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[1988] Part 6 Case 7 [PC] |
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www.ipsofactoJ.com/archive/index.htm
[1988] Part 6 Case 7 [PC] |
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THE PRIVY COUNCIL |
Jeyaratnam
- vs -
The Singapore Law Society
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Coram LORD BRIDGE OF HARWICH LORD TEMPLEMAN LORD ACKNER LORD OLIVER OF AYLMERTON LORD JAUNCEY OF TULLICHETTLE |
21 NOVEMBER 1988 |
Judgment
Lord Bridge of Harwich
(delivering the judgment of the Board)
On 19 October
1987 the High Court of Singapore ordered that the appellant be struck off the
roll of advocates and solicitors of the Supreme Court of Singapore. On 25 October
1988 their Lordships allowed the appellant’s appeal from that order indicating
that they would give the reasons for their decision later. This they now do.
THE
BACKGROUND
The Workers’ Party of Singapore is a political party
in the ordinary sense, but is also, unlike English political parties, a body
having legal personality under Singapore law. The appellant is the secretary-general
of the Workers’ Party. In 1972 the Workers' Party sued Tay Boon Too (‘Tay’),
a member of Parliament, for slander in respect of words spoken in the 1972 general
election campaign. The action failed and the Workers’ Party were ordered to
pay Tay’s costs. A liability under this order for a sum exceeding $17,000 remained
unsatisfied.
In the 1980 general election the appellant himself
stood unsuccessfully as a Workers’ Party candidate for Parliament. Madam Chiew
Kim Kiat (‘Mdm Chiew’), the mother of the appellant’s election agent, brought
an election petition against the appellant’s successful opponent alleging electoral
irregularities. The petition was dismissed with costs.
In 1981 the appellant was elected to Parliament in
a by- election and became the sole member in opposition to the ruling People’s
Action Party. At the general election in 1984 he was re-elected.
THE
CRUCIAL EVENTS OF 1982
By the beginning of 1982 the judgment debt for the
balance of Tay’s costs, after the lapse of more than six years, had become unenforceable
by execution without the leave of the court. Early in 1982 bankruptcy proceedings
were instituted against Mdm Chiew in respect of the unpaid balance of her liability
for costs incurred in the unsuccessful election petition proceedings. The salient
events in 1982 are best recounted in chronological order.
On 19 January the appellant received by post a cheque drawn by Dr Ivy Chew
Wan Heong (‘Dr Chew’) for $2,000 made payable to the Workers’ Party (‘the $2,000
cheque’). This was then endorsed by the appellant and Wong Hong Toy (‘Wong’),
the chairman of the Workers’ Party, in favour of Mdm Chiew’s solicitors as
a contribution to help meet her liability for costs in respect of the election
petition proceedings. On 23 January Tay’s solicitor wrote to the appellant’s
firm, as solicitors for the Workers’ Party, demanding payment of the costs due
to Tay. On 3 February Tay applied to the court for leave to execute for the
unpaid costs. On 17 February the $2,000 cheque was handed to Madam Chiew’s solicitors.
On 22 B February Tay was granted leave to execute and the court made a garnishee
order in his favour on the Workers’ Party’s bank account. On 8 March the garnishee
order was made absolute and the bank paid over the balance of $18.47 standing
to the credit of the Workers’ Party’s account. On 10 March the appellant and
Wong received a cheque for $200 drawn by Ping Koon Yam (‘Ping’) in favour of
the Workers’ Party with the word ‘bearer’ crossed out (‘the $200 cheque’). Ping
then altered the cheque to a bearer cheque by overriding the cancellation of
the word ‘bearer’. The cheque was paid into Wong’s personal account. Wong drew
$200 in cash from the account and handed it to Mdm Chiew’s solicitors as a contribution
towards her liability for costs. On 12 March, the date fixed for the hearing
of the bankruptcy petition against Mdm Chiew, her solicitors were able to discharge
her outstanding liability for costs by handing over to the petitioner’s solicitors
$2,655 including the proceeds of the $2,000 and $200 cheques and other money
collected for her by the Workers’ Party.
On 22 May Tay applied to the court for the appointment
of a receiver by way of equitable execution. On the same day Willie Lim Tian
Sze (‘Willie Lim’) made a donation to the Workers’ Party in the form of a crossed
cheque for $400 payable to the Workers’ Party (‘the $400 cheque’). On 1 June
the Official Receiver was appointed by the court as receiver of the Workers’
Party’s assets. Some days later Willie Lim was invited by Wong in the presence
of the appellant to alter the $400 cheque and agreed to do so. He uncrossed
the cheque and made it payable not to the Workers’ Party but to cash.
On 21 July the Official Receiver wrote to A Balakrishnan,
the treasurer of the Workers’ Party, asking for the accounts of the Workers’
Party for 1980,1981 and up to 3 June 1982, and for all the relevant account
books, vouchers and other accounting documents for this period. Balakrishnan
complied with this request and, in response to a further request, filed an affidavit
verifying the accounts for the period 1 January to 16 June 1982. The accounts
contained no entries referring to the trans actions represented by the cheques
previously referred to.
The Official Receiver then requested the appellant
and Wong, as secretary-general and chairman of the - Workers’ Party, to make
a statutory declaration to confirm the accounts. A document purporting to be
a joint statutory declaration verifying the accounts was submitted to the appellant
and Wong in a form drafted by the Official Receiver and they duly went through
the formalities of making the declaration. It is common ground, however, that
the document was not a statutory declaration at all, since it did not contain
the vital words ‘and I make this solemn declaration conscientiously believing
the same to be true, and by virtue of the Statutory Declarations Act 1835’.
On 6 August the Official Receiver swore his own affidavit, which was duly lodged
in the court, verifying his own account o f the receivership and exhibiting,
inter alia, the declaration by the appellant and Wong in support of his own
statement of information and belief that the exhibited accounts of the Workers’
Party were true.
THE
CRIMINAL PROCEEDINGS
Arising out of these events the appellant and Wong
were jointly charged with three offences and each was separately charged with
a fourth offence. The three joint charges were laid under s 421 of the Singapore
Penal Code (Cap 103, 1970 Ed) which provides:
Whoever dishonestly or fraudulently
removes, conceals, or delivers to any person, or transfers or causes to be transferred
to any person, without adequate consideration, any property, intending thereby
to prevent, or knowing it to be likely that he will t hereby prevent, the distribution
of that property according to law among his creditors or the creditors of any
other person, shall be punished with imprisonment for a term which may extend
to two years, or with fine, or with both.
These charges (‘the cheque charges’) related to the
disposal of the $2,000, $200 and $400 cheques respectively. The ingredients
of each of these offences which the prosecution needed to prove were:
that the cheque was the property
of the Workers’ Party;
that the accused jointly transferred
it without adequate consideration;
that they did so intending or
knowing that it would be likely to prevent the distribution of the property
according to law amongst the creditors of the Workers’ Party, meaning thereby
the payment of the proceeds of the cheque to the creditor Tay;
that in so doing they acted fraudulently.
The fourth separate charge against each accused was
laid under s 199 of the Penal Code which provides:
Whoever, in any declaration made or subscribed by him, which declaration any
court of justice, or any public servant or other person, is bound or authorized
by law to receive as evidence of any fact, makes any statement which is false,
and which he either knows or believes to be false or does nor believe to be
true, touching any point material to the object for which the declaration is
made or used, shall be punished in the same manner as if he gave false evidence. These charges (‘the accounts charges’) related to
the purported statutory declaration. The falsity alleged was the o mission in
the accounts which the declaration verified of any entry relating to the cheques
which were the subject of the cheque charges. In this sense the accounts charges
were parasitic upon the cheque charges. It was alleged that the accused had,
so to speak, compounded their fraudulent dealings with the cheques by failing
to own up to them when they were required to verify the accounts. But an offence
under s 199 is much graver than an offence under s 421. It is treated as equivalent
to an offence of perjury under s 193 and is punishable by up to seven years’
imprisonment. THE
FIRST TRIAL
These charges came for trial before Senior District
Judge Michael Khoo. He gave written reasons for his decision on 30 March 1984.
Judge Khoo ruled at the close of the prosecution
case that there was no case to answer on the accounts charges on the ground
that the purported statutory declaration, lacking the essential words of affirmation,
was not within s 199. He rejected a submission that it was a document, which
‘any court of justice’ was ‘bound or authorized to receive as evidence of any
fact’ because it could be, as it was, exhibited to the affidavit of the Official
Receiver in the receivership proceedings in sup port of his own accounts. Judge
Khoo refused various applications by the prosecution to substitute amended charges
for the accounts charges under s 199.
Judge Khoo acquitted both accused of the charges
in respect of the $2,000 and $200 cheques. He held that in each case the prosecution
had failed to prove that the cheque was, at the material time, the property
of the Workers’ Party. In the case of the $2,000 cheque he accepted the evidence
of the appellant that he had received a note from Dr Chew with the cheque authorizing
him to use it as he thought fit, and that after deciding to use the money to
help Mdm Chiew meet her liability for costs he had confirmed with Dr Chew that
he could use the money as he wished. The receipt and disposal of the $2,000
cheque were reported to a meeting of the executive council of the Workers’ Party
on 16 February 1982 and recorded in the minutes. In the case of the $200 cheque
Judge Khoo accepted the evidence of both accused that Ping, the donor, had agreed
that the proceeds of the cheque should be used to help Mdm Chiew and, instead
of making out a further cheque payable to Mdm Chiew, had altered the cheque
to make it payable to bearer.
Judge Khoo found confirmation of these findings in
two statutory declarations by Dr Chew which had been tendered in evidence (presumably
with out objection) and in a contemporary record kept by Wong of money collected
for Madam Chiew, which included a reference to Ping’s $200 and which the judge
accepted as genuine. The explanations given by the defence in relation to the
$2,000 and $200 cheques accorded with what they had told the police when first
questioned. Judge Khoo noted that the prosecution had taken statements from
Dr B Chew and Ping and subpoenaed them but had elected not to call them to testify.
Independently of his findings that
these two cheques
were not the property of the Workers’ Party, Judge Khoo carefully analysed the
evidence bearing upon the chronology of the steps taken to enforce Tay’s judgment
for the balance of the costs of the 1972 action in relation to the actions of
t he accused in their dealings with the two cheques. He expressed his conclusion
thus: Having regard therefore to all the circumstances surrounding the receipt
of the cheques, the time of their receipt and their eventual disbursement to
the solicitors of Mdm Chiew and the reasons therefore, I was not satisfied that
the acts of the accused in the delivery of the cheques were done with a fraudulent
intention to prevent their distribution according to law, amongst the creditors
of the party.
Judge Khoo convicted both accused of the $400 cheque
charge. He accepted the evidence of Willie Lim, disputed by the defence, that
it was on a date after the appointment of the receiver that he agreed, at the
invitation of Wong and in the presence of the appellant, to alter his cheque
to make it payable to cash and that this was done expressly to prevent the proceeds
reaching the receiver on behalf of Tay. The judge drew the inference from this
evidence and the subsequent encashment of the cheque that Wong and the appellant
had acted jointly in transferring the property of the Workers’ Party in the
$400 cheque without adequate consideration and with the fraudulent intention
of preventing the property being distributed according to law amongst the party’s
creditors, sc by payment to the receiver for the creditor Tay. Each accused
was sentenced to pay a fine of $1,000.
THE
FIRST APPEAL
Under the Singapore Criminal Procedure Code appeal
lies from the District Court to the High Court against conviction or sentence
by the accused and against acquittal or sentence by the Public Prosecutor: ss
245 and 247. The appeal is ordinarily to be hear d by a single judge: s 252(3).
The grounds on which the High Court are to act are indicated, somewhat obliquely,
by s 261 which provides:
No judgment, sentence or order of a District Court .... shall be reversed or set
aside unless it is shown to the satisfaction of the High Court that the judgment,
acquittal, sentence or order was either wrong in law or against the weight of
the evidence, or, in the case of a sentence, manifestly excessive or inadequate
in the circumstances of the case. In this case the Public Prosecutor appealed against
the acquittals on the accounts charges and the first two cheque charges and
also against sentence on the $400 cheque charge. The appellant and Wong appealed
against conviction on the $400 cheque charge. These appeals were heard by CJ Wee CJ in May 1984. He gave judgment in writing on 18 April 1985. Dealing with the accounts charges, the Chief Justice
reasoned as follows. Under Ord. 30 of the Rules of the Supreme Court the receiver
appointed by the court was required to submit accounts to the court and to verify
them by affidavit. Under Ord. 4 r 5(2) an affidavit sworn for the purpose of being
used in interlocutory proceedings may contain statements of information or belief
with the sources and grounds thereof. The Chief Justice concluded:
In my judgment, the declaration,
being a document which was permitted by Ord. 41 r 5(2) to form part of the affidavit
accompanying the receiver’s own account presented to the High Court for passing
and certification, was a declaration which the court was authorised by the
Rules of the Supreme Court to receive as evidence in the receivership proceedings.
He therefore set aside the acquittal and ordered
a retrial of both accused on the accounts charges. The judgment of the Chief
Justice dealing with the charges relating to the $2,000 and $200 cheques is
extremely long and their Lordships find some of the reasoning difficult to follow.
Since it will be necessary later in this judgment to return to examine this
part of the judgment of the Chief Justice to see whether it can be supported,
their Lordships will not at this point attempt to do more than summarize its
salient features. The Chief Justice began with an unexceptionable statement
of the principles governing his appellate jurisdiction under the Criminal Procedure
Code as follows:
It is settled law that this court
in the exercise of its statutory appellate criminal jurisdiction has full power
to review at large the evidence upon which an order of conviction or acquittal
was founded and to reach the conclusion that upon that evidence the order should
be reversed. In reviewing the evidence and before reaching its conclusions upon
fact this court should always give proper weight and consideration to - such
matters as (1) the views of the trial judge as to the credibility of witnesses;
(2) the presumption of innocence in favour of the accused; (3) the right of
the accused to the benefit of the doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a judge who had the advantage
of seeing the witnesses.
He went on, however, to reject as untrue the evidence
I which the trial judge had accepted as true given by the appellant and Wong
in the two vital areas, namely, with respect to their communications with Dr
Chew and Ping, the donors of the two cheques, regarding the donor’s intentions
with respect to the disposal of the proceeds of the cheques. He held, in effect,
that the cheques them selves were so made out as to found an inference that
they were the property of the Workers’ Party and that this could only be rebutted
by the defence calling Dr Chew and Ping to give evidence. He further declared
himself satisfied, contrary to the view of the trial judge, that the transfers
had been fraudulently intended to prevent the distribution of the property according
to law amongst the creditors of the Workers’ Party. He therefore allowed the
Public Prosecutor’s appeal against acquittal on both these charges and sentenced
each of the accused to pay a fine of $1,000 on each charge.
On the $400 charge the Chief Justice dismissed both
the appeals of the accused against conviction and that of the Public Prosecutor
against sentence.
On 21 June 1985 the appellant and Wong applied to
the Chief Justice pursuant to s 60(1) of the Supreme Court of Judicature Act
(Cap 15, 1970 Ed) that he should reserve certain questions of law arising from
his decision on the appeals from Judge Khoo for t he decision of the Court of
Criminal Appeal. The subsection provides:
When an appeal from a decision of a subordinate court
in a criminal matter has been determined by the High Court the judge may on
the application of any party and shall on the application of the Public Prosecutor
reserve for the decision of the Court of Criminal Appeal any question of law
of public interest which has arisen in the course of the appeal and the determination
of which by the judge has affected the event of the appeal.
The questions of law which the Chief Justice was
asked to reserve included the following:
(1) On the accounts
charges: ‘whether the declaration by the respondents was a declaration within
the scope and meaning of s 199 of the Penal Code.’
(2) On the $2,000
and $200 cheque charges:
(a) whether the property in the cheques for $2,000 and $200 was in the Workers’
Party before the cheques were negotiated;
(b) on whom was the onus to prove the property of the cheques in the Workers’
Party and whether such onus was discharged by the party on whom it lay on the
whole of the evidence adduce before the court;
(c) whether the said onus shifted at any time from one party to the other,
alternatively whether there was any onus on the respondents at any stage of
the trial to prove that the property in the said cheques was not in the Workers’
Party;
(d) whether on the whole of the evidence adduced before the court the prosecution
had discharged the onus on it to satisfy the court that the respondents fraudulently
transferred the property in the said cheques assuming the property in the said
cheques was in the Workers’ Party;
(e) whether the High Court was right and justified on well-established principles
of law in disturbing the very careful findings of fact made by the trial judge
before acquitting the respondents on the charges. (3) On the $400
cheque charge: ‘whether the property in the cheque for $400 remained with the
Workers’ Party after the end of May 1982 and in particular was it so on 2 July
1982 when the proceeds of the cheque were realized.’
The Chief Justice refused this application on the
ground that none of these questions were questions of law and that, even if
they were, they were not of public interest.
The appellant and Wong nevertheless sought to appeal
to the Court of Criminal Appeal but failed, as they were bound to, because s
44(1) only gives jurisdiction to the Court of Criminal Appeal to hear an appeal
‘against any decision by the High Court in the exercise of its original criminal
jurisdiction ....’. There is thus no avenue of appeal from the decision of a High
Court judge exercising appellate jurisdiction from the District Court under
s 247 of the Criminal Procedure Code unless that judge has reserved a question
of law for decision by the Court of Criminal Appeal pursuant to s 60(1) of the
Supreme Court of Judicature Act. It was so held by the Court of Criminal Appeal
(KC Lai J, LP Thean J and FH Chua J) dismissing the appeals of the appellant
and Wong on 9 October 1985. This decision was, in effect, affirmed when special
leave to appeal to the Judicial Committee of the Privy Council was refused on
6 March 1986.
THE
RE-TRIAL ON THE ACCOUNTS CHARGES
Having failed to persuade the Chief Justice to reserve
the question of law arising on the construction of s 199 of the Penal Code,
it is not surprising that the appellant and Wong then applied to have the retrial
transferred from the District Court to the High Court pursuant to s 184 of the
Criminal Procedure Code. If this application had succeeded, it would have opened
up an avenue of appeal on the issue whether the joint declaration was a document
which a ‘court of justice .... is bound or authorized by law to receive as evidence
of any fact’ to the Court of Criminal Appeal in the first instance and, if necessary,
to the Judicial Committee of the Privy Council. This was the manifest purpose
of the application. Their Lordships must confess their astonishment that LP
Thean J, in refusing this application, held that any attempt to reopen this
issue and or go behind the Chief Justice’s ruling would be an abuse of the process
of the court. It was further urged that as secretary-general and chairman of
a political party in opposition to the party in power facing a charge with such
serious implications, the appellant and Wong should, in any event, be tried
by the High Court not the District Court. LP Thean J dismissed this consideration
as irrelevant.
Re-trial accordingly took place before Judge Foenander,
who had now replaced Judge Khoo as Senior District Judge. He gave judgment convicting
both accused on 8 April 1986 and sentenced both to three months’ imprisonment.
Both appealed to the High Court against conviction and sentence. The appeal
was heard by KC Lai J. On 10 November 1986 he dismissed the appeals against
conviction, but allowed the appeals against sentence to the extent of substituting
for the sentence of three months’ imprisonment in each case a C sentence of
one month’s imprisonment plus a fine of $5,000. For the appellant this was indeed
a Pyrrhic victory, since a person sentenced to pay a fine of $5,000 or more
on any single criminal charge is automatically disqualified for five years from
membership of Parliament.
The appellant thus lost his seat as the single opposition
member and was unable to stand at the next general election in 1988.
The proceedings on the re-trial and appeal followed
a predictable course. Both Judge Foenander at first instance and KC Lai
J on appeal applied the reasoning of the Chief Justice in holding that the declaration
verifying the accounts fell within s 199 of the Penal Code and found that the
accounts were false in omitting reference to the cheques which had been the
subject of the cheque charges On the re-trial neither the appellant nor Wong
gave evidence.
An application to
KC Lai J under s 60(1) of
the Supreme Court of Judicature Act to reserve, inter alia, a question of law
as to whether, on its true construction, s 199 of the Penal Code applied to
the joint declaration verifying the accounts was refused on 11 November 1986.
The question, although more elaborately formulated, was essentially the same
as the question which the Chief Justice had refused to reserve in June 1985.
Again predictably, KC Lai J echoed, albeit at greater length, the view
of the Chief Justice that the question was not one of law or, if it was, was
not of public interest. No question having been reserved, further attempts by
Wong and the appellant to challenge their convictions on the accounts charges
before the Court of Criminal Appeal and by way of application for special leave
to appeal to the Judicial Committee of the Privy Council failed, as they were
bound to, for want of jurisdiction.
THE
DISCIPLINARY PROCEEDINGS
Under s 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 s 421 and one
offence under s 199 of the Penal Code, asserted that the offences implied a
defect of character which made him unfit for his 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 truck
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 the Chief Justice, FA Chua J and SK Chan 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 appellant’s objection to the Chief Justice sitting was both erroneous
and unfortunate. It was erroneous because, in their Lordships’ judgment, the
relevant provision of s 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 subsection (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 Justice’s 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 s 3(1)(a)
of the Judicial Committee Act (Cap 148, 1985 Ed ) on 4 November 1987. An application
to the Board for a stay of execution was refused on 21 December 1987. The judgment
giving the court’s 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 appellant’s
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 be hind the convictions?
Secondly, 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 upon as the basis of a
disciplinary charge was considered in Ratnam v Law Society of Singapore. Delivering
the judgment of the Board, Lord Simon of Glaisdale said at pp 200, 201:
There is a preliminary point which
arises - namely, whether in disciplinary proceedings under the Legal Profession
Act it is open, for the purposes of s 84(2)(a) conviction implying a defect
of character to go behind the conviction and inquire 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 s 199 of the Penal Code first propounded by the Chief Justice
sitting as a single judge and later adopted by Judge Foenander and KC Lai
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 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 KC Lai 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 Simon’s words
‘that the conviction(s) 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 person’s conviction of a grave offence may depend
can be said not to be ‘of public interest’ within the meaning of s 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 s 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 deponent’s 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 deponent’s affidavit of his information and
belief, not the statement relied upon 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 upon 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 s 199 were misconceived in law,
as Judge Khoo held, quite apart from any question on the merits as to whether
the accounts verified by the declaration ought to have included reference to
the transactions which were the subject of the cheque charges. The appellant’s
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
drawer’s 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 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 endorsed 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 Khoo’s judgment, he accepted
the appellant’s 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 prosecution’s case, the defence had tendered two
statutory declarations sworn to by Dr Chew, albeit in another (the receivership)
proceeding (exhibit 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 Jeyaretnam’s evidence and not because he found Jeyaretnam to be a
credible witness whose evidence he accepted.
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 Justice’s 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 judge’s
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:
I am unable to accept Jeyaratnam’s
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 Jeyaratnam with a note, the
contents of which were as related by Jeyaratnam, 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 Jeyaratnam to be used by him for any purpose
he thought fit, it was essential for her to give an explanation why she named
the Workers’ Party and not Jeyaratnam as the payee on the face of the cheque
....
.... 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 Jeyaratnam’s evidence.
This judgment starts from a false premise with respect
to the trial judge’s assessment of the evidence he had heard and proceeds upon
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 Justice’s judgment as follows:
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.
.... 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 nonetheless duty bound to review
at large the evidence upon 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 Jeyaratnam’s recollections, as given in evidence by him, that Wong to ld
him Ping wanted to give something for Madam Chiew’s costs must also be untrue
as was his recollection that he endorsed it so that they could get the money
for Madam Chiew. Accordingly, I find that at all material times Ping’s 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
judge’s 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 Justice’s decision.
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 prosecution’s own evidence, the case against
the accused was bound to fail. Willie Lim’s 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 donor’s instructions.
The appellant and Wong were innocent of any offence under s 421 and even if
the declaration verifying the accounts had been one to which s 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 respondents must pay the appellant’s 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,
had 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.
Cases Ratnam v Law Society of Singapore
[1976] 1 MLJ 195
Legislations Criminal Procedure Code (Cap 68, 1985 Ed): s.184, s.245,
s.247, s.252(3)
Judicial Committee Act (Cap 148, 1985 Ed): s.3(1)(a)
Legal Profession Act (Cap 161, 1985 Ed): s.80, s.95(6),
(8)
Penal Code (Cap 103, 1970 Ed): s.193, s.199, s.421
Rules of the Supreme Court 1970: Ord.41 r 5(2)
Supreme Court of Judicature Act (Cap 15, 1970 Ed):
s.44(1), s.60(1)
Statutory Declarations Act 1835 [UK]
Representations
Martin Thomas
QC (Robert Britton with him) for the
appellant (instructed by Penningtons Ward Bowie)
Robert Reid QC (SS Goh with him) for the respondent
(instructed by Linklaters & Painers)
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