|Pro Bono Publico|
This was the speech made by the Chief Justice at the inaugural LASCO Award Dinner held on 26 November 2010 at the Orchard Holiday Inn.
Legal Assistance Scheme for Capital
Offences (LASCO) Inaugural LASCO Award
I am delighted to join you at this dinner tonight to acknowledge the efforts of the members of the Criminal Bar in supporting the Legal Assistance Scheme for Capital Offences (“LASCO”). Tonight, the Supreme Court will, for the first time, present an award to be called the LASCO Award to one of the participants in LASCO in recognition of his commitment and actual contributions to LASCO. Consistent with the purpose and spirit of LASCO, the LASCO Award will not be in the form of cash but simply a token of appreciation by the Supreme Court for the spirit of service rendered to the State and the community, especially to the persons whom they had to defend in Court.
One of the greatest challenges of the criminal justice system of Singapore is to ensure that all persons charged with criminal offences have a fair trial. One essential ingredient of a fair trial is access to counsel. The Constitution provides that “where a person is arrested, he shall be … allowed to consult and be defended by a legal practitioner of his choice” but not – it should be noted – to be provided with state-assisted counsel, much less state-assisted counsel of his choice. Of course, the arrestee cannot be defended by counsel of his choice if he does not have the financial means to pay for his counsel’s services. The provision of criminal legal aid is, of course, the easy answer to this problem but it can be a social burden on the taxpayer if given too liberally to all indicted defendants. Hence, from the viewpoint of the State, there is no criminal legal aid in Singapore as a matter of course for all offences. Furthermore, since every state pursues or should pursue a policy of making sure that crime does not pay, it cannot then justify paying for the defence of all crimes, the presumption of innocence notwithstanding. However, where an offence is punishable with the death penalty, an exception to the general principle of no legal aid is justifiable because any miscarriage of justice is final and irrevocable as far as the convicted offender is concerned. For this reason, it is necessary that the criminal justice system should provide some means to avoid executive and/or judicial errors in charging and convicting the innocent of capital offences. One means is to provide the defendant with state-assisted counsel of competence with a view to minimising or, better yet, eliminating any mistaken or wrongful prosecution or any judicial errors in evaluating the evidence against his client. Legal aid for persons charged for capital offences is not merely a question of fairness but a matter of necessity in an adversarial system of trial where the prosecution commands much greater resources than the defendant. This is the role of LASCO.
Currently, we have 200 lawyers registered under LASCO. In the last five years, we have had as many as 230 lawyers registered, out of which 119 have taken on cases under the scheme. From 2005 to November 2010, the Supreme Court has assigned counsel for 109 cases. This would mean that almost 36 LASCO assignments have been handed out every year. More can and should step forward as part of their civic responsibility as lawyers.
As you are aware, LASCO does not peg counsel’s remuneration to private sector pay for a number of practical reasons. But the current rates provide a decent “honorarium” for two participating counsel. The unique feature of LASCO is that it pays for the services of two counsel to represent the accused. Prior to its introduction, the State paid for only one counsel. So why does the State do this? The more senior members of the Criminal Bar will know the reason. Prior to 1992, all capital charges were tried by a Court of two judges. This was replaced by a one-judge Court, but to compensate for any possible disadvantage to the accused by this change, the State agreed to provide legal aid for the services of an additional counsel to ensure that the accused will have adequate and proper representation.
I am aware that, from time to time, the Criminal Bar thinks that participants in LASCO are underpaid. I hope they do not think that the State is exploiting their services because that is not true. It is not true simply because LASCO represents a form of state legal aid, i.e., the monies come out of public funds, and a sensible balance must be made between giving such kinds of assistance and protecting the public purse.
I would offer two reasons why, even from the perspective of the Criminal Bar, members of LASCO should feel pleased with their role as LASCO-appointed defence counsel. The first, and most important, reason is that participating in LASCO may be regarded as a moral obligation on the part of any member of the legal profession, especially those who practise at the Criminal Bar, to advance and promote criminal justice, and prevent or reduce any miscarriage of justice. It may be said that the public defender’s role is part of the DNA of the criminal lawyer; if it is not, his genes will evolve over time to seek that role. As a Judge, I can easily understand why criminal lawyers are impelled to answer the call to provide legal representation to defendants who have no financial means to employ counsel of their choice.
The second reason is that the provision of two counsel means that we have in place a system of providing skills training and criminal litigation experience to younger lawyers who wish to practise at the Criminal Bar. In my experience, counsel gets better with each case he does – it is not different from the work of a surgeon. The more operations a surgeon has done, the more skilful and knowledgeable he becomes. In the profession of surgery, the reputation of a surgeon depends very much on how many operations of a particular type he has done. The confidence of a patient in the success of the surgery lies considerably in the experience of the surgeon. It is the same with criminal lawyers. Therefore, junior lawyers should make it a point to volunteer for LASCO cases as often as possible.
It is true that criminal work generally does not pay as well as civil work, but that comparison is distorted by the fees payable for legal services in the corporate sector. The distortion comes about because in corporate deals, the clients of the financial institutions end up paying the fees charged by all the professional advisers involved in the deals. Corporate entities need their services and have no choice but to pay their fees – these fees are then passed on or absorbed by their shareholders. This is absent from criminal law services, unless corporate entities or their officers are charged for offences, or if the person charged is a person of substantial means, which he is from time to time. In other words, commercial crime pays the lawyer much better than the ordinary law and order offences. Nevertheless, a good criminal lawyer should have no problem handling all kinds of criminal cases, including commercial cases. All he needs is a good understanding of the nature of the offence, and knowledge of the market practice in that line of business.
A good criminal lawyer can take on commercial crimes easily. All he needs are the basic skills of criminal litigation which he could have developed from his experiences in other criminal cases. The basics of criminal liability are the same for all offences. Take David Marshall as an example. He was a traditional criminal lawyer of the old school type. But he was so good at securing acquittals of his clients in criminal prosecutions that his fame spread to all and sundry, with the result that many clients sought his advice and services for civil cases. I can give you two instances where David Marshall proved equally effective as a civil counsel:
(a) In the first case, I defended a Singapore defendant who had sold tapioca starch to a German buyer as animal feed, for delivery ex-factory. The starch was shipped in gunny bags and marked with a red substance used by Chinese exporters for umpteen years. The bags got wet whilst being shipped to Germany and the starch was stained by the substance. A chemical analysis showed the starch was unfit for use as mix for animal feed under German health standards. The German buyer sued the seller for damages for selling him “unmerchantable” goods under the Sale of Goods Ordinance. My defence was that the starch was certainly merchantable in Singapore, and our pig farmers would have no problem with it. Justice Ambrose gave judgment for the plaintiff. On appeal, my employers briefed David Marshall to argue the appeal on exactly the same ground that was rejected by the High Court. The Court of Appeal allowed the appeal.1
(b) In the second case, David acted for the defendant in a company law case in which he applied to strike out the claim on some procedural ground (which I cannot remember now). However, as the substantive issues involved company law, he (through the good offices of former JC Amarjeet Singh) asked me to act as his junior counsel to argue the company law point, if necessary. I never made the argument because Justice Kulasekaram struck out the plaintiff’s claim on David’s argument. A week later, he sent me a cheque which I would not have charged if I had done the whole case myself. So, you can see what kind of fees David was able to command even as a civil lawyer.
But, of course, we know that the criminal lawyer has something – some personal quality – which the civil lawyer may not have the opportunity to manifest in his day to day work. That something is a “passion” for justice and the underdog – and his sense of fairness and justice that any person who is charged with a capital offence is entitled to be accorded the benefit of the judicial process. Let me refer again to David Marshall’s ethics in this area of the law. He once accepted an in forma pauperis brief and fell ill in the course of the trial. His doctor advised him that if he did not rest, there was a real risk that he would suffer a fatal brain haemorrhage. He rejected that advice and proceeded to complete his case. After the trial, he noted in his diary the following entry:
How can you ask for an adjournment when your client’s life is at stake; when your hands are tightening round the throat of the prosecution, and the tension is thundering to a climax that may blow open the gates of prison? Maybe I was not wise. But where does wisdom come in? When you take a brief, your client’s interests takes priority over yours. 2
I am not saying that, in similar circumstances, you should not apply for an adjournment. But what I am saying is that, like David Marshall, you should have the same commitment and dedication to doing your best, and more, for your clients.
Who knows? LASCO may bring forth another David Marshall, not necessarily with the same charismatic presence in Court but one equally worthy of the respect of the Judiciary and the Bar. Flamboyance before a jury is a thing of the past – but a respectful hearing from a Judge is not. It is my hope that this Award which the Supreme Court will confer, from time to time, at appropriate intervals will provide an incentive for young lawyers to participate in LASCO, contribute to the criminal justice system and, hopefully, make a name for himself in the annals of criminal law in Singapore.
The last point I wish to make is this: Up to now, LASCO is administered by the Registrar of the Supreme Court. I believe that the Law Society can play an active role in improving LASCO by, for instance, advising on the selection of counsel under LASCO. We should look into the possibility of establishing an Advisory Committee, to be chaired by the Registrar, with members nominated by the Registrar and the President of the Law Society, to provide inputs relating to different aspects of the administration of LASCO. This will dovetail the pro bono work of the Law Society. The Registrar will invite the President of the Law Society for a discussion on this matter shortly.
To conclude, I now announce, with great pleasure, the winner of the first LASCO Award. During the qualifying period for the Award between 1 January 2008 and 30 June 2010, he conducted four cases under LASCO. Within the past five years but outside of the qualifying period, he has accepted three further assignments, including two which he accepted in August and September of this year. His commitment towards his clients has been noted by many, including Justice Choo Han Teck and Justice Steven Chong. I understand that he adjusts his work schedule to accommodate LASCO assignments, rather than vice versa. He is a regular commentator on the criminal justice system in the general media. He, together with two other colleagues, also received the highest number of nominations for the Award.
I congratulate the worthy winner. He is Mr Amolat Singh.
The Honourable The Chief Justice Chan Sek Keong
1 See Seng Hin v Arathoon Sons Ltd [1968-1970] SLR(R) 185.
2 David Marshall’s diary, 23 October 1950, as recorded in Kevin Y L Tan, Marshall of Singapore: A Biography, (ISEAS Publishing, 2008) pp 181-182.