Re Rogers, Heather QC

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 08 July 2015
• Neutral Citation: [2015] SGHC 174
• Plaintiff Counsel: Davinder Singh SC, Angela Cheng, Samantha Tan and Imran Rahim (Drew & Napier LLC),George Bonaventure Hwang Chor Chee (George Hwang LLC)
• Docket Number: Originating Summons No 532 of 2015
• Date: 08 July 2015
• Hearing Date: 11 June 2015,09 June 2015
• Subject Matter: Ad hoc,Legal Profession,Admission
• Year: 2015
• Citation: [2015] SGHC 174
• Defendant Counsel: Christopher Anand Daniel, Harjean Kaur and Aw Sze Min (Advocatus Law LLP),Jeyendran Jeyapal (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Published date: 14 July 2015

Steven Chong J: Introduction

In this summons, the applicant, Ms Heather Rogers QC, sought to be admitted to practise as an advocate and solicitor of the Supreme Court of Singapore on an ad hoc basis under s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) in order that she might represent Mr Roy Ngerng Yi Ling in Suit No 569 of 2014 (“S 569/2014”). After due consideration of the matter, I dismissed the application and delivered brief oral grounds.

The decision of the Court of Appeal in Re Beloff Michael Jacob QC [2014] 3 SLR 424 (“Re Beloff”) introduced a great deal of analytical clarity to this area of the law. However, it was still my observation that there were several features of the new admission regime which still appear not to be properly understood. Two of them stand out for mention: the first was the requirement of “special qualifications and experience” [emphasis added] stipulated in s 15(1)(c) of the LPA; the second was the concept of an “inequality of arms”, which is often cited as a factor which is believed to weigh in favour of admission. Thus, I decided to issue full written grounds in order to amplify on some of the points I made in my brief oral grounds.

Facts Suit No 569 of 2014

On 15 May 2014, Mr Ngerng published an article entitled “Where Your CPF Money Is Going: Learning From The City Harvest Trial” (“the article”) on his blog, “The Heart Truths to Keep Singaporeans Thinking by Roy Ngerng”. Mr Ngerng also published a link to the article on his Facebook page and on the Facebook page registered in the name of his blog (see Lee Hsien Loong v Roy Ngerng Yi Ling [2014] SGHC 230 (“LHL v RNYL”) at [1]–[4]). On 29 May 2014, Mr Lee Hsien Loong, the Prime Minister of Singapore, commenced S 569/2014 claiming that the article was defamatory of him. After the close of pleadings, Mr Lee applied, in Summons No 3403 of 2014 (“SUM 3403/2014”), for the court to ascertain the natural and ordinary meaning of the allegedly defamatory materials pursuant to O 14 r 12 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”) and to grant summary judgment under O 14 r 1 on the basis that Mr Ngerng had no defence to the claim.

The parties appeared before Lee Seiu Kin J on 18 September 2014 for the hearing of SUM 3403/2014. On that occasion, Mr Ngerng was represented by Mr M Ravi of M/s L F Violet Netto and Mr Eugene Thuraisingam of M/s Eugene Thuraisingam. The sole defence pleaded was that the law of defamation contravened Art 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). On 7 November 2014, Lee Seiu Kin J adjudged that the article was indeed defamatory and that Mr Ngerng had not established a triable defence to the claim (see LHL v RNYL at [25] and [61]). Lee J granted interlocutory judgment in favour of Mr Lee with damages to be assessed.

Between 7 November 2014 and 28 May 2015, when the present application was filed, the parties appeared before this court on eight occasions. Mr Ngerng was represented first by Mr Ravi (assisted by Mr Thuraisingam), then by Mr Thuraisingam alone (from 23 February 2015),¹ and finally by Mr George Hwang, who took over from Mr Thuraisingam on 9 March 2015. The assessment for damages hearing took place from 1 – 3 July 2015.

The present application

On 30 May 2015, Ms Rogers filed Originating Summons No 532 of 2015 (HC/OS 532/2015). Two affidavits were filed in support of the application: one by Ms Rogers herself and the second by Mr Hwang, who identified himself as “the solicitor instructing the Applicant in this action”. Mr Hwang explained that Ms Rogers had been instructed by Mr Ngerng sometime on or about 20 March 2015 (after Mr Hwang assumed conduct of the matter) and that she had been advising Mr Ngerng since. Mr Hwang also indicated that should Ms Rogers be admitted, he would serve as her junior counsel in future hearings.²

The parties’ arguments

I begin by reproducing the relevant portions of s 15 of the LPA, which governs ad hoc admissions, for ease of reference: Ad hoc admissions 15.—(1) Notwithstanding anything to the contrary in this Act, the court may, for the purpose of any one case, admit to practise as an advocate and solicitor any person who —

(a) holds — (i) Her Majesty’s Patent as Queen’s Counsel; or (ii) any appointment of equivalent distinction of any jurisdiction;

(b) does not ordinarily reside in Singapore or Malaysia, but 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.

(2) The court shall not admit a person under this section in any case involving any area of legal practice prescribed under section 10 for the purposes of this subsection, unless the court is satisfied that there is a special reason to do so. … (6A) The Chief Justice may, after consulting the Judges of the Supreme Court, by notification published in the Gazette, specify the matters that the court may consider when deciding whether to admit a person under this section.

The admission framework was neatly summarised by the Court of Appeal at [54] of Re Beloff. In gist, every application for ad hoc admission proceeds sequentially in two stages: the court first has to ensure that the mandatory statutory conditions precedent for admission found in ss 15(1) and (2) are satisfied before it proceeds to consider whether it should exercise its discretion in favour of admission with reference to the framework of considerations listed at para 3 of the Legal Profession (Ad Hoc Admissions) Notifications 2012 (S 132/2012) (“the Notification Matters”). In other words, if the mandatory requirements are not met, “the application must fail and the question of discretion does not arise” (see Re Beloff at [54]). In adopting this approach, the Court of Appeal departed from the position taken in Re Caplan Jonathan Michael QC [2013] 3 SLR 66 (“Re Caplan”) where the court held the mandatory requirement in s 15(2) of the LPA was not a “prior threshold provision but should instead be read harmoniously with the Notification matters” (at [48]).

As a practical matter, I agree that there is some overlap in the considerations which will be taken into account in the mandatory requirements and in the Notification Matters (see Re Caplan at [49]). However, the two requirements remain distinct and should be given separate treatment. In Re Beloff at [58], the Court of Appeal opined that even though there is a “substantial overlap” between s 15(1)(c) and the Notification Matters, for clarity of analysis, the former should be “considered as a distinct requirement that must be met before the court considers whether the Notification Matters call for admission” [emphasis added].

The applicant’s arguments

Mr Hwang argued that the application should be allowed for the following reasons:³ First, the mandatory formal requirements in ss 15(1)(a) and (b) had been satisfied since Ms Rogers holds the title of Queen’s Counsel. Second, it was “beyond doubt” that Ms Rogers, being one of the foremost authorities on the law of defamation in the United Kingdom, possessed “special qualifications or experience for the purpose of the case”. In support, Mr Hwang pointed to the long list of defamation cases she had argued in her career, the fact that she had co-authored a leading practitioner’s textbook on the law of defamation — Brian Neill, et al, Duncan & Neill on Defamation (LexisNexis, 4th Ed, 2015), and that Ms Rogers was intimately involved in the drafting of the Defamation Act 2013 (c 23) (UK). Third, a “special reason” for admission need not be shown since the present matter involves the tort of defamation, which was not one of the “ring-fenced” areas of practice specified in r 32(1) of the Legal Profession (Admission) Rules 2011 (S 244/2011) (“Legal Profession (Admission) Rules”). Fourth, there was a “need” to admit the applicant to prevent Mr Ngerng’s interests from being prejudiced at trial. This was so for three reasons: there were (i) “novel factual and legal issues” which should be argued by an advocate of Ms Rogers’ standing; (ii) Mr Ngerng was unable to secure the services of local senior counsel; and (iii) given the quality of counsel on the opposing side, there would be an “inequality of arms” if she were not admitted.

The respondents’ arguments

Mr Lee, the Law Society of Singapore, and the Attorney-General all opposed the application (collectively, “the respondents”). They did not dispute that the mandatory requirements in ss 15(1)(a) and (b) had been satisfied and they also accepted that no “special reason” need be shown for admission since S 569/2014 did not involve a “ring-fenced” area of practice.

Mr Davinder Singh, on behalf of Mr Lee, submitted that the present application should be dismissed on two grounds. First, the applicant had not shown that she had “special qualifications or experience for the purpose of the case”. Mr Singh argued that the only issue remaining for resolution in S 569/2014 was the assessment of damages. He contended that this was an area of practice on which a significant body of local jurisprudence had developed and which was informed by an understanding of local political and social conditions, neither of which the applicant had any demonstrable expertise in or familiarity with.⁴ Second, the applicant had not provided sufficient basis for the court to exercise its discretion in her favour. Mr Singh argued that the issues in contention were neither complex nor difficult and did not necessitate the skills of local senior counsel, let alone foreign senior counsel. That being the case, there was a large pool of local counsel who could competently represent Mr Ngerng in this matter and he need not be represented by Ms Rogers.⁵

Mr Christopher Daniel, on behalf of the Law Society, and Mr Jeyendran Jeyapal, on behalf of the...