In his speech to mark the opening of the legal year, Chief Justice Sundaresh Menon (CJ), has said that while the quest for a sound system of justice begins with the selection of judges with the appropriate temperament, ability, and integrity and commitment to carry out their heavy responsibilities, judges are not infallible.
The CJ took pains to emphasise that it is precisely because there is an acknowledgement that judges are not perfect that a system of corrective procedures such as appeals exists – “so that where something might have gone amiss at first instance, there is the opportunity to set it right“.
While it is heartening to see that the CJ has conceded that mistakes do get made, it was disappointing for the appeal process to be implied as the solution to potential mistakes without mentioning the high costs that come with the appeal process. Court fees and legal fees can be so prohibitive that it rules out most people from being able to utilise this avenue of redress. There could also be other related costs such as a loss of livelihood due to the time needed to mount an appeal.
Let’s take a look at the well-known case of Parti Liyani, an Indonesian who was formerly charged and convicted for theft as a prominent family’s domestic worker.
Parti was lucky in the sense that she had the support of Humanitarian Organisation for Migration Economics (HOME) and a pro bono lawyer in Anil Balchandani (Balchandani).
However, even in her case, the costs have been astronomical as can be seen by how her compensation claim was calculated. Balchandani estimates that Parti had suffered around S$71,000 in losses as a result of being unable to work due to the theft proceedings for the past four years. S$41,000 from the estimated sum is for Parti’s salaries including contractual increments over the past four years. The amount was calculated based on her experience of 20 years as a domestic worker. The sum also includes S$29,220 for her accommodation expenses at a shelter run by HOME.
This sum did not even include legal fees! If Balchandani were to charge for the work he did for Parti, his client would have had to fork out about $150,000 on top of not being able to work! This is clearly not something that the average person can afford!
With that in mind, does the appeal process alone work as a solution to the fallibility of judges? After all, if costs are prohibitive, there is going to be a lack of access to proper legal representation in the first place! How to mount an appeal then?
It is important to bear in mind that Balchandani’s legal fees are not even on the higher end of the scale. By his own admission, he has done things off the clock and in his own time — other than preparation work for the hearing — for Parti’s case. However, were it another lawyer, we might not be able to expect the same.
Let’s break down the costs of an appeal process. There are five broad costs associated with the appeals process:
- Court Fees
- Lawyer Fees
- Costs awarded if you lose
- Probable loss of livelihood as a result of time spent pursuing a case
- Emotional Toll
These are set fees that a litigant has to pay. You can find them here. What is worth noting though is that it can be up to thousands per day.
If a litigant is unable to afford legal fees, there are a variety of schemes available. However, these are largely on a volunteer basis and demand could be high. Lawyers working pro bono also have to do fee-paying work to earn a living which in turn reduces the amount of time and resources they have to deal with a pro bono one. There are also likely to be more cases than there are pro bono lawyers available.
If one were to engage a lawyer the fees can range. Lawyers normally charge an hourly rate which can range from $300 per hour to up to $1,200. According to some in the legal industry, lawyers like Davinder Singh usually charge $1,200 or more per hour. And for an appearance in court, the daily rate ranges from $10,000 to $20,000. These costs are so eye-watering that most would baulk at the thought of ever appealing even if they were innocent.
One might argue that you don’t have to use such an expensive lawyer. But even at $400 per hour, it still adds up! Especially if you have to include court fees on top of that.
COSTS AWARDED IF YOU LOSE
In general, “costs follow the event” for most civil actions. This means that the costs of an action are usually awarded to the successful litigant. However, any award of costs is at the discretion of the Court and the costs awarded may include fees, charges, disbursements, expenses and remuneration.
It is where the losing party usually pays costs to the winning side, costs are hardly awarded in criminal proceedings. However, under the Criminal Procedure Code, the court can order costs against defence counsel who incur unreasonable costs by failing to act with “competence and expedition”
Depending on how the “not infallible” judges rule, could your case be considered unreasonable? Human rights lawyer, M Ravi, was once ordered by the High Court to pay $1,000 in 2014 over an application he had made to quash charges against five men implicated in the 2013 Little India riot and in recent cases, the Attorney General’s Chambers have filed cost applications against him for the appeals made by him in relation to death row cases — which fortunately were not successful.
LOSS OF INCOME DUE TO TIME SPENT ON COURT CASE
While one might have lawyers, you will still have to invest your time in preparing your defence and challenging what you are being accused of. You will also have to take time off to attend court. This could eat away at your income as it would mean less time to work. Not to mention the possibility of being sacked from your job due to the prolonged absence, and especially if the case is a high profiled one that the public assumes guilt prior to the conclusion of the trial.
EMOTIONAL TOLL ON TOP OF FINANICAL BURDEN
There is also the emotional toll that comes with a massive legal challenge.
Let’s take a look at the arduous case of a woman who had to battle her way through courts to get back what was rightfully hers.
Just last year, Lim Kai Xin told her story of how it took her ten long years just to get back what her previous landlord had stolen from her and how authorities refused to offer help at every turn.
She suffered immense mental suffering from the inaction of the police and court over the course of her legal action. While she was eventually vindicated, she retrieved a mere fraction of what she had lost and not withstanding the fact that she had to pay her legal fees to pursue justice.
As it stands, it is not for the faint-hearted and an appeals process is not the silver bullet to an imperfect system.