Re Seed Nigel John QC

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 21 August 2003
• Neutral Citation: [2003] SGHC 177
• Docket Number: Originating Motion No 20 of 2003
• Date: 21 August 2003
• Published date: 03 October 2003
• Year: 2003
• Plaintiff Counsel: Peter Cuthbert Low and Khoo Guan Chuan (Peter Low, Tang & Belinda Ang)
• Citation: [2003] SGHC 177
• Defendant Counsel: Laurence Goh Eng Yau (Laurence Goh Eng Yau & Co),Anandan Bala and Kwek Lou Winn (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Accused person's right to be defended by legal practitioner of choice,Articles 15(1) and 15(3) of the Constitution of the Republic of Singapore (1999 Rev Ed),Whether "special reason" exists for admission of Queen's Counsel,Whether existence of canon law issues necessitates admission of Queen's Counsel,Whether factual issues in case sufficiently complex,Queen's Counsel to act as defence counsel in criminal case,Whether requirements of s 21 of the Legal Profession Act (Cap 161, 2001 Rev Ed) satisfied,Ad hoc,Freedom of religion,Right to life and personal liberty,Whether art 9(3) of the Constitution of the Republic of Singapore (1999 Rev Ed) renders s 21 of the Legal Profession Act (Cap 161, 2001 Rev Ed) a mere formality,Constitutional Law,Fundamental liberties,Legal Profession,Admission

1 This Originating Motion seeks the admission of Mr Nigel John Seed Queen’s Counsel (“QC”) as an advocate and solicitor of the Supreme Court of Singapore for the purpose of appearing as leading Counsel for the accused in PP v Joachim Kang Hock Chai.

The Case for the Applicant and for the Accused

2 The accused, Father Joachim Kang, is a Roman Catholic priest ordained in 1974. There are two main classifications of Roman Catholic priests – the diocesan or secular and the religious. Father Joachim Kang belongs to the class of diocesan or secular priests. Both classes of priests have the same powers. A major difference between the two classes is that secular priests are not required to take the vow of poverty.

3. Father Joachim Kang was appointed the parish priest of the Church of St. Teresa (with a congregation of around 2000) from 1989 until February 2002. He was then appointed the parish priest of the Church of the Holy Trinity (which has a congregation of some 8000).

4. The 54 year old priest has been charged with 19 counts under section 409 Penal Code (criminal breach of trust of funds belonging to the Church of St. Teresa in his capacity as an agent of the Titular Roman Catholic Archbishop of Singapore). The 19 charges cover the period from 1994 to 2002 and involve a total of about $5.1 million. The priest denies the charges and the trial in the Subordinate Courts is scheduled to begin on 22 September 2003.

5. It was argued that the criminal case was particularly difficult and complex as it involved complicated transactions over a substantial period of time. The amounts in issue were large and were received and dealt with in different ways. Accounting for and tracing them would therefore be a complicated exercise. There were also voluminous documents on the purchase and lease of two properties in Singapore, four in Malaysia and two in the United Kingdom, on numerous transactions in respect of four bank accounts in Singapore, four in Malaysia and one in the United Kingdom, on investments in unit trusts in Singapore and Malaysia and on Father Joachim Kang’s shareholding in many Singapore and Malaysian companies (many of which were given to him by his mother a long time ago). In addition, there were documents pertaining to the bank accounts of the Church of St. Teresa, the construction works and the income and expenditure of the church, its accounting records and the renovation of the family home of the priest.

6. The facts of the criminal trial would concern the decade-long relationship between the priest/confessor cum spiritual director and his parishioner/penitent (one Emily Chan) who gave large sums of money and substantial shares to him, to other Roman Catholic churches in Singapore and overseas and to various educational institutions recommended by the priest. In one of the statements made to the investigators, the priest said he invested Emily Chan’s donations in two properties and some unit trusts leaving the rest of the money in his bank accounts to earn interest. He was entrusted with the donations to manage for the benefit of the archdiocese in Singapore. In two other such statements, he told the investigators that he believed he gave church funds to other churches and charities in response to their requests for donations. He also stated that he purchased two computers for two church helpers and paid an honorarium to another. He believed his actions were authorised under the Canon Law of the Roman Catholic Church.

7. The criminal trial was said to be unique because of the ecclesiastical dimension. Father Joachim Kang had to abide by the Code of Canon Law 1983 promulgated by the Vatican (replacing the Code of 1917). The priest’s duties were almost exclusively spiritual and his duties and activities were dictated not by contract but by conscience. His integrity was his life blood and it was this very integrity that would be called in question at the trial.

8. As the parish priest, he had authority, power, control and management in respect of the income and expenditure of the parish church. The income (from whatever source) was deposited into the church’s two bank accounts. Money was drawn from these two accounts for the church’s expenditure.

9. The criminal case would involve an “in-depth consideration of the financial duties, responsibilities and authority of a Roman Catholic parish priest as well as his, and the parish’s, relationship to the Archbishop/Diocese and the accounting procedures of individual parishes and the Roman Catholic Church in Singapore as a whole”. This study would require an understanding of the Code of Canon Law 1983 and how it was interpreted and applied in Singapore and elsewhere as well as knowledge of ecclesiastical practice. The priest’s defence lawyer would need to have this understanding and knowledge in order to question witnesses properly and to advance the case for the defence.

10. Novel and difficult issues of fact and of law would arise in the trial and there was no local case law or legal treatise on such matters. This was the first time a Roman Catholic priest was charged for criminal breach of trust in Singapore, Malaysia and the United Kingdom and the first time that the courts would be asked to consider the interplay of secular law and Canon law. No local counsel was capable of handling the Canon law dimension of the case.

11. The prosecution would be calling an expert on Canon law and 52 other persons as witnesses. The priest may call 12 witnesses and a foreign expert on Canon law. The trial was estimated to last at least six weeks. The issues to be raised included the questions whether the priest was an agent of the Titular Roman Catholic Archbishop of Singapore as alleged in the charges and who the legal and beneficial owner of the income of the Church of St. Teresa was under Canon law and/or under secular law. The trial court would also have to consider whether the priest had the right to acquire, administer and alienate donations, to deposit such donations in his personal bank account and to invest such donations in properties, unit trusts and interest-bearing deposit accounts.

12. The case would be of concern to the Roman Catholic clergy and to the estimated 300,000 Catholics who donate to the Roman Catholic Church.

Qualifications of Mr Nigel John Seed QC

13. Mr Nigel John Seed QC was called to the Bar in 1978 and was appointed QC in 2000. Before taking silk, he was involved mainly in serious criminal cases, handling serious fraud cases involving large sums of money. He was also a senior grade prosecutor.

14. Mr Nigel John Seed QC maintains a specialist ecclesiastical practice. He had numerous ecclesiastical appointments. In his ecclesiastical practice, he has appeared in many of the consistory courts of the various English dioceses and has sat in the Court of Arches, the ecclesiastical court of appeal in the Church of England. He has also undertaken work in ecclesiastical matters in the English courts of law. He is a Catholic member of the Church of England and is fully conversant with the nature of the sacraments and the practice of the Catholic faith, the Canons of the Church of England and the Codex of the Roman Catholic Church. He has also represented the Cardinal Archbishop and Archdiocese of Westminster (Roman Catholic) in the High Court and has advised various Anglican and Catholic bishops, priests and lay officials.

The Attorney General’s Views

15. The prosecution in the criminal trial would be seeking to prove that Father Joachim Kang acted dishonestly when he transferred church funds to his personal bank accounts in Singapore and in Malaysia and used church funds to purchase two residential properties in Singapore, $100,000 worth of unit trust, two computers for parishioners and to make payments to two persons. The prosecution’s case would be that all these acts were carried out without the knowledge of the donor or of anyone in the Catholic Church’s hierarchy and were kept a secret.

16. Most of the primary facts would not be in dispute and the main focus of the trial would be the mens rea of the priest. This was an issue of fact that could be gleaned from the circumstances of the case. Certain rules of the Catholic Church would be relevant but these would merely form the backdrop of the offences in question.

17. In any case, issues of Canon law would be adequately addressed by the experts to be called by both parties and it was unclear how the expert court craft and experience of the QC in ecclesiastical matters would advance the case where interpretation of the Canon law was concerned. Any issue of agency could be resolved by looking to the Roman Catholic Archbishop Act (Chapter 375), the Universal Canon Law and the Priest’s Directory of 1995 (a manual produced by the Archdiocese of Singapore for its priests).

18. Where the special qualifications of the QC were concerned, there was no evidence of any previous experience in the interpretation of Canon law relating to the scope of power of parish priests and their relationship with the Archdiocese or the manner in which church funds are to be administered. Local counsel would be equally competent to present the arguments on Canon law after studying it in consultation with the expert for the defence or even with the QC himself. No evidence had been proffered on any steps taken to brief Senior Counsel on the case.

19. There was no “special reason” [section 21 (2) Legal Profession Act (“LPA”)] why a QC should be admitted for this case. There were no issues of constitutional law involved. There was also no evidence that parish priests were greatly confused about the scope of their financial obligations and that clarification from the courts was therefore desirable.

The Law Society’s views

20. The Law Society was of the view that the factual issues were neither difficult nor complex. The Roman Catholic Church has been...