Lec 7 and 8 Rr With Court

Professional Responsibility Lectures 7 & 8 (23 Aug 04)Solicitor And His Relationship With/Duties To The Court 1. I) Overview LP(PC) Rules Part IV Rules 54-71 (+ R51)

Teo Wei Xian Kelvin

i. General Duty ii. Specific Duties a) Misleading Court by active misrepresentation b) Misleading ct by non-disclosure of facts and law (passive) c) Failure to comply with Court Order d) Solicitor as material witness e) Breach of undertaking to court f) Use of improper words/ disrespect to court g) Delays h) Statements to the press/media i) Conduct of court proceedings j) Non-professional relationships, threat to duty to court. k) Miscellaneous R68-71 II) Miscellaneous :- Practice Certs s32,33 of LPA

Observations: - Strong theme in recent judgments emphasising imptance of integrity, fact that this is noble profession, here to do justice ult, and that at al times we as solicitors and members of bar owe high duty in partr - judgement of justice VK rajah may 2005 Public trustee v by-product traders justice VK Rajah had cutting words to say about lawyers involved in tt case misconception tt lawyers are not meant to merely do what clients ask we are duty obund to serve the eternal, immutable interest of truth and justice sacred duty we shld uphold highest stds of our profession justice Andrew phang law soc of sg v ahmad khalis

overwhelming public interest in maintaining the dignity and honour of our profession

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held that our profession is noble one. We belong to a long and noble profession ult to serve ends of justice and fairness courts and public rely on us to ensure that in every cse justice is doen shld be no dichotomy bet ujustie as ideal and what happens in everyday practice they are not just ideals but we shld strive for them to ensure tt they are achieve not just woolly notions many lawyers epitomise the highest ideals of profession eg pro bono work (serving public where otherwise no access to lawyers) eg those who sign up for assigned counsel scheme to ensure that accused persons have best possible defence. Not deprived simply because canot afford

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ult, ethics goes to heart of legal practice and our profession do unto others as u wld have others do unto u => will be only few in series of more upcoming suc decisions

Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] SGHC 143 Facts: o Estate matter in which the Respondent had advised R who was the eldest son of the deceased. o There were 12 beneficiaries under the Estate. o The other beneficiaries had asked the Respondent if they could appoint a co-administrator. The Respondent informed them this would incurred additional costs but they did not have to sign a document renouncing their claim to be coadministrators. However, they did in fact sign the renunciation document.

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When the beneficiaries were asked to sign the consent document (dispensing with sureties to the administration bond) they did not receive a proper explanation of its nature nor was the Respondent present to witness its execution. R became the sole administrator. The Respondent then filed a transmission application causing R to become the sole registered proprietor of the property (which was the principal asset of the estate). The Property was then mortgaged. The Respondent acted for R and the bank in the mortgage. Remaining beneficiaries were unaware that R had become sold registered proprietor and of the mortgage. The money from the mortgaged was used by R for his own purposes. R fell behind in his mortgage payments and the bank sought to foreclose this was when the other beneficiaries came to know of the mortgage. The Beneficiaries lodged a complaint with the Law Society against the Respondent. 4 charges under sections 83(2)(b) and (h) of the Legal Profession Act for grossly improper conduct in discharge of his professional duty and conduct unbefitting an advocate and solicitor were preferred against the Respondent. Only 3 charges were ultimately proceeded with.

(i) failure to advise remaining beneficiaries to seek independent legal advice on the appointment of R as sole administrator of the Estate. (ii) false declaration and acknowledgement in the attestation clause of the consent document.

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(iii) subordination of the interests of the beneficiaries to the interests of R Court of 3 Judges found that

the Respondent was guilty of charges (ii) and (iii) and suspended him from practice for a period of 2 years.

very useful extract advice given by senior judge to young members of profession sir Thomas lan guiding principels of conduct only very highest conduct consistent with membership of profession

clients interests are paramount but u shld never do or agree to do anything dishonest or dishonourable even under pressure fr most valuable client shld consitently be frank with court, members of court where word pledged by yourself or by member of staff or team, shld honour that even at financial cost to yourself reputation is greatest asset sol can have, and when this is damaged, u damage the entire body of profession

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reputaitn is biggest asset that lawyer can develop not indiv skill as lawyer or powers in court but name u carry everytime u enter court precious! King Solomon gd name is far more precious!

Lawyers Duties in Part IV conduct of proceedings Rule 54: act in the best interest of his/her client Rule 55: courtesy towards Court Rule 56: cannot mislead or deceive the Court or others associated with Court proceedings Rule 57 Conduct of proceedings in clients interest 54. Subject to these Rules, an advocate and solicitor shall conduct each case in such a manner as he considers will be most advantageous to the client so long as it does not conflict with the interests of justice, public interest and professional ethics. Duty to Court 55. An advocate and solicitor shall at all times (a) act with due courtesy to the Court before which he is appearing; (b) use his best endeavours to avoid unnecessary adjournments, expense and waste of the Courts time; and (c) assist the Court in ensuring a speedy and efficient trial and in arriving at a just decision. Not to mislead or deceive Court 56. An advocate and solicitor shall not knowingly deceive or mislead the Court, any other advocate and solicitor, witness, Court officer, or other person or body involved in or associated with Court proceedings. Clients perjury or fraud

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57. If at any time before judgment is delivered in any case, an advocate and solicitor becomes aware that his client has committed perjury or has otherwise been guilty of fraud upon the Court, the advocate and solicitor (a) may apply for a discharge from acting further in the case; or (b) if required to continue, shall conduct the case in such a manner that it would not perpetuate the perjury or fraud. Duty to cease to act 58. An advocate and solicitor shall cease to act for a client if (a) the client refuses to authorise him to make some disclosure to the Court which his duty to the Court requires him to make; (b) the advocate and solicitor having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery, the client fails forthwith to disclose it; or (c) having come into possession of a document belonging to another party by some means other than the normal and proper channels and having read it, he would thereby be embarrassed in the discharge of his duties by the knowledge of the contents of the document. Facts, arguments and allegations 59. An advocate and solicitor shall not contrive facts which will assist his clients case or draft any originating process, pleading, affidavit, witness statement or notice or grounds of appeal containing (a) any statement of fact or contention (as the case may be) which is not supported by his client or instructions; (b) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonable credible material which as it stands establishes a prima facie case of fraud; or (c) in the case of an affidavit or witness statement, any statement of fact other than the evidence which in substance according to his instructions the advocate and solicitor reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given orally. Rule 58: a) Clients refusal to authorize his counsel to make disclosure of a matter, which his duty to the Court requires b) Refusal make disclosure of a document c) Possession of material whose contents will embarrass an advocate and solicitor Rule 59: not to contrive facts Rule 60: a) Take personal responsibility of the conduct of proceedings b) Not to allow personal opinion or feelings c) Disclose to Court all relevant decisions d) Not to make submissions contrary to the law e) Not to concoct evidence or facts f) Not to make allegations against witnesses g) Have reasonable grounds to support an allegation Rule 61: not to make statements or make questions which are scandalous Rule 62: duty not to communicate with witness on his evidence Rule 63: duty not to communicate privately with a judge/the Court without communicating it to all other interested parties Rule 64: duty not to accept instructions or continue to act in a case on which he is likely to be a witness Rule 65: cease acting because of personal relationship with a client or the Court Rule 66: no property in a witness Rule 67: Statements given to the press or media must not amount to a contempt of court or be calculated to interfere with the fair trial Rule 68: payments allowed to be made by an advocate and solicitor to a witness Rule 69: in a letter of demand, a solicitor can only recover what is due under the law Rule 70: unless 48 hours notice is given 1) first amendment is a change to the notice period from 48 hours to 2 clear days second is that the two clear days notice to be given to an advocate and solicitor is only applicable in 2 situations: firstly, before entering judgment in default of defence and

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2)3) 4) 5) 6) 7) -

secondly, before setting a divorce petition down as uncontested as an answer has not been filed within the prescribed time (Councils Practice Direction) Council has ruled that the two clear days notice can only be given after the lapse of the 14 days provided by the relevant rules to file a defence o an answer and not earlier Rule 70 does not apply in cases where the time limits are set by an order of court (see Rules 70(1) and (3)) Cannot require another advocate and solicitor to give 2 clear days notice before taking action for not complying with an order of court Undesirable practice in giving fellow advocates and solicitors notice after working hours and deeming that the 48-hour notice period starts to run immediately thereafter Provides that any notice given on a working day after 4pm or on a day other than a working day shall be deemed to have been given the next working day (see Rule 70(2)) working day is defined to exclude Saturday, Sunday or public holiday (see Rule 70(4))

Rule 71: an opportunity to answer the allegation Scandalous or annoying statements or questions 61. In all cases, an advocate and solicitor shall (a) not make statements or ask questions which are scandalous or intended to insult or calculated only to vilify insult or annoy either the witness or any other person or otherwise an abuse of the function of the advocate and solicitor; and (b) exercise his own judgment both as to the substance and the form of the questions put or statements made. No communication with witness under cross-examination 62. (1) An advocate and solicitor shall not interview or discuss with a witness, whom the advocate and solicitor has called, his evidence or the evidence of the other witness while such witness is under crossexamination. (2) Paragraph (1) shall not prevent the advocate and solicitor from communicating with his client for any purpose necessary to the proper management of the matter being handled by him or his law firm or a law corporation of which he is a director or an employee. Communication with Court 63. (1) An advocate and solicitor representing an interested party shall not initiate communication with the Court about the facts, issues or any other matter in a case that the advocate and solicitor knows is pending or likely to be pending before the Court unless the advocate and solicitor has first informed the persons acting for all other interested parties of the nature of the matters he wishes to communicate with the Court and has given them an opportunity to be present or to reply. (2) If an advocate and solicitor has communicated with the Court regarding the issues in a case in the absence of the person acting for the other party, the advocate and solicitor shall fully inform that person of such discussion at the earliest opportunity. Solicitor not to act if he is a witness 64. (1) An advocate and solicitor shall not accept instructions in a case in which the advocate and solicitor has reason to believe that he is likely to be a witness on a material question of fact. (2) An advocate and solicitor shall discharge himself from representing a client if it becomes apparent to the advocate and solicitor that he is likely to be a witness on a material question of fact. (3) In discharging himself, the advocate and solicitor shall take all reasonable steps to ensure that his clients interest is not in any way jeopardised. Relationship with client or Court 65. An advocate and solicitor shall not appear before a Court in a matter where (a) by reason of his relationship with the client it would be difficult for the advocate and solicitor to maintain his professional independence; or (b) by reason of his relationship with the Court or a member thereof the impartial administration of justice might appear to be prejudiced. Interviewing of witnesses 66. Subject to rule 63, an advocate and solicitor may interview and take statements from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by another party to the proceedings except that if the advocate and solicitor is aware that the witness has been called or issued a subpoena to appear in Court by the other party to the proceedings, he shall inform the advocate and solicitor of the other party or the prosecution in criminal proceeding, as the case may be, of his intention to interview or take statements from the witness.

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Statements to press or media 67. An advocate and solicitor shall not give a statement to the press or media whether on behalf of the client or otherwise, which may amount to contempt of Court or which is calculated to interfere with the fair trial of a case which has not been concluded. Payments to witnesses 68. An advocate and solicitor shall not make or offer to make payments (other than the allowable disbursements and expenses the witness is entitled to under the law) to the witness contingent upon the nature of the evidence given or upon the outcome of a case. Letter of demand 69. An advocate and solicitor shall not, in his letter of demand, demand anything other than that recoverable by due process of law. Entering judgment by default 70. (1) An advocate and solicitor shall not enter judgment by default pursuant to the Rules of Court (Cap. 322, R5) against any other party who is on record represented by another advocate and solicitor, or take any advantage of any delay in filing pleadings unless written notice of his intention to do so has been given to the other advocate and solicitor and 2 working days have elapsed after service of such notice. (2) Any notice under paragraph (1) given on a working day after 4.00 p.m. or on a day other than a working day shall be deemed to have been given on the next working day. (3) This Rule shall not operate to extend the time stipulated by any Order of Court for any action or step to be taken and no notice need to be given under this Rule before any action or step is taken upon any failure to comply with any such Order of Court. (4) In this rule, working day means any day other than a Saturday, Sunday or public holiday. Allegations against another solicitor 71. (1) An advocate and solicitor whose client has given instructions to include in an affidavit to be sworn whether by the client or his witness, an allegation made against another advocate and solicitor, shall give the other advocate and solicitor an opportunity to answer the intended allegations. (2) In such a case, the answer of the other advocate and solicitor shall be included in the affidavit before the same is deposed to, filed and served. Public Trustee v By Products Traders Pte Ltd [2005] 3 SLR 449: duty not to mislead the court (Rule 56) is a long-standing and incontrovertible obligation Not to mislead or deceive Court 56. An advocate and solicitor shall not knowingly deceive or mislead the Court, any other advocate and solicitor, witness, Court officer, or other person or body involved in or associated with Court proceedings. advocate and solicitor is expected to make all plausible honest endeavors to further his clients cause, he should not mislead the court on either the facts or the law Public Trustee - Facts The estate of the deceased (the Estate) was left with 29 properties (the properties) to administer. The properties were vested in the Public Trustee (PT) as appointed trustee of the deceaseds will. On 30 July 2002, it was determined that only 14 beneficiaries were entitled to the properties, including six beneficiaries purportedly represented by the fifth and sixth respondents (Musa and Salim respectively) (the determination of 30 July 2002). The PT was also granted the power to sell the properties, but was not to make any payment to any of the beneficiaries without leave of court. The properties were subsequently sold and the sale proceeds paid into court. On 12 July 2004, the PT sought an order to sanction an interim distribution of the net proceeds of the sale of the properties amongst the 14 beneficiaries. The distributive shares of the six beneficiaries purportedly represented by Musa and Salim, which amounted to $4,595,350.38, were ordered to be paid into court, whilst the remaining distributive shares of the other beneficiaries were directly paid out. This was because the first and second respondents (BP and Broadley respectively) and others had competing claims to the sum vis--vis the six beneficiaries purportedly represented by Musa and Salim. Some of the competing claims arose from the fact that the fourth respondent (JAK) had purportedly entered into sale and purchase agreements with Musa and Salim for their interest in the properties. Pursuant to these agreements, JAK allegedly paid Musa and Salim approximately $4.2m, most of which was provided by BP and Broadley to whom JAK sold the properties in a sub-sale. Upon the determination of 30 July 2002 that Musa and Salim did not hold 100% of the beneficial interest in the Estate, JAK sued Musa and Salim for the purported breach of an agreement to sell the properties to it (the JAK Suit). JAK obtained judgment in default of appearance (the default judgment) in the sum of $4,270,096

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against Salim on 14 January 2003. On the basis of the default judgment, JAK applied in October 2003 to garnish part of the sale proceeds received by the PT (the garnishee application), pursuant to the determination of 30 July 2002 that the six beneficiaries represented by Musa and Salim were entitled to a proportion of the estate. The PT and the other interested parties objected to this application. The application was dismissed. On 13 September 2004, solicitors for JAK (Ms Norain and Ms Tan) made an application in the JAK Suit for payment out of a sum of $4,270,000 from the moneys earlier paid in the other proceedings involving the PT. This application was made without any notice to the other interested parties. The assistant registrar hearing the application acceded to the payment out of court. Upon discovering that payment out had been made, the solicitors for BP and Broadley applied for the return of the moneys paid out. Held, allowing the applications: (1) The respondents, including JAK, and their solicitors were aware that the payment into court of the sum of $4,595,350.38 was made in order to defer payment to any of the competing claimants pending a proper determination of rights to these moneys: at [37]. (2) All interested parties, including JAK, Musa and Salim, as well as their solicitors, were clearly signalled that no further payment out of the court-held moneys ought to have been made without proper notice to the other interested parties: at [38]. (3) JAK, in support of its application for payment out of court, was conspicuously economical with the relevant facts. Although both Ms Norain and Ms Tan were aware of the crucial facts and material circumstances, they nevertheless omitted to bring them to the courts attention. The audacity of JAK and its solicitors in making the 13 September 2004 application in the JAK Suit without notice to the other interested parties left one speechless. Had the assistant registrar been notified of the material and relevant facts, she would not have sanctioned the payment out of court: at [40], [41], [43] and [44]. (4) Both JAK and its solicitors, by wilfully suppressing material facts and information, perpetrated a fraud on the court by applying for and obtaining the payment out of court of the sum of $4,270,000 plus interest amounting to $9,827.16. The release of the sum in question should never have been made from moneys paid into court in altogether different proceedings without prior notice being duly given to all the interested parties. It was not only preposterous but inconceivable that an order should have been made in the JAK Suit for the payment out of moneys paid into court in this originating summons, given that the two proceedings involved parties who were distinct and disparate and who were in any event being sued in different capacities: at [45]. [Observation: A solicitors duty not to mislead the court was crucial. The reputable badge of an officer of the court should never be compromised on the pretext that one was acting in the clients best interests. The solicitors obligation was to pursue his clients interests only in so far as it did not compromise or interfere with the administration of justice: at [27], [31] and [36]. Ms Norain and Ms Tan willingly subordinated and/or wilfully ignored and relinquished both their obligations of candour to the court and their duty to place all material facts before the court. After conniving with their clients for the release of the subject moneys, they continued to appear in court without disclosing to the court that its subsequent directions in relation to the payment out of the fund would be wholly ineffectual. The conduct of Ms Norain and Ms Tan would be referred to a disciplinary committee pursuant to s 85(3) of the Legal Profession Act (Cap 161, 2001 Rev Ed), as would the conduct of one Mr Chua, counsel for Musa and Salim: at [47], [49] and [50].] without misleading the court he is entitled to present his clients cause in a manner which is most favourable or advantageous to the client misleading or deceptive conduct can be passive or active or a combination of both it is passive when material facts are concealed and/or there has been economy with the truth active when untruths are deliberately articulated and/or facts misrepresented the solicitors duty of candour to the court in any given matter is indivisible, uncompromising and enduring if a client insists on a course of action which is inimical to the prevailing professional standards prescribed for or expected of a solicitor, that solicitor has no option but to discharge himself from the matter: rule 58 Duty to cease to act 58. An advocate and solicitor shall cease to act for a client if (a) the client refuses to authorise him to make some disclosure to the Court which his duty to the Court requires him to make; (b) the advocate and solicitor having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery, the client fails forthwith to disclose it; or (c) having come into possession of a document belonging to another party by some means other than the

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normal and proper channels and having read it, he would thereby be embarrassed in the discharge of his duties by the knowledge of the contents of the document. - solicitors qua officers of court have an absolute and overriding duty first and foremost to the court to serve pubic interest by ensuring that there is proper and efficient administration of justice - touchstone in Rules 60(c) and (e) is the knowledge of the advocate and solicitor of the relevant decisions, legislative provisions, case law, etc that impinge on his/her submissions or propositions Conduct of Court proceedings 60. An advocate and solicitor when conducting proceedings in Court (c) shall inform the Court of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues; (e) shall not advance submissions, opinions or propositions which to his knowledge is contrary to the law; Koh Soon Pheng v Tan Kah Eng [2003] 2 SLR 538: Higher onus on counsel than stated in those Rules ensure that all authorities that they cite, represent the current state of the law as the date of the citation. Before submitting on the law, counsel must check that whatever passage they find particularly attractive in any particular decision has not been reversed or even critically commented on by subsequent judicial authority. The older the authority, the more careful counsel must be to ensure that the legal principles it establishes still stands. The error could have been avoided if reference to a standard textbook had been made. Facts The plaintiff was seriously injured in a road traffic accident. Interlocutory judgment was entered against the defendant for 90% of the damages to be assessed. The assistant registrar awarded to the plaintiff, inter alia, $73,495.75 for pre-trial loss of earnings and $180,000 for loss of earning capacity. The loss of earnings was calculated by taking the average of the plaintiffs total earnings for the five years preceding the accident. The plaintiff appealed against the award of pre-trial loss of earnings because his income had been on the increase and it would have continued to increase but for the accident. He also appealed that he should have received an award on the ground of loss of future earnings and not on the ground of loss of earning capacity. Held, allowing the appeal in part: (1) Taking the average of the total earnings over the five years prior to the accident was not the correct method of calculating the plaintiffs loss of earnings. To achieve a more accurate picture of the earning potential of the plaintiffs business, the better method was to discard the highest and lowest earnings figures and take the average of the remaining earnings figures: at [8] and [12]. (2) As there was a reasonable prospect that the plaintiff would be able to improve his business even further, an award of loss of earning capacity, rather than loss of earnings, was proper: at [18] to [19]. [Observation: Counsel has a duty to place before the court all matters relevant to the courts decision and to ensure that all authorities that they cite represent the current state of the law as at the date of citation: at [22].] 1.2 General Principles

Legal Proff PC Rules Part Iv (Conduct Of Proceedings) Rules 54-71 - The General Guiding Principle is TRUTH. i.e. One has to stay within the rules of the game, to show the truth of the matter, if it is within the knowledge of the solicitor. Two facets of TRUTH (or the withholding of it) are relevant

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i) LAW if one knows the authority, one has an obligation to cite it to the ct. ii) FACTS if one knows of certain facts, then obligation not to mislead ct as to those facts.

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GENERAL DUTY General Statement of Duties is set out in R55 LP(PC)R

Rule 55: Duty to court 55. An advocate and solicitor shall at all times (a) act with due courtesy to the Court before which he is appearing; (b) use his best endeavours to avoid unnecessary adjournments, expense and waste of the Courts time; and (c) assist the Court in ensuring a speedy and efficient trial and in arriving at a just decision.

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read with the second half of R54 justice, public interest and professional ethics. This implied duty to the court to maintain the above is vis--vis the duty to the client, and overrides (so long as it does not conflict) the duty to the client.

Rule 54: Conduct of proceedings in clients interest 54. Subject to these Rules, an advocate and solicitor shall conduct each case in such a manner as he considers will be most advantageous to the client so long as it does not conflict with the interests of justice, public interest and professional ethics.

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Ie balancing ex, client interest never paramount there are qualifications Shaw & Shaw v Lim Hock Kim (No 2) [1958] 1 MLJ 129

Solicitor is under an obligation of frankness (to tell the truth). It is his duty to (i)be accurate in presentation of facts; and (ii)call attention of ct to any law clearly against him. an advocate should be fearless in carrying out the interest of his client, he is, as an officer of the Court under an obligation of frankness and candour founding that confidence reposed by the Bench in the Bar. He [an advocate] is also under obligation to be careful to display accuracy in his presentation of facts and it is his duty to call the attention of the Court to any case or statute which is clearly against him. He wields the arms of a warrior and not of the assassin.

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SPECIFIC DUTIES

A) MISLEADING THE COURT BY ACTIVE MISREPRESENTATION Note that this is a negative duty rather than a positive one. Hence the rules do not say that a solicitor has to offer to tell court about a fatal fact or confession, only that he cannot do anything to mislead (R56), contrive facts(R59), or concoct facts in court(R60). Rule 56: Not to mislead or deceive Court 56. An advocate and solicitor shall not knowingly deceive or mislead the Court, any other advocate and solicitor, witness, Court officer, or other person or body involved in or associated with Court proceedings. The element of personal knowledge is an ingredient in R56, so it may be a defence against malpractice to say that one does not know of the fatal fact. In the absence of other phrases such as reasonably know; and to deceive or mislead being serious allegations of iniquity, it seems actual knowledge rather than constructive knowledge is required; although there may be enough iniquity in Nelsonian knowledge for a breach of R56.1

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In re a Solicitor [1953] MLJ 161

Lawyer(L) had a vendetta with prosecution because the PP delayed trial with an adjournment, so he wanted to do the same to the PP. L knew the prosecution wanted a certain witness to testify. On the day of trial, L brought the witness, but left him waiting in a parked motorcar some distance from the Court. L told the court that the witness had not been subpoenaed, and he was not wanted by the PP. Disciplinary committee found that L was grossly guilty of improper conduct in deliberately keeping witness away from the PP. L was suspended for 3 years.

Rule 59: Facts, arguments and allegations 59. An advocate and solicitor shall not contrive facts which will assist his clients case or draft any originating process, pleading, affidavit, witness statement or notice or grounds of appeal containing (a) any statement of fact or contention (as the case may be) which is not supported by his client or instructions; (b) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonable credible material which as it stands establishes a prima facie case of fraud; or (c) in the case of an affidavit or witness statement, any statement of fact other than the evidence which in substance according to his instructions the advocate and solicitor reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given orally.

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Hereinafter,

s are IMHO in my humble opinion.

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The 1st limb (shall not contrive facts) overlaps with R56 and R60, but applies only to facts. In the light of the 2nd limb, it is likely that this is usually used for written docs. The 2nd limb (or draft any. containing) goes into specific facets, but only applies to written arguments/documents (a), (b) and (c) explicitly give primacy to clients instructions. (i.e. the lawyer is a mere mouthpiece of the client). Note however (b) also requires the lawyer to have reasonable credible material in support of fraud, since it is a serious allegation. There is a fine line between telling that client that things must have happened in a certain way, where the solicitor is just trying to jock the clients memory; and helping client to invent facts to fill in blanks in his story. The latter is obviously wrong.

Therefore the solicitor should keep clear documentary records of communications with client, just in case he needs prove clients instructions or his reasonable belief. Lee Kuan Yew & ors v J B Jeyaratnam (CA) JBJ represented Tan Liang Hong (TLH) In TLHs affidavit, set out why Justice Lai Kew Chai should not hear the case allege that there are grounds (pertaining to property) on which Justice Lai may be biased Counsel for LKY argued that JBJ should not have drafted affidavit since he knew that TLHs statements were malicious and without basis; Submitted that this in fact was wasting courts time and expense. Case was referred to the Law Society. But before the Law Society prosecuted, judgment was made and it ceased to prosecute *Held: JBJ had done nothing wrong, since it did not amount to a judging of the truth or falsity of what his client has said. However, as solicitor, if knew that clients statements were without basis/ credible material, then he should not have drafted the affidavit (should also advise client on this, upon such knowledge) NB: Rules of Court rule against scandalous assertions (O18R19) can be struck off rolls if in breach. (covered in LP(PC) R61? ROC doesnt say this.) Rule 60: Conduct of Court proceedings 60. An advocate and solicitor when conducting proceedings in Court (f) shall not concoct evidence or contrive facts which will assist in advancing his clients case;

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ie never fight at the expsne of truth and justice Lawyer is not obliged to judge/disbelieve client (i.e. lawyers Personal Opinion is irrelevant). He can choose to believe client, and in that situation client is the one who concocts the story. Lawyer can warn/point out to client that the story doesnt quite run, but ultimately he has to accept clients instructions and run it anyway, or discharge himself etc. See also R72, in criminal cases, where explicitly instructions > personal opinion.

Rule 72: Defending accused regardless of personal opinion 72. Subject to these Rules, an advocate and solicitor shall defend any person on whose behalf he is instructed on a criminal charge irrespective of any opinion which the advocate and solicitor may have formed as to the guilt or innocence of that person. Deception of Court

Deception of court amounts to criminal contempt: Coxe v Ohillips [1736] Lee temp Hard 237, affirmed in R v Weisz, ex p Hector Mac Donald Ltd [1951] 2 KB 611. Tara Rajaratnam v Datuk Jagindar Singh [ 1983] 2 MLJ 127, per Abdul Razak J: a party to a fraud conducting his case so as intentionally to deceive the court and a solicitor deceiving the court, was acting in contempt in the face of the court. Condition to be satisfied :- Meek v Fleming [1961] 2 QB 366 police brought action disciplined, senority reduced becase he wa party to arrangement in another matter ti deceive court of law inspector solicitor knew that discp body had taken action, that client had been disciplined, but held fact fr court everything he did, made sure that this was held back impression he left with ocurt and jury was that his client remained high ranking offier of unblemished reputation

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Materials on which or in relation of which the court has been deceived must be material in the sense of being directly relevant to an issue in action.

Meek v Fleming was referred in Cheah Cheng Hoc v PP [ 1986] 1 MLJ 299

Examples of deception of Court (Cases)

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Re Elsam [1824] 3 B & C 597 Testator left will what meaning to be ascribed to it? Parties unsure, no real fight yet But lawyer then filed fictitious suit parties fictitious; action was suti on agreement of sale of some properties Pruspoe was to get opinion fr court abt terms of agreement and what they meant Dishonest! If no fight, then no If not entitled to opinion fo court on advisory basis then drop it, cannot concoct

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advocate who presented a fictitious statement of facts found guilty of criminal contempt.

Dr Leela Ratos v Anthony Ratos s/o Domingos Ratos [ 1977] 1 MLJ 704 Client wanted adjournmemt lawyer contrived excuses Delib misleading conduct frowned upon by court

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advocate sets out to mislead the Court into granting an adjournment.

Tara Rajaratnam v Datuk Jagindar Singh [1983] 2 MLJ 127 Sol assisted plaintiff in deceiving court, false affidavits filed Definite prohibiton

Defendant solicitors assisted plaintiff into deceiving the Court into believing that the Defendant was the rightful owner of the land in question Affidavits were submitted to the court affirming to that effect.

Cheah Cheng Hoc v PP [1986] 1 MLJ 299 The Malaysian Supreme Court accepted that the Court had power to punish as contempt any misuse or abuse of the courts process, for example, in forging or altering court documents or committing other deceits of the kind or deceiving the Court by deliberately suppressing a fact or giving false facts.

Public Trustee and another v By Products Traders Pte Ltd and others [2005] 3 SLR 449 Facts: Js solicitors, surreptitiously filed a Summons in Chambers for the payment out of a sum of $4,270,000 from the moneys earlier paid in by the Public Trustee. Inexplicably, the application was not served on the solicitors for any of the other interested parties, including the Public Trustee. Although Js solicitors were aware of the crucial facts and material circumstances, they nevertheless omitted to bring them to the courts attention. Had the Assistant Registrar been notified of the material and relevant facts (the earlier unsuccessful garnishee application made against the Public Trustee, the findings of another Assistant Registrar in an earlier application for default judgment, the other competing claims and the circumstances necessitating the payment into court), she would not have sanctioned the payment out of court. estate involved left large no of property public trustee appted to rep estate all in, 14 beneficiaries, of these, 6 of them represented by two, also parties to action disagreement bet some over who was entitled to sales proceeds Judith prakash J made order that PT entitled to sell, all proceeds to be paid in court, and no money to be paid out to benef whtout leave of court This was done The two reps they claimed 6/14 share of sales proceeds With respect to this, diff claimants Two reps claiming it

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JAK another party said tt this was theirs becase 2 reps had sold their interest in property to them; stepping into their shoes Bp traders also claimed this JAK said they had sold property in subsale to them So all sorts of competing claims to the monies Purpose behind Prakash order was clear no one to touch money until court determined who was rightfully entitled Sep litigation therefore began Main litigation poreprty sold, etc, monies paid into court (the Originating summons) Sep skirmnish JAK sued two reps claimed they ahd warranted that they owend the properties, sold for 12 million, have paid 4.2 million as deposit, so clearly, representation false, sufferd damages, so sued for damages Succeeded in getting default judgement Then tried to garnish moneys in court filed actual applciatin saying that entield t monies, but failed Assistant registrar capacity of suing two reps is diff fr capacity of entilement to th monies BP traders sued JAK subsale so sued for damages because subsale cld not go through In meantime, one of 6 benef applied to court asking for share to be paid directly to him, then sesocnd one also applied for this. Said that 2 reps x represent them Contemporaneously, JAK applied to court In earlier suit, applied for payment out of monies (default judgement) Def to tt suit was two reps JAK lawyers applied and saw duty registar on urgent basis wanted applic to be heard urgently, reason being that 2 reps had Indonesian lawyers, in town, wanted to dispose of this quickly before going back. Also said hter side not disputing Both sets of lawyers appeared No pther party given notice Registrar merely told that JAK has default judgment, there are monies in court, other side not objecting Other side lawyers said no instructions to obj Court told nth else Over 4 million dollars paid to JAK All of JAKs creditors then paid, monies dissipated Among the funds paid out, 200 000 paid out to lawyers for their outstanding legal fees for work done for past 2 yrs In meantime, one of 6 benef appeared before vk rajah All parties appear Rajah J ordered that benef share shld be paid directly to benf At no time told that the 6/14 share already paid out JAK objected But overruled and ordered tat monies be paid out to benef Court again not told that order useless because monies already paid out Eventually, discovered Rajah J Asked JAK lawyers to explain 1. whether order by prakash tt monies not to be paid out to benef without leave of court o lawyers said restriction against public trustee and not against them 2. why ex parte o said not ex parte because 2 reps counsel present o this in fact disregarded fact tt there were other parties, surreptioutly went to court, and got monies paid out!!! The final prob read judgement - Commented 1 2. lawyers knew tt there was order tt monies paid out because of competing claims, but these not drawn to court or assistant registrar attention 3. no notice to other party tt this was effected

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4. when appeared before jstuice rajah again in application for benef money, these facts not told to court again in frankness and openness tt monies paid out and no pt making such orders 5. what is troubling abt case is tt ult, when mnies paid out, JAK was bankrupt, real parties entitled to funds enver received monies and wld never see it person in control of JAK himself a bankrupt see judgment extracts - Per V K Rajah J.

para 26 All solicitors are officers of the court: see s 82(1) of the Legal Profession Act (Cap 161, 2001 Rev Ed). The label officer of the court goes well beyond being a catchy or fancy turn of phrase. By definition it presupposes and connotes that those so appointed have obligations and responsibilities in upholding the legal framework (see my observations in Re Econ Corp Ltd (No 2) [2004] 2 SLR 264

o o

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One of most crucial duties is duty NOT TO MISLEAD THE COURT While sol expected to make all honest endeavours tofuther clients cause, shld not mislead court on facts of law; then entitled to make case most fav or adv to client Misleading or deceptive conduct cnabe passive or active or combi of both Passiv when material facts concealed or economy with the truth With braod spectrum of actibity, ptless to attempt to exhaustively define it Reputable badge of officer of court x be compromised on pretext tt acting oin cients best interest Lawyers may be conflicted bet duty to client and to court on other But usu clear demarcation when such tension arise to court Conclusion There is a common misconception among many a lay person that a solicitor, once engaged, becomes the proverbial cats paw who is then duty-bound to ensure success on his clients behalf by hook or by crook. Nothing can be further from the truth. A solicitor is not a malleable tool who can be stretched or strained at will to fulfil a clients goal. He is first and foremost a statutory officer of the court who has an obligation to discharge each and every one of his duties within the parameters of the law and established standards which are nothing less than sacrosanct. In Rondel v. Worsley at 227, Lord Reid helpfully provided a succinct overview of the responsibilities of an officer of the court: [A]s an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his clients wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. The courts are legitimately entitled to expect solicitors appearing before them to be candid and conscientious. The duty of candour warrants a solicitor, in the absence of any legitimate issues relating to solicitor-client privilege, drawing to the courts attention all material facts that may have a bearing on the courts determination of a matter if there is reason to believe that the court has not already been apprised of them. In addition, solicitors must never mislead or deceive a court whether actively or passively. That is not all. Solicitors are further expected and required to generally assist the court in its functions to achieve justice. For example, solicitors are expected to draw the courts attention to the existence of all relevant adverse legal authorities, notwithstanding that the same authorities may prima facie undermine their clients case. It is axiomatic that the plea of acting in the best interests of a client can never condone any breach of the obligation of candour that every solicitor owes to the court qua officer of the court. Solicitors must exercise practical and deliberative wisdom and restraint in striking a prudent and pragmatic balance between ethics and expediency. Ethical rules and conventions can never exhaustively prescribe or proscribe standards of professional conduct. Using established standards as basic guides, solicitors must draw on their own internalized moral compasses to guide them through the myriad of conflicting priorities they have to regularly address and make in practice. As officers of the court, solicitors have to continuously, vigilantly and discerningly evaluate their relationship with the court while pursuing their clients interests

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In the final analysis, solicitors, as officers of the court, must in their dealings with the court, acknowledge that their obligations to the court reign supreme, over and above their clients and their own interests

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...Solicitors must aid and assist, and never impair the courts ability to discharge its impartial adjudicatory responsibilities. They must recognize and affirm that the practice of law is not an amoral business geared purely towards the pursuit and satisfaction of private ends. o Rajah J whether catalyst for actions was tt lawyers own bills not paid, and knew tt client cld nt pay The lawyer who had no objn to payment also referred to law soc => Shocking how far cases can come do not forget that ult not just abt client but also about the court and ensuring tt no dishonourable conduct

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B) MISLEADING THE COURT BY NON-DISCLOSURE OF FACTS AND LAW

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See Rule 56 (above pg 2) again. Note however despite what it seems on the face to be a positive duty to tell the truth, this is NOT so. Because of the paramouncy of solicitor/client privilege, a solicitor CANNOT offer to tell the court of his clients guilt. See also Rule 74 when defending accused persons. Solicitor should continue to act, but shall not set up case inconsistent with confession.

Rule 74: Confession by client 74. An advocate and solicitor to whom a clear confession of guilt has been made by a client (a) may, if the confession is made before the proceedings have commenced; or (b) should, if the confession is made during the proceedings, continue to act but shall not set up an affirmative case inconsistent with the confession by, for example, asserting or suggesting that some other person committed the offence charged or calling evidence in support of an alibi. 6 facets covered below i) Duty to cite or draw the courts attention to all relevant decisions and legislative provisions Rule 60 (c): Conduct of Court proceedings 60. An advocate and solicitor when conducting proceedings in Court (c) shall inform the Court of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues; Better off dealing with adverse auth If do not do so, the other side will do so! Lingering cncern in courts mind as to whether u have been open and frank with the court

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So if have case agaist you, then bring to courts attention and seek to distinguish or circumscribe the ratio There is this duty however you choose to deal with it

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The fact that authorities are against an advocates case is immaterial to the discharge of this duty. As an officer of the court he must tell the court of any law that he is aware of. This seems to be a lower standard to breach than actual knowledge, as seen below when deliberately ignoring the section had costs implications. However, some wrongfulness is still necessary. Glebe Sugar Refining Co Ltd v Greenock Port and Harbours Trustees [1921] 2 AC 66, per Viscount Finlay

Neither the appellants nor the respondents, however, took their stand on this section [S23 Act of 1847]. On the contrary, they have studiously ignored its existence It may be that this omission has brought about the entire litigation; certainly, I should think, it has brought about this appeal. I therefore think that both parties should bear their own costs here and below.

ii) Citing authorities or decisions that have been over-ruled or repealed Rule 60 (e): Conduct of Court proceedings

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60. An advocate and solicitor when conducting proceedings in Court (e) shall not advance submissions, opinions or propositions which to his knowledge is contrary to the law; if case overruled, then dont rely on it. Or if one part, then also mention other part I statute repealed, draw tt to court attention Glebe Sugar Refining Co Ltd v Greenock Port and Harbours Trustees (above) Abraham v Jutsun [1963] 1 WLR 658, 663, per Harman L.J.

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He [an advocate] is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court. Lord Denning MR explained counsels duty as follows: [It is an] advocates duty to take any point which he believes to be fairly arguable on behalf of his client. An advocate is not to usurp the province of the judge. He is not to determine what shall be the effect of legal argument. He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court.

iii) Bringing an error of law or irregularity to the Courts attention Rule 60 (d): Conduct of Court proceedings 60. An advocate and solicitor when conducting proceedings in Court (d) shall bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal;

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R v Neal [1949] 2 All ER 438, 441, per Lord Goddard, CJ If some irregularity comes to the knowledge of counsel before the verdict is returned he should bring it to the attention of the court at the earliest possible moment so that the presiding judge may consider whether or not to discharge the jury without giving a verdict. Matters of this sort ought not to be held in reserve with a view to taking them before this court when it may be, as here, too late to remedy the mistake. ties in with R55(b) duty to help the courts avoid unnecessary expense and time.

iv) Ethical duty to correct misunderstanding held by the Court - Saif Ali v Sydney Mitchell & Co [1980] AC 198, at 220, per Lord Diplock. A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to the facts; although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barristers knowledge. - According to Prof Tan Yock Lin (The Law of Advocates and Solicitors in Singapore and West Malaysia, at p1009), the above position is correct in so far as the advocates knowledge is derived from privileged communications. However where the material facts that have come to the knowledge of the advocate is from sources other than through his client, the position in Saif Ali may not apply. Note my earlier comment on the paramouncy of solicitor/client privilege, where a solicitor CANNOT tell the court of his clients guilt. However it is the professional duty of a solicitor as an officer of the Court, to aid the Court. Thus the duty on a solicitor is largely negative that he cannot set out to mislead the court, but he must also aid the court whenever he doesnt breach his duty to his client. v) Clients perjury or fraud Rule 57: Clients perjury or fraud 57. If at any time before judgment is delivered in any case, an advocate and solicitor becomes aware that his client has committed perjury or has otherwise been guilty of fraud upon the Court, the advocate and solicitor (a) may apply for a discharge from acting further in the case; or (b) if required to continue, shall conduct the case in such a manner that it would not perpetuate the perjury or fraud. Note no duty to tell court about Clients perjury or fraud. Privileged information! However see below for the corresponding duty to discharge oneself in situations of extreme conflict. Rule 58: Duty to cease to act

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58. An advocate and solicitor shall cease to act for a client if (a) the client refuses to authorise him to make some disclosure to the Court which his duty to the Court requires him to make; (b) the advocate and solicitor having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery, the client fails forthwith to disclose it; or (c) having come into possession of a document belonging to another party by some means other than the normal and proper channels and having read it, he would thereby be embarrassed in the discharge of his duties by the knowledge of the contents of the document. Note that these are serious breaches by the client, where a lawyer shall cease to act. Things that have to be disclosed in (a) would seem to be restricted to legal matters in parts (i) and (iii) above; or of the narrow factual circumstances of (iv) above where privilege doesnt apply. (b) is a positive obligation which reflects the importance of documentary evidence viz the ease of withholding them, and highlights the role of the solicitor in policing the process of discovery. vi) Examining witnesses Rule 60 (g) & (h) Conduct of proceedings 60. An advocate and solicitor when conducting proceedings in Court (g) shall not by assertion in a speech make an allegation against a witness whom he had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation; or Fair we wield a lot of power, many times, press in gallery, if going to make adverse allegation against witness, may affect his reputaotn and standing There is privilege of what goes on in court and witness has little recourse against you But namesand reputaotn and interest get affected for long time by what is said in court abt them so to ext tt going to make adverse remark, give him oppty in cross exam to say sth about it dont just make allegation of fraud, dishonesty etc without giving him chance

(h) shall not suggest that a witness or other person is guilty of any crime, fraud or misconduct or attribute to another person the crime or conduct of which his client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to his clients case and which appear to him to be supported by reasonable grounds. Reqts: 1 Allegation must go to mater in issue 2. material to clents case 3. reasonable grds for making allegation so put urself in witnesss shoes is it within bounds of fair play? If no grd to allege dishonesty fraud, infidelity etc, then cannot do so will be in breach of rules General: - applies only to witnesses, and in the midst of court proceedings. - (a) explicitly applies only to a speech in court, and is probably exemplified in the rule that you must put allegations to the witness to bring it up again in closing submissions. This is also called the rule in R v Dunn. The Court should not be misled at closing into thinking witness was challenged and conceded certain points, when he did not. - (b) applies to any part of the proceedings, including cross-examination but probably not written submissions. This rule protects non-parties from serious accusations, and prevents counsel from distracting the court from the main issues by dragging non-parties into the picture, or trying to unduly influence the courts assessment of witnesses. - The test is part subjective(appear to him) and part objective(reasonable grounds). note that these are probably a derivation of a lawyers general duty under R54 to uphold interests of justice, public interest and professional ethics. This is because a lawyer owes no duty to a witness on the stand or third parties, but he does owe a duty to the court to uphold justice, and instil confidence and respect in the court process. C) FAILURE TO COMPLY WITH COURT ORDER

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Regardless of the contemnors motive, a refusal to obey a coercive order of the Court amounts to either (1)criminal, or (2)civil contempt. It is difficult to determine when a civil contempt is transformed to a criminal contempt. Whether civil or criminal contempt, burden of proof is beyond reasonable doubt. (civil: Breach of injunction in civil matter) Sivalingam a/l S Ponniah & Ors v Balakrishnan a/l S Ponniah & Ors [2003] 3 MLJ 353; (criminal: Anwars lawyer files contemptuous motion on his behalf) Zainur bin Zakaria v PP [2001] 3 MLJ 604.

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Distinction between civil and criminal contempt o Boils down to character ahd purpose o Civil purely remedial o Criminal to vindicate auth of the court- because of conuct of lawyer, auth of court eroded, unfair challenge to its auth,a nd mesg to be sent out o Gompers v Bucks Stove and Range Co 221 U.S 418 (1911), per Mr Justice Lamar. It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt, the sentence is punitive, to vindicate the authority of the Court. Tan Yock Lin, The Law of Advocates and Solicitors in Singapore and West Malaysia, Second Edition, 1998, p. 608 1. Process - criminal contempt is punishable by attachment to prevent a breach of law and maintain discipline of the courts. Criminal contempt is punitive in nature and accompanied by criminal incidents. Civil contempt is an enforcement of a decree in a suit between parties. An advocate can be liable for criminal or civil contempt of court. 2. Redress Criminal contempt arises when there is an interference with the administration of justice while civil contempt seeks to compensate for loss arising from disobedience to a court order.

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Examples of breach of Court orders which give rise to criminal contempt i. (Mere) Breach of order - Lloyd v Biggin [1962] VLR 593; Re Prior, ex p Bellanto [1963] SR NSW 190. Persistent disobedience and disregard of a judges ruling gives rise to criminal contempt: Lloyd case - in this case in coruse of x exam, counsel asked court to rule on admissibility of some evid Court refused and told counsel to proceed. Counsel insisted on ruling. Magis said contempt of court In supreme court of Victoria stated that wd be contempt if there has been persistent disoveridence or disregard of ruling, but on facts, court overturned magis ruling becauae at the very elast, nat justice req tt u be told what it is that is contemptuous so that u can address by defence or mitiation. But none such was done merely exchange, and then magis said contempt. - Ward v Ligertwood [1874] LR 2 Sc & Div 361.

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An advocate who removes a material document in defiance of a judges ruling will be held for criminal contempt: in partr with regard to discovery duty of discovery of all relevant doc including doc going against urself clients objections not an excuse and if transpires that lawyer told of doc and delib withheld it, conseq are severe recommend if going to take pt of privilege to say tt partr doc is subj of litigation privilege, preferable in list of doc to identify its existence but take issue to other sides entitlement to it

o

std list of doc two parts one part listing docs that object to give. Std mantra. (eg comm bet sol and client) blanket statement to say will not reveal so tt other side at least knows abt doc, then can get ruling as opposed to other side finding out and then court ruling on it - Re Freston [1883] 11 QBD 545. A solicitor failed to deliver certain documents and pay a certain sum of money as ordered by the Court and was held for criminal contempt. Re Freston has however been criticized as harsh and weak in reasoning. - However, in Ram Goswami v PP [1985] 1 MLJ 113

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a solicitor who declined to represent his clients after the Court had refused his application for withdrawal was not found to be in contempt of court.

ii. Additional requirement? In addition to failure to comply with Courts order, an additional requirement (e.g. violence or element of public defiance) appears to be necessary to be held for criminal contempt. - Re Clements [1877] 46 LJCh 375 the solicitor not only disobeyed a Courts order to allow A to inspect documents, he also abused and assaulted A. - - United Nurses of Alberta v AG for Alberta [1992] 89 DLR (4th) 609, 636, per McLachlin J. union went on strike court order directing it to stop strike stated tt wld not obey order. Found to be in crim contempt, fined and then later fined again on diff mtions because of contd refusal court said tht for crim contempt, some element of public defiance. If simply breaches, then civil contempt. A person who simply breaches a court order is viewed as having committed a civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect of the courts is added to the breach it becomes criminal. In open court, open discourtesy this wld cross the line and constit crim contempt

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Examples of breach of Court orders which give rise to civil contempt 1) Disobedience of an injunction, whether mandatory or prohibitory, is a civil contempt. Conditions that must be satisfied to be held for civil contempt for breach of injunction - Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87; PA Thomas & Co v Mould [1968] 2 QB 913.

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Terms of injunction must be clear. Husson v Husson [1962] 3 All ER 1056. Proper notice of the injunction is given to the alleged contemnor: Lee Lim Huat v Yusuf Khan bin Ghows Khan [1997] 2 MLJ 472 Dismissal of an actiondepends upon the facts and circumstances of each case whether an interlocutory injunction survives final judgment. - MBf Holdings v Houng Hai Kong [1995] 1 MLJ 135, 144.

Injunction must be valid for the purposes of contempt.

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The proper course to obviate non-compliance is to apply for a variation or discharge of the injunction: - Disobedience of injunction is still a civil contempt even if the injunction should not have been ordered in the first place:Isaacs v Robertson [1985] AC 97, Spokes v Banbury Board of Health [1865] LR 1 Eq 42, TO Thomas v Asia Fishing Industry Pte Ltd [1977] 1 MLJ 151, 158 Wee Choo Keong v MBf Holdings Bhd [1993]

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went on appeal in [1995] 3 MLJ 549, in the KL Supreme Court. Facts: lawyers charged with contempt of court due to deliberate evasion of service of court documents by law firm. per Wan Adnan FCJ, whether the court order should not have been issued was not relevant in contempt proceedings, and only relevant in the setting aside of injunction proceedings. Until it was set aside, the court order was valid and must be obeyed. Even if the trial judge had allowed the appellants to proceed first with their application to set aside the court order, and they had succeeded in setting it aside, this would not affect the culpability of the appellants for their disobedience.

a.

2) Examples of breaches of other court orders amounting to civil contempt Eccles & Co v Louisville & Nashville Railway Co [1912] 1 KB 135.

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Failure to obey orders for discovery or production of documents if the alleged contemnor is in de jure and de facto possession of the documents in question: Re Thompson, R v Woodward [1889] 5 TLR 601, R v Poplar Borough Council (No 2) [1922] 1 KB 95 Breach of prerogative writ: CH Giles & Co Ltd v Morris [1972] 1 All ER 960 Breach of order for specific performance:

4.2 Contempt of Court - Parasharam Detaram Shamdasani v King-Emperor [1945] AC 264 at 268: words or action used in the face of the court, or in the course of proceedings, for they may be used outside the court, to be contempt, they must be such as would interfere, or tend to interfere with the course of justice Applied in Ram Goswami v PP [1985] 1 MLJ 113 Ram - Facts: The appellant, an advocate and solicitor was convicted for contempt in the face of the court by a district court under s 8 of the Subordinate Courts Act and sentenced to a fine of $500. The facts were briefly as follows. The appellant had agreed to represent two persons who were charged with an offence under the Women`s Charter before a district court. The oral contract was for payment of a retainer by each client which was to be paid before the trial commenced and a refresher for each day or part thereof after the first day. The trial commenced on 3 March 1983. Only part of the agreed retainer had been paid by his clients despite repeated promises. The appellant subsequently applied for a week`s adjournment or alternatively for a discharge. The appellant informed the court that his clients had failed to give him instructions since the last hearing and had failed to pay the agreed fees despite repeated promises to do so. The trial judge refused his application and found him in contempt of court and asked him to show cause. The appellant reiterated his grounds for applying for his discharge and apologised to the court. The question before the present court was whether the appellant`s conduct or act could properly be regarded as a contempt of court. Holdings: Held , allowing the appeal: (1).The appellant`s conduct did not go so far beyond the limits of non-co-operation or refusal to comply with the court`s direction or discourtesy as to harden into contempt of court. (2).Having regard to all the circumstances of the case, the power of summary punishment given to the judge under s 8 of the Subordinate Court`s Act should not have been exercised when the appellant apologized for his conduct. Re Tan Khee Eng John [1997] 3 SLR 382: did not think that it was enough to ask, as Lord Denning MR did in Westons case, whether the lawyer in question intended to hinder or delay court proceedings and whether court proceedings were in fact so hindered or delayed, such a test was too narrow would invite anarchy in our legal system if we allowed lawyers or litigants to pick and choose which orders if court they complied with, or to dictate to the court how and when proceedings should be conducted failure in the present case for Mr Tan to appear in court when directed to do so was conduct calculated to lower the authority of the court it was a matter of sheer, unmitigated contempt which the court must seize upon and punish Tan Khee Eng - Facts The respondent Tan was an advocate and solicitor, was directed by the Chief Justice to appear in court at 2.15pm on Tuesday 29 April 1997. He failed to do so despite having been informed of the Chief Justice`s direction by the court staff and despite the court waiting for almost one-and-a-half hours that afternoon. A warrant of arrest was subsequently issued against him and when brought before the court, Tan was asked to show cause why he should not be punished for contempt of court in respect of his failure to appear in court as directed on 29 April 1997. Tan apologized and stated that he had, prior to 29 April 1997, faxed the court staff a

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letter to say that his client had discharged him and that on the afternoon of 29 April 1997, he faxed the court staff another letter to explain that he had other important business to attend to and to request that the hearing before the Chief Justice be refixed. Held, committing the respondent to prison for seven days: (1) Tans attempt to apologise for his conduct was sorely lacking in conviction. The court was unable to accept his apology and explanation. Whilst he might indeed have had other matters to attend to on the afternoon of 29 April 1997, he could easily have made a brief appearance in court to inform the court of his other commitments and to ask for an adjournment. He failed to do so and instead, behaved as if it was his prerogative to choose whether or not to comply with the courts clear direction. His conduct was calculated to lower the authority of the courts and went beyond mere discourtesy which could just have been referred to the Law Society. It amounted to sheer, unmitigated contempt which the court must seize upon and punish. (2) The courts power to punish for contempt allowed it to deal with conduct adversely affected the administration of justice. Courts in different jurisdictions may hold different ideas about the principles to be adhered to in their administration of justice, and correspondingly about the sort of conduct which may be inimical to the effective administration of justice. While the English courts had apparently decided a lawyer`s failure to attend in court did not amount to contempt, their Scottish, Canadian and Malaysian counterparts decided differently. Singapore courts could not blindly adopt the attitudes of the English courts but must ask themselves what was important to them here in Singapore. In this case, the court was of the view that conduct such as Tans, which evinced a contemptuous disregard for the judicial process and scandalised or otherwise lowered the authority of the courts could not be tolerated. It interfered with the effective administration of justice and amounted to contempt punishable by the courts iii. Notice requirement Capital Insurance Bhd v BS Sidhu [1996] 3 MLJ 1. The requirement of notice has to be satisfied before breach is found. The court order must have been served on the alleged contemnor: - Webster v Southwark LBC [1983] QB 698. Breach of declaratory order is not civil contempt:

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D) SOLICITOR AS MATERIAL WITNESS Rule 64: Solicitor not to act if he is a witness 64. (1) An advocate and solicitor shall not accept instructions in a case in which the advocate and solicitor has reason to believe that he is likely to be a witness on a material question of fact. eg drafting will, dispute of will, client asks u to act for him. U are obv in heart of dispute in terms of testamentary capacity, undue influence etc

(2) An advocate and solicitor shall discharge himself from representing a client if it becomes apparent to the advocate and solicitor that he is likely to be a witness on a material question of fact. (3) In discharging himself, the advocate and solicitor shall take all reasonable steps to ensure that his clients interest is not in any way jeopardized.

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Note that many other jurisdictions are not so strict about this rule. Can a partner from the same firm take over? No. Probably will run into conflict situations if it is a partner in the same firm with imputed knowledge, better to discharge completely.

Rationale for rule If an advocate is called upon a material witness, his duty as witness is to testify to the truth (subject to privilege) and this may conflict with his duty to represent his client. - Wong Sim Chong v Bhagwan Singh [1993] 3 MLJ 679 and Rule 54 (above). The advocate thus discharges himself as he may do more harm to his client if he continues to act for his client. - practical point, who will lead evidence from him when he is giving evidence/cross-examined? If this happens dont take matter on, or apply to discharge yourself Court will view this with sympathy

Duty to tell the truth(as a witness) prevails over the duty to client.

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Duty to anticipate that lawyer may be called as witness - R v Jacquith and Emode [1989] Crim LR 508, 563: Part of a counsels duty is to anticipate, with his experience, circumstances which might lead to the necessity for him to give evidence at the hearing. The experience of advocates, year by year, does enable them to get the feel of a case ie ask urself whether likely you will be called up only senior lawyers bound? Material evidence - Wong Chin Chong v Bhagwan Singh [1993] 3 MLJ 679.

points raised by Mr Carman QC, Counsel for the Appellant, which the Court referred to as worth investigating.

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The advocates evidence must be shown to be material before the court will deprive the other party of the benefit of legal representation of his choice. If the evidence is as collateral facts, the witness is not a material witness.

Case Law - R v. Secretary of State for India in Council, ex p Ezekiel English Kings Bench [1941] 2 KB 169, 175, per Humphreys J: A barrister may be briefed as counsel in a case. He should not act as counsel and witness in the same case. - Million Group Credit Sdn Bhd v Lee Shoo Khoon [1986] 1 MLJ 315. The rules relating to conduct and etiquette in the profession quite clearly say that a solicitor should not appear as such in a matter in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact.

(E)

affirmed in Abdul Halim bin Abdul Hanan v Pengarah Penjara, Taiping [1996] 4 MLJ 54

BREACH OF UNDERTAKING TO THE COURT

Rule 51 Professional undertaking 51. An advocate and solicitor shall honour the terms of a professional undertaking given to another advocate and solicitor, a court of law, tribunal, client or any other person. Ie ur word is your bond Honour it even at financial cost to urself If undertaking given and breached, then contempt Whether an undertaking given by a solicitor to the court, his client or a third party, may be enforced against him personally depends upon the facts of each case: Damodoran s/o Raman v Choe Kwan Him [1980] AC 497. A breach of an undertaking to the court is a contempt of court: Hussain v Hussain [1986] Fam 134, 139 Facts: breach of undertaking to court by husband not to molest wife.

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applied locally but distd in Reebok International v Ng Whye Tho [1988] SGHC 29.

Conditions that must be satisfied before an undertaking is enforceable 1. The undertaking must be a personal undertaking: Re C [1908] 53 Sol. Jo 119. 2. The undertaking is given by the solicitor professionally: United Mining and finance Corpn v Becher [1910] 2 KB 296,307). 3. The undertaking must be clear in its terms: Thompson v Gordon (1846) 15 M & W 610. 4. The undertaking is before the court: Gilbert v Cooper (1848) 17 LJ Ch 265. Not applicable in Singapore, see Re Francis T Seow below and Rule 51 above. 5. The undertaking must be one which is capable of being performed ab initio: Pearl v Bushell [1827] 2 Sim 38, Re A Solicitor [1966] 3 All ER 52 at 56, [1966]1 WLR 1604 at 1607. [Source: Frederic T. Horne, Corderys Law Relating to Solicitors, (8th Ed. 1988), Butterworths: London and Edinburgh, p. 318-9.]

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In enforcing undertakings, the court is NOT guided by considerations of contract, but aims at securing honesty of conduct in its officers: Re Grey [1892] 2 QB 440, Re A Solicitor, ex p Hales [1907] 2 KB 539; United Mining and Finance Corpn Ltd v Becher [1910] 2 KB 296 at 304; on appeal [1911] 1 KB 840.

Local examples of breaches of undertaking Re Francis T Seow [1973] 1 MLJ 1999 Singapore Court of Appeal Facts:

Winding up of the Gemini Chit Fund Corp Ltd (Gemini) by the Minister of Finance. Police arrived at Mr Seows firm with a warrant to search for books, files and accounts related to Gemini. Partner in-charge of the Gemini matters was one Mr Ratnam. Mr Seow called the Attorney General on the telephone and gave his personal undertaking to hand over to the police these documents they had requested for. The Attorney General relying on the respondent`s undertaking instructed the police to discontinue the search. Mr Seow delegated this responsibility of handing over the documents to one Mr Ratnam, a partner in his firm. After giving his undertaking Mr Seow spent two hours discussing the validity of the search warrant and himself conducted no search and caused no search to be conducted outside of Mr Ratnam`s room and made no enquiries of anyone other than Mr Ratnam. Without Mr Seows knowledge, two of these files were withheld. The Court of Appeal observed the Mr Seow did nothing at all to ensure, by all the means within his power and control, that he honoured his undertaking. He did not take the simple, obvious and normal step of giving express orders and directions to every member of his staff to search every room of the office for any relevant files or documents. As events turned out that simple, obvious and normal step, if taken, would have resulted in the finding of the two files. Mr Seow was suspended from practice for a period of one year for his serious derelictions. Mr Francis Seow made an undertaking to deliver certain books to the police in exchange of withdrawal of the police from his office premises. Mr Seow delegated this to Mr Ratnam, a partner in his firm. If u give an undertaking, dont delegate!!!! Do it yourself, or if assistance gotten, supervise with close scrutiny! Without Mr Seows knowledge, two books were withheld. Mr Seow was suspended from practice for a period of one year for his serious derelictions. See CAs observation fr slide Dont take cavalier attitude towards undertaking make sure that u can perform this urself

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Suspended for a yr (Having given undertaking, ensure that fellow team members etc all know about it!)

Re David Marshall [1972] 2 MLJ 221 Facts:

The Attorney General intended to prevent the contents of the affidavits (in an application for habeas corpus) from being leaked to the press and published before the hearing date. DM made an undertaking that certain paragraphs in the affidavits would be expunged from the affidavit and the filed affidavit would not be available to the public or press. Mr Marshall however sent the affidavit to an English attorney and the contents of the affidavit were leaked to the press. Mr David Marshall made an oral undertaking: The Attorney General need have no anxiety about our office because we never give any pleadings to the press before trial and I can assure you that neither I nor my office have given these affidavits to them for publication

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However, before the hearing date of the application, Mr Marshall had handed to a Mr Round, a member of the Secretariat of the International Press Institute, 7 sets of the affidavits as originally affirmed and filed. Mr Round subsequently circulated these affidavits. Mr Marshall was found guilty of breaching the professional undertaking that he had given to the Attorney General and was suspended from practice for six months

F) USE OF IMPROPER WORDS Rule 55 (a) Duty to Court 55.An advocate and solicitor shall at all times (a) act with due courtesy to the Court before which he is appearing; Interference with course of justice - Parashuram Detaram Shamdasani v King Emperor[1945]AC 264, 268, per Lord Goddard. For words or action used in the face of the court, or in the course of proceedings to be a contempt, they must be such as would interfere with the course of justice. applied locally in Ram Goswami v PP [1985] 1 MLJ 113 (Spore HC) Re Johnson (1887) 20 QBD 68.

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Abusive language on the solicitors part may amount to a contempt and it is immaterial whether the offence is committed in open court or not, if it is an interference with justice, i.e. if it is the consequence of proceeding before the judge and is intended to throw insult thereon.

- Re Kumaraendran, an Advocate and Solicitor [1975] 2 MLJ 45. lawyer defending accusd person who was charged ith offence involving weapons case fixed and lawer made applic for case tob head before anotoehr judge said tt if applic for case to be heard is not granted, will disharge himself fr actinf further for accused judge said discharge! Big deal lawyer said if you say this outside court, I will. A solicitor who insulted and shouted at the President of the Sessions Court was held guilty of criminal contempt. Abdoolcader J took the view that the solicitors conduct amounted to deliberate challenge of the judges authority. Abdoolcader J said that:

If counsel has any complaint of unfair treatment then his recourse should not be a challenge to the authority of the court but he must of necessity be to direct to the proper quarters either personally or perhaps more appropriately through the appropriate Bar Committee. Mutual respect and courtesy should always prevail and the utmost restraint exercised from overacting, even at the most trying times. Occurrences of the nature before me tarnish the image of justice which we all seek to administer and mar the smoothness of its administration.

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Treat all judges with respect and courtesy Dont show any negative facial expressions

Local examples Improper language: - TT Rajah [1973] 1 MLJ 199 The respondent, an advocate and solicitor, acted as counsel for several political detainees in 13 private summonses.

The conduct and words spoken by the respondent were held by the Court to be both disgraceful and dishonourable. ? running dogs of the government ?/ challenged defence counsel to fight/ you coward! You want to fight, come! also made improper remarks on court this court showed interest prejudice commtns uncalled for The respondent was suspended from practice for two years.

Hillborne v Law Society [1978] 1 MLJ 229 The appellant, an advocate and solicitor in Singapore, wanted to reopen the proceedings but application was refused by the Court of Appeal.

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The appellant then made the comment that by refusing to reopen the appeal, the Court of Appeal set the seal upon dishonesty. The judges had already retired from view and didnt hear him, but opposing counsel complained to Lawsoc. Inquiry Committee held that the appellants conduct was offensively critical of the judges and imposed a penalty of $250. H appealed up to Privy Council but lost.

Re Gopalan Nair [1993] 1 SLR 375

The respondent was referred to the disciplinary committee on two charges of having threatened the A-G and on a further charge of falsely accusing the A-G. The respondent was suspended from practice for two years.

Note the AGC is an essential pillar of our legal system and thus the integrity of the office is protected. The A-G like any judge has also the power to refer a complaint to Lawsoc (LPA S 92) Disrespect/Discourtesy to Court Question of whether failure by lawyer to attend court is contempt.

- Weston v Courts Administrator of the Central Criminal Court [1976] 2 All ER 875 (English CA); Izuora v The Queen [1953] AC 327 (PC) = NO Failure by a lawyer to attend in court when directed to do so did not amount to contempt. Such conduct might amount to discourtesy or disobedience but it did not constitute contempt. In Weston, the court remarked that such conduct should be referred to the Law Society instead.

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- CF Scottish courts - Muirhead v Douglas [1981] Crim LR 781), Canadian Courts - R v Hill (1976) DLR (3d) 621, Malaysia - Lai Cheng Chong v PP [1993] 3 MLJ 147 = YES CF. John Tan Khee Eng [1997] 3 SLR 382 Lawyer discourteous to judge failure to appear before CJ himself, a number of times. *Held: CJ aware of 2 authorities, but disagreed with them that the English position cannot strictly bind the Singapore courts was NOT the main reason for his decision. - CJs main reasons power to punish for contempt of court allows a court to deal with conduct which would adversely affect the administration of justice. Different jurisdictions have different ideas about the principles to be adhered to in their administration of justice, and correspondingly the type of conduct disallowed. Singapore Courts should not blindly follow the English position. - Lawyer may not necessarily hinder or delay(Weston test) court proceedings, but which nevertheless interfered with the effective administration of justice by evincing a contemptuous disregard for the judicial process and by scandalising or otherwise lowering the authority of the courts - Thus, failure in this case for John Tan to appear in court when directed to do so was conduct calculated to lower the authority of the court It was more than a matter of discourtesy (which could have been dealt with by referring to the Lawsoc) This was a matter of sheer, unmitigated contempt which the co

Lec 7 and 8 Rr With Court

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