THEODOROS KASSIMATIS KC v THE ATTORNEY-GENERAL OF THE REPUBLIC OF SINGAPORE & Anor

1 Mr Jumaat bin Mohamed Sayed (“Jumaat”), Mr Saminathan Selvaraju (“Saminathan”), Mr Datchinamurthy a/l Kataiah (“Datchinamurthy”), and Mr Lingkesvaran Rajendaren (“Lingkesvaran”) (collectively, the “Claimants”) were each accused of an offence under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”). They were each convicted at trial and sentenced to suffer the death penalty. Their respective appeals against their convictions were also dismissed.

2 The Claimants filed various civil applications. In one of the applications, the Claimants argued that ss 18(1) and 18(2) of the MDA are incompatible with the presumption of innocence and the Constitution of the Republic of Singapore (2020 Rev Ed) (the “Constitution”). The application was dismissed by the General Division of the High Court, and the Claimants filed an appeal against the High Court’s decision in CA/CA 2/2022 (“CA 2”). CA 2 was deemed withdrawn due to the Claimants’ failure to file the required documents in time. The Claimants then applied to reinstate the appeal and for an extension of time to file the required documents. The application was dismissed by a single judge sitting in the Court of Appeal. The Claimants filed another application in CA/SUM 16/2023 (“SUM 16”) for the full Court of Appeal to reconsider the matter, set aside the decision by the single judge, and reinstate CA 2.

3 The appellants, Mr Theodoros Kassimatis KC and Mr Edward Fitzgerald KC (collectively, the “Appellants”), applied for ad hoc admission to practice as advocates and solicitors of the Supreme Court of Singapore under s 15 of the Legal Profession Act 1966 (2020 Rev Ed) (the “LPA”) to represent the Claimants in CA 2 and SUM 16. The Attorney-General and the Law Society of Singapore objected to their admission.

4 In Kassimatis, Theodoros KC v Attorney-General and another and another appeal [2024] SGCA 36, the Court of Appeal held that the Appellants could not themselves address the court on the merits of their appeals.

5 This appeal concerned the substantive issue of whether the Appellants should be granted ad hoc admission under s 15 of the LPA to represent the Claimants.

6 In the assessment of whether foreign senior counsel should be admitted for the purposes of a given case under s 15 of the LPA, the court first considers whether the foreign counsel satisfies the requirements under s 15(1) of the LPA. Second, the court considers whether the case that the foreign counsel is seeking admission for involves any area of legal practice prescribed under r 32(1) of the Legal Profession (Admission) Rules 2011. If so, then the court must be satisfied that there is special reason to admit the foreign counsel (the “Special Reason Stage”). Third, if the mandatory requirements in the first two stages are met, the court will exercise its discretion and determine whether the foreign counsel should be admitted under s 15 of the LPA, having regard to the matters set out in s 15(6A) of the LPA read with para 3 of the Legal Profession (Ad Hoc Admissions) Notification 2012 (the “Notification Matters Stage”) (at [14] – [17]).

7 What amounts to a “special reason” is highly fact-specific, but the court highlighted three points in relation to the Special Reason Stage. First, when determining whether there is a “special reason” to admit foreign counsel, the factors that the court considers should not be the same factors that are referred to in the other two stages. Second, the fact that a case raises issues of public importance, would not, without more, satisfy the special reason requirement. Third, the mere fact that a question of law is complex will not satisfy the Special Reason Stage. If framed appropriately, most, if not, all, constitutional and administrative law questions will have significant complexity to them (at [39] – [45]).

8 In cases where the court must be satisfied that there is special reason to admit the foreign counsel, these arise in respect of areas of law that have a very significant domestic content. Presumptively, in those cases, local counsel would be best placed to assist the court. Thus, in cases where a foreign counsel seeks ad hoc admission to argue a point of law on which there has already been extensive litigation and case law, and where the merits of the underlying cause have already been ventilated, materiality will be a key consideration in determining whether special reason can be shown. This would typically require that some explanation be offered of what it is that has not been raised previously, that suggests that the admission of the foreign counsel is likely to lead to a line of argument not previously canvassed, that suggests that the state of the law as it has developed is wrong in some significant way, and that points to how this may reasonably have a bearing on the outcome of the matter for which admission is sought (at [38] and [46]).

9 It is undisputed that the case that the Appellants are seeking admission for involves constitutional law, which is one of the areas of law that requires “special reason” for their admission. The Appellants say that they seek admission to argue in the Claimants’ appeal in CA 2 that ss 18(1) and 18(2) of the MDA are incompatible with the presumption of innocence and the Constitution. First, various precedents run against the Claimants’ contentions. Second, while the Claimants seek a declaration that the presumptions in ss 18(1) and 18(2) of the MDA should be “read down and given effect as imposing an evidential burden only”, the Court of Appeal had already made clear in previous cases that the presumptions are evidential tools. Third, the presumptions in ss 18(1) and 18(2) of the MDA have been used together in several past decisions of the Court of Appeal, and this is suggestive of a marked difficulty in the Claimants’ arguments (at [47] – [49]).

10 Where there is reason to think that previous decisions may be wrong, it would be in the interests of justice for the court to correct them. But another aspect of the function of justice is finality. It is with this balance in mind, between finality on the one hand and ensuring that there is no miscarriage of justice on the other, that a key threshold for showing a special reason, at least in this type of case, is materiality (at [50] – [51]).

11 The Appellants face two hurdles in establishing a special reason. First, they will need to show how the many prior decisions on ss 18(1) and 18(2) of the MDA may be wrong. Second, they will also need to explain how, even if they are right that ss 18(1) and 18(2) of the MDA are unconstitutional, it could lead to the outcome that they are seeking. They did neither (at [52] – [53]).

12 This factor was not a cogent one in favour of the Claimants even if the Appellants could satisfy the Special Reasons Stage (at [59]).

13 The Claimants reached out to 17 local lawyers to seek representation. Even if some local lawyers could not represent the Claimants due to possible conflicts (both in the sense of scheduling and possible conflicts of interests), it was not apparent why not a single local lawyer was willing to appear on behalf of the Claimants, save for the explanation that the local lawyers who were approached and were not conflicted reached the view that there was no merit to the case (as alluded to by Mr Harpreet Singh Nehal SC and Mr Damien Chng) (at [57]).

14 If the Appellants believed that local lawyers were mistaken in their views on the merits of the case, then the Appellants should not only have explained this when seeking to establish that there was “special reason” to warrant their admission, but they could have attempted to persuade their local counterparts that, in fact, there were merits in the case, and that the local lawyers should therefore take up the engagement to represent the Claimants. The Appellants were better placed to explain to local lawyers why their assessment of the Claimants’ case was wrong. However, there is nothing to suggest that this was done, and they did not explain why (at [58]).