Case Details
- Citation: [2019] SGHC 235
- Case Title: Public Prosecutor v Soh Chee Wen and another
- Court: High Court of the Republic of Singapore
- Date of Decision: 30 September 2019
- Case Number: Criminal Case No 9 of 2019
- Judges: Hoo Sheau Peng J
- Coram: Hoo Sheau Peng J
- Plaintiff/Applicant: Public Prosecutor
- Defendant/Respondent: Soh Chee Wen and another
- Legal Area: Evidence — Witnesses (Privilege)
- Proceedings Context: Prosecution application for further arguments on evidential issues during trial
- Key Evidential Issues: (1) Whether the Prosecution is generally entitled to assert litigation privilege; (2) Whether litigation privilege protects communications between prosecutors/investigators and witnesses in (a) preparation of conditioned statements and (b) preparation of witnesses for court
- Judgment Length: 8 pages, 4,450 words
- Judgment Reserved: Yes (30 September 2019)
- Counsel for Public Prosecutor: Deputy Attorney-General Hri Kumar Nair SC and others (Attorney-General’s Chambers)
- Counsel for First Accused: Narayanan Sreenivasan SC and others (K&L Gates Straits Law LLC)
- Counsel for Second Accused: Philip Fong Yeng Fatt and others (Eversheds Harry Elias LLP)
- Cases Cited in Extract Provided: [2019] SGHC 235 (self-referential in metadata); Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR(R) 367; Minister of Justice v Sheldon Blank [2006] 2 SCR 319; Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205; Muhammad bin Kadar and another v Public Prosecutor [2011] 4 SLR 791; R v Bunting and Others (2002) 84 SASR 378; R v King [2007] 2 NZLR 137
Summary
In Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235, the High Court (Hoo Sheau Peng J) addressed two interlocking evidential questions arising mid-trial: first, whether the Prosecution in Singapore criminal proceedings is entitled to assert litigation privilege; and second, whether that privilege protects communications between prosecutors/investigators and witnesses in two common prosecutorial contexts—(i) preparation of conditioned statements and (ii) preparation of witnesses for giving evidence in court.
The court accepted that litigation privilege is conceptually distinct from legal advice privilege, adopting the rationale articulated in Minister of Justice v Sheldon Blank (and relied upon in Skandinaviska). While Singapore had not previously definitively settled whether the Prosecution may claim litigation privilege, the judge was persuaded by the underlying rationale of the privilege and by the fact that the Prosecution is a party to criminal proceedings. The court therefore held that the Prosecution has the right to assert litigation privilege, subject to the operation of the Prosecution’s disclosure obligations.
Although the extract provided truncates the remainder of the judgment, the decision’s core contribution is its principled approach: it clarifies the doctrinal foundation for litigation privilege in Singapore and frames how cross-examination on the circumstances of witness preparation should proceed when privilege is asserted—particularly where the defence seeks access to otherwise privileged material on the basis that it is necessary for a fair trial.
What Were the Facts of This Case?
The case arose during the trial of two accused persons in Criminal Case No 9 of 2019. In an earlier tranche of the trial, the Prosecution objected to cross-examination of multiple witnesses. The objection was grounded on litigation privilege: the Prosecution argued that certain communications between prosecutors/investigators and the witnesses were protected from disclosure, and therefore should not be explored through cross-examination.
On 23 May 2019, the High Court heard arguments on the Prosecution’s objection and ruled against the Prosecution. Recognising the importance of the privilege issues not only for the ongoing trial but also for broader evidential practice, the judge agreed to hear further arguments. The further hearing took place pursuant to the Prosecution’s application for further arguments, and it focused on two evidential issues: (1) whether the Prosecution is generally entitled to assert litigation privilege; and (2) whether litigation privilege protects communications in two specific scenarios relating to witness preparation.
By the time of the further hearing, the Prosecution’s position had crystallised into a structured privilege claim. It contended that litigation privilege should cover communications—written and oral—made at a time when there was a reasonable prospect of litigation and made for the dominant purpose of litigation. The Prosecution further argued that the privilege should extend to communications involving prosecutors/investigators and witnesses, particularly where those communications occur in the course of preparing conditioned statements and preparing witnesses for court.
Defence counsel, while not disputing the general framework of privilege in detail, took a narrower approach to the practical effect of the privilege claim. They indicated that the cross-examination lines were intended to probe how and why witnesses came to give evidence in their conditioned statements and oral testimony, rather than to elicit disclosure of the privileged communications themselves. Importantly, defence counsel also accepted that any assertion of litigation privilege would be subject to an exception grounded in necessity—an approach that, in practical terms, would align with the earlier ruling on how cross-examination should proceed.
What Were the Key Legal Issues?
The first legal issue was doctrinal and institutional: whether, in Singapore criminal proceedings, the Prosecution is entitled to assert litigation privilege at all. The Prosecution argued that litigation privilege is conceptually distinct from legal advice privilege and that its rationale supports extending the privilege to the Prosecution as a party to the adversarial process. The defence position, as reflected in the extract, was not that litigation privilege is unavailable in principle, but rather that the scope and application of any privilege claim must be carefully managed, particularly in light of disclosure obligations and the fairness of the trial process.
The second legal issue was more granular and operational: whether litigation privilege protects communications between prosecutors/investigators and witnesses in two specific contexts. The first context was communications made in the preparation of conditioned statements. The second context was communications made in the preparation of witnesses for giving evidence in court. The court had to determine whether these communications fall within the rationale and scope of litigation privilege, and how the defence may still challenge or explore relevant circumstances without undermining the privilege.
Finally, embedded within the second issue was the question of how privilege interacts with the Prosecution’s duty of disclosure and with a “necessity exception” concept. The Prosecution accepted that litigation privilege is not absolute and is circumscribed by disclosure duties. It also urged a further development: that where the defence can show it is necessary to adduce otherwise privileged evidence because its probative value outweighs the confidentiality interest, the privilege should not operate. The court therefore had to consider how such a necessity exception should be framed and applied in practice.
How Did the Court Analyse the Issues?
The judge began by addressing the conceptual relationship between litigation privilege and legal advice privilege. The Prosecution relied heavily on Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR(R) 367 (“Skandinaviska”), which the Prosecution argued recognised that the two privileges are distinct. The Prosecution also pointed to the endorsement in Skandinaviska of the Canadian Supreme Court’s exposition in Minister of Justice v Sheldon Blank [2006] 2 SCR 319 (“Blank”) at [26]–[27].
In accepting the Prosecution’s submission, the court adopted the Blank rationale as encapsulated in the extract: litigation privilege is not restricted to communications between solicitor and client. It extends to communications between a solicitor and third parties, and—where the litigant is unrepresented—to communications between the litigant and third parties. The object is to ensure the efficacy of the adversarial process, leaving parties to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure. This rationale, the judge reasoned, supports treating litigation privilege as a distinct doctrine rather than an extension of legal advice privilege.
Having established the doctrinal character of litigation privilege, the court turned to the more difficult question of whether the Prosecution can claim it in Singapore. The judge noted that Singapore had not clearly determined this point. The court then compared approaches in other common law jurisdictions. The extract indicates that Canada provides the clearest reasoning from first principles: in Blank, litigation privilege extends to the prosecution because of the rationale of the privilege and because the prosecution is a party to criminal proceedings. England was described as uncertain, with no clear authority cited on whether the prosecution is entitled to litigation privilege. Australia and New Zealand were described as taking different routes—either by recognising a solicitor-client relationship between the Crown and those acting on its behalf, or by treating litigation privilege as generally available in criminal proceedings.
Rather than decide the issue by analogy to a solicitor-client relationship, the judge expressed inclination to follow the Canadian approach. The court was persuaded by the underlying rationale of litigation privilege and by the Prosecution’s status as a party to criminal proceedings. On that basis, the judge held that the Prosecution has the right to assert litigation privilege. This conclusion is significant because it anchors the privilege not in institutional formalities, but in the functional purpose of preserving a zone of privacy for effective adversarial preparation.
Although the extract does not reproduce the full analysis, it is clear that the judge also considered the boundaries of privilege. The Prosecution assured the court that its duty of disclosure prevails over any claim to litigation privilege. The court therefore had to reconcile the privilege claim with the overarching disclosure regime applicable in criminal trials. The extract also shows that the Prosecution accepted the existence of a narrower scope when claimed by the Prosecution in criminal proceedings, and it referred to local authority on disclosure duties in Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 and Muhammad bin Kadar and another v Public Prosecutor [2011] 4 SLR 791.
On the second issue—communications in witness preparation—the Prosecution’s position was that litigation privilege protects both written and oral communications, provided the two conditions are met: (a) the communication was made when there was a reasonable prospect of litigation; and (b) it was made for the dominant purpose of litigation. The defence, however, sought to limit the practical effect of privilege by arguing that the cross-examination lines were not aimed at disclosing privileged communications but at testing the circumstances of how evidence was produced and presented in conditioned statements and oral testimony.
Finally, the court had to address the “necessity exception” concept. The Prosecution urged that Singapore law should be developed so that litigation privilege should not apply where it is necessary for a party to adduce otherwise privileged evidence because its probative value outweighs the confidentiality interest. The Prosecution further submitted that the burden should lie on defence counsel to demonstrate necessity and the extent of the permitted exploration. The judge’s earlier ruling (against the Prosecution) and the defence’s acceptance that the practical outcome would broadly align with that ruling suggest that the court was attentive to ensuring that privilege does not become a blanket barrier to fair cross-examination and the testing of witness evidence.
What Was the Outcome?
The High Court accepted that litigation privilege is distinct from legal advice privilege and held that, in Singapore, the Prosecution has the right to assert litigation privilege in criminal proceedings. The court was persuaded by the rationale of the privilege and by the Prosecution’s role as a party to the adversarial process.
In addition, the court’s approach to the second issue was framed to preserve both the confidentiality interests protected by privilege and the fairness of the trial through disclosure duties and a necessity-based limitation. The practical effect, as indicated in the extract, was that cross-examination could proceed in a structured way to establish the circumstances of interviews and preparation sessions, but without turning privilege into a mechanism for shielding the factual basis of witness evidence from meaningful testing.
Why Does This Case Matter?
Public Prosecutor v Soh Chee Wen is important because it clarifies a doctrinal gap in Singapore: whether litigation privilege extends to the Prosecution in criminal proceedings. By adopting the Canadian rationale from Blank and aligning it with the functional purpose of litigation privilege, the court provides a principled basis for future privilege claims by the Prosecution. This reduces uncertainty for both prosecutors and defence counsel when privilege is asserted over communications involving investigators and witnesses.
For practitioners, the decision also underscores that privilege is not an absolute shield. The court’s reasoning is explicitly tied to the adversarial process and to the need for a zone of privacy, but it is equally tied to the criminal justice context where disclosure obligations and fair trial considerations are paramount. This means that privilege assertions must be made with an awareness of how they will interact with cross-examination rights and disclosure duties.
From an evidential strategy perspective, the case is particularly relevant to disputes about conditioned statements and witness preparation. Defence counsel will find value in the court’s willingness to permit structured cross-examination aimed at understanding how evidence was produced and presented. Prosecutors, conversely, will need to ensure that privilege claims are properly grounded in the timing and dominant purpose requirements and that they can articulate how disclosure obligations are being met notwithstanding privilege.
Legislation Referenced
- No specific statute was identified in the provided extract.
Cases Cited
- Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235
- Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR(R) 367
- Minister of Justice v Sheldon Blank (Attorney General of Ontario, The Advocates’ Society and Information Commissioner of Canada (Interveners)) [2006] 2 SCR 319
- Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205
- Muhammad bin Kadar and another v Public Prosecutor [2011] 4 SLR 791
- R v Bunting and Others (2002) 84 SASR 378
- R v King [2007] 2 NZLR 137
Source Documents
This article analyses [2019] SGHC 235 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.