Lawyer M Ravi is seeking a prohibitory order against the Attorney-General from reviewing contents of his mobile phone and laptop, both of which were seized by the police in March.
Both Mr Ravi and his client Mohan Rajangam are investigated for alleged contempt of court under Section 3(1)(b) of the Administration of Justice (Protection) Act 2016 in relation to a criminal revision application the latter made regarding his alleged unlawful extradition to Malaysia in 2015.
In a hearing held before Justice Ang Cheng Hock in closed chambers on Monday morning (3 Aug), Mr Ravi submitted several arguments on whether such a review of files on his electronic devices breaches the legal professional privilege of Mr Mohan.
Mr Ravi noted — in a letter in March — that according to the AGC, the police had “paused investigative work” into his electronic devices.
The lawyer consequently submitted that the word “paused” in AGC’s letter implies that the police had been opening files in the seized electronic devices, despite repeatedly being placed on notice that the files are confidential.
Citing the decision in R v Central Criminal Court, ex p Francis & Francis, Mr Ravi added that the onus is not on him to assert legal professional privilege on his part, but rather for the police to note that such items are covered by such privilege, considering that they had seized the electronic devices from his office at Carson Law Chambers.
Mr Ravi also argued, using English case law, that an independent lawyer should have been present at the time of the police raid on 13 March.
Only the raiding police officers were present at the search, and the Privilege Team was employed by the AGC, which raises questions as to whether the review procedure was transparent, he added.
Mr Ravi also submitted that the contempt of court offence — by way of scandalising the judiciary or interfering with the administration of justice under Section 3(1) of the AJPA — is a quasi-criminal offence.
The confidentiality of items or matters covered by legal professional privilege, he argued, has its grounding in Section 128 of the Evidence Act, which provides for certain exemptions with regards to such privilege.
While Section 128(2) of the Evidence Act stipulates that any communication made to further an illegal purpose is not protected from disclosure, Mr Ravi — citing the case of Harvard economics professor Li Shengwu — argued that ‘illegal purpose’ only covers “serious crimes” such as murder and fraud instead of quasi-criminal offences such as contempt of court — the latter of which is part-criminal and part-civil in nature.
He also referred to comments made by Law and Home Affairs Minister K Shanmugam in Parliament on when s 3(1)(b) AJPA would apply, in which Mr Shanmugam was quoted as saying:
Not every comment will be sub judice. Parties to civil proceedings frequently make comments. Lawyers do as well while their client’s case is on-going. The test is whether it prejudices or interferes with on-going court proceedings or poses a real risk of doing so. So, you have to show that it prejudices or interferes or poses a real risk.
Thus, Mr Ravi argued, the intention at the time of the AJPA’s enactment in 2016 was “to merely protect the judiciary, rather than making contempt of court an actual crime”.
Further, the lawyer submitted that it is on the A-G to submit prima facie evidence of sub judice before using the exception under the Evidence Act to strip away legal professional privilege in this case.
The AGC, M Ravi submitted, “cannot investigate documents in the said items while fishing for evidence for the alleged offence under s 3(1) AJPA”.
Doing so, he argued, is ‘to put the cart before the horse’, as a prima facie case against him has not been made out yet.
Any issues that need to be raised in relation to the files in the electronic devices should be brought up during trial and decided on by the court, and neither by the AGC nor the police — to do otherwise would be “a tantamount abuse of power”, Mr Ravi added.
He emphasised that he would have eventually revealed the material contained in his seized electronic devices before the court.
The legal professional privilege protecting the confidentiality of documents and exchanges concerning Mr Mohan, Mr Ravi argued, bears “constitutional importance”, as “a client’s right to confidential communications with his solicitor is the cornerstone of the adversarial trial system in Singapore”.
Ensuring that members of the public are secure in the knowledge that their confidential documents “are not simply divulged without any due process controls”, he added, is within the ambit of “public interest” and is a key reason behind upholding legal professional privilege in this case.
M Ravi did not specify which files in seized devices are protected by legal professional privilege: A-G’s representatives
The A-G’s representatives, however, argued that the police raid on 13 March was justified due to “reasonable suspicion” that Mr Ravi was involved in the publication of the TOC articles.
They submitted that only those with access to court documents for the criminal motion could have passed them to TOC, and it was highly likely that Mr Ravi had done so, being Mr Mohan’s lawyer.
They added that the AGC had made a request to Mr Ravi to inform them of the files within the seized electronic devices that were relevant to or covered by legal professional privilege.
According to the A-G’s representatives, the AGC on 20 March had requested Mr Ravi to inform them as to which files within his seized electronic devices were covered by legal professional privilege.
They highlighted that according to the AGC, any review of the contents in the seized items would be conducted by a team from the AGC who are and will not be involved in the investigations against Mr Ravi.
The AGC also confirmed that the police will not carry out any further investigations into the contents of the seized items before the team discloses its findings to Mr Ravi.
The A-G’s representatives submitted that the AGC had later reiterated its request for files within his seized electronic devices were covered by legal professional privilege, and had even offered him access to the items.
However, they claimed that Mr Ravi had neither furnished the AGC with the requested details nor did he ask for access to the items.
The A-G’s representatives, in rebutting Mr Ravi’s arguments, also argued that Section 128 of the Evidence Act is not engaged in cases where the police seize property, pursuant to Section 35 of the Criminal Procedure Code.
Section 35 provides for circumstances where the police do not require permission from the property owner to seize their items.
They also argued that the AGC and the police should be allowed to test any claims of legal professional privilege and to separate material covered by such privilege from material that is not.
The A-G’s representatives also submitted that the onus falls on Mr Ravi to specify what exact materials or items are covered by such privilege and not for the court to do so by sieving through such material.
Citing case law from the United States, having the seized items inspected by a privilege review team that is not part of the prosecution team reduces the likelihood of a delay in criminal proceedings by removing some of the burden of the courts to review every document when such claims of privilege arise.
The United Kingdom employs a similar approach to minimise the risk of persons involved in the investigative or prosecutorial team being able to view material covered by legal professional privilege.
A mere assertion of legal professional privilege, added the A-G’s representatives, is also insufficient where the seized material is “voluminous” such as digital material, where search terms or filters may be required to be able to identify such content.
While New Zealand and Australia allow suspension of the review of such material, pending court rulings on the issue of such privilege, the A-G’s representatives argued that lawyers keen on asserting such privilege have an obligation to list in detail the material covered by such privilege as soon as possible.
In calling for Mr Ravi’s application for the prohibitory order to be dismissed, the A-G’s representatives posited that Mr Ravi himself would agree that in the immediate case, the approach taken by the AGC and police is in accordance with Singapore law and the legal systems of other jurisdiction as mentioned previously.
Order to allow items to be seized was not sought in the immediate case, contrary to Daniel De Costa’s case: M Ravi
Mr Ravi, however, questioned as to why the investigation only commenced in March when the relevant statements were published in January.
He argued that the A-G and police could have given appropriate notice to TOC to cease publication or issue a takedown notice, or to even warn TOC of the alleged sub judice.
Mr Ravi added that if there was any intention to commit sub judice contempt on his part, he — as well as TOC chief editor Terry Xu and Mr Mohan — would have deleted all relevant evidence instead of storing allegedly incriminating evidence for the aforementioned period of two months.
He also stressed that Mr Mohan had already withdrawn his criminal revision application by the time the police raid in March took place, which he submitted gives weight to the argument that no sub judice could have been committed in the first place.
“Can an investigation be conducted on grounds of sub judice contempt if the application was withdrawn before any intimation by the state and no notice was placed on TOC and the alleged contempt?” Mr Ravi questioned.
The A-G, he argued, has not done the bare minimum of demonstrating any evidence of sub judice — even prima facie — that he had committed the contempt offence.
Mr Ravi added that instead of obtaining confirmation from him on whether he had provided TOC with a copy of Mr Mohan’s affidavit on 10 January, the A-G instead chose to have the police carry out investigations against Mr Ravi and Carson Law Chambers and to seize his electronic devices in his office in the law firm.
Both Mr Xu and Mr Mohan, he added, confirmed to the police that the latter had given the affidavit to TOC.
Mr Ravi also argued that the actions of seizing materials covered by legal professional privilege “tampers with” his clients’ rights, which are covered by the right to fair trial as provided by Article 9(1) of the Republic of Singapore Constitution.
The lawyer also submitted that it is incumbent upon the A-G to “put to strict proof to establish that the contents” within TOC’s article on 10 January were derived from the affidavit filed on the same date, and not from a previous TOC report on 7 January.
Mr Ravi argued that the TOC article published on 10 January was one of the reports that “were not published from the contents” of Mr Mohan’s supporting affidavit related to the criminal revision petition.
The article and “the rest of the reports published on subsequent days” merely reiterate the details contained in the 7 January article, which was before the criminal revision petition was filed.
The repetition of the article published before the petition was filed thus does not fall within the ambit of AJPA, Mr Ravi argued.
Judgement is reserved.