EPR VidLec6 - Past Paper (PDF)

00:01 In this session, we will look at the rules concerning communications and dealings with witnesses. These are dealt with by Rule 12 of the PCR. There are two general principles that must be borne in mind for Rule 12 of the PCR. The first is that a legal practitioner must ensure that he acts in...

00:01 In this session, we will look at the rules concerning communications and dealings with witnesses. These are dealt with by Rule 12 of the PCR. There are two general principles that must be borne in mind for Rule 12 of the PCR. The first is that a legal practitioner must ensure that he acts in a manner consistent with the administration of justice when dealing with any witness. 00:30 regardless of the effect or the potential effect of the evidence given or which will be given by that witness. The second is that a legal practitioner must exercise his own judgment both as to the substance and the form of the questions put to or the statements that are made to the witness. Rule 12-2 sets out the legal practitioners duty not to interfere with the evidence 01:00 of his own witness while that witness is being cross-examined. In practice, however, the court will usually issue a specific direction to the witness while the witness is on the stand, directing the witness not to discuss that witness as evidence with any other person as long as the witness is on the stand. So therefore, in practice, the court\'s direction is usually wider than this particular rule. 01:30 which is limited only to when the witness is being cross-examined. 01:36 Rule 12.3 prohibits a legal practitioner from making any allegation against the witness whom that legal practitioner has cross-examined or was given an opportunity to cross-examine unless the legal practitioner has first given the witness an opportunity to answer that allegation during the cross-examination. 02:06 practitioner is seeking to suggest that a witness or any other person is guilty of any offence or conduct or seeks to attribute to that witness or any other person any offence or conduct which the legal practitioner\'s client is accused of. This rule would apply in situations where, for example, the legal practitioner seeks to state that somebody else apart from his client. 02:36 was the person who is guilty of the offense charged, or, for example, where the legal practitioner seeks to suggest that the witness is lying. 02:48 Rule 12.5 makes it clear that asking any question or making any statement which is scandalous, intended or calculated to vilify, insulting or annoying is considered an abuse of the function of the legal practitioner. 03:10 Rule 12.6 sets out the right of a legal practitioner to interview and take statements from any witness at any stage in proceedings, and this includes witnesses who are being called by the adverse party in those proceedings. However, it is important to remember the provisions of Rule 12.7, which set out the restrictions and the requirements which must be followed by the law. 03:39 if the legal practitioner is intending to speak to and interview any witness who has been called or will be called by the opposing party. 03:53 Rule 12.8 provides that a witness may receive payment of disbursements and expenses as long as such disbursements and expenses are allowed or entitled to under the law. However, Rule 12.8 makes it very clear that any payment which the witness is going to receive must not be contingent upon the nature of the evidence given by the witness. 04:23 and must not be contingent upon the outcome of a case. In other words, the witness should not expect that payment will only be made if that witness\'s evidence is favorable or if ultimately the legal practitioner is successful at the conclusion of the case. This is to ensure that witnesses continue to give truthful evidence and are not 04:53 swayed by economic incentives to give evidence in a particular direction. 05:01 We turn now to address the respect for the court or tribunal and related responsibilities. The rules governing this area are found in rule 13 of the PCR. 05:18 The guiding principles for Rule 13 are as follows. First, a legal practitioner must present a case and behave before a court or tribunal in a manner which is respectful of the court or tribunal. And this is because of the second guiding principle, which is that the legal practitioner must conduct the case in a manner which is consistent with the standing, 05:49 and authority of the court or tribunal before which the case is being conducted. These guiding principles at first glance may appear obvious. However, given the intensity and the stress of conducting a case, it is useful to bear these principles in mind at all times. 06:15 Rules 13.2 and 13.3 set out in very clear terms the legal practitioner\'s obligation to always be respectful and always be courteous while in court or before a tribunal. What\'s important to note is that the duty of courtesy applies not only to the court or tribunal, but also to any other person. 06:44 involved in the proceedings that will cover, for example, opposing counsel, witnesses, even the court or tribunal staff who are involved in the proceedings. As an overriding duty, the legal practitioner must always be courteous when conducting the case before a court or tribunal. 07:11 Rules 13.4 and 13.5 deal with undertakings that are given by a legal practitioner to a court or tribunal. It goes without saying that a legal practitioner must honour every undertaking that is given to a court or tribunal. However, it must also be noted that such an undertaking should not be given at all. 07:41 unless the legal practitioner first believes that the undertaking is necessary to be given, and second, at the time that the undertaking is given, the legal practitioner must know that he or she is able to honour the undertaking. All of this underscores a simple point. As a legal practitioner, your word is your bond. 08:12 If you cannot live up to an undertaking that is given, you must not even give the undertaking in the first place. The seriousness of giving an undertaking to a court or tribunal is considered in some of the case examples which we will look to next. 08:35 In this case example, the lawyer gave an undertaking to the attorney general to hand over all relevant files from his firm. This was in the context of the police having come to the firm to seize relevant files and on the strength of the lawyer\'s undertaking, the police did not search the firm for those files. Two points should be noted from this case. 09:05 The first is that the undertaking in question here was given to the Attorney General and not to a court or tribunal. The second is that the lawyer did not honour his undertaking because he did not do what was necessary to search for the relevant files which he had undertook to hand over. 09:33 All of this again underscores the seriousness with which every lawyer should treat an undertaking that is given. 09:45 In this case, the lawyer\'s undertaking was given to the court. It was given to the Chief Justice in chambers. Specifically, the lawyer undertook and said, I can assure you, Chief Justice, that neither I nor my office have given these affidavits to them, them in this case referring to the press for publication. The lawyer was sanctioned. 10:15 because two days later, copies of the affidavits were sent by the lawyer to the press. And it was obviously in this case not an answer for the lawyer to say, at the time that I gave the undertaking, it was accurate because it was dealing with whether or not the affidavits had already been given to the press for publication. 10:44 The seriousness of a lawyer\'s undertaking means that once it is given to act inconsistent with it, as happened in this case, would be crowned for saying that the lawyer has not honoured the undertaking. 11:05 Rule 13.6 sets out the prohibition against a legal practitioner publishing material which would either amount to contempt of court or which may infringe the sub-judice rule, which would prejudice the administration of justice or interfere with the fair trial of a case. 11:31 Before moving to the next section, it\'s useful to bear in mind the case of Law Society and Ng Mok Ho Likson. The facts of this case are briefly summarized in this slide. The lawyer of this case was ultimately struck off, which comes as no real surprise, given that what the lawyer did here was to deliberately create a false document, namely a bill, in the course of discharging his professional duties. 12:01 Now, even though that was not a court document, the court held that it was nevertheless an important accounting record relating to his law firm\'s account. Also, the lawyer had previously been suspended for a period of two years for falsifying a judgment. So as mentioned earlier, it comes as no real surprise that the lawyer in this case was ultimately struck off. 12:28 for creating another false document in this case. 12:34 We will now look at the rules concerning the conducting of the defense in criminal proceedings. These rules are under Rule 14 of the PCR. There are two guiding principles for Rule 14. The first underscores the legal practitioner\'s fundamental duty to assist in the administration of justice. The second is that the case must be\... 13:04 presented, and the legal practitioner must behave in a manner which is consistent with the PCR rules and must comply with constitutional, evidential, and procedural rules which operate in a criminal trial. Rule 14.2 sets out the legal practitioner\'s duty to pursue every reasonable defense and raise every reasonable factor on behalf of the accused person. 13:34 It\'s important to note that this is not an unqualified duty. That every defense that is raised must still be reasonable, and every factor and defense must be in accordance with law. Rule 14.3 sets out various specific obligations that a legal practitioner who represents an accused person must comply with. Some attention should be paid. 14:02 to subparagraph B, which sets out the parameters of how a legal practitioner\'s personal opinion as to whether the accused person is guilty must not affect the legal practitioner\'s professional assessment of the facts or the law, his conduct of the legal proceedings, or his duty to the accused person or the court. 14:31 Rule 14.4 provides guidelines for how the legal practitioner may continue to represent an accused person who has confessed to any offense to the legal practitioner. The important qualification is that the legal practitioner must not deduce any evidence or make any submission which is inconsistent with that confession. 15:01 sets out several specific points that a legal practitioner must advise an accused person on in criminal proceedings. And it also makes it clear that having advised the accused person, the legal practitioner must abide by the accused person\'s decision. What this rule also makes clear is that regardless of what the legal practitioner advises, 15:30 it is ultimately the accused person\'s decision on whether or not to take that advice. Rule 14.6 deals with the situation where an accused person abscends while in the middle of proceedings, while Rule 14.7 deals with the legal practitioner\'s duty after the accused person has either pleaded guilty or has been convicted and makes it clear that the accused 15:59 that when presenting a plea in mitigation, the legal practitioner must not make any allegation which is scandalous or is intended or calculated to vilify, insult, or annoy any person. Rule 14.8 deals with the legal practitioner\'s obligations regarding an accused person\'s previous conviction or antecedents. We turn now to rule 15 of the PCR. 16:27 which deals with conducting the prosecution in criminal proceedings. The guiding principles for Rule 15 are fundamentally identical to the guiding principles of Rule 14. 16:43 Rule 15-2 sets out the legal practitioner\'s obligation not to present evidence otherwise than in a fair and impartial manner in the prosecution. 16:57 Rule 15.3 sets out the prosecutor\'s obligation to disclose not only the identity but also the location of any person who may be able to give evidence but will not be called as a prosecution witness, and also to disclose any substantial conflict between the evidence given by a prosecution witness on a material issue and any prior statement provided by that prosecution witness. 17:28 Rule 15.4 sets out the prosecutor\'s obligations of disclosure after the accused person has been convicted in order to ensure that the court has all relevant information on hand for sentencing. Rule 15.5 prohibits a prosecutor from informing the court of any other or pending proceedings against the accused person unless 17:56 the circumstances fall within one of the exceptions set out in this rule. Lastly, rule 15.6 makes it clear that the prosecutor is under a duty to assist the court at all times before the conclusion of a trial. And this includes a duty to draw the court\'s attention to any apparent errors, any apparent 18:26 which in the opinion of the prosecutor ought to be corrected. Ultimately, even though the prosecutor and the defence council are subject to different specific rules, they are both officers of the court and are bound to seek that the court is in the best possible position to get the correct result in every case. B24 EPR - III\. The legal practitioner's role in the administration of justice - \(1) **[Conduct of proceedings before court]** or tribunal (Rule 9) - Officer of the Supreme Court: section 82(1) LPA; - Public Trustee and another v By Products Traders Pte Ltd and Others \[2005\] 3 SLR(R) 449 at \[26\] - Duty to assist in the administration of justice / **[Paramount duty to court]**: - dishonesty, incompetence, failure to **[provide proper and honest evaluation of the client\'s case]** - Public Trustee (above), especially at \[30\], \[53\]; - **[duty to the court is first and foremost]** - Zhou Tong and others v Public Prosecutor \[2010\] 4 SLR 534, at \[11\]-\[18\]; **[- charged for non-existent legal work]** - Law Society of Singapore v Chung Ting Fai \[2006\] 4 SLR(R) 587, at \[48\]; **[Solicitior drafted a false affidavit for Exetnsion of time]** - BOI v BOJ \[2018\] SGCA 61 - **[Solictor cannot be a mere conduit between client and the Court. Paramount duty to the Court.]** - Must reasonably in the interests of their clients without **[wasting]** the time by not assessing client\'s case. (**[Rule 5]** and **[Rule 9(1)(e)]**): - Lock Han Chng Jonathan v Goh Jessiline \[2008\] 2 SLR(R) 455 at \[45\]-\[47\]; - **[Duty to evaluate client\'s case and likelihood of settlement, instead of litigation.]** - Zhou Tong and others v Public Prosecutor \[2010\] 4 SLR 534 at \[19\]-\[21\]; **[- Purusing minor \$60 in court]** - Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang \[2014\] 2 SLR 191 at \[35\]-\[42\]; They owe a duty to his client to **conduct a proper risk-benefit evaluation at each significant stage of the proceedings** Prometheus Marine Pte Ltd v King, Ann Rita and another appeal \[2018\] 1 SLR 1 at \[68\]-\[76\]; **Solicitor owes his first duty to the court and if a position, in good conscience is untenable, the advocate is duty-bound to decline to put it forward** Singapore Shooting Association and others v Singapore Rifle Association \[2019\] SGCA 83; **[Must assess whether pursuing the matter in court would be in the interest of administration of justice]** Miya Manik v Public Prosecutor \[2021\] SGCA 90 - **[A legal practitioner owes a duty to his client to assess the merits of any application appropriately before invoking the court's (criminal) processes. He also owes a duty to the court (criminal), as well as to the public, to assist in the administration of justice.]** - **[Courtesy]** to the court (**[Rule 13 (3)]**): Does the act **[undermine]** the Court\'s **[authority]** in the eye of the public - Re Hilborne \[1983-1984\] SLR(R) 322 **[struck off for being rude]** - Law Society of Singapore v Ravi Madasamy \[2007\] SGHC 20; - **[lack of respect]** - Law Society of Singapore v Gopalan Nair \[2010\] SGDT 11; **the courts will consider a lawyer's misconduct not just in the professional capacity but also in the personal capacity. The offence [need not be committed in a professional capacity] before it implies a defect in character rendering him unfit for the profession** PD 1.4.2 - **[Punctuality]** for Court Hearings - Not to **[deceive or mislead (Rule 9(2)(a) and (3)(a))]**: - Public Trustee (above) at \[26\]-\[36\]; Law Society of Singapore v Nor\'ain bte Abu Bakar and others \[2009\] 1 SLR(R) 753; **[struck off for fradulently concealing facts from the court]** - - Law Society of Singapore v Chung Ting Fai \[2006\] 4 SLR(R) 587; **A solicitor's duty to the court cannot yield to a misguided attempt to assist his client.** Any attempts to do so, even if unsuccessful, **may be censured by the court** Re Ram Goswami \[1988\] 2 SLR(R) 183; - **[6 month suspension for deceiving the court]** - Dhanwant Singh \[1996\] 1 SLR(R) 1 - **[Duty for the legal practitioner to uphold the integrity of the judicial process by not abetting with the client to delay or deceive the Court.]** - Law Society of Singapore v Khushvinder Singh Chopra \[1998\] 3 SLR(R) 490; - **[Deceived previous clients into signing agreement to absolve himself of alleged fraud/improprietary]** - Law Society of Singapore v Wee Wei Fen \[1999\] 3 SLR 559; - **[forged court documents showed lack of respect for court processes]** Law Society of Singapore v Udeh Kumar s/o Sethuraju \[2017\] SGHC 141; **In our judgment, where an advocate and solicitor is shown to have been dishonest, including where he has been fraudulent in his dealings with the court, striking off will typically be the sanction save in the most exceptional circumstances.** Tan Ng Kuang Nicky v Metax Eco Solutions Pte Ltd \[2021\] SGCA 16; - **[deliberately suppressed information regarding settlement agreement to the court]** Loh Der Ming Andrew v Koh Tien Hua \[2022\] SGHC 84 - *Solicitor intentionally concealing from client that he acted outside of instructions* - PD 1.6.1 - Attestation of Documents; Law Society of Singapore v Thirumurthy Ayernaar Pambayan \[2022\] SGHC 79 - False attestation of documents **may amount to grossly improper conduct in the discharge of a solicitor's duty and constitute a breach of the LPA.** - - - PD 8.5.8 - Protracted Arguments in Chambers - - - PD 8.8.1 - Responsibility for Third Party Fees - - - - PD 7.3.2 - Legal Practitioner on Record - GN 1.1.1 -- Client's Presence in Chamber Hearings - - - \(2) Responsibility for client's conduct / **[Client\'s gifts / Discovery]** (**[Rule 10]**) - Impropriety of the client: - Narindar Singh s/o Malagar Singh v Public Prosecutor \[1996\] 3 SLR(R) 318 at \[48\]-\[53\]. **[Imprisoned for obtaining paid confession]** - Impact of client\'s instructions on preparation, submissions and presentation of documents (**[Rule 10(3)]**): - Bachoo Mohan Singh v Public Prosecutor and other applications \[2010\] 1 SLR 966; **[Counsel cannot rely on client\'s instructions at face value]** - Wee Soon Kim Anthony v Law Society of Singapore \[1988\] 1 SLR(R) 455; **[there is no legal duty on the part of a solicitor to believe/disbelieve his client's instructions and verify his client's instructions] [unless]** **[he himself has personal knowledge of the matter]**, **[his client's statements are inherently incredible or logically impossible]** Tang Liang Hong v Lee Kuan Yew \[1998\] 3 SLR(R) **A solicitor should not act for the client unless he is conscientiously satisfied that there is material upon which he can properly do so** - Duties in **[discovery/disclosure:]** - Teo Wai Cheong v Crédit Industriel et Commercial \[2013\] 3 SLR 573 at \[43\]-\[49\]. **[Solicitor is to supervise the disclosure process and not merely inform client]** - Global Distressed Alpha Fund \[2013\] SGHC 12; \[2013\] 2 SLR 228 - **[Duty to disclose all material not just material supporting client\'s case]** - **[ Duty of Candour]** owed to the Court / **[Duty not to suppress evidence:]** - Law Society v de Souza Christopher James \[2023\] SGHC 318 at \[160\]-\[168\] and \[207\], - **[Must consider the nature and purpose of the proceedings, objective assess if a failure to disclose and subjectively intended the non-disclosure.]** - read with Attorney-General v Shahira Banu d/o Khaja Moinudeen \[2024\] SGHC 111 at \[1\]-\[2\] and \[32\]-\[37\]. - **[Solicitor cannot be parsimonious (unwilling) with the truth]** - PD 1.6.2 - Duty of Legal Practitioner to Lay Information of Criminal Offence. - No advice for dishonest, fraudulent or unlawful purpose: Law Society of Singapore v Leong Pek Gan \[2016\] SGHC 165 - **[Two element test]** - - - \(3) **[Conflict of interest in proceedings before court]** or tribunal (**[Rule 11]**) **[Legal practitioner as witnesses]** - Ho Kon Kim v Betsy Lim Gek Kim & Ors \[2001\] SGCA 64, at \[61\]-\[63\] - **[Where solicitor would be a material witness]** - Then Khek Khoon & Anor v Arjun Permanand Samtani & Anor \[2012\] 2 SLR 451 at \[30\]-\[36\]; **[Solicitor should not be permitted to shape the evidence to suit solicitor\'s interests]** - PD 1.7.1 - Legal Practitioners as Witnesses. - - - \(4) Communications and dealings with **[witnesses]** (**[Rule 12]**) - Guiding principles - Rule 12(2) - Rule 12(3) - Rule 12(4) - Rule 12(5) - Rule 12(6) - Rule 12(7) - Rule 12(8) - Witness coaching: Ernest Ferdinand Perez De La Sala v Compania De Navegacion Palomar, SA and others and other appeals \[2018\] SGCA 16 - **[Solicitor should not supplant witness\' testimony]** 1. 2. 3. 4. 5. 6. - Inappropriate cross-examination of witnesses/victims: Law Society of Singapore v Wong Sin Yee \[2018\] SGHC 196 - **[Withness examination should not be offensive to the witness]** 1. 2. - \(5) Respect for court or tribunal and related responsibilities / **[Solicitor\'s undertaking to the Court]** (**[Rule 13]**) - Guiding Principles - Respect for court / courtesy: - Law Society of Singapore v **[Ravi Madasamy]** \[2007\] 2 SLR(R) 300; - (a) turning his back on the District Judge while being addressed; (b) remaining seated while being addressed by the District Judge; (c) stating that the District Judge had not addressed him properly and expressing his unhappiness at being pointed at; (d) informing the District Judge that he would report her to the Legal Service Commission and the Ministry of Law; (e) replying that different people spoke in different tones when he was being directed by the District Judge not to speak to the prosecuting officer or to other counsel in loud tones; and (f) replying that he wished the court would address him properly - Syed Suhail bin Syed Zin v A-G \[2022\] SGHC 184 at \[11\]-\[12\] **[missed deadline to file submissions]** - Undertakings to the court: - Law Society v Seow Francis T \[1971-1973\] SLR(R) 727; **[breach undertaking by not handling over files]** - Re Marshall David; **[breach of undertaking not to send affidavits to the press]** - Law Society v Marshall David Saul \[1971-1973\] SLR(R) 554; - **[breached undertaking not to disclose to the press]** - Re A Solicitor \[1932\] 1 MLJ 177;- Breach of undertaking to **[pay former Solicitors' bill of costs]** - Law Society of Singapore v Harbans Singh Sidhu \[1993\] SGDSC 6; - **[Breach of undertaking to refund client'S money]** - Law Society of Singapore v Naidu Priyalatha \[2022\] SGHC 224;- **[Suspended for three months for deliberately breaching undertaking]** - PD 4.1.1 - Breach of Undertaking in Admiralty Proceedings - **[Forgery]** of court documents (**[Rule 13(6)]**): - Law Society of Singapore v Ng Bock Hoh Dixon \[2010\] 2 SLR 1000; **[Even though the false document was not a court document, it was an important accounting record relating to his law firm's account.]** - GN 1.6.1 - Guidelines on Reporting Subversion of the Administration of Justice. - Publication of material that amounts to a contempt of court, is calculated to interfere with the fair trial of a case, or to prejudice the administration of justice: Law Society of Singapore v Nalpon Zero Geraldo Mario \[2022\] SGHC - Rules relating to **[Criminal proceedings]** - \(6) Conducting the defence in **[criminal proceedings (Rule 14)]** - Must pursue every reasonable defence (**[Rule 14(2]**)) - Must not express LP\'s personal opnion on guilt - Rule 14(3) - Duty not to let roles conflict (**[Rule 14(3)(a)]**) - Rule 14(4) - Rule 14(5) - Rule 14(6) - Rule 14(7) - Rule 14(8) - Iskandar bin Rahmat v Law Society of Singapore \[2020\] SGHC 40 at \[60\] and \[80\]-\[85\] - [ **there is no requirement to take verbatim notes; it is the substance of the client's instructions that is important for the record**] - \(7) Conducting the prosecution in criminal proceedings (**[Rule 15]**) - Rule 15(2) - Rule 15(3) - Rule 15(4) - Rule 15(5) - Rule 15(6) - \(8) Representing client in family proceedings (Rule 15A)