Week 10 - Prof Chen Siyuan PDF

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Week 10 Privilege Competence Compellability

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Privilege Unlike majority of exclusionary rules that exclude evidence on premise of irrelevance or unreliability, privilege operates to exclude evidence for wider public interest considerations. Justification for privilege derives from public interest it is designed to further or protect.

Forms of privilege EA: (1) Legal professional privilege (2) Without prejudice privilege (3) Privilege of judges, magistrates, and revenue officers (4) Matrimonial privilege (5) Privilege relating to production of title deeds by non-party (6) Privilege from producing documents which another person having possession could refuse to produce Common law: (1) Second principal form of legal professional privilege, Litigation privilege (2) Privilege against self-incrimination (3) Common interest privilege S 2(2) confirms the applicability of privileges at common la in the local context as long as such privileges are not inconsistent with EA Common law principles have also been adopted to develop statutory privileges recognised under EA Judicial creation of privilege - PP v Knight Glenn Jeyasingam o HC judicially created a form of privilege over representations made to AGC with view to consensual case disposal without trial. Reasoned that although s 23 applies only to without prejudice communications in civil matters, the policy of encouraging settlement in civil cases applies equally to the “consensual case settlement for criminal matters; accordingly, a purposive interpretations of s 23 would allow the court to extend that policy to criminal matters in accordance with the “will and intent of Parliament” -

Phyllis Tan o Court declined to follow Knight Glenn Jeyasingam and stated in obiter that the underlying policy of s 23 was to encourage settlement in civil cases and that it was not its purpose to accord a similar privilege to representations made in plea bargains in criminal cases, otherwise it would have said so. o Thus, doubt is cast on whether Knight Glenn Jeyasingam is still good law.

Is privilege a rule of evidence or substantive right? - In the case of LPP, major common law jurisdictions share the wider view that privilege is more than a rule of evidence – it is also a substantive legal right. - As a substantive legal right, LPP can be asserted in answer to any demand for documents by a public or other authority, not just in context of judicial proceedings. - However, most civil law jurisdictions still regard privilege as a just a procedural matter. - Position under SG law? o On appearance, they are no more than rules of evidence since s 2(1) expressly states that Parts I,II and III “shall apply in all judicial proceedings in or before any court, but not to affidavits presented to nay court of officer nor to proceedings before an arbitrator” o S 131 (provision that confers privilege on client (as opposed to legal advisor), speaks only of disclosure “to the court” o However, this would not necessarily exclude the application of common law LPP outside the realm of judicial proceedings since the existence of such a privilege may not be inconsistent with the provisions of EA and could thus be retained under s 2(2) o Yap Sing Lee v Management Corp Strata Title Plan No. 1267: HC applied common law rules regarding LPP to a non-judicial proceeding  Based its judgment on Skandinaviska Banken AB, Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd which expressly approved some of the landmark cases which espoused the view that LPP is a substantive legal right.

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However, note that Skandinaviska did not appear to have approved these cases specifically with regard to this point.

LPP -

Essentially on protecting communications between client and lawyer so that the client is less inhibited in his disclosures to his lawyer for the purposes of obtaining legal advice or litigation advice. 2 forms: o legal advice privilege:  lawyers need to know as much of the relevant facts as possible to give effective legal advice. LAP derives from public interest of enabling persons to obtain such effective advice and recognises that this requires absolute candour without fear that such disclosure can be compelled to his prejudice o litigation privilege  object is to ensure efficacy of adversarial process. concerned with creating a zone of privacy to allow a party to prepare for litigation without fear of adversarial interference or premature disclosure. Aspect of the right to fair trial.

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At common law, LAP applies to confidential communications between lawyer and client for the purpose of giving or receiving legal advice. LP applies to communications between a client or his lawyer and 3Ps in contemplation of litigation, provided that the use for the purpose of litigation is at least the dominant purpose of the communication.

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SG: o o

LAP is a statutory right enacted in s 128, s 128A and s 131. But, it is generally accepted that common law need to be referred to determine the scope of these provisions. LP not statutorily codified. Exists by virtue of common law.

Professional communications 128.—(1) No advocate or solicitor shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate or solicitor by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment. (2) Nothing in this section shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. (3) It is immaterial whether the attention of such advocate or solicitor was or was not directed to such fact by or on behalf of his client. Explanation—The obligation stated in this section continues after the employment has ceased. Illustrations (a)A, a client, says to B, a solicitor: “I have committed forgery and I wish you to defend me”. As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure. (b)A, a client, says to B, a solicitor: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication being made in furtherance of a criminal purpose is not protected from disclosure. (c)A, being charged with embezzlement, retains B, a solicitor, to defend him. In the course of the proceedings B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. -

“advocate or solicitor”: o Legal Profession Act: advocate and solicitor of Supreme Court o s 3(6) EA: includes a public officer in AGC when he acts as an advocate and solicitor

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s 128 imposes on lawyers a duty of non-disclosure in respect of communications made to them, provided that they are in the course and for the purpose of their employment. Includes

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Communication made to him in the course and for the purpose of his employment as such advocate or solicitor by or on behalf of his client, o document with which he has become acquainted in the course and for the purpose of his professional employment o advice given by him to his client in the course and for the purpose of such employment Although s 128 is couched in negative terms, the obligation is positive. A lawyer must claim privilege on his client’s behalf. If he does not, this is a breach of the legal profession rules and he may be open to disciplinary action. When a lawyer raises privilege, he is doing so on behalf of client. Thus, this means that it is also the client’s prerogative whether to waive privilege. If client chooses to waive, lawyer must make disclosure and cannot insist on raising privilege. Duty imposed in s 128 is to protect client, not lawyer. o

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A lawyer can also not raise privilege against his own client: Chi Man Kwong Peter v Lee Kum Seng Ronald Joint privilege: Foo Ko King v Foo Chee Heng o Lawyer acted for 2 clients jointly o Held that the privilege was a joint privilege and the lawyer was prohibited from disclosing any communications made by one or both of them in the course of his employment unless both of them expressly consented. However, prohibition would only be against disclosure to 3Ps, ie disclosure within lawyer-client r/s is possible CIFG Special Assets Capital I Ltd v Polimet Pte Ltd o No joint privilege will arise where the parties to the alleged joint retainer consult the lawyer on an individual and exclusive basis. Party will be able to maintain privilege against the other in respect of such communications.

Communications with legal counsel in entity 128A.—(1) A legal counsel in an entity shall not at any time be permitted, except with the entity’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal counsel, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his employment as such legal counsel, or to disclose any legal advice given by him to the entity, or to any officer or employee of the entity, in the course and for the purpose of such employment. (2) Nothing in subsection (1) shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any legal counsel in an entity in the course of his employment as such legal counsel showing that any crime or fraud has been committed since the commencement of his employment as such legal counsel; (c) any such communication made to the legal counsel which was not made for the purpose of seeking his legal advice; or (d) any document which the legal counsel was made acquainted with otherwise than in the course of and for the purpose of seeking his legal advice. (3) For the purposes of subsection (2)(b), it is immaterial whether the attention of the legal counsel was or was not directed to that fact by or on behalf of the entity. (4) Where a legal counsel is employed by one of a number of corporations that are related to each other under section 6 of the Companies Act (Cap. 50), subsection (1) shall apply in relation to the legal counsel and every corporation so related as if the legal counsel were also employed by each of the related corporations. (5) Where a legal counsel is employed by a public agency and is required as part of his duties of employment or appointment to provide legal advice or assistance in connection with the application of the law or any form of resolution of legal dispute to another public agency or agencies, subsection (1) shall apply in relation to the legal counsel and the second-mentioned public agency or agencies as if the legal counsel were also employed by the second-mentioned public agency or agencies. (6) For the purposes of subsection (5), “public agency” includes — (a) the Government, including any ministry, department, agency, or Organ of State or instrumentality of the Government; (b) any board, commission, committee or similar body, whether corporate or unincorporate, established under a public Act for a public function (referred to in this subsection as a statutory body); (c) any other board, commission, committee or similar body appointed by the Government, or by a statutory body, for a public purpose. -

S 128A added via 2012 amendments to extend s 128 duty of non-disclosure applicable to lawyers to legal counsel. This would include legal counsel employed by public agencies, ie govt, AGC and stat boards. However, note that s 128A only apply to communications made to legal counsel for the purpose of seeking his advice. Thus, if communications were made for any other purpose (ie legal counsel is consulted in executive or administrative role), the privilege would not apply.

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S 128A(4) extends privilege to communications between legal counsel of a Co and its related Cos defined under s 6 of Companies Act. Thus, communications between related LLP or a Co and related LLP are not protected. CIFG Special Assets Capital I Ltd v Polimet Pte Ltd o Recently confirmed the common law position which extends privilege to communications passing between a client and his foreign legal adviser applies in SG as there is no inconsistency as stated in s 2(2).

Confidential communications with legal advisers 131.—(1) No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others. (2) In subsection (1) and section 129, “legal professional adviser” means — (a) an advocate or solicitor; or (b) in the case of any communication which has taken place between any officer or employee of an entity and a legal counsel employed, or deemed under section 128A(4) or (5) to be employed, by the entity in the course and for the purpose of seeking his legal advice as such legal counsel, that legal counsel. -

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S 131 provides client with a corresponding right to refuse to disclose communications with his legal professional adviser. “legal professional adviser” defined in new s 131(2): “advocate or solicitor” or “legal counsel” where the communication is between “any officer or employee of an entity and a legal counsel employed” and is for the purpose of seeking his legal advice. Thus, duty of non-disclosure imposed on advocates and solicitors and legal counsel under s 128, 128A mirrors the client’s right to refuse disclosure under s 131. S 131(2) makes it clear that the statutory privilege does not apply to communications with foreign lawyers. Parliamentary debates clarified that the 2012 amendments were not meant to “affect privilege between foreign lawyers and their local clients” and that “remains to be dealt with by common law” o Re Duncan and IBM Corp v Phoenix International (Computers) Ltd: LAP may apply to communications with foreign lawyers. However, position is not straightforward and cogent arguments have been advanced as to why this holding should be reconsidered. o Remains an open question as to whether and to what extent SG courts will permit LAP to be claimed for communications with foreign lawyers

Duration of LPP LAP: - S 128, 128A “at any time” + expln: consistent with common law position that LAP subsists for all time. LP: - Not covered by s 128, 128A. Position is unclear. o Makes sense for LP to subsist for all time given the common law position and CA’s observation in Skandinaviska that the 2 privileges work together for the common cause of “secure and effective administration of justice acc to law” o However, since LP is premised on preserving efficacy of adversarial process, arguable that privilege shld cease to apply once adversarial process is over. o Could adopt intermediate position in Canada where privilege will continue after litigation that generated it is complete if related litigation is pending or anticipated.  Issue, however, is whether “related litigation” is defined broadly or narrowly. Is LPP absolute? - UK: since LPP is accepted as a substantive legal right, it is absolute, subject only to the possibility of it being waived or overridden by statute. It cannot be overridden by any alleged higher public interest: Three Rivers District Council v Bank of England (No 6) -

England

EA does not specifically address the issue of whether a person accused of a criminal offence is entitled to rely (for the purposes of defending himself) on a privileged communication between another person and his lawyer. The only stipulated situations which qualify the application of LAP include the client’s consent to disclosure (per s 128), his waiver of privilege (per s 130, s 131(1), a communication made in furtherance of an illegal purpose (per s 128(2)(a), or a fact observed by the lawyer in the course of his work revealing the commission of a crime after his appointment (per s 128(2)(b)). Thus, on a literal interpretation of these provisions, it can be assumed that the privilege is not subject to the interests of the accused person in defending himself. However, such a conclusion begs the question of whether LAP is so fundamental that it shld always override any concern about the conviction of an innocent person

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No less than 3 different approaches have been advocated. R v Barton: legal executive of a law firm who had been accused of fraud, theft and falsification of accounts was entitled to subpoena a partner of the firm to require him to produce privileged documents necessary to the defence. Case was described in the context of natural justice for the accused. However, no principle was formulated to be applied to the competing interests of the accused and the person claiming privilege. Principled approach in R v Ataou: held that privileged communications could be disclosed if the Df shows that there is no ground on which the client could any longer reasonably be regarded as having a recognizable interest in asserting the privilege. o Stated that the issue had to be determined by balancing the two competing public interests in protecting lawyer and client communications and the disclosure of relevant evidence

Prerequisites for LAP (a) Confidentiality (b) Employment o Communications, documents and advice passing between the lawyer and the client “in the course and for the purpose of his employment” o Consistent with English common law position that lawyer must have been consulted in his professional capacity. No requirement that litigation must be contemplated. o Minter v Priest: privilege can apply if the communications are made in circumstances where there was an intention to retain, and this wld be so even if retention did not eventually occur. o

o o (c) Client o

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Common law position difficult to square with s 128 wording, which accords privilege to communications made to lawyer “in the course… of his employment”  lawyer would only be regarded as having been employed only from the time of formal retention. Nevertheless, arguable that “employment” should be construed broadly to include communications necessary to include communications necessary to bring the r/s into existence, eg the initial consultation Wld be in line with the rationale of LAP, ie encouraging full disclosure of facts to lawyers so clients can have effective legal advice. Three Rivers District Council v Governor and Co of the Bank of England (No 5): adopted an exceedingly narrow meaning of “client” for LAP  Liquidators of BCCI sued Bank of England (BOE) on behalf of creditors after the Bingham Inquiry into the supervisory role of the BOE in the collapse of BCCI. BOE asserted privilege in communications with its lawyers in respect of preparing BOE’s submissions to the Bingham Inquiry.  COA held that only the Bingham Inquiry Unit, the unit set up by the BOE to deal with all matters relating to the inquiry, could be considered as the client. All other employees, even BOE’s Governor (who had appointed the BIU) were 3Ps to the lawyer-client r/s. Hence, it was held that documents prepared by employees of BOE and sent to BOE’s lawyers for advice in relation to its conduct did not fall within scope of privilege. Skandinaviska Enskilda Banken AB (CA)...