In an overruling of its previous legal position, the Court of Appeal last week dismissed the Singapore Law Society’s application to strike out the appeal of former policeman Iskandar Rahmat against the High Court’s dismissal of his complaint against his trial counsels.
Chief Justice Sundaresh Menon in a written judgement dated 8 January said that the previous legal position relied upon by the Law Society — held in Top Ten Entertainment — had “incorrectly concluded that there was no right of appeal against decisions of a Judge pursuant to” Section 96 of the Legal Profession Act (LPA).
This means that Mr Iskandar will have the opportunity to argue in the Court of Appeal to have a disciplinary probe carried out into his trial defence team for misconduct, contrary to that in Top Ten Entertainment in which it was decided that the applicant had no right of appeal.
Mr Iskandar’s lawyer M Ravi had argued that the Court of Appeal, in this case, was not bound by the decision in Top Ten Entertainment, as it factually differed from his client’s appeal.
In Top Ten Entertainment, the applicant had filed a complaint against a solicitor, following which the Inquiry Committee recommended that a formal investigation was unnecessary but that a fine should be imposed instead.
Top Ten had applied to a Judge pursuant to Section 96(1) of the LPA. The judge who heard the application ruled that there was sufficient material to justify a formal investigation and went on to direct the Law Society to apply to the Chief Justice to appoint a Disciplinary Tribunal against the solicitor.
The court at the time held that a judge exercising powers under Sections 95, 96 and 97 of the LPA — which fell under Part VII of the Act — was not doing so as a High Court judge exercising civil jurisdiction under Sections 16 and 17 of the SCJA, but rather as a judge of the High Court exercising disciplinary jurisdiction.
As the judge’s decisions were not rulings made in civil proceedings, they did not fall within the ambit of the appellate jurisdiction of the Court of Appeal set out in Section 29A(1) of the Supreme Court of Judicature Act.
Mr Ravi earlier argued that the decision in Top Ten did not involve the “disciplinary jurisdiction” of the High Court but fell within its civil jurisdiction as it was one that involved the Inquiry Committee and not the Disciplinary Tribunal.
The Court of Appeal in its decision last week reasoned that in Top Ten, the substantive appeal itself only addressed matters of costs and not the substantive decision of the judge.
“To that extent, any question of public interest – being the lack of a formal investigation into a solicitor’s conduct – did not arise because the complaint was already proceeding to a full investigation,” said the Court of Appeal.
While the Court of Appeal had “clearly” decided in Top Ten that there is no right of appeal against a decision of a Judge pursuant to ss 95, 96 and 97 of the LPA, the Court of Appeal highlighted two reasons for overruling its previous decision in Top Ten.
Firstly, the “specific question of jurisdiction does not appear to have been fully argued” in Top Ten. Secondly, the “real question” in that case “had nothing to do with the public interest in investigating the conduct of a solicitor”, unlike in Mr Iskandar’s case, said the court.
In his complaint against his trial counsels, Mr Iskandar alleged that the six-person defence team had failed to comply with his instructions in carrying out his defence at trial.
An Inquiry Committee, appointed on 3 August 2018, had obtained written explanations from the trial counsels and heard from four of them at a hearing on 23 October the same year.
The Inquiry Committee also spoke to Mr Iskandar at Changi Prison Complex, where he is held, on 10 December 2018 and 10 January 2019.
In its report dated 7 February 2019, the four-member Inquiry Committee unanimously recommended that no formal investigation by a Disciplinary Tribunal was necessary and the complaint should be dismissed.
The Law Society informed Mr Iskandar by a letter dated 20 March 2019 that the Council had considered the findings of the Inquiry Committee and determined that no formal investigation was necessary, and the Law Society would not take further action on the complaint.
No further action was taken by the Law Society — of which Mr Iskandar was informed — after an Inquiry Committee had made a unanimous recommendation to dismiss his complaint.
Mr Iskandar then sought a judicial review of the above outcome and also applied for an order that would require the Society to apply to the Chief Justice to convene a Disciplinary Tribunal.
Mr Iskandar’s lawyer M Ravi said on 8 January regarding the Court of Appeal’s recent decision: “I am glad that Iskandar received justice and the avenue of appeal on disciplinary complaints concerning lawyers is now restored.”
Details regarding Mr Iskandar’s allegations against his trial counsels were not before the Court of Appeal at the time the court delivered its decision last Tuesday.
Such details will be dealt with by the court when it hears the appeal on the specific matter in due course.
Background of Iskandar Rahmat’s case
Mr Iskandar was tried on two charges of murder under Section 300(a) of the Penal Code in 2015.
He was accused of stabbing 67-year-old car workshop owner Tan Boon Sin at the latter’s Hillside Drive home in Kovan after a failed robbery attempt on 10 July 2013.
Mr Iskandar was also accused of stabbing Mr Tan’s son, 42-year-old Tan Chee Heong, when the younger Mr Tan arrived later at the house.
Mr Iskandar had reportedly ended up dragging the younger victim under a silver Toyota Camry for around one kilometre before dislodging the body outside Kovan MRT station.
The High Court later found Mr Iskandar guilty of the two murder charges and handed down to him a death sentence on 4 December 2015. He then appealed against the conviction and sentencing.
At trial, Mr Iskandar was represented by a team of six counsels who were assigned to him under the Legal Assistance Scheme for Capital Offences.
On 26 October the following year, the Court of Appeal heard Mr Iskandar’s appeal, in which his counsels — different from his lawyers at trial — raised the defence of diminished responsibility based on a psychiatric report stating that he was suffering acute stress reaction at the time of the murders.
Mr Iskandar was also reportedly under depression as a result of potential bankruptcy due to his inability to repay his bank loans, in addition to possibly being dismissed from the police force.
The diminished responsibility defence was put forth on top of the defences they raised at trial.
On 3 February 2017, the day Mr Iskandar turned 38, the Court of Appeal dismissed his appeal against the High Court decision and upheld his capital sentence.
The judges concurred with trial judge Justice Tay Yong Kwang in rejecting Mr Iskandar’s reliance on self-defence as a reason behind killing Mr Tan Boon Sin and Mr Tan Chee Heong.
Justice Andrew Phang, who delivered the court’s decision, said: “Even if his incredible account of a rob-and-run ploy were true, any right of self-defence belonged to the younger victim, who came home to the sight of his slain and bloodied father on the floor.”
Justice Phang stressed that the intention of murder “need not be pre-planned or premeditated, and can be formed on the spur of the moment”.
The judges also disagreed with Mr Iskandar’s counsels’ diminished responsibility defence. They questioned why the defence was not raised earlier in the original trial or when Mr Iskandar was on psychiatric remand.
Mr Iskandar then made a clemency petition to President Halimah Yacob in January 2018, followed by his family’s clemency petition on his behalf the following month.
The President, on the advice of the Cabinet, dismissed the bid for clemency in July 2019.
In 2018, Mr Iskandar filed a complaint to the Law Society against his trial counsels, in which he alleged that the six-person defence team had failed to comply with his instructions in carrying out his defence at trial.
An Inquiry Committee, appointed on 3 August 2018, had obtained written explanations from the trial counsels and heard from four of them at a hearing on 23 October the same year.
The Inquiry Committee also spoke to Mr Iskandar at Changi Prison Complex, where he is held, on 10 December 2018 and 10 January 2019.
Mr Iskandar raised nine allegations regarding the conduct of the trial but the details of these allegations are not relevant for the purposes of the present application.
In its report dated 7 February 2019, the four-member Inquiry Committee unanimously recommended that no formal investigation by a Disciplinary Tribunal was necessary and the complaint should be dismissed.
The Law Society informed Mr Iskandar by a letter dated 20 March 2019 that the Council had considered the findings of the Inquiry Committee and determined that no formal investigation was necessary, and the Law Society would not take further action on the complaint.
No further action was taken by the Law Society — of which Mr Iskandar was informed — after an Inquiry Committee had made a unanimous recommendation to dismiss his complaint.
Mr Iskandar then applied to the High Court in June 2019 to seek a review of the Law Society’s decision to dismiss his complaint and asked for an order that would require the Society to apply to the Chief Justice to convene a Disciplinary Tribunal.
Justice Valerie Thean, however, dismissed his application months later in October, having found that a prima facie case of ethical breach or other misconduct by his trial counsels that warranted a formal investigation was not present.
The High Court judge also held that the one-day delay on the Inquiry Committee’s part in issuing its report did not cause any prejudice to Mr Iskandar and did not invalidate the report.
She also observed that, contrary to Mr Iskandar’s allegations, the prosecution and the trial defence team had been praised for “their highly professional attitude and their full cooperation with the process of justice” by the trial judge.
The Law Society then filed the application in March last year to strike out Mr Iskandar’s appeal against Justice Thean’s decision.
