Raffles Conversation: Portrait of a legal titan
26 April 2008
K SHANMUGAM – Senior Counsel, head of litigation and dispute resolution at Allen & Gledhill, Member of Parliament and soon-to-be Law Minister and Second Home Affairs Minister – is not only a man of many titles, but also one of many pleasant contradictions.
‘As a Minister, you can make a far greater contribution to society then you can as a lawyer in private practice, helping individual clients. It is a privilege to serve society in a meaningful way.’
As a reporter who’s followed his cases and career closely in the last few years, I thought I had a handle on the man; but he still manages to surprise me every time. Part of this is due to the fact that very little is known about the 49-year-old, personally, given his intensely private nature – which is, already, a contradiction for so public a figure. His preference for only letting his work speak for him has meant not only that it was no mean feat getting him to agree to this interview – but also that few people, save for friends and colleagues, really know what makes the man tick. Most of us know him as one of Singapore’s most fearsome litigators, who has been described as one of the country’s ‘twin titans’ of litigation alongside Senior Counsel Davinder Singh of Drew & Napier. Mr Shanmugam’s list of legal victories and contributions to the local litigation scene runs long – as does the list of awards and accolades accorded to him. His public image can be a forbidding one.
Those who’ve witnessed him tearing apart his opponents, skilful argument by skilful argument – in his calm, yet menacing way – understand why he’s also known as the ‘Silent Killer’. In fact, some have wondered if it was because of those very accomplishments that he was picked as Singapore’s new Law Minister. In a word, the answer must be ‘yes’ – but those who know him know that he will also bring a great many other qualities to the job. And that’s where those contradictions I’d mentioned earlier come in. Watching Mr Shanmugam in action – his thoughts and arguments flow with a speed that leaves the rest of us mere mortals gasping for breath, struggling to keep up – one would think he’s simply wired that way. Well, he is. But he is also not one who’s content to rely solely on his brilliant brain. He is a litigator who’s also an extremely thorough researcher. It’s a trait that not many are aware of, especially if one has only ever encountered him in the courtroom. But there’s much preparation work that goes before each riveting cross-examination, as the man himself explains.
‘I’m not the sort of litigator who lets his team do all the groundwork, and then comes in just to argue the case. I’m involved from the very beginning. When we get a case, especially a major one, I sit down with my fellow partners and our team of lawyers and decide on how we’re going to tackle it – I look at the key issues, the bases of action, how we’re going to argue the case. I set out the roadmap for them.’ And he regularly updates himself on the progress of his team’s preparations by meeting them to discuss the handling of a case. During these meetings, the work done is considered in detail, and the roadmap ahead as well as new ideas are discussed. And he reads every piece of evidence used in a case.
‘I read every single document – every memo, every letter, every e-mail, every spreadsheet – and I read everything at least three times to completely absorb and analyse the evidence from several angles. I have one set of documents in the office and one set at home. I make sure I’m so familiar with them that nothing can throw me off.’
This familiarity manifested itself in the high profile court case involving the National Kidney Foundation (NKF), where Mr Shanmugam represented the new board in its claims against former officers of the charity. The Senior Counsel was able to trap former chairman Richard Yong on numerous occasions, by pulling out evidence from documents dating 10 years back which contradicted Yong’s testimony. ‘You can only do that when you truly understand the entire sequence of events in a case. You can’t be debating evidence with witnesses – you have to know exactly what you want to get from them,’ he tells me. His ability to absorb that amount of information for each case is possible because the man works at an almost super-human pace. Allen & Gledhill (A&G) partner Edwin Tong – who is one of Mr Shanmugam’s right-hand men in the litigation department, having worked with him for 14 years (and who also worked with him on the NKF trial) – describes it as such: ‘He works faster than anyone I’ve ever known. He reads a document in a third the amount of time it would take the rest of us to. And, by that time, he would also have absorbed, digested and understood it. He also has an uncanny ability to size up the facts and then present them in a clear, concise and logical manner. When cross-examining, that’s a devastating quality.’ That brings us to the most difficult job of a litigator, after the prep work: the court appearance. Which is where Mr Shanmugam has earned much of his fame, ripping apart the arguments of his opponents with his stinging interrogatory style.
Again, using the example of the NKF trial – which many in the public are familiar with – Mr Shanmugam got Yong to admit, in cross-examination, that a letter he claimed to have written to former CEO T T Durai, which praised Durai’s work and offered him an eight-month bonus, was actually drafted by Durai himself. Taking apart the letter word by word, he showed the court that Yong could not have written it – as the former chairman did not even understand some of the words used. The unrelenting scrutiny Mr Shanmugam subjected Yong to, throughout the trial, eventually led the former chairman to admit that he had breached his duties as a board member. It’s a skill which not many possess. Mr Shanmugam explains what he considers to be some of the key factors in handling court work: ‘The difference between a good and an excellent litigator is the ability to draw out such admissions from the witness and to prepare the trap in such a way that there is no escape from the facts which have been established.” You need to know how to counter answers that you weren’t looking for. You have to be very quick. You have to be several steps ahead of the witnesses and be aware of all their escape routes. And, through it all, you must remain cool. Never show fear or weakness. You have to have the stomach to take the pressure. And then turn the pressure onto your opponents,’ he says. That ability has seen him turn impossible cases into victories and difficult situations into triumphs.
The latter instance was illustrated, this time outside the courtroom, in another high-profile dispute – between the owners of Horizon Towers and Mr Shanmugam’s client, Hotel Properties Ltd (HPL).
HPL’s plans to buy Horizon Towers seemed to have been completely scuppered when the Strata Titles Board (STB) rejected the sale in August 2007. HPL could not appeal the decision, having earlier been denied access to the hearing. The minority owners, who opposed the sale, were delighted. And the majority owners, given that property prices had risen very substantially, had no commercial interest in appealing the STB’s decision. Some of them were in fact lobbying for the sale to be aborted. The deal may well have collapsed – if not for Mr Shanmugam’s quick thinking.’ Most people thought that the deal was off. Many lawyers were saying that was the end. But we didn’t sit back and accept it. We decided immediately, within a few days, to sue the majority owners for $1 billion, for breach of contract.
That sort of move requires a clear and objective analysis of the situation – and a lot of guts. The client got out of a situation that looked lost,’ he says. As he puts it: ‘The $1-billion lawsuit focused minds and reminded people of their obligations. The majority owners had a choice – they could appeal to try and get the STB decision reversed and, after that, do their best to get the STB to approve the sale; or they could take their chances with the lawsuit. If our lawsuit was frivolous, they may well have been tempted to take the latter course.’After the lawsuit, the majority owners decided to appeal the STB’s decision. Upon appeal, the High Court overturned STB’s dismissal of the sale – and the case went back to the board, where the sale was eventually approved. The minorities owners are now appealing that decision. And Mr Shanmugam will make his last and final appearance in court as a litigator at this Horizon Towers appeal on April 30 – just a day before he assumes office as Law Minister. That brings us to the other seeming dichotomy about the man: The wildly successful private-sector lawyer versus the inspired public servant.While many were not surprised with the choice of Mr Shanmugam as Singapore’s new Law Minister – Davinder Singh says his first-rate mind and analytical skills would be a boon to the country – many were surprised he would be willing to give up a lucrative and high-profile career to serve in public office. The pay issue aside, the change would also mean that Mr Shanmugam would have to give up more of his closely guarded privacy and free time with his family. Why do it?Mr Shanmugam says: ‘I would point to two factors. First, as a Minister, you can make a far greater contribution to society then you can as a lawyer in private practice, helping individual clients. It is a privilege to serve society in a meaningful way. Second, look at the people we have in Cabinet now – they’re outstanding. Compare this Cabinet to any Cabinet in the world. It is second to none and it is a privilege to be asked to work with them.
These were real motivating factors for me. ‘It’s important, at this juncture, to touch on a third seeming contradiction about the man: That the stern, ruthless litigator is also a sensitive soul. The persona one sees in court is reserved strictly for work. Off duty, the Senior Counsel is personable, surprisingly soft-spoken, even shy, at times. I remember the trepidation with which I approached him the first time for a quote, after watching him reduce a confident witness to a nervous wreck on the stand. Since then, through our numerous encounters, I’ve learnt that the man may be tough and driven – but he’s also down-to-earth, sensitive and funny. And this interview, our last as reporter and lawyer, was a memorable affair – with Mr Shanmugam candidly sharing with me his hopes and dreams, and even regrets. One lies in the knowledge that he will be leaving a seeming vacuum at A&G’s litigation department. With his departure, the firm will be without a high-profile litigator or a Senior Counsel (SC) to lead the team – which may affect the perception of some clients. Mr Shanmugam doesn’t shy away from admitting the impact this will have on the department. But he believes his work over the past 15 years, building up a group of young litigators – almost from scratch – will pay off soon. ‘I’ve been at A&G for 17 years.
From the beginning, I have worked hard – recruiting exceptionally bright young people and training them to be the sort of litigators I want them to be, to have all the necessary skills. It takes about 15 to 17 years to train a lawyer from scratch until he becomes an SC. But not everyone you recruit is going to be an SC. Of the several lawyers I have recruited over the years, there are some who, I believe, can be SCs soon. It would’ve helped if I could have stayed on until that happened. But the team, without me, will have to tough it out for a while. The market will appreciate their quality soon. My firm has every confidence in them. They are, in my view, as good as SCs are in Singapore and in time to come, some of them will be right at the top.’ Andrew Yeo has been named as Mr Shanmugam’s replacement, as the head of litigation. ‘Andrew was picked because he’s a good lawyer and quite senior. He and Edwin Tong have been running the department very efficiently for three years. I was training them. I asked the partners to pick a new leader among them, and they picked Andrew.’ The efforts he spent breeding a second tier of top lawyers at A&G will now be channelled towards beefing up the talent pool of lawyers in Singapore.’ There are a number of perennial issues. These need to be constantly reviewed.
One of them is the issue of the general supply shortage of lawyers, from the universities – as well as the need to beef up the depth of talent in the industry. But that’s also a chicken-and-egg problem: if we don’t get the deals and the business, we don’t develop the talent. We have really good people, but I feel that the talent pool is not deep. ”Still, I believe the issue will be partly addressed in seven to 10 years’ time, when we will see more law school graduates entering the market – which will raise the level of talent we have. I believe we could do with more talent across-the-board, whether it be in the areas of litigation, corporate or corporate finance work,’ he said. So, while some might think of his new appointment as being a change of pace for the legal titan, it’s clear to others who know him better that there’ll be no easing off the throttle for Mr Shanmugam. No contradiction there, I think.
Letting the evidence speak for itself
I PREFER to let my work speak for me,’ says Senior Counsel K Shanmugam, in explaining why he prefers not to be interviewed on his achievements. ‘I don’t believe in talking about myself. My work is done in Open Court and people can assess for themselves.’
His body of work has made him one of Singapore’s best-known and most-feared names in litigation. His cases – hundreds over the years – bear his hallmark; each victory is marked by his intense familiarity with every piece of evidence and a thorough and lightning-quick absorption of the facts, which has enabled him to trap witnesses in cross-examination and tear down cases meticulously built up by his opponents.
More than once has Mr Shanmugam pulled a rabbit out of a hat, turning a seemingly impossible case on its side, by proving – through a superior interpretation of the evidence – that his opponents have not presented a sufficient case to answer, or by deftly luring witnesses into contradicting their own testimonies and admitting their guilt.
He demonstrated this ability in the recent high-profile cases involving the National Kidney Foundation and Horizon Towers. But perhaps few know that such an impressive skill manifested itself in the very first High Court case he argued – that of Manilal & Sons (Pte) Ltd versus Bhupendra KJ Shan, in 1987.The plaintiffs, Manilal, were represented by M Karthigesu of Tan Rajah & Cheah and the defendants were represented by a very young Mr Shanmugam, who was then with Drew & Napier.’
I was only 28 years old, and up against a formidable opponent – Mr Karthigesu (who later became a Justice of Appeal). He would have been the equivalent of the very best amongst the SCs today, and it was quite challenging to square up against him,’ Mr Shanmugam recounts.
The odds were stacked against the young lawyer – ‘The case was seen as a complete loser and was given to me as the youngest on the totem pole because no one else wanted to do it’, he says. But, as in many of his other cases, the keen litigator managed to turn the table on his opponents. After the plaintiffs filed their list of documents for the trial, Mr Shanmugam pushed them for a further and better list of documents – realising there was more key evidence to be had. The plaintiffs failed to produce the documents, claiming either that the evidence had been written on ‘scraps of paper’ which had been thrown away or that the evidence was in the defendants’ possession. Under intense cross examination, the plaintiffs’ story was shredded to pieces. Mr Shanmugam argued that the plaintiffs’ entire case should be thrown out.
Justice Chao Hick Tin accepted Mr Shanmugam’s arguments and, quoting excerpts of Mr Shanmugam’s cross examination, threw out the plaintiffs’ case completely, on the grounds that they had failed to give proper discovery of documents. The decision became an important and leading precedent on discovery in Singapore courts.
Many will also remember IDA vs SingTel in 2002, for the personalities and sums involved. The Infocomm Development Authority of Singapore (IDA) had sought the return of $388 million it claimed had been paid mistakenly to SingTel as the tax element in the $1.5 billion compensation that the telco received for giving up its monopoly early. IDA wanted the money back after the tax authority said the compensation was non-taxable.
The case pitted Senior Counsel Davinder Singh of Drew & Napier, acting for IDA, against SingTel’s counsel Mr Shanmugam and Jules Sher – one of Britain’s most highly regarded Queen’s Counsel.
Justice Lai Kew Chai threw out IDA’s claim in a strongly worded ruling, saying the telco regulator and SingTel had struck an inviolate contract and that it was ‘wholly unjust and contrary to fair play’ to order SingTel to return a part of the compensation. He ordered IDA to foot SingTel’s legal costs and allowed SingTel to claim for two lawyers, instead of the customary one, on the grounds that the case required specialist expertise.
Mr Shanmugam and Mr Sher’s fees were tipped to weigh in at between $2 million and $3 million; and observers expressed their surprise at the IDA’s decision not to appeal the ruling. He has also made waves in a case involving Lew Syn Pau in 2006, in which the former Member of Parliament was charged for breaching Section 76 of the Companies Act, which forbids a company from providing financial assistance to anyone for the purpose of acquiring its shares.
The case was a high-profile one, given that it involved a former politician – but it was also notable in that it involved a question of law of unusual difficulty, and henceforth defined how Section 76 of the Companies Act would be interpreted.
Mr Lew was said to have rendered financial assistance when Broadway’s Mauritian subsidiary Compart Asia Pacific lent him $4.2 million and he, in turn, lent $4 million to a third party to buy the shares of listed Broadway Industrial Group.
Mr Shanmugam successfully argued that the prosecution’s case should be thrown out in its entirety even without the defence being called, on the basis that there was no breach of Section 76, as – for the purposes of company law – a parent company and its subsidiary are seen as separate legal entities, separated by a ‘corporate veil’.
Mr Shanmugam’s remarkable ability to turn a case around in his cross-examination of witnesses was again showcased in Prebon vs BGC in 2006.Money broker Tullett Prebon sought $66.4 million from rival BGC International – represented by Mr Shanmugam – in compensation for lost business, claiming BGC conspired with its former regional head to ‘decimate’ its money-broking staff after almost half of them left to join BGC in February 2005.Prebon’s witnesses contradicted their own testimonies, under cross-examination by Mr Shanmugam.
Prebon’s Asian head Len Harvey, in particular, became so entangled in his own evidence that he had to be stopped by his own counsel, who told the court: ‘Your Honour, I think the witness should be given a chance to explain because this witness is not the brightest.’ This intervention made it to the London Times.