The Honourable the Chief Justice Chan Sek Keong
Mr Attorney, Mr Wong Meng Meng SC, President of the Law Society, Ladies and Gentlemen,
1. On behalf of my fellow Judges, I welcome all of you to the Opening of the Legal Year 2011. We have with us this morning, members of the Bar, the Law Officers and members of the Singapore Legal Service, corporate counsel, foreign lawyers, and law academics. I also welcome to these proceedings, Pengiran Hajah Rostaina Bte Pengiran Haji Duraman, Chief Registrar of the Supreme Court of Brunei, Mr Huen Wong, President of the Hong Kong Law Society and Mr George Varughese, Secretary of the Malaysian Bar Council.
2. I wish to congratulate Mr Sundaresh Menon on his appointment to the office of Attorney-General, probably the most challenging legal job in Singapore, and Mr Wong Meng Meng to the office of President of the Law Society, certainly the least enviable legal job in town. I wish them success in accomplishing the goals which they have set out in their speeches. I also wish to thank them for their expressions of support for the work of the Judiciary in the coming months. As we share a common interest in the smooth working of the machinery of justice in Singapore, I look forward to working closely with them to tackle the many common challenges and problems in the administration of justice that may surface this year.
3. Today’s ceremony is a serendipitous occasion as it brings together for the first time three speakers who represent three generations of lawyers from the same firm. This no doubt speaks well for the firm, but it also reflects an uneven spread of legal talent in the profession that impacts on the competitiveness of high-end litigation services for financial and commercial disputes. I will say something on this subject later.
4. Now, those of you who have attended a fair number of OLY ceremonies might have come here expecting to hear from me the same things about the courts and the Bar – the same admonishments and exhortations to the Bar laced with self-congratulatory remarks about the work of the Judiciary. I do not blame you if you have this sense of déjà vu. Sometimes I too have it, when I re-read my previous speeches. Therefore, this year I will simply reply to what Mr Menon and Mr Wong have just said.
Criminal Practice and the Criminal Bar
5. The Attorney-General has remarked that the Criminal Procedure Code 2010 will usher in a new era of greater transparency in criminal proceedings. In particular, he has singled out the structured Criminal Case Disclosure Procedure as the most significant change in our criminal justice process. The new procedure has two merits. First, it levels the playing field for the prosecution and the defence in reducing the element of surprise at trial. Secondly, it meets the complaints of the Criminal Bar that accused persons were often unfairly confronted in impeachment proceedings by statements they had made to the police many months before, the details of which they would not have remembered. The Prosecution will now have to disclose these statements to them, provided the accused persons disclose their defence in writing. This is not an unfair procedure as only the accused persons know the extent of their involvement, if any, in the commission of the offence. However, since this is an opt-in process, we will monitor its effect on the efficient disposal of criminal cases.
6 The Attorney-General has also mentioned that up to 8,000 cases could be subject to the new regime and therefore more work is created for the DPPs. That is true, but the exercise will discipline them to review the merits of the prosecutions before filing their Cases. Actually, more work is created for the Subordinate Courts as PTCs will have to be held to deal with inadequately disclosed statements or defences. But, if the new disclosure regime works smoothly, it should ultimately result in lower risk of injustice and a higher sense of procedural fairness. Both prosecution and defence counsel have a crucial role in the successful operation of the new process. The new procedure could see an increase in charge bargaining. In this connection, the Attorney-General may wish to look into the merits of plea bargaining, a process I would endorse provided that we have sufficient safeguards to protect the integrity of the criminal justice system.
7 Next, I would like to refer to a new provision in the CPC 2010 that is significant to the administration of justice. I will not say much about this because I see that the Straits Times has reported on this today and therefore pre-empted what I wanted to say.* This provision concerns the making of compensation orders in criminal cases. This is a very useful judicial power as it enables the courts to do justice to the State (by punishing the offender), and also to the victim (by an order for compensation without having to go through another court process).
8 Still on the topic of criminal justice, I am happy to hear about the Attorney-General’s efforts in engaging the Criminal Bar. These dialogues complement the various informal gatherings of the Subordinate Courts, the Registrar of the Supreme Court, the Prosecution and the Criminal Bar to exchange views on reducing any inefficiencies or unfairness in the criminal justice system. The Law Society’s Chairman of the Criminal Practice Committee 2010 has written somewhat ecstatically in the Law Gazette about this new spirit of collaboration in discussing and finding solutions to common problems through face-to-face discussions. As far as the courts are concerned, there are no irreconcilable differences between us and the Bar in ensuring that defendants will be accorded a fair trial. The Criminal Bar plays a crucial role in keeping an eye on the proper administration of criminal justice through their steadfast defence of their clients and their legal rights. They have a crucial responsibility when defending their clients against the forensic might of the Attorney-General’s team of DPPs, supported by the investigative muscle of the Home Team. Their work is essential to the stability of the criminal justice system, but unfortunately, the nature of their work and the economic profile of their clients dictate the level of remuneration that they can get, no matter how onerous their responsibility to their clients may be. Criminal law practice needs lawyers with certain social and philosophical values that give them personal satisfaction in acting as defence counsel in criminal trials.
9 In this regard, I share the Attorney-General’s concern about the quality of the Criminal Bar, if it is unable to get its share of the legal talent. Criminal lawyers tend to work alone or only in small firms. There is little or no goodwill to pass on when a senior criminal practitioner retires. Even David Marshall suffered this fate. However, that does not mean that the future for criminal lawyers is bleak, especially since both of Marshall’s former partners, Mr Amarjeet Singh and Mr MPH Rubin, were subsequently appointed to high judicial office. Every judiciary should have judges who specialise in certain areas of law. In Singapore, criminal law and commercial law are the more important areas of law practice, but the disparity of earnings in the two fields may be staggering. Unfortunately, professional pay is dictated by market forces in a free economy, and criminal lawyers can only charge what the market can bear.
10 So, what can be done to make criminal practice more attractive to young lawyers? There are no easy solutions. One suggestion frequently made is to increase the fees payable to assigned counsel under the LASCO Scheme. Another possibility is to pay pro bono lawyers better under the Law Society’s Criminal Legal Aid Scheme (CLAS) and the ACLS Pro Bono Scheme. These schemes, of which the Law Society is deservedly proud, like the LASCO Scheme, provide young lawyers with opportunities to acquire experience and skills in criminal practice. They can be better funded. In this connection, I have made a suggestion informally to the Law Society, that instead of seeking 25 hours of pro bono work each year from every lawyer, it should ask corporate lawyers to donate 25 hours of their earnings in lieu of such work. However, I understand that the Law Society was cool to this idea because it felt that pro bono services are meaningful only if supplied personally, with a warm feeling, and in the spirit of service, rather than through monetary donations. I think pro bono legal services are not the same as other kinds of charitable works. Perhaps the new President may wish to consider this idea again. The law of comparative advantage also applies to legal services.
Conveyancing monies and small law firms
11 In the past, small firms wanted custody and control of conveyancing monies for a number of reasons. First, clients’ monies provided extra income from the interest earned, which could be fairly substantial when bank deposit rates were high (which has not been the case in the last decade). Secondly, small firms with large clients’ accounts were able to get work from banks on a reciprocal basis. Thirdly, they could also borrow money to fund their overheads, at competitive interest rates. But, as a result of the damage caused to the reputation of the profession, and especially that of small firms, by crooked lawyers misappropriating clients’ monies, and also the financial and social damage caused to clients, allowing lawyers to keep clients’ monies can no longer be justified or tolerated. Many attempts were made by the Law Society to prevent such offences, but to no avail. I am glad that we now have a forward-looking President who can see clearly where the public interest lies in this matter. The sad thing is that even while the pilot trial on safeguarding clients’ monies is going on, two new cases of misappropriations have been reported and are being investigated. If the current scheme reduces the efficiency of the property market in the transfer of properties, alternative schemes are available. What is crucial here is the absolute security of clients’ monies. If the Law Society can provide 100% compensation to clients, then they can all sleep well at night.
12 When the problem of clients’ monies is taken care of, lawyers in small firms will be able to focus better on their work. Well, they have a useful role in providing niche legal services to the less well-to-do segments of our society, or those who do not want to pay higher legal fees to lawyers in big firms. There is a large market for their services – otherwise we would not have so many small law firms. The Legal Aid Bureau provides some of them with legal work. There are 592 solicitors on the Legal Aid Panel but the number of active Assigned Solicitors in 2010 was 138. To increase their client base, small firms could relocate to the HDB heartlands, just like many GPs have done. Rents are also lower than in the urban areas. Although the Law Society represents the interests of small law firms, it should be remembered that being small is often a matter of choice, and with that choice comes the attendant disadvantages. In so far as the upgrading of their legal knowledge and skills is concerned, the newly established Singapore Institute of Legal Education will provide suitable training courses for them, and this will also apply to criminal lawyers. But, I would agree with Mr Wong that what small law firms need, more than legal knowledge, is good administrative support, like efficient and honest chief clerks and secretaries to remind them of crucial timelines. It would be interesting to know how many complaints of professional negligence have been made against lawyers for lack of due diligence in meeting timelines for certain matters to be done, such as in exercising options, or completing transactions, or generally in failing to give timely advice.
13 I note the Law Society’s ambition to export their training programmes and expertise to other jurisdictions. Perhaps, instead of overstretching its resources, it should see what more can be done at home for our citizens. On Tuesday, the Straits Times published a letter in which the writer suggested that the Law Society should publish guidelines on fees that lawyers should charge for different kinds of work. Apparently, he was quoted various fees ranging from $500 to $7,000 for drawing up a tenancy agreement. In fact, he had the solution to his own problem because he could have accepted the most competitive quote. Even then, the disparity in fees is unacceptable and other individuals may not even know where to find the best value for their money. Clients should be able to make informed choices, and that means that they should be given the necessary information. The Law Society already has an online directory of all the law firms and the types of legal services they provide. Perhaps it should encourage the law firms to publish the range of fees they expect to charge for the more standard types of legal work. It is pertinent to note that on the same day, the Home Section of the Straits Times also published the range of fees charged by all the hospitals in Singapore for the treatment of 40 conditions.
Continuing Professional Development
14 I am glad to note that both the Law Society and the Attorney¬General’s Chambers have thriving training and upgrading programmes for their lawyers. So have the Subordinate Courts. For the Supreme Court, we have put in place an intensive programme for ARs and JLCs to maintain their professional edge. To meet their specific needs, we have customised their training so as to (1) update and increase their legal knowledge and skills; (2) give them a better understanding of related subjects, such as economics, finance, forensic science and regulatory policies; and (3) develop them as Legal Service Officers, thereby preparing them for a smooth transition into their future postings. We have also started a Judicial Awareness Programme for our Judges and judicial officers to keep them informed of world and local current affairs, including scientific and technological developments that are relevant to their work. Judging, no less than advocacy and counselling, is a learning activity.
15 I note with interest the expanding regional and international connections of the Law Society, and the important role of our lawyers in bar associations such as LAWASIA, the Inter-Pacific Bar Association and the International Bar Association. Once upon a time, LAWASIA was only an Asian law association in name, and likewise the International Bar Association was “international” only in name. Now that Asia is where the alternative future lies, for lawyers as well as for everybody else, there is hope that these international associations will become more attuned to what Asian lawyers think about the rule of law, and the legal and behavioural norms relevant for the social, economic and political development of the emerging economies, especially those in Asia. For their voices to be heard, what is needed are strong Bar leaders. We will give our support to the Law Society in forging a stronger relationship with these associations, and also with the Malaysian Bar Council and the Hong Kong Law Society and Bar Association.
16 Our international connections continue to expand. Our Judges have been invited to participate and speak at many international judicial conferences. Last year, we made judicial history in signing a Memorandum of Understanding with the Supreme Court of New South Wales to refer any question of what is Singapore law in any dispute before a New South Wales court, and vice versa, for determination by the relevant court. This procedure obviates the current procedure of obtaining such information from paid expert witnesses. Following this, the New South Wales Supreme Court has signed a similar MOU with the Supreme Court of the State of New York. This is an interesting development in international co-operation between municipal courts that can form the basis of an international convention.
17 Last year we successfully hosted the Asia Pacific Courts Conference 2010 which saw the participation of delegates from 57 common law and civil law jurisdictions. The Supreme Court also received delegations from 89 jurisdictions, higher than the peak of 72 jurisdictions in 2008, to look at our court infrastructure and elements of court administration. Incidentally, for the information of those among us who have not made up their minds about whether they like the design of the Supreme Court Building, I would like to disclose that the building has been given pride of place in a US publication called “Retrospective of Courthouse Design 2001-2010” – its image is the first of 9 photographs printed on the cover. We are waiting to see whether it will be awarded an international architectural prize.
Liberalisation of the Legal Services Sector
18 Let me now say a few words on the liberalisation of the legal services sector. The Attorney-General has referred to the increasing number of foreign lawyers practising in or from Singapore. This segment of our legal services sector will continue to grow as Singapore grows as a legal services hub. International arbitration has taken off and six QFLP firms have been taken in. But there is another area of practice we might want to revisit – litigation, and the availability of top counsel to appear in our courts. Currently, we have a provision in the Legal Profession Act for the ad hoc admission of Queen’s Counsel and Senior Counsel from other Commonwealth jurisdictions, in cases where legal expertise is not available. Fortunately, it is rare that we cannot find the necessary expertise since we have built up a pool of first class litigation counsel under our Senior Counsel scheme. However, many of them are no longer in active practice and not many appear frequently in our courts, especially the Court of Appeal. In OLY 2002, I spoke on this topic and pointed out that a major corporate client with a court case could immobilise all the litigators in the large law firms, including our best Senior Counsel. To maintain our eminence as an international business and financial centre, we should make available to litigants in important commercial and financial disputes a greater diversity of legal representation in our courts. I have discussed this with the Minister for Law. He agrees with me that this is an issue that needs looking into, and he intends to consult the Law Society on it.
Appointment of Senior Counsel
19 I have now reached a more pleasant stage of the proceedings – the announcement of the appointments of Senior Counsel. This year we have taken the unusual step of appointing a somewhat older practitioner as Senior Counsel. He has been known to us since the days when he was the Registrar of the Supreme Court. He is Mr Roderick Martin. The other advocate is Mr Chan Leng Sun. On behalf of the Judiciary, I congratulate them on their appointments.
20 You would have noticed that so far I have not spoken on the subject of civil justice. In this connection, it may be of interest to you to know that the Rule of Law Index 2010 of the World Justice Project, which is a project to rank the quality of legal systems in the context of the rule of law, has ranked us No 1 for Access to Civil Justice in the grouping of high income countries. It is on this pleasant note that I now adjourn these proceedings. So, let me thank you for your presence here this morning and also let me wish you all a happy and successful new year.
* The following passage in this speech was not read out:
All offences against the body are also civil wrongs, and many indigent and vulnerable victims are left with no means of recourse against the offenders for the injuries and pain they have suffered. Many victims deserve reparation in the form of compensation. The courts are well placed to make such orders as they would have all the facts before them. The new provision, section 359, mandates that the court convicting an offender must consider making a compensation order in an appropriate case. This provision also applies to offences taken into consideration for the purposes of sentencing. It will mean more work for the courts, but I believe our justice system will be enhanced by the additional effort. What is an appropriate case will be determined by the court, but road bully and maid abuse cases come readily to mind. Over time, the courts will be able to build up a body of appropriate cases as precedents for the making of such orders.