Defendants should be free to choose

Defendants should be free to choose

By Richard Woo

It appears there is no legal enactment prohibiting a defendant from employing a Queen’s Counsel (QC) to represent him/her in a court in Singapore. The presiding judge, however, has the power to decline a request from the defendant for a QC if the judge thinks that the case is “not sufficiently complex” for engagement of a QC. But whether a case is complex or not rests on one person – the presiding judge.

Can a decision, based on one’s personal, subjective opinion, for declining a request for a QC be considered as fair to the defendant, regardless of the fact that the QC’s professional charges are payable by the defendant? What if the defendant and/or his legal representative from the local legal fraternity think[s] that the case is hugely complex and thus deserves engagement of a QC? Presumably their opinion is weightless, and what counts is what the judge thinks.

The City Harvest Case involving Chew Eng Han as reported in The Straits Times, 6 Mar, page B13 is the latest example of a judge dismissing an application for a QC on the grounds that he, judge, is of the opinion that the case is not complex so there is no requirement for a QC. Chew of course can engage a Senior Counsel (SC) to represent him and has in fact been reported to have done so, in the circumstances. Whether facetious or not, it may not be inaccurate to say that Justice V.K. Rajah has evinced an opinion [his opinion no less] that SCs are not on a par with QCs. A SC is ok, even for a complex case, but not ok if the case is highly complex and involves “novel points of law.” The impression given here is that a QC is superior in knowledge to a SC – but is that a fact? SCs in Singapore may not think so.

Why should a judge’s personal opinion on whether a case is complex or non-complex be the pivot for deciding whether an application for a QC should be approved or rejected? Whether a case is not sufficiently complex to warrant a QC should not be the sole criterion for rejecting a request or an appeal for a QC, as complexity or non-complexity is, arguably, a subjective issue. The defendant is, after all, the one under prosecution and therefore the choice of legal expertise, the cost of which being his/her sole responsibility, should really rest on him/her. And losing a case in court can be ruinous, both financially and socially.

We have to remember that judges are not infallible and that bizarre or unsatisfactory judgments or actions are known to have emanated from judges in our law courts.

Examples of cases with apparent bizarre judgments or actions:

[1] Some years ago, there was a road accident in which a woman was knocked down by a car that was attempting a reversal into a parking lot on a one-way street. The woman had been rendered comatose as a result of the accident. When the matter came to court the judge apportioned the blame on a 50-50 basis, after saying that the woman should have looked both ways, in the direction of the oncoming traffic and in the opposite direction. Is it sensible to expect someone walking on a one-way street to keep alternating a watch-out in both directions for possible dangers? Naturally, the judgment elicited protests from members of the public. Regrettably, there was no order from the judge calling for a sharing of medical or hospital bills on a 50-50 basis. On the other hand, should a pedestrian get knocked down on a one-way street by an oncoming vehicle as a result of turning his head for any sign of danger behind his back, when, being on a one-way street, he should have concentrated attention on oncoming traffic, would he be judged as having acted rationally? The judge who decided on the case mentioned above may think so, if the same criteria are applied, without bringing other extraneous factors into consideration. But another judge may think differently.

[2] In another legal case, a male Singaporean applied to the court for divorce proceedings against his China-born wife, citing several reasons: her refusal to let him hold her hand or hug or kiss her, her insistence on having sex with him only once a week, her refusal to wear her wedding ring, her negative attitude toward him by sleeping as far away from him as possible on their bed and by turning her back toward him and putting a bolster between them, her staying overnight at a friend’s house at every opportunity and, finally, her desertion by returning to China and telling him she wanted a divorce and would never return to him. The district judge dismissed the man’s application and allegedly said, inter alia, that he entered the marriage “with expectations of having a wife who would pander to his every need”. The man appealed to the High Court and received approval for his divorce application. The High Court judge said, inter alia, that it was unfair for the district judge to say that the man entered the marriage “with expectations ….” as the evidence did not justify such a comment.

[3] In one molestation case involving a school teacher [the accused] and some school boys, the judge found the accused guilty and imposed a jail sentence. On appeal the Appeal Judge allegedly raised several issues with regard to the conduct of the trial in the district court. Lawyer for the accused allegedly took issue with how the trial judge “took it upon herself” to play prosecutor in trying to extract an answer from one witness. The trial judge reportedly posed 84 questions to him, and based on the answers, amended a charge and found the accused guilty.

Senior Counsels, like court judges, are not exempt from making errors in judgment or in arriving at a wrong interpretation of the law. It appeared there was a decision made by the Singapore Court of Appeal which in the opinion of one Senior Counsel was unconstitutional and not within the Court of Appeal’s powers to make.

This opinion was apparently shared by another Senior Counsel.  This case was about two individuals who were accused of murder but the High Court acquitted them, convicting them, instead, of causing hurt while committing a robbery and imposing on them a jail sentence with caning. On appeal by the state prosecution, the three-judge Court of Appeal found the two individuals guilty of murder and sentenced them to hang. According to Article 11 of Singapore’s Constitution, a person who has been convicted or acquitted of an offence cannot be tried again for the same offence unless a higher court quashes the decision and orders a retrial. In the views of these two Senior Counsels, the Court of Appeal, by changing the High Court’s verdict, effectively tried these individuals a second time by re-weighing the evidence which a judge had already examined and formed a conclusion on. Response by Ministry of Law

What had been raised in contention appears to be concerned with interpretation of the law, but whether both Senior Counsels were right in their interpretation would merely serve as another clear pointer that mistakes can be made by anyone, including learned, senior judges or lawyers, even within their own area of specialty or expertise. And it is clear that some people have been mistaken in their judgment or thinking; an appeal is not a second trial.

People who have been following Singapore court proceedings relating to the defamation suit initiated by Lee Kuan Yew and Lee Hsien Loong against the Far Eastern Economic Review  [FEER] may have wondered whether it was not a case of a High Court judge presiding at one particular court hearing not acting rationally when he rejected a request from the defendant’s lawyer to engage a QC because he [judge] took the view that “the case is not sufficiently difficult and complex to require a QC” and openly expressed it. But this judge had apparently forgotten that there was a defamation/libel suit initiated by Lee Kuan Yew against FEER in 1987, and in that case QCs were engaged.

And we should not be seen as the roadblock to justice.