Public Prosecutor v. Soh Chee Wen
The Singapore Supreme Court’s holding in Public Prosecutor v Soh Chee Wen (“SCW”) that legal professional privilege extends to public prosecutors (“PP”) has been criticised as “a problematic decision”.[1] Although this brief judgment confirmed the law in a few aspects, it featured even more pre-existing controversies and gave rise to new ones. These will be explored across five issues: (a) the validity of litigation privilege (b) the PP’s entitlement to litigation privilege (c) the duration of litigation privilege (d) the necessity exception and (e) implied waiver. The controversies surrounding litigation privilege largely stem from the lack of explicit provisions in the Evidence Act, (Cap 97, 1997 Rev Ed) and inconclusive prior court decisions. Given that SCW is only concerned with litigation privilege, this article will focus almost entirely on the issues surrounding litigation privilege save for its interactions with the larger domain of legal professional privilege. While SCW may not have cited the Evidence Act as it appears to be an interlocutory application which would not necessitate this by virtue of section 2(1), the following discussion assumes that the common law may nevertheless be interpreted in light of the Evidence Act. It appears that SCW has brought increased attention to the controversy surrounding litigation privilege rather than bringing clarity to it. Given the entrenchment of litigation privilege in the common law, a potential reconciliation with the Evidence Act would play a crucial role in clarifying the law in Singapore as a whole.
Legal professional privilege (“LPP”), which operates to resist the disclosure of evidence,[2] is justified upon the public interest of ensuring secure and effective administration of justice.[3] Two types of LPP exist: legal advice privilege (“LAP”) and litigation privilege (“LitiP”). The former, which is provided for by both the common law (“CL”) and sections 128 and 131 of the Evidence Act (the “EA”),[4] protects confidential communications between the client and his “legal adviser”.[5] The latter protects communications made when there is a reasonable prospect of litigation, and for the dominant purpose of litigation.[6] LitiP ensures the efficacy of the adversarial process by allowing parties to prepare privately without the threat of premature disclosure.[7]
The first issue for discussion pertains to uncertainty on the validity of LitiP in light of the EA. PP v Soh Chee Wen,[8] endorsed the distinction between LitiP and LAP under the CL.[9] This reiterated Singapore’s departure from the initial view that no general privilege attached to documents brought for the purposes of litigation independent of LAP.[10] But SCW made no reference to the EA in doing so. Section 2(2), which operates to repeal all rules of evidence which are inconsistent with the EA,[11] threatens to abrogate LitiP at CL.[12]
There are conflicting interpretations of whether section 131 gives effect to LitiP. The Singapore Court of Appeal in Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd (“Skandinaviska”), in holding that section 131 “clearly [envisaged]” LitiP,[13] adopted a literal interpretation of term “legal professional adviser”. This term was taken to have been intended to apply to all legal advisors who assisted clients in litigation, including the PP.[14] However, a purposive interpretation would contest that the term is merely shorthand for the persons to whom section 128 apply for LAP.[15] When section 3(6) of the EA was enacted to clarify this term under section 131(2)(a), the only legislative mention of prosecutors was regarding LAP, not LitiP. Specifically, the clarification was meant to extend confidential communications to counsel “for the purpose of seeking legal advice”.[16] Further, the CL’s recognition of third-party communications in LitiP and ‘dominant purpose of litigation’ requirement are well beyond the ambit of section 131.[17] Thus, section 131’s exclusive provision of LAP could potentially rob LitiP of its legitimacy.
Uncertainty remains on whether the EA must be reconciled with the CL. It is noteworthy that Singapore is one of about a dozen common law jurisdictions that have adopted the Indian Evidence Act of 1872, which was effectively conceived by Sir James Fitzjames Stephen.[18] Stephen did intend to depart from the CL in certain respects, such as in furthering an inclusionary approach which goes against the former’s exclusionary one.[19] Nevertheless, the EA was only enacted in 1893, after LitiP had been conceived under the CL.[20] This means that the EA did not provide for LitiP when it could have. Rather, the undeniable presence of section 2(2) EA points against accepting it as a counterpart to the long-codified LAP. Evidently, SCW merely accepted the doctrine of LitiP without any heed for the EA and only added to the conflicting body of case law.
The second issue for discussion pertains to uncertainty over why public authorities should assert LitiP. SCW is valuable for recognising that public authorities (i.e. the PP) can assert LitiP.[21] Before SCW, cases such as Chiu Teng Enterprises Pte Ltd v Attorney-General have expressed “considerable difficulty” in applying LitiP to materials created for the purposes of criminal proceedings,[22] while Comptroller of Income Tax v ARW postulated only a hypothetical application of LitiP to prosecutors in a police investigation.[23] However, SCW’s reasoning that the PP is entitled to LitiP just because he is a party to criminal proceedings remains unconvincing. [24]
Crucially, the rationale for LitiP deviates from the role of the PP. If LitiP is meant to promote the efficacious resolution of disputes whereby disputants can prepare cases in private,[25] this does not entirely cohere with the role of the PP.[26] While the PP may naturally be inclined towards a successful conviction,[27] he does not seek to vindicate civil and property rights unlike a private litigant. Rather, he is a ‘minister of justice’,[28] a state organ obligated to seek the truth over a conviction against the accused’s rights.[29] Accordingly, he has a duty to disclose material that tends to undermine the P’s case or strengthen the accused’s.[30] This duty has been said to be completely inconsistent with any claim to LitiP.[31]
In entitling the PP to LitiP, SCW entirely overlooked the nuances of such a multifaceted role by cursorily acknowledging the PP as a mere party to the proceedings. The High Court appears to have favoured expediency over justification and left the issue to future decisions.
The next issue for discussion pertains to the duration of LitiP. The question of whether privilege subsists forever once it attaches, subject only to waiver or statutory abrogation, has been open since before SCW was decided.[32] SCW broke no new ground by conceding that the duration of LitiP produced “difficult questions” for future consideration.[33] There are two opposing viewpoints that SCW avoided discussing:
On the one hand, it could be contended that privilege should last indefinitely. The English maxim, “once privileged, always privileged”,[34] has been applied to LAP by virtue of section 128(1) of the EA.[35] But it is unclear whether the same applies to LitiP. Skandinaviska appears to agree on the basis that legal advice given for litigation is protected by both LAP and LitiP for the common cause of “secure and effective administration of justice ".[36] In addition, some statutory definitions of LitiP outside the EA contemplate LitiP surviving notwithstanding litigation that has never begun nor been terminated.[37]
On the other hand, it could be contended that privilege does not last indefinitely. The Canadian approach, for example, terminates privilege alongside litigation unless related litigation is pending or anticipated.[38] Blank v. Canada (Minister of Justice), which treats LitiP and LAP as “distinct conceptual animals”, distinguished between their policy considerations.[39] On the one hand, LAP serves to indefinitely promote free and frank solicitor-client communications.[40] On the other hand, LitiP seeks to create a “zone of privacy” for pending or apprehended litigation— it relies on the existence of determinate litigation, not solicitor-client communications.[41] While the codification of this position has been recommended in Singapore, the legislature has left the law unsettled by choosing not to do so.[42] Regardless, while SCW chose not to deal with this issue, it has at least underscored the degree of complication involved for future judgments.
The fourth issue for discussion relates to whether LitiP should be subject to the necessity exception. Another highlight of SCW lies in its conception of the novel necessity exception. Prior to SCW, there was debate over whether the right to LitiP is an absolute one, immune to any higher interest sans exceptions such as waiver/statute.[43] In response, SCW held that LitiP may be overridden by a competing interest of importance (i.e. the need of an accused to rely on evidence for his defence).[44] This entails balancing the probative value of the evidence against the interest of the other party in preserving the confidentiality of the information.[45] However, this development has exposed even greater uncertainty over how the exception applies.
First, besides recognising the accused’s need to rely on privileged evidence as one aspect of the broader rule of necessity, there was no discussion of other species of overriding interests. It would be concerning if the necessity exception could apply equally in the prosecution’s favour. For instance, the PP may exploit the ill-defined ambit of the necessity rule to secure a conviction by superseding the accused’s claim to LitiP instead.[46]
Second, there is no clear threshold for lifting LitiP. On the facts of SCW, the court decided that the threshold was “not high” in relation to “factual material”, such as a witness’ account of his witness interview.[47] This suggests that the threshold is both flexible and arbitrary,[48] without any explanation on when the threshold would ever be a “high” one.
Third, SCW did not address whether the balancing test is consistent with sections 128 and 131 of the EA. Although these provisions set out specific situations in which LAP would not apply, they do not include a necessity-esque exception for an accused to rely on privileged information to mount his criminal defence.[49] Granted, the application of the balancing test to the EA is not unprecedented, such as in the admissibility of similar fact evidence concerning sections 11 and 14 of the EA. But this does not detract from SCW’s failure to even take the EA into consideration.
Ultimately, SCW’s introduction of the necessity exception is a questionable one that has failed to explain how it works and why it is even necessary. This is unsurprising since SCW gave no real consideration to the case law as regards the absolute status of LPP.[50]
The final issue for discussion concerns the scope and existence of implied waiver (“IW”), a form of waiver that could arise without the client’s express consent. The scope of scenarios for which IW may arise is still unclear given that the law on IW is of “tremendous complexity”.[51]Still, SCW has at least served to broaden the types of content to which IW applies. While the Singapore Court of Appeal in ARX v Comptroller of Income Tax (“ARX”) applied IW only to privileged “material” and “documents”,[52] SCW held that IW may apply to other forms of content such as oral communications.[53] It reiterated the principle of fairness outlined in ARX, which sought to prevent a party from relying on the advantageous aspects of privileged material while claiming privilege for the less favourable ones.[54] However, this is as far as SCW goes in clarifying the law on IW.
SCW neglected the inconsistencies between IW at CL and the EA, which threatens to repeal the former under section 2(2). The EA’s limited provisions of IW arise from the requirement of “express consent” in section 128,[55] and sections 131 and 130 which lift privilege only upon substantial inconsistency between the client’s testimony and the privileged communications.[56] Even at CL, the High Court has relegated the possibility of section 128A in “[accommodating] the doctrine of IW” to an assumption.[57] In contrast, the CL’s broader approach has “gone beyond the scope of sections 130 and 131” in finding IW whenever the client is found to have a clear intention to give up confidentiality,[58] subject to an objective assessment of all the circumstances.[59]
Instead of addressing these rifts between the CL and EA, SCW exclusively relied on ARX’s landmark statement of IW which unconvincingly assumed that both sources of law were mutually consistent.[60] Evidently, SCW did not express an appreciation of ARX’s shortcomings but followed it without question and entrenched the CL’s divergence from the EA.
In conclusion, SCW was a commendable effort to develop LitiP at CL, though it has raised more questions than answers. Granted, some questions existed well before SCW – it merely failed to address but not engender them. Considering LitiP’s entrenchment at CL, it remains to be seen how, not if, the reconciliation with EA will occur. This will have a knock-on effect on the rest of the issues. Given that PPs and privilege both play crucial roles in our legal system, SCW is expected to serve as a springboard for future decisions in clarifying the law on LPP.
References
[1] Colin Liew, Legal professional privilege, (Singapore: Academy Publishing, 2020) at para 7.8.
[2] ARX v Comptroller of Income Tax [2016] 5 SLR 590 at [51].
[3] Siyuan Chen and Lionel Leo, The Law of Evidence in Singapore, 2nd ed. (Singapore: Sweet & Maxwell, 2018) at para 8.016.
[4] Evidence Act, (Cap 97, 1997 Rev Ed).
[5] Jeffrey Pinsler, Evidence and the Litigation Process, 7th ed. (Singapore: LexisNexis, 2020) at para 14.001.
[6] Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] SGCA 9 at [44].
[7] Halsbury’s Laws of Singapore - Evidence vol 10 (Singapore: LexisNexis, 2021) at para 120.390C.
[8] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235.
[9] Id at [10].
[10] The Patraikos No 2 [2000] 2 SLR(R) 21.
[11] Section 2(2) of the EA.
[12] Liew, supra note 1, at para 2.21.
[13] Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] SGCA 9 at [67].
[14] Id at [34].
[15] Liew, supra note 1, at para 5.82.
[16] Singapore Parliamentary Debates, Parliament No. 12, Official Report (14 Feb 2012) vol 88, Sitting no. 13 (Mr K Shanmugam) at p 1128.
[17] Law Reform Committee, Singapore Academy of Law, Report Of The Law Reform Committee On Reforming Legal Professional Privilege (October 2011) at para 45.
[18] Siyuan Chen and Eunice Chua. “The Indian Evidence Act and Recent Formulations of the Exclusionary Discretion in Singapore: Not Quite Different Rivers Into the Same Sea” International Commentary on Evidence 1. March 06, 2019. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3334744
[19] Liew, supra note 1, at para 5.90.
[20] Pinsler, supra note 5, at para 14.112.
[21] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235 at [11].
[22] Chiu Teng Enterprises Pte Ltd v Attorney-General [2011] SGHC 77 at [16].
[23] Comptroller of Income Tax v ARW (Attorney-General, intervener) [2017] SGHC 180.
[24] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235 at [11].
[25] Ibid.
[26] Liew, supra note 1, at para 5.381.
[27] Wong, Lucien. “Prosecution in the Public Interest” Singapore Law Review Lecture. October 19, 2017. www.agc.gov.sg/docs/default-source/default-document-library/singapore-law-review-annual-lecture-2017---prosecuting-in-the-public-interest.pdf
[28] Muhammad bin Kadar v Public Prosecutor [2011] 3 SLR 1205 at [109].
[29] PP v Wee Teong Boo [2020] 2 SLR 533.
[30] Muhammad bin Kadar v Public Prosecutor [2011] 3 SLR 1205 at [113].
[31] Liew, supra note 1, at para 5.383.
[32] Comptroller of Income Tax v ARW (Attorney-General, intervener) [2017] SGHC 180 at [34].
[33] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235 at [17].
[34] Calcraft v Guest [1898] 1 QB 759.
[35] Pinsler, supra note 5, at para 14.010, citing Wee Shuo Woon v HT SRL [2017] 2 SLR 94.
[36] Chen and Leo, supra note 3, at para 8.044.
[37] S3(1)(c) of the Organised Crime Act (No. 26 of 2015); s386AE(1)(c) Companies Act (Cap 50, 2006 Rev Ed).
[38] Blank v. Canada (Minister of Justice) [2006] 2 SCR 319 at [34].
[39] Id at [7].
[40] Id at [26].
[41] Id at [34].
[42] Law Reform Committee, Singapore Academy of Law, Report Of The Law Reform Committee On Reforming Legal Professional Privilege (October 2011) at para 51.
[43] Jeffrey Pinsler, Evidence and the Litigation Process, 6th ed. (Singapore: LexisNexis, 2017) at para 14.119.
[44] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235 at [20].
[45] Id at [7].
[46] Liew, supra note 1, at para 2.241.
[47] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235 at [24].
[48] Liew, supra note 1, at para 2.108.
[49] Chen and Leo, supra note 3, at para 8.051.
[50] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235 at [20], citing only Pinsler, supra note 42, at para 14.119.
[51] ARX v Comptroller of Income Tax [2016] 5 SLR 590 at [52].
[52] Id at [65].
[53] Public Prosecutor v Soh Chee Wen and another [2019] SGHC 235 at [25].
[54] ARX v Comptroller of Income Tax [2016] 5 SLR 590 at [65].
[55] Section 128 of the EA.
[56] Law Reform Committee, supra note 17, at para 55.
[57] Lam Chye Shing [2019] 5 SLR 130 at [122].
[58] Liew, supra note 1, at para 8.154, citing Lippo Marina on Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd & Ors [2009] 1 SLR(R) 42.
[59] ARX v Comptroller of Income Tax [2016] 5 SLR 590 at [69].
[60] Liew, supra note 1, at para 8.152.