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(1999) 11 SAcLJ 284
Ethics In Litigation: Issues Raised By The Legal Profession (Professional

Conduct) Rules, 1998
ETHICS IN LITIGATION: ISSUES RAISED BY THE LEGAL PROFESSION (PROFESSIONAL

CONDUCT) RULES, 1998
by
Jeffrey Pinsler*
This article addresses the impact of the Legal Profession (Professional Conduct) Rules,
1998 in the context of ethics in litigation. The approach is to consider the scheme and
application of these Rules, 1 to examine the ethical norms applicable to the general
conduct of proceedings in court, 2 and, more specifically and substantially, to analyse
the extent to which the Rules affect the process of cross-examination. 3
1. SCHEME AND APPLICATION OF THE LEGAL PROFESSION (PROFESSIONAL
CONDUCT) RULES, 1998
THE Legal Profession (Professional Conduct) Rules (the LP (PC) Rules) came into
operation on 1st June 1998. 4 They apply ‘to every advocate and solicitor who has in
force a practising certificate’. 5 These Rules consist of six parts concerning,
respectively, ‘Preliminary’, ‘Practice’, ‘Relationship and Dealings with Clients’, ‘Conduct
of Proceedings’, ‘Defending Accused Persons’, and ‘Conduct of Criminal Prosecutions
by Practising Solicitor’. This article focuses on ‘Part IV: Conduct of Proceedings’ and
certain other rules in the LP (PC) Rules to the extent that they are linked to this topic.
The LP (PC) Rules apply to interlocutory processes as well as the trial or hearing unless
by reason of their specific nature only a particular process is addressed. 6 The rules are
facets of the duties which an advocate and solicitor owes to the court, his client, the
opposing solicitor, other persons involved in the court process and the public.
Prior to the advent of the LP (PC) Rules, the Practice Directions and Rulings, 1989
(PDR) (including guidelines issued by the Law Society) governed ethical practice in
general. 7 It is provided in the LP (PC) Rules that they prevail over the PDR ‘to the
extent of any inconsistency’. 8 Apart from the PDR, the advocate and solicitor has
always been required to act within the ethical parameters mandated by his position as
an ‘officer of the court.’ 9 The ramifications of the terminology ‘officer of the court’
Page: 285
can only be truly be described as an overriding principle to be applied to all

circumstances of legal practice. This principle now finds itself expressed in the LP (PC)
Rules as the obligation ‘to maintain the rule of law and assist in the administration of
justice’. 10
However, in the complex system of court practice, principle needs to be carefully

defined, ideally in the form of specific directions so that the advocates (and their
clients) are in no doubt about proper conduct in the great variety of circumstances in
which they may find themselves. Although the PDR does contain provisions guiding
professional practice, 11 few of these focus on the actual conduct of proceedings. While
the advocate and solicitor's responsibility as an officer of the court has always been
paramount, the absence of a comprehensive code of ethics governing the trial process
may not always have guaranteed adherence to expected standards. Moreover, the
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PDR, not being legislation, may have lacked the moral and legal force necessary to
stamp the ethical aspects of court practice with the appropriate importance or
authority. The LP (PC) Rules are the first comprehensive body of rules on ethics in
general, and they have statutory force.
II. GENERAL CONDUCT OF PROCEEDINGS IN COURT
Primary obligations
The fundamental principle that an advocate and solicitor must represent his client to
the best of his ability 12 and to endeavour to do his utmost in this respect 13 subject to
the obligations arising from his role as an officer of the court 14 is formulated by Rule
54 of the LP (PC) Rules as follows:
… 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.
It is clear from this rule and the case law that the advocate and solicitor's obligation to
act in the best interests of his client 15 is necessarily limited by his position as an
officer of the court, which raises a separate set of obligations relating to the system of
justice as a whole. 16 The term ‘officer
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of the court’ is no mere esoteric title about which the advocate can remain passive.
The position imposes a manifold duty comprising: obligations to the court to maintain
the rule of law and assist in the administration of justice; 17 a duty to the opposing
party and his legal counsel to ensure fairness in the litigation process; and a general
public duty to ensure that the integrity and dignity of the judicial system and the legal
profession is preserved. 18
Duty not to deceive or mislead

His most basic obligation is not to 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. 19 This responsibility extends to every function including the
presentation and interpretation of facts, drafting of pleadings and documents, legal
argument and other submissions to, or communications with, the court. 20 The duty
not to intentionally mislead or deceive is only the bare minimum required of the
advocate and solicitor. As an officer of the court, he is expected to advance the public
interest in the fair administration of justice even if this would jeopardise his client's
interests. Hence, he is required to 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’. 21 In the same context, he
is prohibited from advancing submissions, opinions or propositions which he knows to
be contrary to the law. 22 He is also expected to raise ‘any procedural irregularity’
during the hearing and not reserve it for the appeal. 23 Although this injunction is
primarily intended to ensure that the advocate and solicitor raises his opponent's
procedural defaults so that they are adjudicated at first instance rather than on
appeal, it also appears to require him to raise any procedural irregularities for which he
is responsible even though such a revelation would adversely affect his client's case.
This would be consistent with his duty to raise substantive law sources whether or not
they are favourable to his client. 24
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Confidentiality
The LP (PC) Rules also recognise that the proper and fair administration of justice may
be served by confidentiality in certain circumstances as much as it is by disclosure in
the situations just discussed. Communications between the advocate and solicitor and
client in the context of the case are generally 25 protected from disclosure 26 primarily
to enable the client to willingly confide in his lawyer so that he can be effectively
represented. The advocate and solicitor is permitted, even encouraged in certain
circumstances, to continue to represent a client who has confessed his guilt to him in
criminal proceedings. 27 Of course, the advocate and solicitor must not disclose the
confession. 28 Another example of the duty of the advocate and solicitor to maintain
silence about a matter concerns the disclosure of the client's previous convictions for
the purpose of sentencing. The advocate and solicitor is under no duty to disclose to
the court any convictions which are not on record before the court, or to point out any
errors or omissions in the record, if such disclosure ‘would be to his client's detriment’.
29 The principle recognises that the matter of disclosure of convictions is the
prosecutor's sole responsibility and that any assistance given by the advocate and
solicitor in this respect would compromise his duty to his client. The advocate and
solicitor's role as an ‘officer of the court’ does not extend to assisting the prosecutor in
this context. However, the advocate and solicitor's right not to disclose these
convictions does not mean that he is entitled to make any form of representation
which would give the impression that his client has none of these convictions. In other
words, while the advocate and solicitor may remain neutral through non-disclosure, he
must not make any representation whatsoever that would misrepresent the
circumstances. Hence, the words in the rule that the advocate and solicitor ‘shall not
lend himself to any assertion that the client has no convictions nor ask a prosecution
witness whether there are previous convictions against the client in the hope of
receiving a negative answer’. 30 As such conduct would involve a dishonest element,
the advocate and solicitor would be neglecting his responsibility as an ‘officer of the
court’. Here, he oversteps the line between his neutral and non-active role of
maintaining
Page: 288
confidentiality, which is permitted by the rule in the interest of his duty to his client,
and conduct which is unbecoming of ‘an officer of the court’. In the same vein,
although an advocate and solicitor may continue to act for a client who has confessed
his guilt to him, he must not ‘set up an affirmative case inconsistent with the
confession’. 31 For example, his case should not involve the contention that some other
person committed the offence or an alibi defence. Another aspect of the advocate and
solicitor's duty of non-disclosure is the direction that he ‘shall not express his personal
opinion of his client's guilt’ when conducting proceedings in court. 32 It is suggested
that this principle applies to his opinion of his client's liability in a civil case.
Professional standing and independence

The advocate and solicitor's professional standing and concomitant obligation to avoid
a conflict of interest in the course of proceedings is emphasised by various rules. He is
not to ‘allow his personal feelings to affect his professional assessment of the facts or
the law or to affect his duty to the court’. 33 As a general rule, an advocate and
solicitor who has been instructed to act on behalf of a person charged with a criminal
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offence is expected to defend him even if he is of the opinion that the person is guilty.
34
The advocate and solicitor is prohibited from appearing before a court in a matter
where his relationship with the client would make it ‘difficult for the advocate and
solicitor to maintain his professional independence’. 35 He must also refuse to appear
before a court if there is a relationship between him and the court (or a judge of that
court) hearing the suit in case ‘the impartial administration of justice might appear to
be prejudiced’. 36 He is not to accept instructions in a case in which ‘he has reason to
believe that he is likely to be a witness on a material question of fact’. 37 Indeed, he
must discharge himself if it becomes apparent that he is likely to be a witness on a
material question of fact. 38 His professional standing also requires that he refrain from
giving statements to the press (concerning the case he is conducting) which may
amount to a contempt of court or which interferes with a fair trial. 39
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Similarly, witnesses should not be offered money or other benefits ‘contingent upon
the nature of the evidence given or upon the outcome of a case’. 40 Nor is the advocate
and solicitor permitted to ‘post bail for the client in a case where he is personally
conducting the defence on behalf of the client’. 41 The professionalism of an advocate
and solicitor also requires him to fully respect the authority of the court and to act
accordingly. 42
Fairness to other advocates and solicitors and parties
An advocate and solicitor is required to ‘treat his professional colleagues with courtesy
and fairness’. 43 Where the advocate and solicitor seeks to communicate with the court
about any matter arising out of a case ‘pending or likely to be pending before the
court’, he must notify the representatives of the other parties in the suit of the matters
which he intends to raise and give them the ‘opportunity to be present or to reply’. 44
And if the representative is not present when the advocate and solicitor communicates
with the court, the advocate and solicitor must ‘fully inform that person of such
discussion at the earliest opportunity’. 45 Similarly, while the principle that ‘there is no
property in a witness’ is preserved by the LP (PC) Rules, 46 if the advocate and solicitor
is aware that the witness has been called or issued with a subpoena to appear in court
by the other party or the prosecution, the advocate and solicitor must inform the
advocate and solicitor of the other party or the prosecution of his intention to interview
or take statements from the witness. 47 Other duties of fairness and courtesy include:
refraining from communicating with represented clients except in the prescribed
circumstances; 48 not influencing the client to determine a previous advocate and
solicitor's retainer; 49 observing the procedure for taking over a brief; 50 honouring his
professional undertaking; 51 taking responsibility for the fees of an instructed advocate
and solicitor; 52 not voluntarily disclosing discussions between himself and another
advocate and solicitor without the consent
Page: 290
of the latter; 53 giving the prescribed notice before entering judgment by default; 54
granting an advocate and solicitor (whether involved in the proceedings or not) the
opportunity to answer any allegation against him made in an affidavit; 55 and not
stating in a letter of demand ‘anything other than that recoverable by due process of
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law’. 56 In the specific context of the criminal process, an advocate and solicitor ‘shall
not in a plea in mitigation make an allegation that is scandalous or calculated to vilify
or insult any person’. 57
Appropriate response to impropriety

In particular situations, the advocate and solicitor's duty extends beyond compliance
with directions in the course of proceedings. He may be required to terminate his
professional relationship with his client when circumstances have arisen which make it
difficult or impossible for him to continue acting in a manner consistent with his
position as an officer of the court. Where, for instance, the advocate and solicitor
becomes aware that his client has committed perjury or ‘has otherwise been guilty of
fraud upon the court’, he is entitled to apply for a discharge from acting further in the
case. 58 If he decides to continue, or the court decides not to allow the application, 59
he must ‘not perpetuate the perjury or fraud’. The rule does not specify how this might
be achieved where the tainted evidence has already been put before the court and
may be relied upon. However, it seems to be clear that the advocate and solicitor must
exclude any reference to the evidence in his presentation to the court as otherwise he
may be perpetuating the perjury or fraud. For example, he should not refer to the
evidence in his speeches and submissions to the court or raise it in the course of his
examination of witnesses.
The question might be raised as to why, in view of the serious circumstances of
perjury or fraud upon the court, the advocate and solicitor should not be permitted to
terminate his role as of right. The rule merely states that he may apply for a
discharge, and that if he does so, the court is at liberty to require him to continue. 60
There are several reasons why it is the court which must decide whether the advocate
and solicitor is to be discharged. In the first place, the wrong is committed against the
court and therefore the decision belongs to the court. Secondly, whether the advocate
and solicitor continues or is replaced will not change
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the fact that perjury or fraud has been committed by the party. Thirdly, there is the
public interest in ensuring that the party receives adequate representation so that
there will be proper judicial determination of the issues. 61 This principle might be
compromised by a change of legal representation, particularly at a late stage of the
proceedings. The fact that the party has committed perjury or fraud in giving evidence
does not necessarily mean that he will fail on the merits, as there may be other
compelling evidence in his favour. The advocate and solicitor may be willing to
continue despite his client's misconduct, particularly if he believes that there is a case
beyond the tainted evidence. As for the lawyer who would rather stop acting
altogether (for example, because he can no longer conduct the case with the same
conviction that he had previously), it would be for him to persuade the court on his
application for a discharge that his client might be represented more effectively by
new counsel. The court would take into account all the circumstances including,
specifically, the prejudice which might be sustained by the party in a civil case or an
accused person in a criminal case by a change in legal representation. 62
Whereas the court may allow an advocate and solicitor to be discharged in the above-
mentioned circumstances, he is obliged to cease acting (without an application to
court) in certain prescribed situations: where the client refuses to authorise the
advocate and solicitor to make some disclosure to the court which he is duty-bound to
make; 63 where the advocate and solicitor becomes aware of the existence of a
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document which should have been, but was not, disclosed on discovery, and the client
refuses to allow its immediate disclosure; 64 and where he has come into possession of
a document belonging to another party ‘by some means other than the normal and
proper channels’, and his knowledge of its contents would embarrass him in the
discharge of his duties. 65 In the first two situations, the client should be told that his
continued refusal to comply with the requirement would leave the advocate and
solicitor with no option but to cease acting for him. Such drastic action would be
justified on the basis that the client may still comply with his obligation by agreeing to
the disclosure, but refuses to do so. In the third situation, the advocate and solicitor's
continued involvement would be unjust to him and might affect the standard of his
representation of his client.
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Representing the ‘guilty’ client

In criminal cases, the advocate and solicitor may, having interviewed his client or
examined the evidence available to him, conclude that he is guilty of the offence
charged. Nevertheless, he is bound to defend the client ‘irrespective of any opinion
which [he] may have formed as to the guilt or innocence of that person’. 66 It should
be noted that this rule applies after he has agreed to act for the person charged with
the offence. 67 An advocate and solicitor is always at liberty to refuse to act at the
outset, in which case the relationship of advocate and solicitor and client does not
come into being. Once the relationship is established, the advocate and solicitor ‘shall
endeavour to protect the client from being convicted except by a competent court and
upon legal evidence sufficient to support a conviction’. 68 The advocate and solicitor's
opinion of his client's innocence or guilt is irrelevant and must not compromise his
duty to represent and defend him to the best of his ability. 69 It is the court, not the
advocate and solicitor, which has the sole responsibility for determining liability.
The position of the advocate and solicitor is varied where his client makes ‘a clear
confession of guilt’ to him. If the confession ‘is made before the proceedings have
commenced’, the advocate ‘may’ continue to act. Where the confession is made
‘during the proceedings’, he ‘should’ continue to act. 70 A ‘clear confession of guilt’
does not merely connote an incriminatory statement such as ‘I wanted him dead’ in
relation to a murder charge. There has to be a unequivocal assertion that he
committed the offence. Otherwise, this rule does not apply. The distinction between a
confession made before the proceedings have commenced and one made afterwards
takes into account the difficulties which the accused is likely to face if a change in
legal representation occurs at the trial. The confession gives rise to important legal
considerations. First, it is subject to professional privilege and must not be disclosed.
71
Secondly, the advocate and solicitor must not ‘set up an affirmative case
inconsistent with the confession’. 72 He would be perpetuating or aiding perjury if, for
example, he calls a witness to provide an alibi defence or suggests that another person
committed the offence. 73 Therefore, if an advocate and solicitor continues in spite of a
clear confession of guilt having been made to him, he would have to conduct his case
within these imposed limits.
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Accused's right to decide

The LP(PC) Rules emphasise that in specific situations the advocate must not act
contrary to the accused's intentions. The accused ‘must be allowed complete freedom
of choice whether to plead guilty or not guilty’. 74 The advocate and solicitor may
advise his client how to plead, but that is the limit to which he can go. 75 Similarly,
while the advocate and solicitor ‘…may advise a client about giving evidence in his own
defence…’, ‘…the client must be given complete freedom of choice whether to give
evidence or not’. 76 The rationale here is that the plea and the issue of whether to give
evidence are fundamental matters which must be decided by the accused person
himself. However, the advice of the advocate and solicitor may be crucial, as when the
accused intends to plead guilty on the basis of his mistaken assumption that he has
committed an offence, or when the accused is not aware of the consequences of giving
evidence or failing to give evidence on his own behalf. 77
Presence of the advocate and solicitor and accused at a criminal trial
The importance of the advocate and solicitor's continued presence at the trial to
ensure that the accused is properly represented at all times is spelled out by two
primary provisions. The first provides that he may only be absent if ‘(a) there are
exceptional circumstances which the advocate and solicitor could not reasonably have
foreseen; (b) he obtains the consent of his client; and (c) a competent assisting
counsel, who is well-informed about the case and able to deal with any question which
might reasonably be expected to arise, takes over the conduct of the case from the
advocate and solicitor’. 78 The second provision concerns the absence of the accused. If
the accused ‘absconds’ during the trial (at any time prior to sentence), the advocate
and solicitor is entitled to continue to act for the accused. If he decides to do so, he is
required to ‘conduct the case on the basis of the instructions he has received as if the
client is still present in court but had decided not to give evidence’. 79 Again, this
provision protects the accused's position by ensuring that he is represented even if he
is absent. However, it is a matter of discretion for the advocate and solicitor to
exercise according to the circumstances. If, for instance, the advocate and solicitor is
not able to conduct the case in the absence of the accused because of lack of
instructions or information, then he may not be in a position to continue to act.
Page: 294
III. CROSS-EXAMINATION
The LP (PC) Rules introduce various provisions concerning the examination of
witnesses. The primary rule is that the advocate and solicitor is ‘personally responsible
for the conduct and presentation of his case’ which includes exercising his ‘personal
judgment’ upon the questions which he asks. 80 More specifically, he must exercise
that judgment ‘both as to the substance and the form of the questions put’. 81 The
duty extends to any statements which the advocate and solicitor makes in court. 82
Ethical considerations generally rise to the fore in cross-examination more than any
other area of the trial. 83 The reason for this is that statutory and common law rules
seek the appropriate balance between providing the cross-examiner with sufficient
opportunity for challenging or testing the evidence of the opposing witnesses and
protecting the latter and the court process from overly aggressive, abusive,
inappropriate or irrelevant questions. This balance is not easy to achieve as the
application of the rules depends on the unique circumstances and testimony of each
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witness.
Some of the LP (PC) Rules must be examined against the background of the Evidence
Act, 84 which imposes legal and ethical standards through its control of the process of
cross-examination. Indeed, the Rules may have to be considered or even interpreted
in the context of the Evidence Act because of the latter's status as primary legislation
and the more precise elucidation of its provisions. Yet, even the Evidence Act is not
always entirely clear or sufficiently comprehensive to cater to all the circumstances in
which abuse or injustice might arise. The extent to which the Rules clarify the difficult
areas will be examined. Another factor is that some of the new rules impose duties
which correspond or are similar to common law principles established by the
Singapore courts.
The effect of the new rules will be considered in the light of these principles. The LP
(PC) Rules also bring into operation certain principles which are directly related to
procedural justice; such as the duty of the advocate to use his time efficiently and
economically. Here, the freedom of the advocate to present his case ‘in such a manner
as he considers will be most advantageous to the client’ 85 must be balanced against
his obligation to ‘assist in the administration of justice’ 86 and ‘to facilitate
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access to justice by members of the public’ 87 by assisting the court ‘in ensuring a
speedy and efficient trial’. 88 Practice directions also have a role in ensuring the
efficient use of the court's time and will be considered.
Scope for challenging the witness's credit and credibility

The LP (PC) Rules include specific provisions concerning questions affecting credit and
credibility. These will be examined within, and after due consideration of, the legal
framework established by the Evidence Act.
Section 148 of the Evidence Act is the general provision which confers the right upon
the advocate to cross-examine a witness in relation to his credibility:
When a witness may be cross-examined, he may, in addition to the questions
hereinbefore referred to, be asked any questions which tend —
(a) to test his accuracy, veracity or credibility;
(b) to discover who he is and what is his position in life;
(c) to shake his credit by injuring his character, although the answer to such
questions might tend directly or indirectly to criminate him, or might expose
or tend directly or indirectly to expose him to a penalty or forfeiture.
The factors expressed in paragraphs (a) to (c) are concerned with the credibility of the
witness - the overall impression which a witness makes as to his believability. The
term ‘accuracy’ in paragraph (a) pertains to his knowledge or experience of the facts
to which he testifies and his ability to recount those facts effectively in court.
‘Accuracy’ is a primary element of the term ‘credibility’ (also in paragraph (a)), which
has been defined as including ‘such matters as the opportunities for and powers of
observation of the witness, his accuracy of recollection, and capacity to explain what
he remembers’. 89 For example, the witness's view of the accident may have been
obstructed or affected by poor light or his distance from the scene, or he may have
forgotten some details concerning the incident. His credibility may also be affected by
the manner in which he testifies, as when the cross-examiner asks questions which
reveal contradictions within his testimony and/or his inability to answer questions
clearly or at all. ‘Credibility’ in the context of paragraph (a) has a
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narrower meaning than credibility in the sense of the overall impression which a
witness makes as to his believability. ‘Credibility’ in the broader sense is not merely
affected by the witness's opportunities for, and powers of, observation and his
accuracy of recollection, and capacity to explain what he remembers. These are
matters which directly affect the evidence. His credibility might also be indirectly
affected by the nature of his character, previous actions and motives. These matters
may affect the credit of the witness not because of defective testimony (the concern of
the term ‘credibility’ in paragraph (a)), but because the character, previous actions
and motives of the witness may make him less credible or even destroy his credibility.
Therefore, credibility in the broader sense of the overall impression which a witness
makes as to his believability may be affected by the nature of the evidence he gives
(credibility in the narrower sense of paragraph (a)) and the nature of his character
(credit in the sense of paragraph (c)). The effect which questions concerning
credibility and credit have on the overall credibility of the witness must depend on the
circumstances and there is no rule that one approach is more effective than the other.
It may be that the witness has an unimpeachable character so that questions ‘to
shake his credit by injuring his character’ in the context of paragraph (c) would not be
appropriate. However, questions might be asked to test his powers of observation.
Conversely, a witness's evidence may come across as extremely convincing, but the
revelation of facts in cross-examination showing him to be partial to the party who
called him or to be otherwise untruthful may put his testimony in a very different
light. Hence, in one case, a re-trial was ordered because the lower court did not allow
the defence to cross-examine the primary prosecution witness on her character. 90
The other word in paragraph (a) is ‘veracity’. Clearly, the advocate must have the
opportunity of asking questions to determine whether the witness is lying. Normally,
there is a motive involved which may require cross-examination as to credit.
Circumstances might be raised to show that the witness is lying out of bias, because
he has been bribed or to protect an interest, or that he is a habitual liar. As to
paragraph (b), personal questions may have to be asked ‘to discover who he is and
what is his position in life’. The rationale here is that the court and the opposing party
are entitled to know the nature and circumstances of the man whose evidence may
affect the outcome of the case. More specifically, this may be necessary to determine
whether the witness has the knowledge, experience or even expertise to give evidence
on the matters in issue. Hence, an ‘expert’ witness may be asked about his
professional (or other) qualifications and experience before he is allowed to testify.
Questions asked pursuant to paragraph (b) may have the same effect as those asked
pursuant to paragraph (c) if the character of the witness is revealed to be less than
that of a truthful man.
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Section 148 appears to grant the cross-examiner unlimited license to attack and even
demolish the character of a witness. 91 Apart from being questioned on matters which
put his credibility in issue, the witness may be asked ‘any questions’ ‘to test’ whether
he is lying (‘veracity’) and to ‘shake his credit by injuring his character’. This may be
done notwithstanding that ‘…the answer to such questions might tend directly or
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indirectly to criminate him, or might expose or tend directly or indirectly to expose

him to a penalty or forfeiture’. Deeply personal questions might be asked ‘to discover
who he is and what is his position in life’. Yet, as will be seen, important limitations
are imposed on this process.
Section 148(c) provides that a witness may be asked questions which ‘shake his credit
by injuring his character’ even though ‘…the answer to such questions might tend
directly or indirectly to criminate him, or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture’. However, he is only required to answer if the
question ‘relates to a matter relevant to the suit or proceeding’. In these
circumstances, the immunities offered by section 134 would apply. This outcome
results from section 149, which provides:
If any such question relates to a matter relevant to the suit or proceeding,
section 134 shall apply thereto.
The rationale for the distinction between questions which relate to a matter relevant to
the suit or proceeding and questions which merely concern the witness's credibility is
that the former are vital to the determination of the substantive issues, and therefore
the witness is obliged to answer them unless he is entitled to rely on a particular
privilege. Hence, if an accomplice giving evidence as a prosecution witness is
questioned in cross-examination about his involvement in the crime, and these
questions would throw light on the accused's role or liability, he must answer
notwithstanding the injury to his credit. Similarly, in a civil case, a witness who is
involved in the circumstances giving rise to the facts in issue would be required to
answer questions concerning his conduct including any improprieties linked to those
facts in issue.
The position is very different where the question concerns a matter which does not
relate to the issues in the proceedings. Here, the witness is not required to answer the
question if the court decides that he should not be compelled to do so. In these
circumstances, the court may, pursuant
Page: 298
to section 150(1) of the Evidence Act, ‘warn the witness that he is not obliged to
answer it’. It would then be for the witness to decide whether to answer the question.
Section 150(1) of the Evidence Act provides:
If any question relates to a matter not relevant to the suit or proceeding, except
in so far as it affects the credit of the witness by injuring his character, the court
shall decide whether or not the witness shall be compelled to answer it, and may, if
it does not think fit to compel him to answer the question, warn the witness that he
is not obliged to answer it. 92
The court is vested with a discretion which is to be exercised by taking into account
the factors in section 150(2)(a)-(c):
(a) such questions are proper if they are of such a nature that the truth of the
imputation conveyed by them would seriously affect the opinion of the court as
to the credibility of the witness on the matter to which he testifies;
(b) such questions are improper if the imputation which they convey relates to
matters so remote in time or of such a character that the truth of the imputation
would not affect or would affect in a slight degree the opinion of the court as to
the credibility of the witness on the matter to which he testifies.
(c) such questions are improper if there is a great disproportion between the
importance of the imputation made against the witness's character and the
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importance of his evidence.

(d) the court may, if it sees fit, draw from the witness's refusal to answer, the
inference that the answer, if given, would be unfavourable.
Paragraph (a) sets out the general principle that questions should not be asked merely
because they injure the witness's credit. The condition is that such questions must
‘seriously affect’ the court's opinion of the witness's credibility in relation to the
evidence which he gives. Indeed, the literal effect of this provision is that questions
which injure the witness's credit should not be put even if they would affect, but not
seriously affect, the court's opinion. The basis of this approach seems to be that a
witness should not be embarrassed and denigrated in court unless such an outcome is
justified by the imputation conveyed by the
Page: 299
questions: they must ‘seriously affect’ the court's opinion of the witness's credibility in
relation to his testimony. It is also clear from paragraph (a) that it is not enough that
the questions ‘seriously affect’ the court's opinion of the witness's credibility
simpliciter. They must have this effect in relation to the evidence which he gives in
court. For example, the court might exercise its discretion under this paragraph (by
warning the witness that he does not have to answer the question), in relation to
questions concerning the witness's tendency to lie to a certain relative, if the court
believes that this is exceptional conduct specifically prompted by the nature of the
relationship between the witness and the relative, and that it does not characterise his
general attitude. If, on the other hand, the proceedings involved the relative, then the
witness's behaviour towards his relative would no doubt ‘seriously affect’ the court's
opinion as to his credibility in relation to the evidence he gives against his relative,
and the court would not exercise its discretion in favour of the witness (that is, the
question would have to be answered).
Paragraph (b) contains two alternative grounds for exercising the discretion against
allowing the question. First, questions concerning facts which are ‘so remote in time’
that the imputation which those questions convey ‘would not affect or would affect in a
slight degree the opinion of the court’. Secondly, questions concerning facts ‘of such
character’ that the imputation which those questions convey ‘would not affect or would
affect in a slight degree the opinion of the court’. With regard to the terminology ‘so
remote in time’, it is unlikely that the court would allow a 60 year-old witness to be
questioned about his youthful indiscretions if there is no other link between those
circumstances and the case before the court. The rationale here is that incidents
concerning the witness's character in the distant past are unlikely to have a significant
bearing on the court's assessment of that witness's present believability. Of course,
this is a general proposition and it is for the court to determine (in the exercise of its
discretion) whether the question and the circumstances justify a response from the
witness. 93
Facts ‘of such character’ involve a consideration of their nature and significance in
relation to the witness's credibility. For example, although the fact that the witness is
known to constantly argue with people might be regarded as a character defect, it is
hardly a basis for showing him to be untruthful. Paragraph (b) indicates that the court
should warn the witness that he is not obliged to answer the question even if the
Page: 300
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imputation conveyed by it ‘would affect in a slight degree’ the court's opinion. This is
consistent with paragraph (a), which provides that answers should only be required of
questions which ‘seriously affect’ the opinion of the court. Again, as in the case of
paragraph (a), paragraph (b) is concerned with the credibility of the witness in relation
to his testimony in court and nothing else.
Proportionality is the principle embodied by paragraph (c). It declares questions to be

improper if there is ‘a great disproportion’ between the ‘importance’ of the imputation
and the testimony. Proportionality involves measuring the nature of the imputation
against the significance of the witness's testimony. The rationale of the principle is
that a witness whose evidence is relatively unimportant or merely supplementary
should not have to suffer the indignity and embarrassment of having his character laid
open for all to see unless it impinges directly on what he says. The issue here is that
the destruction of his character in such circumstances (that is, in the context of the
limited value of his evidence) is not vital to the interests of justice. For example, if a
police officer merely gives formal evidence of how the accused was arrested and does
not testify to the issues in the case, it would not be proper to injure his credit unless
the lawfulness of the arrest is in issue and there is a reasonable basis for assuming
that he is being untruthful.
Stephen expressed his views on the proportionality principle in the following manner:
I shall not believe…that…a person who is called to prove a minor fact, not really
disputed, in a case of little importance, thereby exposes himself to every
transaction of his past life, however private. 94
It is suggested that the principle may be broader than that defined by Stephen, as it
is conceivable that such a witness may have to appear in a case of considerable
importance and yet not be subject to attacks on his character. The principle pertaining
to the illustration just given of the arresting officer should be the same if the
proceedings involve a capital crime. The court should not be restricted in the exercise
of its discretion by the ‘importance’ of the case (however ‘importance’ might be
defined), but should entertain a flexible approach according to the circumstances.
As paragraphs (a) to (c) of s 150(2) are concerned with the nature of the imputation
conveyed and the type of impropriety raised, it is necessary to consider the forms of
conduct which might be encompassed by these provisions. Of course, what is
acceptable behaviour and standards of morality change in the course of time. The
witness's infidelity to his wife might have been a basis for attacking his credibility in
the past, perhaps
Page: 301
on the premise that a gentleman does not commit adultery, and therefore a witness
who is not a gentleman cannot be completely credit-worthy. 95 If the current
commonality of such behaviour and the liberality of the modern age has changed the
social mores to such an extent (so that such behavior is generally more acceptable: it
is certainly no longer a crime), it may be open to a court to decide that the witness's
conduct is an entirely private matter which should not bear on his credibility. Applying
the terminology of paragraphs (a) to (c), questions concerning such conduct would not
‘seriously affect the opinion of the court as to the credibility of the witness’ (paragraph
(a)). Moreover, ‘the truth of the imputation would not affect or would affect in a slight
degree the opinion of the court as to the credibility of the witness’ (paragraph (b)),
and the proportionality principle in paragraph (c) would apply (such conduct would not
have a significant bearing on the witness's evidence). While these provisions are
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primarily concerned with the relevance of the witness's character to his credibility,
they also take into account his right to be treated with dignity so that those aspects of
his private life which are not salient to his credibility should not be raised. It should be
emphasised that while certain ‘indiscretions’ on the part of the witness may not be
relevant to credibility on the basis of their moral significance alone, they may be
relevant if connected to an issue in the proceedings so that the witness's veracity or
accuracy of perception is affected. For example, where a married witness lies to
protect the secrecy of his affair or the interest of his girl friend, or he is unable to give
evidence about his girl friend objectively because of his feelings for her, or is biased
against his wife in proceedings involving both spouses.
The issue of whether any crime of which the witness has been convicted may be raised
to attack his credibility merits attention. It would seem to be clear that where the
crime involved dishonesty, this could have a direct bearing on credibility on the basis
that the witness has an established propensity to be untruthful. Of course, the court is
free to disregard such an imputation if such a conclusion is not appropriate in the
circumstances, as when the testimony appears for one or more reasons to be reliable.
In De Silva v PP, 96 Gill J ruled that the witness's admission in court that he had been
a ‘communist sympathiser’ (during the time of communist infiltration in Malaysia) did
not have the effect of discrediting his testimony as he had given his evidence in a
‘straightforward and cogent’ manner.
The question also arises as to whether the cross-examiner may raise crimes or
misconduct not involving dishonesty. May the cross-examiner, for instance, ask the
witness whether or not he has been convicted of rape?
Page: 302
The argument could be made that a person who has intentionally committed an
offence which does not involve dishonesty (such as rape) may nevertheless be less
credit-worthy because he has deliberately committed a serious offence. The
combination of his criminal intent and the nature of the offence committed may reveal
an absence of moral rectitude justifying the conclusion that he would have no qualms
about lying in court. As in the case of offences involving dishonesty, the court would
not accept the imputation of false testimony unless it is proper to do so. 97 Therefore,
it is submitted that the range of crimes capable of forming a basis for cross-
examination need not be limited to offences of dishonesty. However, not all crimes and
misconduct would necessarily bear on credibility. A traffic offence involving mere
carelessness (in contrast to unlawful intention) does not necessarily indicate a lack of
moral character. However, such an offence may be relevant to credibility if the fact of
the traffic accident is raised not to reveal dishonesty, but to show that the injury
sustained by the witness in the accident has affected his memory, and therefore the
accuracy of his recollection. 98
Whatever the crime or misconduct of the witness, questions relating to the same may
only be put to him within the scope of the criteria set out by paragraphs (a) to (c) of
section 150(2). 99 Accordingly, the indication given by the first exception to section
155 that a witness may be asked questions about any crime which he might have
committed must be interpreted in context. 100 In the first place, a witness may not be
asked such a question on the off-chance that he might raise his own misconduct
hitherto unknown by the cross-examiner. The cross-examiner may only ask such a
question if he has reasonable grounds for so doing. 101 It follows that the cross-
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examiner should only ask such a question if he has reasonably reliable information
indicating that the witness may have committed the crime(s). Secondly, the first
exception 1 to section 155 102 must be read subject to the general principle that
questions asked in cross-examination are required to be pertinent to the issues or to
affect the credibility of the witness in accordance with section 150. So, for example, a
conviction for driving without due care and attention, although within the apparent
ambit of Exception 1 to section 155, would rarely (if ever) ‘seriously affect the opinion
of the court as to the credibility of the witness’, the condition laid down by paragraph
(a) of section 150(2).
Page: 303
Rule 60(h) of the LP(PC) Rules is pertinent in this context for it clearly assumes that
not every crime (or other misconduct) would be the appropriate subject-matter for
challenging the credibility of a witness. The rule provides that an advocate and
solicitor, ‘when conducting proceedings in court’:
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 client's case and which appear to him to be
supported by reasonable grounds.
The cross-examiner may not ask (or in any other way suggest) that the witness (or
other person) is ‘guilty of any crime, fraud or misconduct’ unless the imputation
directly concerns the matters in issue or affects credibility. Where, for example, the
defence alleges that someone else committed the crime or civil wrong attributed to the
defendant, evidence pertaining to this issue (that is, evidence showing that the
witness or some other person could have committed the act) would directly affect the
outcome of the case. With regard to credibility, rule 60(h) must be read subject to
paragraphs (a)-(c) of section 150(2) which, as has been seen, vest the court with a
discretion to disallow questions concerning credibility if they are regarded as improper
according to the prescribed criteria. Furthermore, as will be seen, a witness may not
be questioned on his credibility if the manner of cross-examination offends the
standards set by sections 151-154 of th e Evidence Act. One of these standards, that
the question must be based on reasonable grounds (as provided by section 151), is
also a requirement of rule 60(h).
The point should also be made that rule 60(h) does not permit a question going to
credibility unless the imputation is ‘material to his client's case’. The purport of these
words is that the imputation that the witness has committed a crime or fraud or other
misconduct is not justified by the rule unless, in the circumstances, it would materially
affect his credibility. Although the words ‘material to his client's case’ are not
elaborated upon in the rule, some measure of their significance may be obtained from
the emphasis placed by paragraphs (a)-(c) of section 150(2) on the extent to which
an imputation would affect ‘the opinion of the court as to the credibility of the witness
on the matter to which he testifies’ (paragraphs (a) and (b)) and the ‘importance of
the imputation made against the witness's character’ (paragraph (c)). In any event, as
primary legislative provisions, these paragraphs of section 150(2) would override any
inconsistent interpretation which is applied to rule 60(h).
Paragraph (d) of s 150(2) is concerned with the situation in which the question put to
the witness is proper and he chooses not to answer it. The court, in the exercise of its
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discretion pursuant to s 150(1), directs
Page: 304
the witness to answer the question. If he refuses to do so, the court may ‘if it sees fit,
draw from the witness's refusal to answer, the inference that the answer, if given,
would be unfavourable’. Put another way, the court may rely on his failure to respond
as a matter adversely affecting credibility. As section 150 is solely concerned with the
credit of the witness, his failure to respond should not be a basis on which to infer the
existence or non-existence of the facts in issue; that is, guilt or liability. Although, of
course, such failure may have this effect indirectly for if his credibility is adversely
affected, his testimony would be accorded less weight.
The extent to which the witness's credibility would be affected must depend on the
nature of the question and the circumstances. The words ‘if it sees fit’ (in paragraph
(d) of s 150(2)) mean that the court is not to draw an unfavourable inference as a
matter of course. A witness may refuse to answer a question not because he has
something to hide (the basis for justifying the ‘the inference that the answer, if given,
would be unfavourable’), but for a reason unconnected with the truth of the
imputation. The witness might be insulted that such a question could even have been
asked of him. He may be too distraught to respond. He might be determined to avoid
implicating another person who was involved in the matter about which the question
was raised. He may not have understood the question. No doubt, It may be difficult for
court to ascertain the reason for the witness's refusal to answer without asking him
why he is not answering the question. Having done so, the court might clarify the
situation for the witness. For example, where the witness has misunderstood the
question, the court might ask the cross-examiner to repeat or re-phrase the question.
The ‘insulted’ witness might be told that the law regards the question to be proper
even if the imputation it carries may be untrue, and that if it is untrue the witness
should justify his position by denying, rather than keeping silent about, the
imputation. The court might also regard it appropriate to point out to the witness that
his credibility may suffer if he does not answer the question.
Section 150 sets out the general criteria for the exercise of the court's discretion.
Sections 151-154 impose further qualifications concerning questions and answers in
the course of cross-examination. Section 151 provides:
No such question as is referred to in section 150 ought to be asked unless the
person asking it has reasonable grounds for thinking that the imputation which it
conveys is well founded.
The clear purport of this provision is that the cross-examiner should not be at liberty
to attack the character of the witness indiscriminately. If not for this rule, the cross-
examiner might raise any imputation regardless of its truth in an effort to smear the
witness by false accusation. Such an approach would not further the cause of justice,
and would constitute an
Page: 305
unacceptable affront to the witness's dignity. The seriousness of a breach of the

principle that questions must be asked on reasonable grounds is underscored by the
direction in section 152 that the court may report the offending advocate to the
appropriate authority with a view to the engagement of the disclipinary process.
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The following illustrations to section 151 offer examples of circumstances which would
constitute ‘reasonable grounds’:
(a) An advocate is instructed by a solicitor that an important witness is a
professional gambler. This is a reasonable ground for asking the witness whether
he is a professional gambler.
(b) An advocate is informed by a person in court that an important witness is a
professional gambler. The informant, on being questioned by the advocate, gives
satisfactory reasons for his statement. This is a reasonable ground for asking the
witness whether he is a professional gambler.
(c) A witness of whom nothing whatever is known is asked at random whether he is
a professional gambler. There are here no reasonable grounds for the question.
(d) A witness of whom nothing whatever is known being questioned as to his mode
of life and means of living gives unsatisfactory answers. This may be a
reasonable ground for asking him if he is a professional gambler.
Illustration (a) appears to be concerned with information obtained from the instructing
solicitor, not just any solicitor. The rationale here is that the instructing solicitor may,
by reason of his involvement in the case, be assumed to know the circumstances of
the various witnesses. Reasonable grounds would not be afforded where the advocate
has merely received information from someone that the witness is a professional
gambler. This is the clear purport of illustration (b) which only justifies reliance on
such information where the person is in court and gives ‘satisfactory reasons’ for his
assertion that the witness is a professional gambler. None of the illustrations cover the
usual situation in which the advocate might, in the course of his conduct of the case,
obtain well-based information (showing that the witness is a professional gambler)
from someone such as his client, another witness or even someone unconcerned with
the proceedings. It is suggested that such circumstances should constitute reasonable
grounds as well even though not expressly covered by the Illustrations. Some support
for this view may be obtained from the fact that Illustration (a) is predicated on the
assumption that the instructing solicitor may obtain credible information which would
constitute reasonable grounds on which the advocate at trial could put the question.
This principle applies with just as much force in the context of the more normal
practice in Singapore whereby the advocate conducts his own case from the outset in
the absence of an instructing solicitor.
Page: 306
It is clear that the advocate who knows nothing about the witness is not permitted to
ask him random questions about being a professional gambler (the position in
illustration (c)), but that reasonable grounds for asking a witness whether he is a
professional gambler may be established where that witness gives ‘unsatisfactory
answers’ having been asked questions about ‘his mode of life and means of
living’ (illustration (d)). The purport of the latter illustration is that the witness's own
testimony must afford a basis (reasonable grounds) for asking him whether he is a
professional gambler. The requirement of reasonable grounds as a basis for asking
questions affecting credibility is also found in Rule 60(h) of the LP(PC)Rules, which has
already been considered.
A question which injures the credit of a witness, and which the court would ordinarily
regard as proper according to the criteria in s 150(2)(a)-(d), and which is based on
reasonable grounds pursuant to s 151, may nevertheless be disallowed if it is
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‘indecent’ or ‘scandalous’ or is ‘intended to insult or annoy’ or is ‘needlessly offensive

in form’. These qualifications are set out in sections 153 and 154 of the Evidence Act
and rule 61 of the LP (PC) Rules. Section 153 states
The court may forbid any questions or inquiries which it regards as indecent or
scandalous, although such questions or inquiries may have some bearing on the
questions before the court, unless they relate to facts in issue or to matters
necessary to be known in order to determine whether or not the facts in issue
existed.
Section 154 provides:
The court shall forbid any question which appears to it to be intended to insult or
annoy, or which though proper in itself, appears to the court needlessly offensive in
form.
These provisions have their respective spheres of operation. Under s 153 the court has
a discretion to prohibit a question which it regards as indecent or scandalous unless it
bears upon the substantive issues (the facts in issue). Put another way, the discretion
extends to matters of credibility only. Hence, in proceedings involving a charge of
rape, this section would not be contravened if the complainant is asked in cross-
examination whether she was a prostitute at the material time (assuming there are
reasonable grounds for such a question pursuant to section 151). The question bears
upon the element of consent which is a fact in issue in such proceedings. Similarly, in
a civil action for wrongful termination of employment, the employer might be
questioned about his attempted sexual harassment of the employee and the latter's
unwillingness to respond if such facts resulted in the dismissal (the facts in issue).
Where the question is not concerned with the facts in issue and it only affects the
witness's credibility, the court will have to determine whether the question is
sufficiently necessary to the adjudication process so as to
Page: 307
outweigh the offence which might be given by the question. The matter is completely
witin the discretion of the court. As Ismail Khan J said in Lim Baba v PP: 103
If they [questions] are put to shake the credit of a witness the court has complete
dominion over them and may forbid questions even though they have some bearing
on the question before the court. But if they relate to facts in issue or to matters
necessary to be known in order to determine whether or not the facts in issue
existed, the court has no discretion to forbid such questions though they may be
indecent or scandalous.
Unlike section 153, section 154 is a mandatory provision devoid of any discretion. An
advocate who asks questions intended to insult or annoy the witness is guilty of an
abuse of process for this is not an authorised purpose of cross-examination. The court
will also forbid a question which is proper if it ‘needlessly offensive in form’. In these
circumstances, the advocate should rephrase the question or modify the terminology
so that its offensive character is eliminated.
Rule 61 of the LP (PC) Rules overlaps with both sections 153 and 154, but is not
entirely consistent with section 153. It provides:
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
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questions put or statements made.

Unlike section 153, rule 61(a) imposes a complete ban on questions ‘which are
scandalous’ including questions which affect facts in issue. It is submitted that the
rule should not affect the objective of section 153, which is to ensure that evidence
essential to the determination of the case is not shut out even if the question asked is
‘scandalous’. 104 Even if this interpretation is not acceptable, the rule, being subsidiary
legislation, must be read subject to the Evidence Act. As in the case of section 154,
rule 61(a) prohibits questions which are intended to ‘insult’ or ‘annoy’. 105 This
injunction is expressly extended to protect persons other than the immediate witness.
The rule also has a broader coverage in the context of barring any question which
amounts to abuse by the advocate of his role. Essentially, this means that the
advocate must only ask questions
Page: 308
which have a bearing on the issues in the suit and (subject to sections 150-154 of the
Evidence Act) matters of credibility. Rule 61(b) 106 and rule 60(a) 107 emphasise, inter
alia, the duty of the advocate to conduct the cross-examination in the proper manner.
Veracity in the method of questioning

Various rules in the LP (PC) Rules emphasise the duty of the advocate not to mislead.
Rule 56 provides:
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.
Rules 59 and 60(f) instruct the advocate that he ‘shall not contrive facts’ and ‘shall not
concoct evidence or contrive facts’ respectively. The duty not to mislead is an
important aspect of the advocate's role as an officer of the court 108 and his
responsibility ‘to maintain the rule of law and assist in the administration of justice’.
109 In the context of cross-examination, the advocate must exercise special care in the
manner he puts facts to the witness. Some leeway must be allowed in cross-
examination to ensure that the evidence of the witness if subjected to scrutiny in the
interest of ascertaining its truth. Therefore, cross-examination often involves a battle
of wits between cross-examiner and witness. At times, the cross-examiner may have
to use guile to expose the unreliability of the witness, as when the latter is lulled into
a false sense of security and does not realise that he is being trapped or set up for
questions which will effectively challenge him. Such an approach (and, indeed, other
subtle forms of cross-examination) may be essential to ‘break’ the effect created by
the witness in examination in chief or in his affidavit of the evidence in chief. It is
submitted that such an approach does not contravene the aforementioned ethical rules
as long as the cross-examiner does not lie or put untruths to the witness. The essence
of the principle here is that the cross-examiner must not act dishonestly. He must not
mislead the court, the witness or other advocates or persons involved in court
proceedings. As long as he observes this requirement he should not be constrained in
the manner he puts facts to the witness. 110
Page: 309
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This interpretation is consistent with other rules in the LP (PC) Rules which grant a
measure of freedom to the advocate in the interest of fair representation of his client
but draw the line between truth and falsehood. In particular, the rules which permit
the advocate to keep silent about certain matters which might jeopardise his client's
case but prohibit the advocate from misleading the court. These rules concern, firstly,
the protection of privileged communications and, secondly, the non-disclosure of the
client's previous convictions in respect of sentencing. The advocate has a responsibility
to maintain the confidentiality of communications protected by legal professional
privilege and a duty not to mislead the court by putting forward facts which he knows
from those communications to be untrue. The client may inform his advocate of facts
adverse to the client's position in a criminal or civil case. If these communications are
protected by privilege, as would normally be the case, 111 the advocate is not
permitted to disclose them unless the client consents or such disclosure is required by
law. 112 The primary reason for such a principle is that full disclosure is encouraged to
ensure effective representation in the interest of justice. However, the advocate's
knowledge of a confession or admission means that he cannot present to the court, or
allow his client to present to the court, facts which those communications reveal to be
untrue. The LP (PC) Rules specifically provide in relation to a confession that the
advocate and solicitor must not ‘set up an affirmative case inconsistent with the
confession’. 113 He would be perpetuating or aiding perjury if, for example, he calls a
witness to provide an alibi defence or suggests that another person committed the
offence. 114 Although the advocate and solicitor may continue 115 to represent the client
despite his knowledge of facts indicating guilt or liability, he is necessarily limited in
the manner he would conduct the case.
With regard to the non-disclosure of the client's previous convictions, the advocate
and solicitor is under no duty to disclose to the court any convictions which are not on
record before the court, or to point out any errors or omissions in the record, if such
disclosure ‘would be to his client's detriment’. 116 The principle recognises that the
matter of disclosure of convictions is the prosecutor's sole responsibility and that any
assistance given by the advocate and solicitor in this respect would compromise his
Page: 310
duty to his client. The advocate and solicitor's role as an ‘officer of the court’ does not
extend to assisting the prosecutor in this respect. However, the advocate and
solicitor's right not to disclose these convictions does not mean that he is entitled to
make any form of representation which would give the impression that his client has
none of these convictions. In other words, while the advocate and solicitor may remain
neutral through non-disclosure, he must not make any representation whatsoever that
would misrepresent the circumstances. Hence the words in the rule that the advocate
and solicitor ‘shall not lend himself to any assertion that the client has no convictions
nor ask a prosecution witness whether there are previous convictions against the client
in the hope of receiving a negative answer’. 117 As such conduct would involve a
dishonest element, the advocate and solicitor would be neglecting his responsibility as
an ‘officer of the court’. Here he oversteps the line between his neutral and non-active
role of maintaining confidentiality, which is permitted by the rule in the interest of his
duty to his client, and conduct which is unbecoming of ‘an officer of the court’.
Putting allegations to a witness

The common law rule which dictates that an advocate must not raise evidence that
contradicts the evidence of a witness which the advocate could have, but did not, put
to him in cross-examination, 118 appears as an ethical canon in the LP (PC) Rules. Rule
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60(g) states that the advocate:

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.
Page: 311
For example, the advocate acting for the defendant in a suit involving a traffic accident
is not permitted to allege in his closing speech that the plaintiff's witness was unable
to see the accident, even if there is supporting evidence for such an allegation (such
as the distance of the witness from the scene or his short-sightedness), unless the
witness was challenged in cross-examination on the matter of his ability to see the
incident. The ethical nature of the principle arises from the unfairness which would
result, and the injustice which may be caused, if the witness is not given the simple
opportunity of defending his own evidence against counter-allegations. 119 Moreover,
the party who called the witness may he have adduced further evidence to corroborate
the witness's testimony if had been aware of the challenge to his witness's evidence.
Indeed, but for the rule, the cross-examining advocate might take unfair advantage of
the opposing party by raising contradictory evidence for the first time at the end of the
proceedings without fear of a response. 120 Selvam J said in Darwish MKF Gobaishi v
House of Hung Pte Ltd 121 that the rule is one of ‘essential justice’. As the rule affects
the burden of proof, 122 its non-observance may destroy the case for the party
concerned. 123
Page: 312
Nevertheless, the rule is not absolute and will only apply in the appropriate
circumstances. Hence, in PP v Okonkwo, 124 Rubin JC, as his Honour then was, decided
that the failure of the prosecution to put its case to a witness ‘did not create any
element of surprise which the rule in Browne v Dunn so clearly deprecates’. 125 In the
circumstances, the prosecution's case was ‘manifest from the outset’ and therefore the
omission did not constitute an acceptance by the prosecution of the witness's
evidence. 126 In Liza bte Ismail v PP, 127 Yong Pung How CJ said: ‘the rule in Browne v
Dunn is a flexible rule of practice intended to ensure procedural fairness in litigation’.
128 If a witness's story is unsupported or unbelievable, the failure to cross-examine
him will not lead to the acceptance of that evidence. In Liza bte Ismail v PP, Yong
Pung How CJ determined that the position taken by the appellant witness was
‘obviously fanciful’ and ‘wholly unsupported by the documentary evidence’.
Accordingly, ‘the prosecution's failure to cross-examine her, while undertaken at some
peril to its own case, was not productive of any adverse consequence’. 129 The point is
that a witness may have given such a poor account of himself or his evidence that
there is no point in cross-examining him. In fact, this may be the appropriate tactical
manouever in case the witness uses the opportunity of cross-examination to rectify his
presentation. In Browne v Dunn, 130 Lord Morris said: ‘a story told by a witness may
have been of so incredible and romancing a character that the most effective cross-
examination would be to ask him to leave the box’. 131 The rule in Browne v Dunn does
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not apply to an incomplete cross-examination because the cross-examiner does not

have the opportunity to put his allegations to the witness. 132 In Sect Melvin v Law
Society of Singapore, 133 the Court of Appeal, while accepting that the rule in Browne v
Dunn was a ‘well-entrenched rule in the context of ordinary adversarial proceedings’,
expressed ‘some doubt whether this principle applies equally and unexceptionably to
the failure or omission of counsel for an accused person to cross-examine a co-
accused’. This qualification may be justified on the basis that the rule is essentially
concerned with the need for the opposing parties in litigation to clarify
Page: 313
their respective positions and focus on the issues. While co-defendants in criminal or
civil proceedings may need to challenge each other in the course of litigation, they are
not in the polarised positions of prosecutor and accused or plaintiff and defendant, the
scenario apparently contemplated by the rule in Browne v Dunn. However, this is a
matter which remains to be decided.
Finally, it should be said that if a party fails to plead a material allegation in his
pleading as required by the rules, 134 but he raises the allegation at the trial which is
not challenged by the opposing party, the rule in Brown v Dunn does not apply. 135
Otherwise, the rule in Brown v Dunn could be used to circumvent the pleading rule.
Strictly speaking, the adduction of evidence concerning material facts which have not
been pleaded should not be permitted.
Cross-examiner's responsibility to use his time resourcefully
In his speech at the opening of the Opening of the Legal Year, 1995, the Honourable
Chief Justice, having noted that the number of outstanding civil and criminal cases
had increased in the course of 1994, stated:
…this was due to some considerable extent to the court taking longer to
complete hearings of cases, and that this was in turn due to the totally
disproportionate time taken up by cross-examinations in many cases. While it is
true that cross-examination is an important part of our legal process, there can
hardly be any valid reason, for example (apart from the inadequacy of counsel) for a
plaintiff in what is essentially an accident case being cross-examined for several
days, or, worse, for a complainant in a rape case being subjected in the witness box
to cross-examination for more than two weeks. Singapore judges, brought up in a
classical tradition, are amongst the most patient and tolerant of judges, but I am
afraid that they will have in future to be less tolerant and less accommodating in
the face of what clearly are examples of misuse of the legal process. 136
The issue of what is an appropriate period of time for cross-examination must depend
on the nature of the case, the character of the witness and his evidence, and the
objectives to be gained from the examination. If, as Wigmore says, cross-examination
is ‘is beyond any doubt the greatest legal engine ever invented for the discovery of
truth’, 137 then this process
Page: 314
is sufficiently important to justify any length of time necessary to achieve the truth.
The key principle is ‘necessity’ so that however much time is used for cross-
examination, it must be necessary to achieve the objectives of the process. These
objectives are not achieved by repetition of questions at various stages of the cross-
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examination (unless, for example, the witness did not hear the question when first
asked), or by questions which are irrelevant, or by questions which are otherwise
inefficient or inappropriate (that is, questions which do not achieve those objectives).
Accordingly, while it would not be correct to arbitrarily limit the time for cross-
examination, advocates must be aware of their duty to ensure that the time used
(whether short or long) is necessary.
The court has always had, and continues to have, the power to ensure that the
appropriate trial procedures and rules of evidence are complied with and that that the
proceedings are conducted fairly. 138 However, it has been generally unwilling to exert
overt control over the manner in which the parties examine witnesses. This reluctance
has its root in the traditional principle of the adversary system that the parties should
not be restricted in the conduct of their cases. 139 The LP (PC) Rules and recent
practice directions 140 are the first provisions specifically concerning the use of time in
cross-examination.
The LP (PC) Rules contain specific provisions concerning the use of time in the conduct
of proceedings. Rule 55 provides that the advocate and solicitor ‘shall at all times’:
(b) use his best endeavours to avoid unnecessary adjournments, expense and
waste of the court's time; and
(c) assist the court in ensuring a speedy and efficient trial and in arriving at a just
decision.
Other more general provisions indicate this responsibility as well. Rule 54 provides
that 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'.
Page: 315
Rule 60(a) makes the advocate ‘personally responsible for the conduct and
presentation of his case’ and provides that ‘he shall exercise personal judgment upon
the substance and purpose of statements made and questions asked’. These
provisions emphasise that the process of cross-examination involves responsibilities
beyond the duly owed by the advocate to his client. The rules give effect to the
advocate and solicitor's obligations ‘to assist in the administration of justice’ 141 and ‘to
facilitate access to justice by members of the public’. 142 Delays hinder access to
justice because the court is unable to give the appropriate attention to other litigants,
and potential claimants, concerned by the time taken, may be discouraged from
pursuing legitimate actions. In Mechanical & General Inventions Co v Austin, 143 Lord
Sankey LC endorsed the remarks of the Master of the Rolls in the same case
concerning the cross-examination of certain witnesses at the trial:
There is a tedious iteration in some of the questions asked, and prolonged
emphasis is laid on some matters, trivial in relation to the main issues. Cross-
examination is a powerful and valuable weapon for the purpose of testing the
veracity of a witness and the accuracy and completeness of his story. It is entrusted
to the hands of counsel in the confidence that it will be used with discretion; and
with due regard to the assistance to be rendered by it to the court, not forgetting at
the same time the burden that is imposed upon the witness. We desire to say that
in our opinion the cross-examination did not conform to the above conditions, and
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at times it failed to display that measure of courtesy to the witness which is by no

means inconsistent with a skillful, yet powerful, cross-examination. 144
Several important points arise from this quotation which inexperienced advocates
would do well to keep in mind. First, questions should not be repeated unless this is
necessary. Second, the time spent on cross-examination should be proportional to the
importance of the issues involved. Summing up the first two points, ‘…a protracted
and irrelevant cross-examination not only adds to the cost of litigation but is a waste
of public time’. 145 The same principle applies to cross-examination on
Page: 316
irrelevant documents. 146 Third, the cross-examiner must never ignore (or forget
about) the court even during the most absorbing of examinations. The advocate's
priority is to persuade the court as to the state of the evidence (or lack thereof). This
can only be achieved by total concern with the effect of the testimony on the court,
not the impression which the client may have of the advocate's prowess. Hence, he
must cross-examine ‘with due regard to the assistance to be rendered by [the cross-
examination] to the court’. 147 This necessarily means that every question asked in
cross-examination must have a precise purpose whether in itself or in relation to other
questions. 148 Such an approach eliminates time-wasting. Fourth, the witness is not to
be treated as an enemy or an object of hatred merely because he or she is giving
evidence for the opposing party. Basic courtesy shown to a witness is ‘by no means
inconsistent with a skillful, yet powerful cross-examination’. 149
The emphasis on the efficient use of time is evident from recent case-law. In Lim
Young Sien v PP, 150 Yong Pung How CJ, in the Court of Criminal Appeal, 151 said:
In our judgment, the purpose of the time-honoured practice of applying for leave
before counsel embarks on cross-examining a witness on previous inconsistent
statements is to prevent precious judicial time from being wasted unnecessarily.
For that purpose it is important that the trial judge is satisfied that the previous
statement is ‘inconsistent’ or contradictory' within the meaning of the section.
His Honour referred to the various categories of inconsistency discussed by Taylor J in
Muthusamy v PP 152 for the purpose of putting a witness's previous inconsistent
statement to him pursuant to section 147 of the Evidence Act. These included: (a)
minor differences not amounting to discrepancies; (b) apparent discrepancies; (c)
serious discrepancies; and (d) material contradictions. His Honour concluded that only
‘serious discrepancies’ and ‘material contradictions’ ‘are sufficient to invoke the
operation of section 147’. 153
Page: 317
Recent practice directions also seek to eradicate the delay which may otherwise occur
where a party is represented by more than one counsel. The roles of the counsel may
overlap or they may repeat each other in their submissions. It is provided that where a
party is represented by more than one counsel, practice directions apply to the counsel
who is to present submissions and examine witnesses in open court and chambers. 154
The general rule is that the making of submissions and the questioning of witnesses
may be carried out by one counsel for each party only. 155 Both counsel can only be
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involved with the leave of the court, which may be granted on application when it is
‘necessary or desirable that submissions on different issues be made or certain
portions of the examination, cross-examination or re-examination be conducted by
different counsel …’. 156 If leave is given, the counsel concerned must limit his
submissions and examination to the issues or portions of evidence in respect of which
leave was granted and must ensure that there is no overlap. Furthermore, the counsel
is directed not to ‘repeat, clarify or expand’ on submissions presented or examination
conducted by the other counsel. 157 If an application for leave is not made or if it is
refused ‘only one counsel will be allowed to make submissions or conduct the
examination for a party throughout the hearing’. 158 The practice direction provides
that the application ‘should’ be made at the commencement of the trial or hearing. 159
It is suggested that this wording assumes that an application may be made at a later
stage if justified, such as when the leading counsel, who intended to conduct the case
on his own, becomes ill or otherwise indisposed in the course of proceedings and has
to be replaced by the assisting counsel. Again, where an application has been made at
the commencement of the trial or hearing but the division of work becomes untenable
because one of the counsel becomes ill or indisposed, a further application may have
to be made to modify the arrangement.
Page: 318
Advocate's approach to his own witness when the latter undergoes cross-
examination
The advocate's duty ‘to maintain the rule of law and to assist in the administration of
justice’ 160 bars him from influencing the testimony of witnesses. There are various
rules which provide that he must not mislead the court. 161 Beyond the presentation of
his own case, the question arises as to what he can say to his own witness during
adjournments in the course of the cross-examination of that witness by the opposing
advocate. Rule 62 of the LP (PC) Rules governs this particular situation by providing:
(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 cross-examination.
(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 firm.
The rationale of this prohibition is that the advocate must not be tempted to ‘coach’ a
witness during a break in cross-examination with a view to helping him to cope with
the cross-examiner's questions or allegations. The danger of the advocate's
interference here is that the cross-examiner would be impeded in his conduct of the
case and, depending on the nature of the interference, the witness's evidence might
be improperly altered. Therefore, an absolute ban is imposed on any conversation
between the advocate and his witness while that witness is being cross-examined
concerning the evidence of that witness or any other witness. The prohibition applies
even if the discussion is innocuous and is not intended to, and does not, influence the
witness. The strictness of the rule appears to be intended to avoid the appearance of
interference and ensuing difficulties which may compel even the innocent advocate to
explain his conduct. The only exception is where the advocate's client is the witness
and it is necessary for them to communicate during the process of his cross-
examination ‘for any purpose necessary to the proper management of the matter’. The
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advocate may be called upon to explain his discussion with his client-witness during
the latter's cross-examination. In these circumstances, the advocate will have to show
the existence of such a purpose and that it was also necessary to talk to the client
during the
Page: 319
cross-examination phase. To avoid potential difficulties, the advocate should avoid all
conversation with his client-witness until the completion of the cross-examination. 162
It is interesting that there are no rules which correspond to rule 62 in the context of
the other phases of the trial process. This raises the question of whether the advocate
is similarly prohibited from discussing the evidence with his witness during
adjournments in the course of the examination in chief or re-examination. For
example, is he entitled to remind the witness of matters which he has forgotten, or tell
him that he is giving too much information contrary to instructions from the advocate
before the trial? Clearly, the principle that the advocate should not interfere with the
witness under cross-examination applies equally to the examination in chief and re-
examination. The LP (PC) Rules make it quite clear that the advocate and solicitor is
not to ‘concoct evidence’ or ‘contrive facts’ 163 or ‘deceive’ or ‘mislead’ the court, 164
and that he is obliged to uphold the ‘interests of justice’ 165 and ‘to maintain the Rule
of Law and assist in the Administration of Justice’. 166 The appearance of interference
undermines confidence in the administration of justice 167 and altered evidence
misleads the court. 168 Moreover, the law provides the advocate with sufficient
opportunities to rectify difficulties experienced in examination in chief and cross-
examination. In the case of cross-examination, there is re-examination. 169 If a witness
forgets details in the course of examination in chief, he may be able to ‘refresh his
memory’. 170
Page: 320
If his evidence in chief is inconsistent with the account he gave the advocate, the
witness may be cross-examined in the course of the examination in chief. 171 Of
course, these processes are governed by safeguards 172 and take effect in the full view
of the court.
JEFFREY PINSLER*
———
1
See below, ‘1. SCHEME AND APPLICATION OF THE LEGAL PROFESSION (PROFESSIONAL CONDUCT) RULES,
1998’.
2 See below, ‘II. GENERAL CONDUCT OF PROCEEDINGS IN COURT’.
3
See below, ‘III. CROSS-EXAMINATION’.
4 LP (PC) Rules, GN S 156/98, r 1.
5 Ibid, r 2.
6See, for example, r 70 of the LP (PC) Rules, which concerns the requirement of notice before a judgment in
default is entered.
7
The scope of the PDR is briefly considered below.
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8Ibid, r 2(3). For example, compare r 70 of the LP (PC) Rules with Paras 33(a) and (b) of the PDR. The notice
period for the entry of a judgment in default is now 48 hours rather than 24 hours (the former position under the
PDR).
9 See s 82(1) of the Legal Profession Act (Cap 161, 1997 Reved).
10 LP (PC) Rules, r 2(2)(a).
11 See, in particular, Chapters 1 and 7 of the PDR.
12
See, in particular, Part III, r 54 and Part V of the LP (PC) Rules.
13 R 2(2)(c) of the LP (PC) Rules provides that the advocate and solicitor must ‘act in the best interests of his
client and to charge fairly for work done’.
14 This role is specified by s 82(1) of the Legal Profession Act (Cap 161, 1994 Rev Ed).
15 See above, note 13.
16See Whyatt CJ's pronouncements in Shaw & Shaw Ltd v Lim Hock Kim (No 2) [1958] MLJ 129 concerning the
nature of, and relationship between, these two duties.
17 R 2(2)(a) of the LP (PC) Rules.
18 Ibid, r 2(2)(b). This includes the obligation ‘to facilitate access to justice by members of the public’ (Ibid, r 2
(2)(d)). The following discussion focuses on the various rules which accentuate these various obligations. The
rules take various forms including those which are prohibitive in nature, those which provide the advocate and
solicitor with an option, and others which require him to take certain steps or even demand that he ceases from
acting.
19
Ibid, r 56.
20 Ibid, rr 59, 60(e), (f).
21 Ibid, r 60(c). See Glebe Sugar Refining Co Ltd v Trustees of the Port and Harbours of Greenock [1921] WN 85.
22
Ibid, r 60(e)
23 Ibid, r 60(d)
24 Ibid, r 60(c). As already mentioned in this paragraph.
25 There are exceptions. See, for example, s 128(a) and (b) of the Evidence Act (Cap 97, 1997 Rev Ed).
26 R 24 of the LP (PC) Rules; ss 128 and 131 of the Evidence Act.
27 R 74 of the LP (PC) Rules. The rule is discussed below.
28 R 24 of the LP (PC) Rules; s 128 of the Evidence Act.

29
R 78 of the LP (PC) Rules.
30 Ibid.
31 Ibid, r 74.
32 Ibid, r 60(b).
33 Ibid, r 60(b)
34
This principle and other related provisions will be explored in more detail below, under “Representing the ‘guilty’
client”.
35 R 65(a) of the LP (PC) Rules.
36 Ibid, r 65
37
Ibid, r 64(1).
38
Ibid, r 64(2). If he does discharge himself in these circumstances, he is required ‘to take all reasonable steps
to ensure that his client's interest is not in any way jeopardised’: r 64(3) of the LP (PC) Rules.
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39 Ibid, r 67.
40Ibid, r 68. This injunction does not extend to allowable disbursements and expenses the witness is entitled to
under the law: Ibid.
41 Ibid, r 82.
42 See ibid, r 55(a) of the LP (PC) Rules, which provides that he must ‘act with due courtesy to the court’.
43 Ibid, r 47.
44 Ibid, r 63(1).
45
Ibid, r 63(2).
46 So that the advocate and solicitor may interview and take statements from any witness or prospective
witness: r 66 of the LP (PC) Rules.
47 LP (PC) Rules, r 66.
48
Ibid, r 48.
49 Ibid, r 49.
50 Ibid, r 50.
51
Ibid, r 51.
52 Ibid, r 52.
53 Ibid, r 53.
54
Ibid, r 70.
55 Ibid, r 71.
56 Ibid, r 69.
57 Ibid, r 80.
58
Ibid, r 57(a).
59
Ibid, r 57(b).
60
Ie, r 57 of the LP (PC) Rules.
61
Although it might be argued that the client has forfeited his right to judicial determination by reason of his
abuse of the judicial process. For the various circumstances in which an advocate and solicitor may withdraw,
see ibid, r 42. Apart from the specific instances, he may withdraw ‘where any other good cause exists’ (ibid, r 42
(g)).
62 The court may be more reluctant to allow the application at the later stage of proceedings because of the
limited time that would be available to the new counsel to prepare for the trial.
63 LP (PC) Rules, r 58(a).
64
Ibid, r 58(b).
65 Ibid, r 58(c).
66 Ibid, r 72.
67
The words used are ‘on whose behalf he is instructed’.
68 R 73 of the LP (PC) Rules.
69 Within the sphere of his role as ‘officer of the court’. See text at notes 9 and 10.
70
R 74 of the LP (PC) Rules.
71 Unless such disclosure is permitted by the client. See s 128 of the Evidence Act (and illustration (a)), and r 24
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of the LP (PC) Rules.

73
Ibid.
74 Ibid, r 75.
75 Ibid.
76
Ibid, r 79.
77For example, the advocate and solicitor might advise him not to give evidence because of the inconsistencies
which may be raised by the prosecution. The client would also be advised of the adverse inferences which the
court might draw if he does not take the stand (pursuant to s 196(2) of the Criminal Procedure Code (Cap 68)).
78 Ibid, r 76.
79
Ibid, r 77.
80Ibid, r 60(a). This rule also provides that he is to exercise his ‘personal judgment’ ‘upon the substance and
purpose of statements made’.
81 Ibid, r 61(b).
82
Ibid, rr 60(a) and 61(b).
83 As vividly revealed in the recent trial of Anwar Ibrahim, the former Deputy Prime Minister of Malaysia.
84 Cap 97, 1997 Rev Ed.
85
LP (PC) Rules, r 54.
86Ibid, r 2(2)(a). Also see r 54 which states that the conduct of the case must ‘not conflict with the interests of
justice, public interest and professional ethics’.
87 Ibid, r 2(2)(d).
88
Ibid, r 55(c). Also see r 55(b), which provides that the advocate must ‘use his best endeavours to avoid
unnecessary adjournments, expense and waste of the court's time’.
89Nokes, An Introduction to Evidence (4th ed), at pp 407-408. Cited by the Singapore High Court in Kwang Boon
Keong Peter v PP [1998] 2 SLR 592, at 692. In this case, the court considered the term ‘credit’ in the context of
impeachment under section 157 of the Evidence Act.
90 Lim Baba v PP (1962) MLJ 201.
91
Also see the terminology of s 383 of the Criminal Procedure Code, Cap 68, concerning the evidence which may
be adduced to attack the character of the maker of a statement who is not called as a witness.
92 The words ‘except in so far as it affects the credit of the witness by injuring his character’ may give rise to
the impression that such questions are excluded from the discretion of the court. Such an interpretation would
deprive the section of any purpose. The ambiguity must be resolved by construing the words as enabling the
court to exercise a discretion when the question only concerns the credit of the witness. See the preceding
discussion in the text (after the reference to s. 134). This was also the preferred view of the High Court in
Kwang Boon Keong v pp [1998] 2 SLR 592, at 603.
93 Taylor states: ‘…all inquiries into discreditable transactions of a remote date, might, in general, be rightly
suppressed; for the interests of justice can seldom require that the errors of a man's life, long since repented of,
and forgiven by the community, should be recalled to remembrance at the pleasure of any future litigant’. See
Taylor, Law of Evidence, 1878, vol 2, para 1460. Also see R v Ghulam Mustafa 36 A 371, at 347, which is cited
at Sarkar on Evidence, 13th ed, p 1378.
94
Stephen's Digest, 5th ed, p 196.
95In the unreported case of R v Orion (1874), a witness was compelled to answer questions concerning an extra
-marital affair many years previously. The case is cited in Stephen's Digest, 5th ed, at p 141.
96 [1964] MLJ 81, at 83-84.
97
See De Silva v PP, above.
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98 This is within the ambit of s 148(a) of the Evidence Act. See above.
99 These provisions have been discussed.
100
S 155 states the general rule: ‘When a witness has been asked and has answered any question which is
relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be
given to contradict him; but if he answers falsely he may afterwards be charged with giving false evidence.’
Exception 1 states: ‘If a witness is asked whether he has been previously convicted of any crime and denies it,
evidence may be given of his previous conviction’.
101 See s 151 of the Evidence Act and r 60(h) of the LP (PC) Rules (both of which are considered below).
102 See note 100.
103
[1962] MLJ 201, at 202.
104 See the above illustrations concerning the prostitute and employer.
105 The additional word ‘vilify’ is also included in the rule.
106
The paragraph is set out above.
107This paragraph states that the advocate ‘shall be personally responsible for the conduct and presentation of
his case and shall exercise personal judgment upon the substance and purpose of statements made and
questions asked’. The paragraph is considered in the context of Time and efficiency' in cross-examination, below.
108 See s 82(1) of the Legal Profession Act (Cap 161, 1997 Rev ed).
109 LP (PC) Rules, r 2(2)(a).
110 Subject to other rules governing cross-examination, as to which see above.

111See s 128 of the Evidence Act and r 24 of the LP (PC) Rules. This is a general rule to which there are
exceptions. See s 128(a) and (b) of the Evidence Act.
112See r 24 of the LP (PC) Rules, which also provides that the advocate and solicitor may rely on
communications to reply to or defend a disciplinary charge against him.
114 Ibid.
115The advocate and solicitor is permitted, even encouraged in certain circumstances, to continue to represent
a client who has confessed his guilt to him in criminal proceedings. See r 74 of the LP (PC) Rules.

117
Ibid.
118
This is a well-established practice founded on case law. See the oft-quoted judgments of Lord Herschell LC
and Lord Halsbury in the leading English case of Browne v Dunn (1893) 6 R 67, at pp 70, 76-77. Also see the
succinct statement of principle in the Indian case of Carapiet v Derderian AIR 1961 Cal 359, at p 362 (per
Mukharji J). In Seet Melvin v Law Society of Singapore [1995] 2 SLR 323, at p 338, Yong Pung How CJ, citing
Brown v Dunn, said: ‘There is an abundance of authority for the proposition that if counsel ignores or omits to
cross-examine a witness on material points that go against his client's case, they may be taken as an
acceptance of the truth of that part of the witness's evidence. This is well-entrenched rule in the context of
ordinary adversarial proceedings.’ The practice has been adopted, or referred to, in a number of cases in
Singapore and Malaysia. See for example, Liza bte Ismail v PP [1997] 2 SLR 454, at para 76; PP v Okonkwo
[1993] 3 SLR 610; PP v Teoh Kah Lin (unreported judgment of Amarjeet Singh JC, CC39/1994; 94 SC 371);
Darwish MKF Gobaishi v House of Hung Pte Ltd [1998] 3 SLR 435; Chua Beow Huat v PP [1970] 2 MLJ 79; PP v Oh
Teh Hwa, unreported judgment of Lai Kew Chai J (CC 5/93; 93 SC 289); Wama bte Buang v Martin Lee,
unreported judgment of Selvam J ((OS 156 of 1990, dated 30 September 1993); Makin Nominees (Pte) Ltd (In
liquidation) & Anor v Ong & Co Pte Ltd, unreported Judgment of Lai Siu Chiu J (1501 of 1993); Star Garments v
Low Ee Suan Trading & Ors, unreported Judgment of Lai Siu Chiu JC (1078 of 1987; 93 SC 032); Aik Ming (M) Sdn
Bhd v Chang Ching Chuen [1995] 2 MLJ 770, at pp 794-796 (where Gopal Sri Ram JCA endorsed Browne v Dunn);
Teo Hock Guan & Anor (t/a Teo Meng Huah Construction) v Johore Builders & Investments Sdn Bhd [1996] 2 MLJ
596; Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 and Yap Ban Tick & Ors v Standard
Chartered Bank [1995] 3 MLJ 401 (in which Aik Ming (M) Sdn Bhd v Chang Ching Chuen (above) was followed).
Also see Allied Pastoral Holdings v Commr of Taxation [1983] NSWLR 1. In his article, ‘Putting and suggesting in
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cross-examination’, [1984] MLJ xi, at pxv, the Honourable Justice Shankar commented: ‘As the law stands today,
it may not be too far-fetched to say that a lawyer who does not put his case to his adversary's witnesses at
the first opportunity, must so act at his peril.’ The rule applies to both civil and criminal cases: R v Fenlon (1980)
71 Cr App R 307; Liza bte Ismail v PP [1997] 2 SLR 454, at para 65.
119 As Yong Pung How CJ said in Liza bte Ismail v PP [1997] 2 SLR 454, at para 70: ‘As a matter of procedural
fairness, the witness should have the opportunity to explain the material contradictions’.
120 In Allied Pastoral Holdings v Commr of Taxation [1983] NSWLR 1, at 23, Hunt J explained the rationale in the
following manner: ‘Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle
under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it
gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a
challenge is unlikely to have been called. Thirdly, it gives the witness opportunity both to explain or to qualify his
own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or
to qualify the other evidence upon which the challenge is to be based’. These reasons were accepted by Yong
Pung How CJ in Liza bte Ismail v PP [1997] 2 SLR 454, at para 66.
121 [1998] 3 SLR 435, at para 113.
122 Because the witness's evidence, if unchallenged, would be accepted by the court.
123See, for example, Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395; Aik Ming (M) Sdn Bhd v
Chang Ching Chuen [1995] 2 MLJ 770, at pp 794-796.
124 [1993] 3 SLR 610.
125 Ibid, at 630.

126Also see PP v Teoh Kah Lin (unreported judgment of Amarjeet Singh JC, CC39/1994; 94 SC 371), which
involved similar circumstances.
127 [1997] 2 SLR 454, at para 68.
128 See the various considerations set out by the writer in the previous paragraph.
129 [1997] 2 SLR 454, at para 70.
130 Browne v Dunn (1893) 6 R 67, at 79.
131This proposition was accepted by Yong Pung How CJ in Liza bte Ismail v PP [1997] 2 SLR 454, at para 76.
Also see PP v Teoh Kah Lin (unreported judgment of Amarjeet Singh JC, CC39/1994; 94 SC 371); Transport
Ministry v Garry [1973] 1 NZLR 120.
132For example, where the witness absconds. See Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai
[1997] 3 MLJ 61, at 77-78.
133
[1995] 2 SLR 323, at 338.
134 Because it is a material fact. See O 18, r 7 (RC).
135See Makin Nominees (Pte) Ltd (In liquidation) & Anor v Ong & Co Pte Ltd (Judgment of the High Court dated
18-20 September, 1996; Suit no 1501 of 1993).
136 Singapore Academy of Law Newsletter, February, 1995, Issue No 34, at p 6.
137 Wigmore on Evidence, 3rd ed, 1974, vol 5, para 1367.

138 See Pinsler JD, ‘The Inherent Powers of the Court’ [1997] SJLS 1, from 12; Dockray MS, ‘The Inherent
Jurisdiction to Regulate Civil Proceedings’ [1997] 1 LQR 120.
139
See, for example, Teng Boon How v Pendakwa Raya [1993] 3 MLJ 553; Roseli bin Amat & Ors v PP [1989] 2
MLJ 65; Lee Ching Poh v Ching Kee Sun & Ors [1962] MLJ 146; Lim Ker v Chew Seok Tee [1967] 1 MLJ 236 (HC);
[1967] 2 MLJ 253 (FC); Leng Lan v SM Yesudian [1939] MLJ 222. Hock Hua Bank (Sahah) Bhd v Yong Liuk Thin &
Ors [1995] 2 MLJ 213; Hadmor Productions Ltd & Ors v Hamilton & Annr [1983] 1 AC 191, at 233; Jones v
National Coal Board [1957] 2 QB 55.
140 See below.

-----------------------------------------------------------------------------------------------------------------------------------------------------------
142 Ibid, r 2(2)(d).

143 (1935) AC 346.
144Ibid, at 359. This passage was cited by Lai Siew Chiu JC, as her Honour then was, in Wong Kai Chung v The
Automobile Association of Singapore (Suit No 2415/1986; judgment dated 30/1/1992). Her Honour stated that if
these principles had been followed the trial would have been ‘considerably shorter than the 6+ days it took’.
145
(1935) AC 346, at 360. Also see Yong Yin Siew v Chong Sheak Thow [1988] 3 MLJ 115, at 118.
See Wong Kai Chung v The Automobile Association of Singapore (above), in which Lai Siew Chiu JC, as her
146
Honour then was, pointed out that the fact that a document is disclosed on discovery does not mean that it
must be the subject of cross-examination.
147 (1935) AC 346, at 359.
148 As when the cross-examiner needs to ask questions to establish certain facts before he asks the questions
which focus on those facts. For example, where the advocate asks preliminary questions to establish that the
witness made a statement on a previous occasion so that the inconsistencies between that statement and what
is said in court may be brought out.
149 Ibid.
150
[1994] 2 SLR 257.
151
As it then was.
152 [1948] MLJ 57.
153
[1994] 2 SLR 257, at 262. Also see Kwang Boon Keong v. PP [1998] 2 SLR 592, at 605.
154
Supreme Court PD (1997), Part XII, para 63; Subordinate Courts PD (1999), Part X, para 65.
155 Supreme Court PD (1997), Part XII, para 63(1); Subordinate Courts PD (1999), Part X, para 65(1).
156
Supreme Court PD (1997), Part XII, para 63(2); Subordinate Courts PD (1999), Part X, para 65(2). Note that
the application must be supported by information concerning the issues (in respect of which the submissions are
to be made) and the witnesses to be examined (in relation to the respective portions of their evidence).
158
Supreme Court PD (1997), Part XII, para 63(4); Subordinate Courts PD (1999), Part X, para 65(4).
161
See, for example, rr 56, 59, 60(e) and (f). Also see above, ‘Veracity in the method of questioning’.
162
Legal professional privilege prohibits the advocate from disclosing the communications between him and his
client without the permission of the latter (see s 128(1) of the Evidence Act; r 24 of the LP (PC) Rules).
However, if the advocate is called upon to explain his conversation with his client, the client may be willing to
consent to the disclosure of what was said between them. The advocate may also use the confidential
information ‘to reply or defend any charge or complaint as to his conduct or professional behaviour brought
against him whether in court or before a disciplinary tribunal of the [Law] Society’: r 24(2) of the LP (PC) Rules.
163 R 60(f) of the LP (PC) Rules.
164
Ibid, r 56.
165 Ibid, r 54.
166 Ibid, r 2(2)(a).
167
Ibid.
168 Ibid, rr 56, 59, 60(e) and (f).
169Although, it is a general rule that leading questions must not be asked during this phase. See s 144(1) of the
Evidence Act.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
170
See s 161-163 of the Evidence Act. The most recent authority on this area is Yuen Chun Yii v PP [1997] 3
SLR 57.
171 The leave of the court is required. See ss 156 and 157 of the Evidence Act. The most recent authority on
this area is Yuen Chun Yii v PP [1997] 3 SLR 57.
172 See the sections of the Evidence Act referred to in the two preceding notes.
*
LLB (L'pool); LLM (Cantab); Barrister (MT); Advocate and Solicitor (Singapore); Assoc Professor, Faculty of
Law, National University of Singapore.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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Page 1 Sunday, February 05, 2023

(1999) 11 SAcLJ 284

Ethics In Litigation: Issues Raised By The Legal Profession (Professional

ETHICS IN LITIGATION: ISSUES RAISED BY THE LEGAL PROFESSION (PROFESSIONAL

can only be truly be described as an overriding principle to be applied to all

However, in the complex system of court practice, principle needs to be carefully

Duty not to deceive or mislead

Professional standing and independence

Appropriate response to impropriety

Representing the ‘guilty’ client

Accused's right to decide

Scope for challenging the witness's credit and credibility

indirectly to criminate him, or might expose or tend directly or indirectly to expose

importance of his evidence.

Proportionality is the principle embodied by paragraph (c). It declares questions to be

discretion pursuant to s 150(1), directs

unacceptable affront to the witness's dignity. The seriousness of a breach of the

‘indecent’ or ‘scandalous’ or is ‘intended to insult or annoy’ or is ‘needlessly offensive

questions put or statements made.

Veracity in the method of questioning

Putting allegations to a witness

60(g) states that the advocate:

not apply to an incomplete cross-examination because the cross-examiner does not

at times it failed to display that measure of courtesy to the witness which is by no

28 R 24 of the LP (PC) Rules; s 128 of the Evidence Act.

of the LP (PC) Rules.

110 Subject to other rules governing cross-examination, as to which see above.

116 R 24 of the LP (PC) Rules.

125 Ibid, at 630.

137 Wigmore on Evidence, 3rd ed, 1974, vol 5, para 1367.

140 See below.

142 Ibid, r 2(2)(d).

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