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

Case Details

• Citation: [2024] SGHC 24
• Case Number: Originating Application No 696 of 2023; Originating Application No 811 of 2023
• Decision Date: 30 January 2024
• Court: General Division of the High Court
• Coram: Woo Bih Li JAD
• Judgment Delivered By: Woo Bih Li JAD
• Applicant(s): Theodoros Kassimatis KC (Applicant in HC/OA 696/2023); Edward Fitzgerald KC (Applicant in HC/OA 811/2023)
• Respondent(s): Attorney-General of the Republic of Singapore (First Respondent); Law Society of Singapore (Second Respondent)
• Counsel for Applicant: The applicants in HC/OA 696/2023 and HC/OA 811/2023 in person; The claimants in HC/OA 480/2022 in person
• Counsel for Respondent: Hay Hung Chun, Theong Li Han and Poh Hui Jing Claire (Attorney-General’s Chambers) for the first respondent in HC/OA 696/2023 and HC/OA 811/2023; Christopher Anand s/o Daniel, Yeo Yi Ling Eileen and Saadhvika Jayanth (Advocatus Law LLP) for the second respondent in HC/OA 696/2023 and HC/OA 811/2023
• Legal Areas: Legal Profession; Admission; Ad Hoc Admission; Right of Audience
• Statutes Referenced: Legal Profession Act 1966; Legal Profession (Admission) Rules 2011; Criminal Procedure Code 2010; Constitution of the Republic of Singapore; Misuse of Drugs Act
• Key Provisions: Legal Profession Act 1966, ss 15(1), 15(2), 29(1), 32(1), 33, 34(1)(e); Legal Profession (Admission) Rules 2011, r 32(2); Criminal Procedure Code 2010, ss 394H, 394J; Rules of Court 2021, O 24 r 5(2)
• Disposition: Applications for ad hoc admission dismissed.
• Reported Related Decisions: Jumaat bin Mohamed Sayed and others v Attorney-General [2022] SGHC 291; Jumaat bin Mohamed Sayed and others v Attorney-General [2023] 1 SLR 1437

Summary

This decision of the General Division of the High Court concerned two separate applications for ad hoc admission to practise as advocates and solicitors of the Supreme Court of Singapore. The applicants, Theodoros Kassimatis KC and Edward Fitzgerald KC, sought permission under s 15(1) of the Legal Profession Act 1966 ("LPA") to represent four individuals ("the Claimants") in pending Court of Appeal proceedings (CA/CA 2/2023 and CA/SUM 16/2023). These underlying matters were civil applications connected to the Claimants' earlier convictions for capital drug offences under the Misuse of Drugs Act, where they sought to challenge the constitutionality of statutory presumptions.

The court first addressed a preliminary objection raised by the Attorney-General and the Law Society of Singapore, ruling that the applicants, not yet admitted to practise, were not entitled to address the court on their own applications. This clarified the scope of the "acting personally for himself" exception under LPA s 34(1)(e), confirming it applies only to litigants protecting their own substantive rights. The Claimants were, however, permitted to make submissions on the applications.

On the substantive applications, the court found that while Mr Fitzgerald KC met the formal and experience requirements under LPA s 15(1), Mr Kassimatis KC did not. Crucially, the court determined that there was no "special reason" to admit either applicant, a mandatory requirement under LPA s 15(2). The Claimants' argument that they could not find local counsel was rejected, as evidence showed some local counsel had declined due to a perceived lack of factual merit in the underlying constitutional challenge. The court emphasised that "special reason" requires an exceptional case and that the mere complexity of legal issues or the applicants' high qualifications were insufficient, especially where the underlying litigation appeared to be a late-stage challenge to settled convictions. Consequently, both applications for ad hoc admission were dismissed.

Timeline of Events

1. April 2015: Datchinamurthy a/l Kataiah was convicted of trafficking in diamorphine and sentenced to the mandatory death penalty.
2. 5 February 2016: Datchinamurthy's conviction was upheld by the Court of Appeal.
3. 12 March 2018: Saminathan Selvaraju was convicted of trafficking in diamorphine and sentenced to the mandatory death penalty.
4. 7 May 2018: Jumaat bin Mohamed Sayed was convicted of trafficking in diamorphine and sentenced to the mandatory death penalty.
5. 15 October 2018: Lingkesvaran Rajendaren was convicted of trafficking in diamorphine and sentenced to the mandatory death penalty.
6. 27 March 2019: Lingkesvaran's conviction was upheld by the Court of Appeal.
7. 3 July 2019: Jumaat's conviction was upheld by the Court of Appeal.
8. 8 May 2020: Saminathan's conviction was upheld by the Court of Appeal.
9. 5 April 2021: Datchinamurthy's attempt to bring a review application in respect of his conviction was dismissed by the Court of Appeal.
10. 13 August 2021: Jumaat, with 16 other inmates, filed HC/OS 825/2021 seeking declarations of arbitrary and discriminatory prosecution by the Attorney-General.
11. 2 December 2021: The High Court dismissed OS 825, finding it an abuse of process.
12. 1 August 2022: The Claimants, with 20 other inmates, filed HC/OC 166/2022 challenging the constitutionality of costs provisions in the Criminal Procedure Code.
13. 4 August 2022: The Court of Appeal upheld the striking out of OC 166.
14. 22 August 2022: The Claimants filed HC/OA 480/2022 for permission to commence judicial review proceedings, challenging the constitutionality of the "double presumptions" in s 18 of the Misuse of Drugs Act.
15. 25 November 2022: Valerie Thean J dismissed OA 480, holding that the subject matter was not susceptible to judicial review and the application was out of time.
16. 23 December 2022: The Claimants filed CA/CA 2/2023 to appeal against Thean J's decision.
17. 14 March 2023: CA 2 was deemed withdrawn as the Claimants failed to file the requisite appeal documents.
18. 31 March 2023: The Claimants filed CA/SUM 8/2023 seeking reinstatement of CA 2 and an extension of time to file documents.
19. 25 May 2023: Steven Chong JCA dismissed SUM 8, agreeing that OA 480 was essentially a challenge to convictions and the proper procedure was a review application under the CPC, which the Claimants did not satisfy.
20. 6 June 2023: The Claimants filed CA/SUM 16/2023 for the full Court of Appeal to set aside Chong JCA's decision and reinstate CA 2.
21. 11 July 2023: Theodoros Kassimatis KC filed HC/OA 696/2023 for ad hoc admission.
22. 11 August 2023: Edward Fitzgerald KC filed HC/OA 811/2023 for ad hoc admission.
23. 16 October 2023: The High Court heard arguments on the Respondents' preliminary objection and upheld it, ruling that the Applicants were not entitled to address the court on their own applications.
24. 23 November 2023: The High Court heard oral submissions on the substantive applications from the Claimants and the Respondents.
25. 30 January 2024: Woo Bih Li JAD delivered judgment, dismissing both applications for ad hoc admission.

What Were the Facts of This Case?

The proceedings arose from two separate applications for ad hoc admission by Theodoros Kassimatis KC and Edward Fitzgerald KC (collectively, "the Applicants"), both King's Counsel from England, to represent four individuals ("the Claimants") in ongoing Court of Appeal matters in Singapore. The Claimants, Jumaat bin Mohamed Sayed, Saminathan Selvaraju, Datchinamurthy a/l Kataiah, and Lingkesvaran Rajendaren, had all been convicted of capital drug trafficking offences under the Misuse of Drugs Act ("MDA") and sentenced to the mandatory death penalty. Their respective appeals against conviction had been dismissed by the Court of Appeal between 2019 and 2021.

Following the dismissal of their criminal appeals, the Claimants initiated a series of civil applications. Notably, on 22 August 2022, they filed HC/OA 480/2022 ("OA 480") seeking permission to commence judicial review proceedings. The core of their intended judicial review was to challenge the constitutionality of ss 18(1) and 18(2) of the MDA, which provide for "double presumptions" of possession and knowledge of controlled drugs. They argued that these presumptions were incompatible with the presumption of innocence protected under Articles 9(1) and 12(1) of the Constitution of the Republic of Singapore.

OA 480 was dismissed by Valerie Thean J on 25 November 2022, who found that the subject matter was not susceptible to judicial review and that the application was out of time. The Claimants then filed CA/CA 2/2023 ("CA 2") to appeal this decision. However, CA 2 was deemed withdrawn on 14 March 2023 due to the Claimants' failure to file the necessary documents. Subsequently, the Claimants filed CA/SUM 8/2023 ("SUM 8") for reinstatement of CA 2 and an extension of time, but this was dismissed by Steven Chong JCA on 25 May 2023. The Claimants then filed CA/SUM 16/2023 ("SUM 16") for the full Court of Appeal to set aside Chong JCA's decision and reinstate CA 2. It was in relation to these pending Court of Appeal matters (CA 2 and SUM 16) that the Applicants sought ad hoc admission.

Both Applicants possessed extensive experience in criminal law. Mr Kassimatis KC was admitted as a barrister and solicitor in Victoria, Australia, in 2001, and was appointed Senior Counsel in 2016 and Queen's Counsel in 2017. Mr Fitzgerald KC was called to the Bar of England and Wales in 1978 and appointed Queen's Counsel in 1995. Following the death of Queen Elizabeth II in September 2022, their designations automatically changed to King's Counsel. The Attorney-General and the Law Society of Singapore opposed both applications for ad hoc admission.

What Were the Key Legal Issues?

The High Court was called upon to determine several issues concerning the ad hoc admission of foreign counsel, which involved both procedural and substantive aspects of the Legal Profession Act 1966 (LPA).

• Right of Audience for Ad Hoc Applicants: Whether an applicant for ad hoc admission under s 15(1) of the LPA is entitled to address the court on their own application, specifically whether they fall within the exception for "any person acting personally for himself or herself only in any matter or proceeding to which he or she is a party" under LPA s 34(1)(e).
• Formal Requirements for Ad Hoc Admission: Whether the applicants satisfied the formal requirements under LPA ss 15(1)(a) and (b), which mandate holding a Queen's/King's Counsel patent or equivalent and not ordinarily residing in Singapore or Malaysia but intending to come to Singapore for the purpose of appearing in the case.
• "Special Qualifications or Experience": Whether the applicants possessed "special qualifications or experience for the purpose of the case" as required by LPA s 15(1)(c), considering their extensive backgrounds in criminal and appellate law in their respective jurisdictions.
• "Special Reason" for Admission: Whether there was a "special reason" to admit the applicants under LPA s 15(2), particularly in light of the underlying constitutional issues concerning the Misuse of Drugs Act, the Claimants' alleged inability to secure local counsel, and the stage of the underlying Court of Appeal proceedings.

How Did the Court Analyse the Issues?

The court first addressed a preliminary objection raised by the Attorney-General and the Law Society of Singapore regarding the applicants' right of audience. The respondents argued that allowing the applicants to address the court on their own applications for ad hoc admission would effectively permit unadmitted persons to exercise advocacy functions, circumventing the regulatory scheme of the LPA. The applicants contended that they were "acting personally for himself" within the meaning of LPA s 34(1)(e). The court upheld the preliminary objection, ruling that the applicants were not entitled to address the court on the merits of their applications [28]. Woo Bih Li JAD reasoned that the exception in s 34(1)(e) refers to litigants-in-person who are protecting their own substantive legal interests, which the applicants were not, as they sought admission to act for others [30-31]. The court distinguished Re Nicholas William Henric QC and another application [2002] 1 SLR(R) 751, noting that it supported the view that the *litigant* (i.e., the client) could address the court, not the foreign counsel applicant [34-36]. Consequently, the Claimants themselves were permitted to make submissions on the applications [5].

Turning to the substantive applications for ad hoc admission, the court applied the structured test under LPA s 15. This provision requires satisfaction of formal requirements (ss 15(1)(a) and (b)), possession of "special qualifications or experience" (s 15(1)(c)), and, if the case involves a prescribed area of legal practice (such as constitutional and administrative law), the existence of a "special reason" for admission (s 15(2)).

Regarding the formal requirements and "special qualifications or experience", the court found that Mr Fitzgerald KC had met all the s 15(1) requirements, but Mr Kassimatis KC had not [83]. The judgment did not elaborate on the specific deficiency in Mr Kassimatis KC's application concerning these requirements. However, the ultimate dismissal of both applications rested on the absence of a "special reason".

The "special reason" requirement under s 15(2) was the critical hurdle. The court reiterated that "special reason" envisages an "exceptional case" [67], and that the mere fact that the underlying matters raised issues of public importance was insufficient without more [65]. The Claimants' primary argument for a special reason was their alleged inability to find local counsel to represent them [66]. The court acknowledged that Re Caplan Jonathan Michael QC [2013] 3 SLR 66 suggested that a special reason *may* exist if an individual proves "despite all reasonable efforts conscientiously made, he cannot find any competent local counsel to represent him" [67]. However, Re Caplan also mandated that such efforts must be detailed with particularity, including the nature of contact, mode, dates, and reasons for refusal [68].

The court scrutinised the Claimants' efforts to secure local counsel. Datchinamurthy's sister had contacted 15 lawyers from 11 firms. Six responded, with some citing lack of capacity, and one lawyer also noting that the first prayer in OA 480 "may well be moot" given the Court of Appeal's decision in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (which held MDA presumptions to be evidential, not legal) [70]. Crucially, two prominent local counsel, Mr Harpreet Singh Nehal SC and Mr Damien Chng, explicitly declined to act because they were "firmly of the view that, while there is a good arguable case that the use of double presumptions to secure a conviction under the Misuse of Drugs Act impermissibly infringes upon the presumption of innocence, on the facts of the 4 cases, the double presumption was either not used or did not need to be used by the Court to secure the convictions" [71]. They concluded that the pending challenge had "no merit" on the facts [71].

Woo Bih Li JAD found this reason significant, stating that it would be "incongruous to allow foreign counsel to be admitted when local counsel are of the view that there is no merit on the facts" [69, 72]. The court noted that the applicants' affidavits and the Claimants' submissions did not elaborate on how resolving the legal issues would likely lead to a successful outcome on the facts, especially given the late stage of the proceedings and prior dismissals [73]. The court also highlighted that Datchinamurthy had already had an unsuccessful review application under the Criminal Procedure Code, and no explanation was provided on how this hurdle would be overcome [74]. Furthermore, the Claimants had already accessed substantive legal assistance from a Malaysian lawyer for drafting earlier applications and submissions, indicating access to legal resources even without formal representation [76]. The court also referenced Re Lord Goldsmith [2005] 1 SLR(R) 378, noting the evolution of the appellate process towards written advocacy, which reduces the need for foreign counsel for oral arguments after trial, and that foreign counsel could participate in preparing written submissions without formal admission [77].

In light of these considerations, the court was "not persuaded that there is a special reason to grant the Applications" [78]. While the Attorney-General had also submitted that granting admission would allow the Claimants to prolong proceedings in an abuse of process, the court stated it did not need to decide this point and that its decision on ad hoc admission did not affect the substantive merits of CA 2 or SUM 16 [79-82].

What Was the Outcome?

The High Court dismissed both applications for ad hoc admission. The court found that while Mr Edward Fitzgerald KC had met all the s 15(1) requirements of the Legal Profession Act 1966, Mr Theodoros Kassimatis KC had not. Crucially, the court concluded that there was no "special reason" to admit either applicant, which is a mandatory requirement for ad hoc admission in cases involving prescribed areas of legal practice.

For the above reasons, I dismiss the Applications. To recapitulate, I find that Mr Fitzgerald KC has met all the s 15(1) Requirements but not Mr Kassimatis KC. In any event, there is no special reason to admit the Applicants. [83]

The applicants had paid the requisite fees to the Attorney-General and the Law Society of Singapore. The respondents did not seek any order for costs.

Why Does This Case Matter?

This case is significant for practising lawyers as it provides crucial clarity on the stringent requirements for ad hoc admission of foreign counsel under the Legal Profession Act 1966 ("LPA"), particularly concerning the "special reason" test. It reinforces that ad hoc admission is an exceptional remedy, not a routine grant, even for highly qualified King's Counsel, and that the court maintains a robust gatekeeping function to safeguard the integrity of the Singapore legal profession.

The decision's primary ratio is that the "special reason" requirement under LPA s 15(2) demands more than merely complex legal issues or the applicant's distinguished qualifications. Critically, an applicant's inability to secure local counsel will not automatically constitute a "special reason" if local counsel have declined to act due to a perceived lack of factual merit in the underlying case. This places a significant burden on foreign counsel and their clients to not only demonstrate diligent efforts to find local representation but also to articulate the substantive factual merits of the underlying litigation, beyond just its legal complexity. The case also definitively clarifies that foreign counsel applying for ad hoc admission do not have a right of audience to argue their own applications, as the "acting personally for himself" exception in LPA s 34(1)(e) is narrowly construed to apply only to litigants protecting their own substantive rights.

For litigation practitioners, this judgment underscores the need for meticulous documentation of all attempts to engage local counsel, including specific reasons for any refusals. It signals that applications for ad hoc admission in late-stage challenges, especially after multiple appeals have been exhausted, will face heightened scrutiny regarding both the "special reason" and potential abuse of process. For foreign counsel, it highlights the importance of collaborating with local counsel from the outset, or at least being prepared for the client to argue the ad hoc application. For local counsel, it serves as a reminder that their assessment of the factual merits of a case can be a decisive factor in the court's consideration of a foreign counsel's ad hoc admission application. The court's observations on the shift towards written advocacy in appellate proceedings also suggest that foreign counsel may often contribute effectively to a case without formal admission, by assisting with written submissions.

Practice Pointers

• Document Diligently for "Special Reason": Foreign counsel and their instructing parties must maintain meticulous records of all attempts to secure local counsel. This includes dates, modes of contact, names of lawyers/firms approached, and detailed reasons for any refusals. Generic statements of unavailability are insufficient; the court will scrutinise the genuineness and reasonableness of these efforts.
• Address Factual Merit of Underlying Case: Do not assume that complex legal or constitutional issues alone will satisfy the "special reason" test. Applicants must be prepared to demonstrate how resolving these issues in the client's favour would likely lead to a successful outcome on the facts of the underlying case, especially if local counsel have declined on merit grounds.
• Client Preparedness for Audience Rights: Advise clients that they (as litigants-in-person) may need to make submissions on the ad hoc admission application themselves, as the foreign counsel applicant may not have a right of audience before being admitted. Local counsel should be prepared to assist the client in this regard if they are not formally representing the foreign counsel.
• Consider Timing of Application: Be mindful of the stage of the underlying proceedings. Late-stage applications for ad hoc admission, particularly after multiple appeals and challenges have been exhausted, will face higher scrutiny regarding the "special reason" and potential for abuse of process.
• Explore Alternatives to Formal Admission: Recognise that foreign counsel can often contribute significantly to a case, particularly in appellate matters, by assisting with the preparation of written submissions without requiring formal ad hoc admission. This may be a viable alternative if oral advocacy is not strictly necessary or if admission is denied.
• Local Counsel's Role in Assessing Merits: For local counsel approached to support an ad hoc application or to represent the client, critically assess the factual and legal merits of the underlying case. The court will consider the reasons why local counsel may have declined to act, and a lack of perceived merit can be a decisive factor against ad hoc admission.

Subsequent Treatment

As a recent decision from January 2024, Kassimatis, Theodoros KC v Attorney-General and another and another matter [2024] SGHC 24 is relatively untested by subsequent Singapore decisions. However, it codifies and applies established principles regarding ad hoc admissions under the Legal Profession Act 1966. The case builds upon and clarifies the stringent "special reason" test articulated in decisions such as Re Caplan Jonathan Michael QC [2013] 3 SLR 66, particularly concerning the evidentiary burden on applicants to demonstrate diligent efforts to secure local counsel and the substantive merit of the underlying case. It also distinguishes and clarifies the scope of the "acting personally for himself" exception from Re Nicholas William Henric QC and another application [2002] 1 SLR(R) 751 regarding the right of audience for unadmitted foreign counsel. Future cases involving ad hoc admission applications are likely to apply the principles set out in this judgment, especially regarding the detailed scrutiny of efforts to secure local counsel and the requirement to demonstrate genuine factual merit in the underlying litigation.

Legislation Referenced

• Legal Profession Act 1966 (2020 Rev Ed), ss 15(1), 15(2), 15(3), 15(6A), 29(1), 32(1), 33, 34(1)(e)
• Legal Profession (Admission) Rules 2011, r 32(2)
• Criminal Procedure Code 2010 (2020 Rev Ed), ss 356, 357, 394H, 394J, 409
• Constitution of the Republic of Singapore (2020 Rev Ed), Arts 9(1), 12(1)
• Misuse of Drugs Act (Cap 185, 2008 Rev Ed), s 5(1)(a), 5(2), 18(1), 18(2)
• Rules of Court 2021, O 24 r 5(2)

Cases Cited

• Public Prosecutor v Jumaat bin Mohamed Sayed [2018] SGHC 176 (Jumaat's trial decision for capital drug trafficking)
• Public Prosecutor v Zulkarnain bin Kemat and others [2018] SGHC 161 (Saminathan's trial decision for capital drug trafficking)
• Mohammad Rizwan bin Akbar Husain v Public Prosecutor and another appeal and other matters [2020] SGCA 45 (Court of Appeal decision upholding Saminathan's conviction)
• Public Prosecutor v Christeen d/o Jayamany and another [2015] SGHC 126 (Datchinamurthy's trial decision for capital drug trafficking)
• Datchinamurthy a/l Kataiah v Public Prosecutor [2021] SGCA 30 (Court of Appeal decision dismissing Datchinamurthy's review application)
• Public Prosecutor v Lingkesvaran Rajendaren and another [2018] SGHC 234 (Lingkesvaran's trial decision for capital drug trafficking)
• Syed Suhail bin Syed Zin and others v Attorney-General [2022] 4 SLR 934 (High Court decision dismissing OS 825 as an abuse of process)
• Iskandar bin Rahmat and others v Attorney-General and another [2022] 2 SLR 1018 (Court of Appeal decision upholding the striking out of OC 166)
• Jumaat bin Mohamed Sayed and others v Attorney-General [2022] SGHC 291 (High Court decision dismissing OA 480 for judicial review permission)
• Jumaat bin Mohamed Sayed and others v Attorney-General [2023] 1 SLR 1437 (Court of Appeal decision dismissing SUM 8 for reinstatement of appeal)
• Re Nicholas William Henric QC and another application [2002] 1 SLR(R) 751 (Distinguished on the scope of audience rights for ad hoc applicants)
• Re Caplan Jonathan Michael QC [2013] 3 SLR 66 (Applied for the "special reason" test and the evidentiary requirements for inability to find local counsel)
• Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (Referenced by local counsel in declining to act, regarding the nature of MDA presumptions)
• Re Lord Goldsmith [2005] 1 SLR(R) 378 (Referenced on the evolution of the appellate process towards written advocacy)

Source Documents

• Original Judgment (eLitigation)
• Archived Copy (PDF) — Litt Law CDN