PROFESSIONAL RESPONSIBILITY (1) – References: 1. COURT CONDUCT AND ETIQUETTE BY MR CHRISTOPHER LAU (SENIOR COUNSEL) WEDNESDAY, 12 JULY 2006 1.

Arrive early avoid scolding time to choose your place ability to meet and discuss with counsel 2. Bring the tools of your trade ROC/Evidence Act calculator, marker pens, pads, files 3. Prepare for hearing must be master of your brief chronology authorities for reliefs claimed 4. Clothing view from the Bench button up

5. Attitude to Court deference without servility stand up when speaking or when spoken to no private conversations don’t speak to other counsel except through the Court Rule 15 1978 malaysian legal profession (practice and etiquette) rules – respect to court - See also rules 54 and 55(a) sg rules – o 54 - to cnduct each case in manner most advtageous to client so long as does not conlfic tiwth interests of ujustice, public interest and professional ethics o 55 – act with due courtesy to court before which he is appearing 6. Assist the Court refer to court index number prepare bundle of affidavits know Exhibit and Agreed Bundle references primary duty is to Court 7. Court Style Opening Statement frame questions clearly don’t examine witnesses on effects of documents don’t be personal with other counsel don’t prompt witnesses - do not, as a general rule, interrupt counsel when counsel on his feet don’t disturb other counsel watch the judge’s pen don’t object unnecessarily 8. Importance of Style style matters style helps to win don’t be too costs conscious don’t aim to win at all cost your reputation is worth more than one case

9. in relation to opponent rule 47 sg rules – treat proff colleagues with coutesy and fairness otherwise grds for complaint to law soc includes o introd urself to judge then opponent (if opening proceedings) o when introd by opponent, stand up and bow to court o refer to opponent as my learned friend o don’t interrupt o don’t interrupt submission unless grossly misleading assertion of fact or misguided line of argument 10. In relation to witnesses - rule 61 of sg rules and rule 33 of 1978 rules o 61 – in all cases not to amek statements or ask qn scandalous or intended to insult or calculated ony to vilify or annoy or otherwise abuse fn of advocate and sol; and to ex judgement as to substance and form of qn put o 33 – advocate and sol to treat adverse witnesses with fairness and due consideration and not minister to malevolence or prej of client in conduct of case o 36 (1978 rules) – advocate to prevent client fr wrongful conduct towards courts etc; he shall use his best efforts to prevent client fr doing things which he himself ought not do and where client persists in wrongdoing, h is to terminate the rr. Advocate resp for behaviour of client in court 11. Some Lawyers who annoyed judges - Re Kumaraendran [1975] 2 MLJ 45 Facts: The advocate and solicitor in this case was defending an accused person charged with an offence under the Corrosive and Explosive Substances and Offensive Weapons Ordinance, 1958. The record of the proceedings before the President of the Sessions Court showed that the advocate was "shouting and behaving in a manner which is most unexpected". The advocate made an application for the case to be heard before another President. The advocate said that if this application was not granted he would apply to be discharged from further acting for the accused The President then allowed the application for the discharge of the advocate The advocate then made the following remarks in court: "If you say this (referring to the President`s ruling), outside the court, I will take on (sic) you certainly" The President of the Sessions Court then ruled that the advocate had committed contempt of court and committed the advocate to two days imprisonment On exercise of criminal revision. Holdings: Held: (1) there is no doubt that the words uttered by the advocate constituted insulting and contumacious behaviour in outrageous and provocative language tantamount to a deliberate challenge to the authority of the learned President and was clearly a gross contempt in the face of the court; (2).the power given to Sessions and Magistrate`s Courts to take cognisance of any contempt of court and award punishment therefor in para 26 of the 3rd Sch to the Subordinate Courts Act 1948 is to be exercised in such extent and in such manner as may be prescribed by Rules of Court. There are rules of court in this context which statutorily embodies and enacts the principles of showing cause; (3).the learned President, perhaps understandably acting in the heat of the moment immediately committed the advocate to imprisonment for two days, without distinctly stating the specific offences charged against the advocate and without giving him an opportunity of answering the charge. This was in breach of the rules of natural justice and in utter disregard of Order XXXVIII r 1 of the Subordinate Courts Rule, 1950, or at least the principle underlining it The order of committal was therefore unsustainable in law and invalid. Per Abdoolcader J: "it is the duty of counsel appearing before them (Presidents and Magistrates) to act fearlessly and with all the force and vigour at their disposal in the interest of the cause they represent but wholly within the bounds of propriety and courtesy in the discharge of their duties as officers of the court Counsel appearing before these courts must equally remember that in the discharge of their duties they must judiciously use the right and privilege of appearing as such in these courts and not abuse it, and that their conduct must at all times accord with that decorum and dignity" - Hilborne v Law Society of Singapore [1978] 1 WLR 841

- Public Prosecutor v Seeralan [1985] 2 MLJ 30 Facts: In this case the Magistrate at Seremban was holding an inquest. The respondent Mr Seeralan, a member of the Bar was in court holding a watching brief. In the course of the proceedings the respondent became emotional and made several allegations of bias against the Magistrate. The Magistrate ordered the respondent to leave the court but the respondent refused to comply. He continued to make allegations of bias against the Bench saying the Bench was unfair and prejudiced. The Magistrate eventually, after an adjournment, invoked para 26 of the Third Schedule of the Subordinate Courts Act, 1948, took cognizance of the contempt committed by the respondent and required him to show cause why he should not be punished. The respondent denied the charge and claimed to the tried before another Magistrate. The Magistrate then fined him $150 or in default one week`s imprisonment. The next day the High Court exercising its powers of revision reversed and set aside the Magistrate`s Order. The revisionary proceedings were held in the Chambers of the Judge in the presence of the Magistrate and Counsel for the respondent. The Public Prosecutor subsequently referred three questions of law to the Supreme Court. These were (1).Whether or not in law criminal contempt has been committed in the face of the court by the respondent by accusing the presiding Magistrate in Port Dickson Magistarte`s Court Inquest No 47/1984 of being biased, unfair and prejudiced and by refusing to leave the court when ordered to do so by the learned Magistrate. (2).If the answer to question (1) is in the affirmative, then whether it is right in law for the learned magistrate in the circumstances of this case to exercise his power of punishment for contempt of court summarily. (3).If the answer to question (2) is in the affirmative, then whether it is right in law for the learned judge to set aside the Order of the learned magistrate committing the respondent for contempt of court in chambers without giving due notice or the right to be heard to the Public Prosecutor? Holdings: Held (1) the record clearly revealed the uncompromising attitude of the respondent and his unabashed arrogance and insolence towards the Magistrate. His continued accusations that the court was biased, unfair and prejudiced clearly amounted to a contempt of court. Such conduct and behaviour were not just disorderly acts nor a mere use of unbecoming language. They constituted a contempt of court of a serious kind, without any mitigating factor; (2).in this case the record clearly showed that the elements of contempt were fully set out and the respondent was asked to show cause. There was therefore no failure of the court to give the respondent an opportunity to be heard before he was punished; (3).the learned Magistrate in this case had a choice of either proceeding under para 26 of the Third Schedule of the Subordinate Courts Act, 1948 or of authorising a prosecution; (4).the absence of a provision in the Subordinate Court Rules regarding the exercise of the power by the Magistrate does not mean that the power cannot be exercised. The Magistrate can effectively exercise the power so long as the contemnor is given an opportunity of being heard; (5).in the circumstances the order of the learned Judge of the High Court should be quashed and the order of the learned Magistrate restored. - Ram Goswami v Public Prosecutor [1985] 1 MLJ 113 Facts: The appellant, an advocate and solicitor was convicted for contempt in the face of the court by a district court under s 8 of the Subordinate Courts Act and sentenced to a fine of $500. The facts were briefly as follows. The appellant had agreed to represent two persons who were charged with an offence under the Women`s Charter before a district court. The oral contract was for payment of a retainer by each client which was to be paid before the trial commenced and a refresher for each day or part thereof after the first day. The trial commenced on 3 March 1983. Only part of the agreed retainer had been paid by his clients despite repeated promises. The appellant subsequently applied for a week`s adjournment or alternatively for a discharge. The appellant informed the court that his clients had failed to give him instructions since the last hearing and had failed to pay the agreed fees despite repeated promises to do so. The trial judge refused his application and found him in contempt of court and asked him to show cause. The appellant reiterated his grounds for applying for his discharge and apologised to the court. The question before the present court was whether the appellant`s conduct or act could properly be regarded as a contempt of court. Holdings: Held , allowing the appeal: (1).The appellant`s conduct did not go so far beyond the limits of non-co-operation or refusal to comply with the court`s direction or discourtesy as to harden into contempt of court.

(2).Having regard to all the circumstances of the case, the power of summary punishment given to the judge under s 8 of the Subordinate Court`s Act should not have been exercised when the appellant apologized for his conduct. - Attorney General v Arthur Lee Meng Kuang [1987] 1 MLJ 206 Facts: In this case the application was for an order that the respondent be committed to prison for contempt of court. The respondent had acted for the plaintiffs in an application for declaratory orders and other reliefs against certain defendants. The application had been allowed in the High Court but on appeal the appeal was allowed ( [1986] 2 MLJ 193 ). The respondent subsequently wrote letters to three Supreme Court Judges involved in the appeal and to the solicitors of the appellants in the appeal. The letters were highly derisive of the Supreme Court. The respondent not only criticised the judgment of the Supreme Court by alleged that the decision of the Court was unjust and biased. Holdings: Held: (1) in this country the need to protect the dignity and integrity of the Supreme Court and the High Court is recognised by article 126 of the Federal Constitution and also by s 13 of the Courts of Judicature Act, 1964. A proper balance must therefore be struck between the right of speech and expression as provided for in Article 10 of the Federal Constitution and the need to protect the dignity and integrity of the superior Courts in the interest of maintaining public confidence in the Judiciary; (2).whether a criticism of a judgment is within the limits of reasonable courtesy and good faith must depend on the facts of each particular case. In determining the limit of reasonable courtesy the court should not however lose sight of local conditions; (3).the issue to be determined in this case is not whether criticisms of the court`s judgment are well-founded but it is whether having regard to all the circumstances of the case the criticisms levelled by the respondent at the Supreme Court are within the limits of reasonable courtesy and good faith; (4).in this case on the evidence, the respondent has gone outside the two limits. The blatant accusations and insinuations made by the respondent are clearly intended to bring the court into disrepute and as such constitute the offence of scandalising the court. On the facts also the respondent was not within the limit of good faith, as here the personal interest of the respondent is overwhelming. Semble: The Supreme Court was given birth only on 1 January 1985, and its sensitivity need not be the same as courts of similar jurisdiction in England or other countries. Having regard to local conditions, criticisms which are considered as within the limit of reasonable courtesy elsewhere are not necessarily so here. For the present, except possibly - and we say this with great reservation - for the limited purpose of proving it in actual court proceedings, any allegation of injustice or bias however couched in respectful words and even if expressed in temperate language, cannot be tolerated particularly when such allegations are made for the purpose of influencing or exerting pressure upon the court in the exercise of its judicial functions. - Re Tan Khee Eng John [1997] 3 SLR 382 Facts The respondent Tan was an advocate and solicitor, was directed by the Chief Justice to appear in court at 2.15pm on Tuesday 29 April 1997. He failed to do so despite having been informed of the Chief Justice`s direction by the court staff and despite the court waiting for almost one-and-a-half hours that afternoon. A warrant of arrest was subsequently issued against him and when brought before the court, Tan was asked to show cause why he should not be punished for contempt of court in respect of his failure to appear in court as directed on 29 April 1997. Tan apologized and stated that he had, prior to 29 April 1997, faxed the court staff a letter to say that his client had discharged him and that on the afternoon of 29 April 1997, he faxed the court staff another letter to explain that he had other important business to attend to and to request that the hearing before the Chief Justice be refixed. Held, committing the respondent to prison for seven days: (1) Tan’s attempt to apologise for his conduct was sorely lacking in conviction. The court was unable to accept his apology and explanation. Whilst he might indeed have had other matters to attend to on the afternoon of 29 April 1997, he could easily have made a brief appearance in court to inform the court of his other commitments and to ask for an adjournment. He failed to do so and instead, behaved as if it was his prerogative to choose whether or not to comply with the court’s clear direction. His conduct was calculated to lower the authority of the courts and went beyond mere discourtesy which could just have been referred to the Law Society. It amounted to sheer, unmitigated contempt which the court must seize upon and punish. (2) The court’s power to punish for contempt allowed it to deal with conduct adversely affected the administration of justice. Courts in different jurisdictions may hold different ideas about the principles to be adhered to in their administration of justice, and correspondingly about the sort of conduct which may be

inimical to the effective administration of justice. While the English courts had apparently decided a lawyer`s failure to attend in court did not amount to contempt, their Scottish, Canadian and Malaysian counterparts decided differently. Singapore courts could not blindly adopt the attitudes of the English courts but must ask themselves what was important to them here in Singapore. In this case, the court was of the view that conduct such as Tan’s, which evinced a contemptuous disregard for the judicial process and scandalised or otherwise lowered the authority of the courts could not be tolerated. It interfered with the effective administration of justice and amounted to contempt punishable by the courts 2. Pro resp manual chapter 1 3. see handwritten lecture notes

Sign up to vote on this title
UsefulNot useful