Mr Restall, who is ordinarily resident in Hong Kong, refused to accept service in Singapore, the plaintiffs applied for leave to serve the Writs out of jurisdiction. Leave to do so was granted on 28 August 2006 and the Writs, Statements of Claim and the relevant Orders of Court were served on the defendants in Hong Kong on 4 September 2006.

4 On 6 October 2006, the defendants instituted proceedings to set aside the service of the Writs on two main grounds. The first ground was that the application for leave to serve the Writs out of jurisdiction was an abuse of process as the claims for injunctive relief were not confined to damages sustained or actions taken in Singapore. The second ground was that the Writs had not been served in accordance with the Treaty on Judicial Assistance in Civil and Commercial Matters (the “Treaty”), which had been signed by the Republic of Singapore and the People’s Republic of China in 2001.

5 After failing to persuade Assistant Registrar Dorcas Quek (“AR Quek”) that the court lacked jurisdiction to hear the cases, the defendants appealed against her decision.

6 The defendants’ appeal against AR Quek’s decision was dismissed on 21 February 2007 by Sundaresh Menon JC: see [2007] SGHC 24. Menon JC held at [68] that the risk of the plaintiffs abusing the court’s process was fanciful and ought to be disregarded. As for the application of the Treaty, after considering the opinions of both parties’ experts, he held that the Treaty did not apply to Hong Kong and that the plaintiffs had discharged their burden of proving that the service of process was proper and ought not to be set aside.

7 The defendants lodged Civil Appeal Nos 28 and 29 of 2007 (the “jurisdiction appeals”) against Menon JC’s decision and on 24 April 2007, the present proceedings were initiated for the admission of Mr Millar on an ad hoc basis to represent the defendants in, inter alia, the jurisdiction appeals and the libel suits.

Whether the application should be allowed

8 The ad hoc admission of a QC is governed by s 21 of the LPA, which provides as follows:

(1) Notwithstanding anything to the contrary in this 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.

9 The objective of s 21 of the LPA has been considered by the courts on innumerable occasions. In Re Oliver David Keightley Rideal QC [1992] 2 SLR 400, Chan Sek Keong J (as he then was) said at 402:

The object of [s 21] was to lay the foundation for the development of a strong local bar by the imposition of more stringent conditions for the admission of Queen’s Counsel to appear in our courts, but at the same time, to continue to allow litigants to avail of their services in appropriate cases.

10 Similarly, in Price Arthur Leolin v Attorney General [1992] 2 SLR 972 (“Re Price Arthur Leolin”), the Court of Appeal at 975 reiterated that the object of s 21 was to “help the development of a strong core of good advocates at the local bar by restricting access to Queen’s Counsel only in the more difficult and complex cases”.

11 For the purpose of determining whether or not a QC should be admitted on an ad hoc basis, the courts have adopted a “three-stage test”. In Re Caplan Jonathan Michael QC (No 2) [1998] 1 SLR 440, the Court of Appeal explained as follows at [11], 444:

The requirements of [s 21] were considered at length by the Court of Appeal in Price Arthur Leolin v A-G [1992] 2 SLR 972. In its judgment, the court articulated a three-stage test for admission under s 21(1). 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 Queen’s Counsel. 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, he has to satisfy the court of his suitability for admission.

12 When applying the three-stage test to Mr Millar’s application to be admitted on an ad hoc basis to represent the defendants, a distinction must be made between the jurisdiction appeals and the libel suits.

The jurisdiction appeals

13 With respect to the jurisdiction appeals, the two main issues are whether the service of the Writs outside jurisdiction was an abuse of the process of the court and whether the plaintiffs complied with the Treaty when serving the writs on the defendants in Hong Kong. The defendants’ counsel, Mr Peter Cuthbert Low, argued that as the plaintiffs and defendants engaged experts in public international law to present lengthy and detailed submissions to the court, the public international law issue in dispute is self-evidently difficult and complex and requires elucidation by a QC.

14 That experts on public international law had been invited to present their opinions to the court does not, without more, justify the admission of a QC. The question under s 21 of the LPA is not whether or not a case is difficult and complex but whether it is “sufficiently” difficult and complex to warrant the admission of a QC. Menon JC summed up the issues in the jurisdiction appeals as follows in the last paragraph of his judgment (see [2007] SGHC 24 at [125]):

The central question raised in these appeals is whether the [plaintiffs] have complied with the rules and procedures necessary to invoke this court’s jurisdiction. In the main, this turned on two questions: whether their claims, as required by the sub-rules of O 11 r 1 of the Rules [of Court], are limited to damages and injunctive relief within Singapore; and whether the manner of service employed, was appropriate in the circumstances.

15 Evidently, the jurisdiction appeals are not so difficult and complex that they cannot be dealt with by local lawyers. Indeed, in his judgment, Menon JC took pains to stress at [16] that “Mr Low was satisfied and confirmed that through him and his firm, the [defendants] were fully and ably represented” for the purpose of arguing the appeals before him. It follows that the defendants’ contention that the case is sufficiently difficult and complex to warrant the admission of a QC lacks substance.

16 Apart from there being no issue of law and/or fact of sufficient difficulty and complexity that cannot be dealt with by local counsel, it must be borne in mind that QCs are admitted because of their expertise in the subject matter of the dispute. When the defendants’ counsel, Mr Low, wrote to Mr Michael Hwang SC and Ms Engelin Teh SC on 19 March 2007 to enquire about their willingness to act for the defendants in the jurisdiction appeals, he expressly stated that his clients “require a Senior Counsel with experience of private and/or public international law”. As was rightly pointed out by the plaintiffs’ counsel, Mr Davinder Singh SC, and Ms Valerie Thean, who represented the Attorney-General, nothing in Mr Low’s affidavit suggests that Mr Millar, who has expertise in defamation cases, is also a specialist in “private and/or public international law”. Even the Law Society’s counsel, Mr Pradeep Kumar, had to concede that while the Law Society supported Mr Millar’s application, there was no evidence that he specialises in the legal issues arising in the jurisdiction appeals. As such, even if the issues in the jurisdiction appeals are sufficiently difficult and complex to warrant the admission of a QC, Mr Millar cannot, as is required in the final part of the three-stage test for the admission of a QC, satisfy the court that...