The High Court earlier this week dismissed lawyer M Ravi’s bid to seek a prohibitory order against the Attorney-General from reviewing contents of his mobile phone and laptop — seized by the police in March — until a judgement is passed by the court.
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 made by the latter regarding his alleged unlawful extradition to Malaysia in 2015.
In a hearing before Justice Ang Cheng Hock in August, Mr Ravi earlier submitted — citing the decision in R v Central Criminal Court, ex p Francis & Francis — that the onus is not on him to assert legal professional privilege on his part.
Instead, he argued that it is 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 noted — in a letter in March — that according to the Attorney-General’s Chambers (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.
Justice Ang in his judgement on Tuesday (13 October), however, observed that in asserting legal professional privilege, Mr Ravi did not specify which of the two principal forms of legal professional privilege applies to the contents of the seized electronic devices.
Legal advice privilege aims to “prevent the unauthorised disclosure of confidential communications” between a lawyer and their client in relation to legal advice, he said.
Litigation privilege, on the other hand, protects “information and material, confidential or otherwise, created and collected for the dominant purpose of litigation” which may also include third parties, said the judge.
While the two may overlap, they are “conceptually distinct”, Justice Ang said.
The judge said that it is not clear if Mr Ravi’s reference to Section 128 of the Evidence Act points at how the contents of the seized electronic items “are only protected by legal advice privilege”.
Section 128(2) of the Evidence Act stipulates that any communication made to further an illegal purpose is not protected from disclosure.
Citing the case of Harvard economics professor Li Shengwu, Mr Ravi earlier 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.
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.
The A-G’s representatives, however, submitted in August that the onus is on Mr Ravi as the party that claims legal professional privilege to specify what exact materials or items are covered by such privilege, and not on 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 not part of the prosecution potentially reduces the likelihood of a delay in criminal proceedings by reducing 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 allows suspension on 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.
Uncommon in other jurisdictions for court to conduct privilege review, more efficient and cost-effective for AGC privilege team to carry out review process: Justice Ang Cheng Hock
Justice Ang in his judgement on Tuesday stressed that in several Commonwealth jurisdictions such as England and Wales in the United Kingdom, as well as New Zealand and Australia, an “independent adjudicator” carries out the privilege review.
An independent lawyer not instructed by the prosecution is tasked to do so in cases in England and Wales, while the court is tasked to do so in Australia and New Zealand.
However, Justice Ang also noted that in all of the above jurisdictions, the lawyer in question “assists to first identify the specific seized documents that are allegedly subject to privilege”.
This, he said, is done by either by “providing search terms” to facilitate electronic searches on the authorities’ part for potentially privileged material as per in England and Wales, or by “identifying the specific documents” allegedly covered by privilege as per in Australia and New Zealand.
“In England and Wales, the preliminary electronic search can be done by staff employed by the investigating authority, though this is partly because the electronic search does not require the staff to view the contents of the seized material,” Justice Ang wrote.
In Australia and New Zealand, such a process is carried out with the lawyer’s assistance, he added.
That being said, Justice Ang also stressed that other than in New Zealand, the practice in the United States and England and Wales “were formulated by the prosecuting authorities and refined by the courts”.
In Australia, the procedure was set up and agreed upon by the Law Council of Australia and the Australian Federal Police.
In the immediate case of Mr Ravi, Justice Ang ruled that — in agreement with the A-G’s submission — the AGC “should be the party to conduct a review of seized materials” purportedly protected by legal professional privilege by AGC officers “who are not, and will not be, involved in the underlying investigation”.
While he acknowledged “the heightened risk of harm” from the AGC prosecutors reviewing documents seized from a criminal defence counsel compared to that of a civil litigation case, Justice Ang said that it is more efficient and cost-effective for the AGC privilege team to conduct an initial review of privilege claims.
Doing so, said the judge, “ensures that the court is not potentially inundated with copious amounts of seized materials which it would have to sieve through” in the process of assessing claims of privilege.
Such a review process also makes sure that “only narrowly defined disputes as to privilege” are taken before the court, which will lower the “wastage of precious court resources”, said Justice Ang.
The judge observed that privilege review is uncommon in the United States, and in England and Wales.
He noted, however, that the documents purportedly covered by privilege “should not be handed to the investigation or prosecutorial team” until a challenge against the AGC privilege team’s assertion that the items are not privileged “has been determined by the court”.
Touching on Mr Ravi’s argument that an independent counsel should have been tasked to conduct the review of the items he claimed are covered by privilege, Justice Ang said that requiring the AGC to exercise such an option would “incur further expense on the public purse”.
The judge also reasoned that the appointment of an independent counsel may even raise further “questions of independence than it solves”, as it would entail checking if the lawyer himself and/or other lawyers in his law firm are “involved in matters involving the person from whom the documents are seized”.
Given Singapore’s “relatively small size” legal profession, Justice Ang noted that this may result in “a higher risk of privileged material being inadvertently seen by lawyers” who may be involved with matters related to the privileged material.
Stressing that “additional safeguards” must be put in place to remove doubts regarding “the heightened risk of harm” from the AGC prosecutors reviewing documents seized from a criminal defence counsel compared to that of a civil litigation case, Justice Ang listed four instances in which privilege claims can be raised over materials “lawfully” seized by Police, namely:
- A situation in which the relevant person is a lawyer working on criminal defence work, such as Mr Ravi’s case;
- A situation where the relevant person is a lawyer not involved in criminal defence work;
- A situation where the relevant person is not a lawyer but is or was involved in other criminal investigations; and
- A situation where the relevant person is not a lawyer, but makes the claim that part of the material seized includes documents covered by privilege due to civil lawsuits the person is or was involved in.
There is no restriction as to whether the AGC privilege review team should or should not include prosecutors in the second and fourth situations listed above.
However, if the documents in the seized material are protected by legal professional privilege due to civil lawsuits the relevant person is or was involved in — whether in his personal capacity or as counsel — and which the AGC is or was a party to, the AGC privilege team should not include officers from the AGC’s Civil Division.
Justice Ang earlier said that while he did not posit that the AGC officers would act in bad faith, it would be contary to “the appearance of justice” if the AGC’s prosecutors “rummage through” a counsel’s documents which contain privileged material of clients in criminal cases.
Lawyer whose items have been seized by police should identify specific documents or files in seized items: Justice Ang
Justice Ang also said that a lawyer whose items were seized by the police should “cooperate with the AGC privilege team” by identifying the “specific” documents or files in the items that are purportedly protected by legal privilege.
For softcopy materials in particular, the lawyer in question must provide search terms or filters to help the AGC privilege team in identifying the relevant privileged material during an electronic search, he said.
The judge noted that should the lawyer not recall the specific documents which are covered by legal privilege in the seized items, he can “inform the AGC of this fact”.
The AGC privilege team should then provide supervised access of the seized materials for the lawyer or his clients to properly identify the relevant documents, he added.
The team may then either accept a claim of legal professional privilege at face value or decide to review the identified materials.
Should it be the latter, said Justice Ang, the team should either return the identified materials to the lawyer if possible, or isolate the materials in the case of softcopy documents — this can be done by placing the documents in a password-protected folder, for example.
It is, however, “impermissible for a person to make a blanket claim of privilege” over documents in seized items — an approach consistent with the jurisdictions cited by the A-G, said the judge.
A lawyer also has the responsibility to inform the affected client that the investigating authorities and the prosecution wishes to view the privileged items.
Should the affected client wish to contest the matter, they can either apply for a prohibiting order or object against admitting the material into evidence on the grounds of legal professional privilege, said Justice Ang.
If the client decides to take on the first recourse and there are judicial review proceedings, the identified materials “should not be handed over to the investigating authority and the prosecution team” until after the court has decided on the client’s bid.
Justice Ang ruled that allowing the AGC privilege team not related to the proceedings to conduct a review “will strike an adequate balance between public policy undergirding the protection of professional legal privilege” and the public interest in making sure that the authorities are able to carry out investigations and prosecution “without undue hindrance”.
AGC purportedly notified Mr Ravi to inform which items are covered by legal professional privilege: A-G’s representatives
Previously, the A-G’s representatives submitted that 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.
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.