Court of Appeal dismisses ad hoc admission appeals of King’s Counsel

In a detailed judgment issued on 8 November 2024, the Singapore Court of Appeal dismissed appeals by King’s Counsel (KC) Theodoros Kassimatis and Edward Fitzgerald seeking ad hoc admission under Section 15 of the Legal Profession Act (LPA) to represent claimants challenging constitutional issues related to the Misuse of Drugs Act (MDA).

The claimants, all sentenced to death under the MDA, sought a declaration that key presumptions in the Act contravene constitutional principles.

The decision was delivered by Chief Justice Sundaresh Menon, alongside Justice of the Court of Appeal Belinda Ang Saw Ean and Senior Judge Judith Prakash.

The Court extensively analysed whether the appellants satisfied the statutory and legal thresholds for ad hoc admission, particularly the requirement of a “special reason” for such admission in cases involving constitutional law.

The appellants, Mr Kassimatis KC and Mr Fitzgerald KC, sought to represent claimants who had previously failed in their appeals against convictions under the MDA.

The claimants argued that the presumptions under Sections 18(1) and 18(2) of the MDA—which shift evidential burdens onto defendants—violate the constitutional presumption of innocence.

The High Court had earlier dismissed the appellants’ applications, reasoning that they lacked the requisite “special reason” for admission and that the claimants had access to sufficient legal resources locally.

Legal Framework

Ad hoc admissions of foreign senior counsel are governed by Section 15 of the LPA, which imposes a three-stage test:

1. Compliance with eligibility criteria under Section 15(1) of the LPA.
2. Proof of “special reason” for admission, particularly for cases involving constitutional, criminal, or family law.
3. Discretionary evaluation based on the complexity of the case and availability of local counsel.

Court’s Analysis

The Court’s analysis focused on the “special reason” requirement, concluding that the appellants failed to demonstrate why their admission was necessary or how their involvement would materially advance the claimants’ case.

Chief Justice Menon emphasised:

“The mere fact that a case involves constitutional questions or is complex does not, by itself, satisfy the special reason requirement.”

The Court noted that the claimants’ arguments largely relied on well-trodden issues already addressed in seminal cases, including Ong Ah Chuan v Public Prosecutor and subsequent case law.

Furthermore, the claimants did not substantiate how revisiting these arguments would alter the outcome of their cases. “There must be some new insight or a significant gap in prior litigation that justifies the admission of foreign counsel,” the judgment stated.

Local Counsel and Availability

The Court rejected arguments that the unavailability of local lawyers supported the applications.

Evidence showed that at least two prominent local lawyers had declined to represent the claimants due to their assessment of the case’s lack of merit.

“It is incongruous to admit foreign counsel when capable local counsel have independently assessed and declined to take up the case due to its merits,” the judgment noted.

The Court ultimately upheld the High Court’s ruling, stating that the appellants had failed to meet both the “special reason” requirement and the criteria for discretionary admission.

The Court also clarified that while the applications were filed by the King’s Counsel, the claimants—being the real parties in interest—should bear the costs of the litigation. However, the Court made no order as to costs.

The judgment’s observations on the lack of local lawyers willing to take up such cases due to a perceived lack of merit may not fully reflect the underlying reasons for the reluctance.

These reasons may include concerns about potential penalties, such as adverse personal cost orders imposed on lawyers.

It was reported in March that death-row prisoners had to file and argue their cases themselves, as Singaporean lawyers were afraid to take on the challenge of death sentence cases.

This issue is exemplified in the case of human rights lawyer M Ravi, who has faced numerous personal cost orders over the years for his representation of death-row inmates.

In 2021, Mr Ravi was ordered to pay S$10,000 in personal costs to the Attorney-General over a court application involving 13 former and current prisoners on death row. That same year, he was ordered to pay S$5,000 to the prosecution after the Court of Appeal found he had acted improperly in filing an “unmeritorious” bid to reopen a drug trafficking case.

In 2022, he and another lawyer were ordered to pay S$20,000 in costs for allegedly filing unmeritorious applications on behalf of Malaysian drug trafficker Nagaenthran K. Dharmalingam.

On top of that, he and the same lawyer were ordered to pay S$11,400 in the representation of three death row inmates.

Speaking to CIVICUS about his work as a human rights lawyer, Mr Ravi stated:

“This work has also been highly taxing on my resources. The Attorney General has filed several complaints with the Law Society, and I have been prosecuted as a result. The courts slammed me with adverse personal cost orders to the tune of S$70,000 (US$52,661) in my representation of death penalty cases. I had to raise funds to settle.”

This growing trend of imposing personal cost orders on lawyers representing death-row inmates has raised concerns among legal professionals about the chilling effect on human rights advocacy and access to justice in Singapore.