Comment
Letter from Pulau Tikus
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Comment
Letter from Pulau Tikus |
Wee Chong Jin Chief justice of Singapore IT WAS SAID THAT the colonial administrators of the Straits Settlements had a sneaking preference for Penang. Police inspectors were invariably recruited from Penang while the mata-mata came from Malacca. It did not surprise, therefore, that when the colour-bar was lowered to admit locals to the high court bench that Tan Ah Tah, Ambrose, Winslow, and Wee Chong Jin were appointed judges. They were all from the Penang Free School. Chong Jin whose House was Hargreaves, did not join the cadet corps, nor was he a boy scout but he was appointed a school prefect. His contemporaries were Lim Chong Eu (the chief minister of Penang) and Chew Ban It (the archbishop of Singapore). The headmaster who reigned strictly over the school was Holgate. After law at St John's, Cambridge, he was for many years with D K Walters, a well known advocate who had written a book on Singapore's municipal laws. When the People's Action Party came into power he was appointed chief justice in place of Tan Ah Tah. The chief justice, who died recently, is remembered for the famous judgment of the privy council in the appeal by J B Jeyaratnam which severely dented his reputation. The appeal was from a decision of the Singapore High Court comprising the chief justice and justices Chua and Chan Sek Keong on 19 October 1987 ordering that Jeyaratnam's name be struck off the roll of advocates and solicitors.. (Extracts from the judgment delivered on 21 November 1988) ..... The disciplinary proceedings Under section 80 of the Legal Profession Act an advocate and solicitor is liable to be struck off the roll, suspended or censured on the ground, inter alia, that he has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession. On 14 November 1986 the Attorney General reported to the Law Society of Singapore that the appellant had been convicted of three offences under section 421 and one offence under section 199 of the Penal Code, asserted that the offences implied a defect of character which made him unfit |
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profession and requested that the matter be referred to a disciplinary
committee. Thereafter the disciplinary proceedings followed a course which,
save in one respect, was inevitable. The disciplinary committee reported that the appellant had been convicted of criminal offences implying a defect of character which made him unfit for his profession and that cause of sufficient gravity existed for disciplinary action to be taken. The appellant was thereupon summoned to show cause why he should not be struck off, suspended or censured. Realistically the only chance that the appellant had of avoiding being struck off was if the court could be persuaded to go behind the convictions. The matter came before Wee Chong Jin CJ, Chua J and Chan Sek Keong JC. At the outset objection was taken to the Chief Justice sitting on the ground that it would be inappropriate in the light of the history, although no bias or prejudice was alleged against him. The court rejected the objection. Section 95(6) of the Legal Profession Act provides that the proceedings on the summons to show cause shall be heard by a court of three judges of whom the Chief Justice shall be one. The court held this provision to be mandatory. The court went on to hold that there were no exceptional circumstances to justify going behind the convictions and that, in any event, the convictions were unimpeachable. Given offences of such gravity, an order that the appellant be struck off the roll of advocates and solicitors inexorably followed. Their Lordships must record their opinion that the refusal of the appellants objection to the Chief Justice sitting was both erroneous and unfortunate. It was erroneous because, in their Lordships judgment, the relevant provision of section 95(6) is clearly not mandatory but directory only. Section 95(8) in terms provides: The Chief Justice or any other judge of the Supreme Court shall not be a member of the court of three judges when the application under sub-section (6) is in respect of a complaint made or information referred to the Society by him. It would be absurd that the Chief Justice should not be able to disqualify himself from sitting if the advocate and solicitor facing disciplinary charges was either a close relative or a sworn enemy or for any other good reason. The refusal of the objection was unfortunate because the court was to be invited to go behind and condemn the Chief Justices own decision on the appeals from Judge Khoo and his later refusal to reserve questions of law for the Court of Criminal Appeal. It was quite unacceptable that he should preside. Justice might be done, but certainly could not be seen to be done. The order that the appellant be struck off was made on 19 October 1987. The court refused a stay of execution. Leave to appeal to the Judicial Committee of the Privy Council was granted pursuant to section 3(1)(a) of the Judicial Committee Act on 4 November 1987. An application to the Board for a stay of execution was refused on 21 December 1987. The judgment giving the courts' reasons for the decision that the appellant should be struck off was delivered on 12 January 1988. |
| The
issues in the appeal A number of grounds were advanced in the appellants written case. Their Lordships only found it necessary to examine two questions. First, were there exceptional circumstances which justified the court in the disciplinary proceedings, and the Board on appeal, in going behind the convictions? Second, if so, were the convictions flawed? Inevitably the two questions overlap since any conclusion as to the propriety of going behind the convictions depends to an extent on the nature of the attack on the convictions. The question whether it is possible in disciplinary proceedings under the Singapore Legal Profession Act to go behind convictions relied on as the basis of a disciplinary charge was considered in Ratnam v Law Society of Singapore [1976] 1 MLJ 195. Delivering the judgment of the Board, Lord Simon said (at 200201): There is a preliminary point which arises namely, whether in disciplinary proceedings under the Legal Profession Act it is open, for the purposes of section 84(2)(a) (conviction implying a defect of character), to go behind the conviction and enquire whether it was correctly made. The Disciplinary Committee held that it was not open to them to go behind the conviction. The High Court assumed that it was open to them to go behind the conviction. Though, having done so, they held that the appellant was rightly convicted. It is, strictly, unnecessary for their Lordships to express an opinion on this point But, since the matter was fully argued before their Lordships, they think it proper to state that they agree with the view of the High Court. They would, however, add this rider. Although it is open to go behind the conviction, this would only be justified in exceptional circumstances. Their Lordships will not attempt to lay down what circumstances should be considered so exceptional as to permit the question whether the accused had been rightly convicted to be raised, beyond saying that an important consideration would be whether an appeal against the conviction had been available. For example if a plea of guilty had been made under a misunderstanding, and there was no opportunity of rectifying it on appeal, justice would demand that the conviction should not be conclusive against the accused in the course of disciplinary proceedings, the object of which themselves is, after all, to promote justice. In the instant case their Lordships consider the following circumstances sufficiently exceptional at least to warrant examination of the grounds on which the convictions are attacked as bad in law. The conviction of the appellant on the accounts charge depends on a construction of section 199 of the Penal Code first propounded by the Chief Justice sitting as a single judge and later adopted by Judge Foenander and Lai Kew Chai J which is attacked as bad in law. The convictions on the $2,000 and $200 cheque charges depend on findings of fact by the Chief Justice reversing the primary findings of the trial judge on grounds which are attacked as bad in law. The affirmation by the Chief Justice of the conviction by Judge Khoo of the $400 cheque charge is attacked as bad in law. The 203 appellant has had no opportunity to test any of the questions of law which he claims are involved by appeal to the Court of Criminal Appeal of Singapore or, if necessary, by further appeal to the Board, because the Chief Justice and Lai Kew Chai J refused to reserve any questions of law pursuant to s 60 of the Supreme Court of Judicature Act and, in the absence of such reservation, |
| neither
the Court of Criminal Appeal nor the Board had any jurisdiction to entertain
any appeal. If it can be shown that there were questions of law of public
interest which should have been reserved for decision
by the Court of Criminal Appeal and that this would have led to the quashing of the
convictions either by the Court of Criminal Appeal or on appeal by the
Board, it must surely be appropriate, to quote Lord Simons words, that the
[convictions] should not be conclusive against the accused in the course
of disciplinary proceedings, the object of which themselves is, after all,
to promote justice. Their Lordships have from the outset entertained no doubt that these convictions do indeed raise serious questions of law and they find it difficult to understand how any serious question of law arising in a criminal case on which a persons conviction of a grave offence may depend can be said not to be of public interest within the meaning of section 60(1) of the Supreme Court of Judicature Act. In the end, therefore, the determination of the appeal turns on the question whether the convictions are vitiated by errors of law. The accounts charge Section 199 of the Penal Code, as already pointed out, creates an offence of the same gravity as perjury under section 193. The language, if in any way ambiguous, should be construed narrowly to restrict the ambit of the criminal net which the section casts. But, in their Lordships judgment, there is really no ambiguity. What is required is a declaration which is per se admissible as evidence of any fact. A statement which is not a statutory declaration but which is relied on by the deponent to an affidavit containing a statement of information and belief and is exhibited to the affidavit to show the source of the deponents information and belief is not admissible as evidence of the facts stated, although it may be received in evidence. The evidence admissible to prove the facts stated is the deponents affidavit of his information and belief, not the statement relied on as the source of it. Any other construction of s 199 would create a potential offence of perjury by the maker of a casual statement to a third party who later relied on it in an affidavit of information and belief or, to take another example canvassed in argument, by a witness who gave a proof of evidence to a solicitor which was later put in evidence by agreement of the parties. It can make no difference whether or not the maker of the statement or the witness who signed the statement or the witness who signed his proof knew that the statement or proof was likely to be put in evidence. It follows, in their Lordships judgment, that the charges against the appellant and Wong under section 199 were misconceived in law, as Judge Khoo held, quite apart from any question on the merits whether the accounts verified by the declaration ought to have included reference to the transactions which were the subject of the cheque charges. The appellants' conviction on this charge was fatally flawed. The cheque charges It is fundamental to a proper understanding of the transactions which gave rise to the cheque charges to appreciate the legal implications of the fact that the three cheques were given by way of voluntary donation. Each cheque made payable to the Workers Party was a revocable mandate to the drawers bank to pay the amount shown and a revocable promise to the Workers Party that the amount would be paid. At any time |
| before the cheque was
presented for payment or negotiated by the Workers Party the drawer could
revoke the mandate and the promise by stopping payment of the cheque. The
Workers Party could not sue on the cheque because it was given for no
consideration. It follows that the drawer, as donor, could at any time
before the cheque was presented for payment or negotiated by the Workers
Party give authority to any person holding the cheque to 204 dispose of
it as the donor wished. It is fair to all concerned to point out that these important considerations do not appear to have been fully appreciated at any stage in the criminal proceedings or to have been adequately formulated in argument until the matter reached the Board. The $2,000 and $200 cheque charges As related earlier in this judgment, the evidence of the appellant was to the effect that the $2,000 cheque had been indorsed over to Madam Chiew's solicitors with the full authority of the drawer, Dr Chew. Judge Khoo pointed out that this was the only evidence of Dr Chew's intention, that it was substantially confirmed by Dr Chew's statutory declarations and that the prosecution had had every opportunity to call Dr Chew but had not done so. As their Lordships read Judge Khoos judgment, he accepted the appellants evidence on this issue without reserve or qualification. On appeal the Chief Justice quoted two short passages from the judgment of Judge Khoo which read as follows: At the conclusion of the trial, the only evidence I had concerning the intentions of both Dr Chew and Ping when donating their respective cheques were the testimonies of both accused, although in the course of the prosecutions case the defence had tendered two statutory declarations sworn to by Dr. Chew, albeit in another (the receivership) proceeding (exhibits D4 and D5) which substantially confirmed what the second accused had said regarding her donation In respect of these two charges, the prosecution had to my mind failed to prove an essential ingredient of the offence, namely that the $2,000 and $200 cheques were the property of the Workers Party. The Chief Justice went on: It seems to me implicit in these two passages that the trial judge's finding that the prosecution had failed to prove that the $2,000 cheque was the property of the Workers Party was because he construed the contents of Dr Chew's two statutory declarations as substantially confirming [the appellants] evidence and not because he found [the appellant] to be a credible witness whose evidence he accepted. (Our emphasis.) Their Lordships can find no warrant whatever for the view that Judge Khoo did not find the appellant to be a credible witness whose evidence on this issue he accepted. But this was the cornerstone of the Chief Justices judgment on this charge. As an appellate judge who had not seen or heard the witnesses, it was only if he could validly reject the trial judges finding of primary fact based on acceptance of witnesses whose evidence he had seen and heard that he, the appellate judge, could substitute his own findings of fact. This the Chief Justice then proceeded to do. He ignored the |
| fact that the prosecution
had taken a statement from Dr Chew and subpoenaed her as a witness, but
elected not to call her. He repeatedly referred to the failure of the
defence to call Dr Chew. Two key passages in his judgment read as follows.
The first is: I am unable to accept [the appellants] evidence that there was a note to him from Dr Chew and consequently I do not accept his evidence of their subsequent telephone conversation for the following reasons. It was highly unlikely that Dr Chew would write the words Workers Party on the face of the cheque and send it to [the appellant] with a note, the contents of which were as related to [the appellant], if she did not intend to donate the sum specified on its face to the Workers Party. If her intention was different from that as expressed on the face of the cheque, her evidence was necessary to explain why she wrote the words Workers Party on the face of the cheque when she intended someone else to be the donee of her $2,000 gift and, if her intention was to donate the $2,000 to [the appellant] to be used by 205 him for any purposes he thought fit, it was essential for her to give an explanation why she named the Workers Party and not [the appellant] as the payee on the face of the cheque (Our emphasis.) The second is: In my judgment, it was sufficient for the prosecution to rely on the cheque itself as proof that the cheque was the property of the Workers Party but, having regard to the nature and content of the defence on the issue of Dr Chew's intention, the defence should have called her as a witness who could give evidence in support of [the appellants] evidence. This judgment starts from a false premise with respect to the trial judges assessment of the evidence he had heard and proceeds on a clear misdirection with respect to the onus of proof. It cannot be supported. On the $200 cheque charge the trial judge again clearly accepted the evidence of Wong as to the circumstances in which the donor, Ping, had altered his cheque to make it payable to bearer. The Chief Justice, after citing a lengthy passage from the judgment of Judge Khoo, said: If the correct inference from that passage was that the trial judge accepted Wong's account of what Ping said, it is clear that he did not base it on his acceptance of Wong as a reliable and credible witness and that he failed to observe, analyse or consider the undisputed facts and material probabilities. Beyond this their Lordships need only quote two other critical passages from the Chief Justices judgment as follows. The first is: It seems to me to be plain that, by naming the Workers Party as the payee in his cheque, Ping's intention must be taken to have been that the property in the cheque should pass to the Workers Party as a donation from him |
| The second is: In my judgment, on a full consideration of the material evidence and the circumstances and bearing in mind that an appellate court should be slow in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses but is none the less duty bound to review at large the evidence on which that finding was reached, I am satisfied that the trial judge was wrong in accepting Wong's account and in finding that Ping had no intention of transferring the property in his cheque to the Workers Party. I am also satisfied that Wong's account of what Ping said when he handed his cheque to Wong was untrue. It follows, in my opinion inescapably, that [the appellants] recollections, as given in evidence by him, that Wong told him Ping wanted to give something for Madam Chiew's costs must also be untrue as was his recollection that he indorsed it so that they could get the money for Madam Chiew. Accordingly, I find that at all material times Pings cheque was the property of the Workers Party. There is much besides by way of a purported analysis of the evidence by which the Chief Justice seeks to justify his direct rejection of the evidence which the trial judge had plainly accepted. But their Lordships find the reasoning wholly unconvincing. On this issue the trial judge did accept Wong as a reliable and credible witness and found his evidence to be corroborated by a genuine contemporary document which the prosecution had vainly sought to challenge and which the Chief Justice ignored. In setting out to controvert the trial judges primary findings of fact on this central issue, the Chief Justice patently exceeded the proper function of an appellate court and wholly ignored the advantage enjoyed by the trial judge who had seen and heard the witnesses. This amounted to a serious error of law which vitiated the Chief Justices decision. 206 Having reached these conclusions, it is unnecessary for their Lordships to examine the further question whether it was open to the Chief Justice to reverse the finding of the trial judge on the issue of the fraudulent intent of the accused. The $400 cheque charge This was perhaps the simplest case of all and here it was the trial judge who fell into error, probably because the right point was never clearly taken. On the prosecutions own evidence, the case against the accused was bound to fail. Willie Lims cheque made payable to the Workers Party had never been negotiated or presented for payment. It remained, therefore, an imperfect gift which Willie Lim was fully entitled to withdraw. That is just what he did. On his own evidence, led for the prosecution, precisely in order to prevent the proceeds of the cheque going to the receiver for Tay, to whom he obviously did not want to make a voluntary gift, he altered the cheque to make it payable to cash. It was just as if he had stopped payment of the cheque or torn it up and made a gift of cash to Wong. In the circumstances no offence by Wong or the appellant was committed. Conclusion The Workers Party never had more than a defeasible title to the proceeds of the cheques. Before the title was perfected the cheque was in each case lawfully disposed of in accordance with the donors instructions. The appellant and Wong were innocent of any offence under section 421 and, even if the declaration verifying |
| the accounts had been one to which section 199 applied,
they had a good defence on the merits to the accounts charges. It was for these reasons that their Lordships allowed the appeal. The Law Society must pay the appellants costs of and occasioned by the disciplinary proceedings and of the appeal to the Board. Their Lordships have to record their deep disquiet that by a series of misjudgments the appellant and his co-accused Wong have suffered a grievous injustice. They have been fined, imprisoned and publicly disgraced for offences of which they were not guilty. The appellant, in addition, has been deprived of his seat in Parliament and disqualified for a year from practising his profession. Their Lordships order restores him to the roll of advocates and solicitors of the Supreme Court of Singapore, but, because of the course taken by the criminal proceedings, their Lordships have no power to right the other wrongs which the appellant and Wong have suffered. Their only prospect of redress, their Lordships understand, will be by way of petition for pardon to the President of the Republic of Singapore. Appeal allowed. _________________________ Below is a summary of the case ___________________ Jeyaretnam v Law Society of Singapore Before Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle 24, 25 OCTOBER, 21 NOVEMBER 1988 The appellant was a solicitor, a member of the Singapore Law Society, the only opposition member of Parliament in Singapore and the secretary general of his political party. The party owed a judgment debt to a government member of Parliament arising out of an unsuccessful slander action and one of its supporters owed a debt arising out of an unsuccessful election petition brought on behalf of the party. As a result a receiver of the party's assets was appointed on the application of the government member, and the supporter was threatened with bankruptcy proceedings. In order to assist the supporter in discharging her liability the appellant and the chairman of the party, with the knowledge of the donor, signed over to her solicitors a cheque for a donation made out to the party. Two other donors were invited to change cheques for donations made out to the party to cash and did so. The proceeds of one of those cheques was given to the supporters solicitors. Those actions frustrated the attempts of the receiver to get in assets to satisfy the judgment debt and he requested the treasurer of the party to supply him with the party's accounts, which showed no record of the three cheques. The receiver then required the appellant and the chairman to sign a statutory declaration that the accounts were true and in an affidavit filed with the court in the receivership proceedings the receiver exhibited that document in support of his statement of information and belief that the |
| accounts
were true. Although purporting to be a statutory declaration the document
omitted any words of solemn declaration. The appellant and the chairman
were jointly charged with fraudulently disposing of the three cheques with
the intention of defeating payment to the party's creditors, contrary to
section 421a of the Penal Code (the cheque charges) and were each charged
with making a false statutory declaration 193 veryifying the accounts which
the official receiver was authorised to receive as evidence of any fact,
contrary to section 199b of the Penal Code (the accounts charges). At their
trial the district court judge held that there was no case to answer on
the accounts charge because the document signed by the appellant and the
chairman was not a statutory declaration and he acquitted both accused
on two of the cheque charges because he found that the relevant cheques
were not the property of the party and the actions of the appellant and
the chairman were not done with the fraudulent intention of preventing the
distribution of the proceeds to the creditors of the party. He convicted
the accused on the third cheque charge and fined them $S1,000 each. The
appellant and the chairman appealed against their conviction on the one
cheque charge, while the public prosecutor appealed against their acquittal
on the other cheque charges and the accounts charge and against the sentence
imposed on the cheque charge on which they were found guilty. The appeals
were heard by the Chief Justice, who (i) allowed the public prosecutors
appeal against the acquittals of the accused on the accounts charges and
ordered a retrial, on the ground that the document signed by the appellant
and the chairman was, for the purposes of section 199 of the Penal Code,
a declaration which the receiver and the court were authorised to receive
as evidence in the receivership proceedings, (ii) allowed the public prosecutors
appeal against the acquittal of the accused on the two cheque charges and
fined them $S1,000 each, on the ground that evidence accepted by the district
court judge was untrue and the actions of the appellant and the chairman
were done with the fraudulent intention of preventing the distribution of
assets to the party's creditors, (iii) dismissed the public prosecutors and
the accused's appeals on the third cheque charge and (iv) dismissed applications
by the accused under section 60(1)c of the Supreme Court of Judicature Act
to reserve to the Court of Criminal Appeal questions raised by the accused,
on the ground that they were not questions of law and were not of public
interest. The appellant and the chairman applied to have the retrial of the
accounts charges transferred from the district court to the High Court so
that if necessary they could appeal to the Court of Criminal Appeal and the
Privy Council on the question whether the document signed by them was a declaration
for the purposes of section 199 of the Penal Code but that application was
refused by a High Court judge, on the ground that any attempt to re-open
that issue or to go behind the Chief Justices ruling would be an abuse of
process. On the retrial the district court judge followed the Chief Justices
ruling, convicted the accused and sentenced them to three months imprisonment.
On appeal the convictions were upheld but sentences of one months imprisonment
and a fine of $5,000 were substituted. However, a fine of that amount meant
that the appellant was automatically disqualified from being a member of
Parliament for five years. A further application by the accused that the
judge reserve to the Court of Criminal Appeal questions raised by the accused
was refused, again on the ground that they were not questions of law and
were not of public interest. Following the conviction of the appellant the
Attorney General reported him to the Law Society submitting that the appellant
should be struck off the roll under section 80d of the Legal Profession Act
because he had been convicted of a criminal offence implying a defect of
character which [made] him unfit for his profession. The appellant was summoned
to show cause why he should not be struck off. Section 95(6)e of the Legal
Profession Act stated that the summons shall be heard by a court |
| of three judges of whom
the Chief Justice shall be one. The summons against the appellant was heard
by a court consisting of the Chief Justice and two High Court judges. At
the outset the appellant objected to the Chief Justice sitting since his
defence was based on persuading the court that the convictions were wrong
but the court refused the application on the ground that section 95(6) was
mandatory and therefore the Chief Justice could not disqualify himself from
sitting. The court found the charges preferred by the 194 Attorney General
against the appellant proved and ordered him to be struck off the roll. The
appellant appealed to the Privy Council against that decision. ------------------------------ Held (1) The High Court judge hearing the application for the transfer of the retrial from the district court to the High Court had been wrong to hold that any attempt to re-open the issue of whether the document signed by the accused was a declaration for the purposes of section 199 of the Penal Code or to go behind the Chief Justices ruling on that issue would be an abuse of process. (2) On its true construction section 95(6) of the Legal Profession Act, stating that the Chief Justice was to be a member of any court hearing a summons to show cause why a solicitor should not be struck off, was clearly directory rather than mandatory, since it would be absurd if the Chief Justice could not disqualify himself from sitting when there was good reason for him to disqualify himself. Furthermore, the Chief Justice ought to have disqualified himself since it was the impeachment of his own previous ruling that formed the foundation of the appellants defence and in those circumstances it was unacceptable that the Chief Justice should preside as justice could not be seen to be done. . (3) The convictions of the appellant and the chairman were flawed and vitiated by errors of law since (a) a statement which was not a statutory declaration but which was exhibited to an affidavit, although receivable in evidence, was not admissible as evidence of the facts stated and therefore the accounts charges under section 199 of the Penal Code were misconceived in law, (b) the Chief Justice had exceeded the proper function of an appellate court and had ignored the advantage which the district court judge had had of seeing and hearing the witnesses when he held that the evidence accepted by the district court judge was untrue, (c) the cheques on which the cheque charges were based were revocable mandates to the drawers banks and therefore, each drawer could at any time before the cheque was presented for payment give authority to the person holding the cheque to dispose of it as the drawer wished, and on the evidence accepted by the district court judge the cheques had been lawfully disposed of in accordance with the drawers instructions before the party obtained title. In those circumstances the appellant and the chairman were innocent of the cheque charges under section 421 of the Penal Code and also had a good defence on the merits to the accounts charges. . (4) Although a court hearing a summons to strike a solicitor off the roll for disciplinary reasons could only go behind the convictions which were the basis of the disciplinary charge if there were exceptional circumstances, the fact that the convictions of the appellant were vitiated by errors of law and the judges refusal to reserve questions of law to the Court of Criminal Appeal thereby depriving the appellant of the right of appeal were such circumstances and accordingly the appeal would be allowed and the appellant's name ordered to be restored to the roll. Ratnam v Law Society of Singapore [1976] 1 MLJ 195 applied.# |
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