Category: Law

BY FOO KIM LENG

Singapore Academy of Law

BLUER THAN BLUE

When Wong Meng Meng SC was in Lee & Lee, one of his clients was a porn peddler who was charged with possessing 16 reels of blue film. The tapes in two paper bags had been seized at a construction site and his client was described as behaving nervously when approached by the police officer who made the seizure.  

“I remember this was before [Richard] Magnus who was then a Magistrate… Magnus asked, ‘What is your defence, Mr Wong?’ I said, ‘Two-fold, Your Honour. One is we haven’t seen the tapes yet so obviously, we deny they are blue and secondly, my clients deny he was in possession.’

“I remember Magnus tracing his finger, tap, tap, tap on the front of his desk… and he told the clerk to arrange for us to view the 16 reels of film at the film censors’ auditorium. So, for two Saturdays, we watched the movies, and it was as blue as anything could be. My first experience of blue movies.”

At the trial, the last witness to testify was a young investigating officer. Mr Wong recalled, “While he was giving his evidence, I suddenly noticed that instead of two paper bags on the table with the blue films, they were all in one big plastic bag. So, after the IO had given his evidence, I did something which all of us had been told never to do; do not ask a question which you don’t know what the answer is. But instinctively, I felt I could take a chance. And I said, ‘The police officer who seized the tapes said they were in two paper bags, can you please tell us why the tapes are now in one plastic bag?’

“And I remember he looked at me, looked at Magnus and then asked Magnus, ‘Must I answer that question, sir?” Magnus was very puzzled and said, ‘Of course. What is the problem?’ By this time Magnus was also getting very impatient and said, ‘Will you please answer that question, inspector?’ 

“Then it came out in a torrent. ‘Sir, when the tapes were brought to my office, all the officers rushed for all the tapes and then the paper bags were torn, and they took away all the tapes.’

“There was complete silence. The interpreter was trying not to laugh. And I remember I think I had a smile on my face. Magnus was trying to look very stern.

“Magnus said, ‘You mean to say the evidence left your control? Do you know what went off?’ ‘No.’ ‘Do you know what came back?’ ‘No, sir.’

“So, Magnus looked at me, ‘Well, Mr Wong?’ I said, ‘No further questions, thank you very much, Your Honour.’ Then I sat down. Case dismissed.

ENRICH WITH VITAMIN C

Chelva Rajah SC not only remembers his first court case with alacrity, but he had also kept the evidence as a reminder of his victory. “It has been downhill since then,” he jokes. 

Mr Tan Chin Hoo, the chief clerk at Tan, Rajah & Cheah had asked the young Chelva to help a friend who was charged under the Sale of Food Act. The item in question was a can of guava juice with a label, ‘Enrich with Vitamin C’. 

The drink was a sample that the client had received from a supplier in Malaysia. Mr Rajah recalled, “He put this on display just to see whether it’s laku or not, whether people would buy it.” When inspectors from the then Food Department came, they found that the can was not properly labelled.

“Under the Sale of Food Act, whenever you say it’s got any vitamins in it, you have to say how many milligrams of vitamins per milligram of product, and it didn’t have that. It just said, ‘Enrich with Vitamin C’. 

Mr Rajah had initially planned to make a representation to the Attorney-General’s Chambers to see if they would withdraw the charge. “As I was writing the representation…I realised, hey, maybe there’s a defence.   So I didn’t write the letter.”

Two weeks later, the case was fixed for hearing and the prosecution produced their witnesses. “I never cross-examined anybody. Then the prosecution closed its case, and I submitted no case to answer. The judge said, ‘Mr Rajah, so no case to answer? On what basis no case to answer?’

“So my submission to the court was, ‘Your Honour, this can, there is nothing there that claims that there is Vitamin C put into this drink.  In fact, what is contained on the can are the words, ‘enrich with Vitamin C’.  In its ordinary meaning, it is an exhortation to the purchaser to enrich it with Vitamin C.  It didn’t say it’s been ‘enriched with Vitamin C.’ And the only authority I could use with the court was that words must be given their ordinary and natural meaning when you interpret, and this is exactly the opposite of what the prosecution is saying. And I got my acquittal at my first case and to me, it was my greatest forensic triumph.”

DECODING THE POSTAL CODE

Giam Chin Toon SC recalled his assistant telling him, ‘I don’t see how you’re going to have a case…how you are going to fight?”

His client, a developer, had been sued by his architect for non-payment of fees following an abortive project in China.  The architect had tendered in evidence a stack of correspondence, building plans, paid and unpaid invoices spanning two to three years in support of his claim.

“My client claimed he had paid all outstanding fees and that the last two alleged unpaid invoices were never received by him.  The hearing was coming up shortly and I was wondering how to establish that the two alleged unpaid invoices were never received by nor sent to him.  One night, I could not sleep, thinking of the case. I took out the stack of correspondence and invoices (there might have been seven or eight of them) and laid them in sequence on the table.  They were all set out on printed letterheads of the plaintiff’s architect firm.”

Mr Giam’s client was adamant that he had received all the other documents but not the two alleged unpaid invoices.

“How do we show that he had not received them?  Can he be telling the truth?

“I kept looking at all the correspondence and the invoices placed side by side on the table.  The printed letterheads appeared to be exactly the same when I looked at them. Then, by chance, I noticed that the letterheads of the two disputed invoices, although looked identical with the other letterheads at a glance, actually had a different address postal code printed on them.  I decided to check when the postal code had been changed by the authorities.”

The next morning, Mr Giam requested his colleague who was assisting him on the case to check when the new postal code for Singapore was implemented.  It turned out that the existing postal code at the material time was changed well after the dates of the two disputed invoices.  The official government directory from where the information was obtained, was produced as proof of that in court.  It was clear that the alleged invoices could only have been issued after the change in the postal code was announced and not on the dates stated in the invoices.  These invoices were clearly backdated to show that the fees were incurred on those dates and had remained unpaid.  Mr Giam’s client was indeed telling the truth.

The architect had denied the allegation and tried to explain.  In court, he was asked how he would have known of the new postal code on his letterhead and had it printed out on his letterhead before the change had been announced by the authorities.  “To the credit of my opposing counsel, he forthwith withdrew his client’s claim and we settled the case amicably,” said Mr Giam.

THE READING ON THE GRAPH

In 1989, Ms Koh, a nurse with more than 20 years of experience would have lost her job should an inquiry panel find her negligent in administering an extra dose of a potent drug without checking with her doctor. The patient Mr Ho who was warded at Mount Elizabeth Hospital for psychotic depression slipped into a coma and died a few weeks later.  

Mr Ho’s psychiatrist Dr Ang Peng Chye had prescribed five different sedatives, one of which was Sodium Amytal. When Mr Ho was behaving violently, Ms Koh gave him an additional dose of Sodium Amytal to calm him down. 

Justice Choo Han Teck who was then practising at Allen & Gledhill represented the hospital at the coroner’s inquiry. Mr Ho’s family represented by Lee & Lee had sued the hospital, and Ms Koh had been charged by the AGC for causing the death of the patient.  

Justice Choo recalled, “I went to the hospital and spent three days there… going through every document they had, page by page. There were thousands of pages of documents because the patient had been warded for about two months. I found a nursing chart which had a graph line going up and a second line going down and immediately I said, ‘This seems unusual.’ My instinct told me this is the one to follow up.”

Justice Choo sent a copy of the chart to an expert in London who explained that that the reading showed an abnormal heart rate and respiratory collapse had started long before the dose of Sodium Amytal was administered by the nurse. 

At the trial, Justice Choo was asked by the District Judge if the nurse wanted to claim trial on a charge in which the maximum fine was only $500.

Justice Choo recalled, “So he said, ‘Do you want to fight this case? It’s only a $500 fine. Why are you fighting?’ I was telling myself, ‘Why did he think it this way?’ All the more reason we have to fight because if it is only $500, it’s worth fighting. And furthermore, if she was found guilty, she’ll be struck off. That would be the end of her nursing career.”

At the trial, Justice Choo recalled that he had to plan his strategy. Professor Chao Tzee Cheng was an expert witness at the coroner’s inquiry. He was a very influential forensic pathologist and coroners tend to endorse his opinion. Justice Choo recalled, “If Professor Chao testified first, the District Judge will just agree with him. Luckily for me, the Public Prosecutor got in Professor Tsoi Wing Foo, an expert on pharmacology and psychiatry.” Justice Choo also managed to persuade the DPP to allow Professor Tsoi to testify first. 

“So I planned my last question to him very carefully. I said, ‘So Professor Tsoi, can you tell this court in the light of what has happened, if this second dose of Sodium Amytal was not given, would it have made any difference?’ He said it would have made no difference. In other words, the guy was already gone. So I stopped. And once I got him to say that I was very happy because when Chao Tzee Cheng went in, I said to him, ‘You heard what Dr Tsoi said, do you disagree?’ He said, ‘No,’ and that was it. The nurse was acquitted. I wrote to Lee & Lee to withdraw the suit, which they did.”

TUE, AUG 11, 2020 – 5:50 AM

Several well-known law firms in Singapore, including one of the Big Four, have imposed pay cuts across the board – a move not seen in previous crises.  PHOTO: ST FILE 

Singapore

SEVERAL well-known law firms in Singapore, including one of the Big Four, have imposed pay cuts across the board – a move not seen in previous crises.

Dentons Rodyk and Big Four firm WongPartnership are among the largest law firms here that have announced firm-wide wage cuts, with both doing so by stripping out lawyers’ “front-loaded” bonuses.

Local law firms have over the past decade supplemented lawyers’ basic salaries with bonuses that are “front loaded”, or paid out in advance every month.

Lawyers and staff at Dentons Rodyk have had their advance bonuses cut since April this year.

Senior counsel Philip Jeyaretnam, who is the firm’s Asean chief executive and global vice-chair, said the move was “simply about being prudent” in the face of Covid-19.

“By March of this year, it was clear that 2020 was no normal year and so we stopped paying advance bonus from April onwards to all associates and to staff. Naturally, partners, especially senior partners, reduced their drawings the most,” he told The Business Times.

The firm will review the situation at the end of the year and decide how much additional bonus to pay, and to whom to allocate it.

“Some work, especially dispute work, restructuring and refinancing work has actually increased and some people are working harder than ever,” Mr Jeyeretnam pointed out. He also noted that the firm had preserved all jobs and hired 13 practice trainees.

At WongPartnership, lawyers across various seniorities will have their front-loaded bonuses cut by between 5 and 10 per cent from August, with these adjustments “revisited periodically”.

In response to BT’s queries, partner Joy Tan said that Singapore is facing unprecedented economic challenges, with the economy expected to shrink by between 4 and 7 per cent this year.

“The firm has a similar conservative business outlook on the year. While we remain financially healthy, and retrenchment is not an issue for us, we have chosen to adopt prudential measures on pay,” she said.

These paycuts are “not purely prudential belt-tightening measures”, she said, but designed to give the firm flexibility in paying a differentiated bonus to reward the more deserving performers, Ms Tan said.

There are plans to restore the front-loaded bonuses in 2021 or earlier, if the outlook improves.

“We have encouraged our people to not look at this as a cut but as a withholding, in that deserving performers may well still be paid the same amount in bonuses as before, at the end of the financial year,” she said.

Data from London-based legal research firm Chambers and Partners showed WongPartnership and Dentons Rodyk are staffed by about 300 and 200 lawyers, respectively, in Singapore.

A spokesperson from Drew & Napier would only say that the firm has not implemented any pay cuts.

Allen & Gledhill and Rajah & Tann, the remaining two Big Four firms, did not address queries on whether they have implemented such cost-cutting measures.

Local mid-sized firm TSMP Law Corporation had told BT in May that its partners would be taking a 25 per cent cut to “stand in solidarity” with clients.

While the firm has not implemented any pay cuts firm-wide since then, it will be adjusting starting pay for newly qualified lawyers down by 8 per cent, for those getting called in August.

“If the situation worsens, however, the firm could take further action to restructure all our lawyers’ pay,” joint managing partner Stefanie Yuen Thio told BT.

“We would try to make this a temporary cut, however, with an intention to reinstate pay levels in a year or two. The work will come back. Law firms just need to survive the cash flow crunch until that happens. That’s why we decided to do an early pay cut for the partners to manage our cash flow more prudently.”

There are whispers of concern over retrenchments later if business activity continues to languish, reflecting the severe economic impact from a global pandemic on the professional services sector.

Some law firms are reducing work hours or encouraging lawyers to go on sabbaticals, moves that are fairly uncommon in the legal sector here, even in past economic downturns.

When BT reported in May on law firms tightening their purse strings, most were doing so by freezing increments, hiring, or slicing partners’ profit distributions.

But recent moves seem more extensive, impacting junior associates and even staff who are not lawyers.

An associate at a Big Four firm expects the firm to be harder hit due to its large volume of corporate work.

A junior lawyer at another local, established law firm said that his firm has also implemented a cut of 10 per cent to associates’ pay. Partners at the firm were said to have taken a larger cut, but the proportion was not disclosed, said the lawyer, who spoke to BT on the condition of anonymity.

“(The management) announced the cuts a month before circuit breaker. They sent an e-mail and said that times are challenging … If it deteriorates, the cuts could get worse,” he said.

TSMP’s Ms Yuen-Thio said that during past economic downturns, the legal sector saw hiring slow and pay increments moderated. Because the economic pain tended to be concentrated in certain geographical areas, lawyers could also find jobs in countries that were less impacted.

But Covid-19 has dealt a different hand.

“The virus has been agnostic about political leanings and geography, and with most business sectors badly affected, the law firms that support them have started to feel the pinch,” she said.

Lee Shulin, co-founder and director at Ansa Search, pointed out that firms with strong litigation, disputes, as well restructuring and insolvency practices are more resilient.

“They have greater leverage when the economy takes a turn,” she said.

International law firms, including those with a presence in Singapore, appear to be the ones who are taking more drastic measures,

US outfit Reed Smith has rolled out several rounds of austerity cuts, which saw pay cuts across all levels – including a 40 per cent reduction in monthly draws by equity partners – as well as layoffs in the firm’s largest office in London.

London-headquartered Norton Rose Fulbright has asked staff to volunteer reducing their working hours by up to 20 per cent until next April. It took a similar move in the immediate aftermath of the global financial crisis.

The firm’s Europe, Middle East and Asia arms are also deferring partner distributions and staff salary increments for the foreseeable future.

Checks on the Law Society’s careers portal still show a number of mid-sized and smaller law firms, such as Yeo & Associates and Eldan Law, looking to expand their litigation practices.

But recruiters said they have also been receiving a larger number of queries of late particularly from junior lawyers, with some considering leaving practice to serve as in-house legal counsels.

“Their workload has remained largely the same, if not more, and would be understandably disgruntled in having to take a pay cut despite their efforts,” said Clement Tan, a senior consultant at Space Executive.

“Some see the pay cut as a time to reassess where they are, becoming more open to considering an alternative career in-house or with another firm.”

[This article is courtesy of SINGAPORE AT 50: 50 SIKHS AND THEIR CONTRIBUTIONS, a book published by the Young Sikh Association, Singapore (YSA) in conjunction with Singapore’s 50th birthday]

In 1972, the former head of the United Negro College Fund, Mr Arthur Fletcher, said: “A mind is a terrible thing to waste.”

Adopted as one of the most successful public service marketing slogans of all time, it was geared at driving home the point of the necessity of education.

A member of Singapore’s legal fraternity provided an equally compelling perspective on the value of intellectual power when he stated that: “If you want to train your mind, I would advise you to study law.”  Well, when this advice comes from legal eagle Senior Counsel, Mr Davinder Singh, one would pay serious attention to it.

Born in Singapore in 1957, Davinder is the youngest of five children. He grew up in humble surroundings along Race Course Road. He came from a relatively structured household where his father, born in Baluchistan, modern-day Pakistan, was the bread winner. He was strict while his mother, born in Malaysia, was the complete opposite and she loved to dote on her children.

Davinder lived in a neighbourhood of different races and religions. He was, thus, fortunate to be exposed to the different festivals and celebrations in Singapore early on in life. According to him, mingling with everyone without prejudice and judgment helped him learn much about people and life. This played an important role in shaping his outlook. His parents promoted understanding and appreciation of others among their five children – they had an ‘open door’ policy where anyone from the neighbourhood was free to visit. They were generous, as was everyone else in his neighbourhood. This is a memory that Davinder holds dear to his heart till today.

Davinder was a quiet child at home. His demeanor was, however, quite different in school where he was an active and a more outspoken student. He attended Saint Joseph’s Institution and later enrolled into National Junior College. Recalling fondly, he described his schools as places of complete freedom with an all-rounded education. It was also here that he met school mates who are his closest friends till today.

Following college, Davinder felt that it was time to choose his direction in life. He opted for law, for the simple reason that it would consistently and continuously train his mind. He felt that learning law would give him the mental frame to analyse issues differently – a useful skill in everyday life. He went to the National University of Singapore to pursue a degree in Law.

Today, Davinder is the Chief Executive Officer of Drew and Napier LLC, one of the largest law firms in Singapore. Set up in 1889, the firm’s calibre of work is acknowledged internationally at the highest levels of government and industry. He joined the Litigation Department of the firm immediately upon graduation in 1982 and rose through the ranks. He considers himself extremely fortunate to have an unending stream of good work and to be able to work with the best people while serving important clients.

Over the last 33 years, Davinder has litigated cases in almost every area of the law, including landmark cases. Each case is different in its own way and a few have generated some public interest. These included the National Kidney Foundation scandal and the Roy Ngerng defamation case. Davinder finds it difficult to pick a particular case that he found particularly compelling or challenging. Each case impacted his thoughts and emotions uniquely. Davinder also has an active international arbitration practice involving complex commercial disputes and multiple jurisdictions. Among others, he has advised and/or acted in the International Court of Arbitration, Singapore International Arbitration Centre and the United Nations Commission on International Trade Law.

Prominent legal directory Chambers Asia-Pacific said: “The ‘Davinder Factor’ puts this [law] practice in a different league”. He is also described as “a formidable advocate with a long-standing and excellent reputation in the market”, and as “a standout figure in arbitration as well as litigation, his advocacy is smooth as silk.” It is, therefore, unsurprising that he has been regularly acknowledged locally and internally as a top litigator and arbitration counsel.

Most recently, he was recognised as the ‘Disputes Star of the Year – Singapore’ at the inaugural Asialaw AsiaPacific Dispute Resolution Awards 2015. Last year, he received the prestigious ‘Outstanding Contribution to the Legal Profession’ award from Chambers & Partners for his exceptional achievements and significant impact on the regional and international market. Chambers & Partners also named him a standalone Star Individual, a category above Band 1, for five consecutive years. He was also named ‘Disputes Lawyer of the Year’ for Southeast Asia and India at the inaugural The Asian Lawyer Emerging Markets Awards in 2014. He was the only litigator in Singapore to be named External Counsel of the Year by Asian-MENA Counsel in 2012 and 2013.

In spite of these numerous accolades, Davinder remains humble and believes that each award is recognition for his entire team. He feels that his team members are the bedrock behind every case he fights. Without them, the accolades and recognition would not be possible. He also chooses to take such moments to remind his two sons that there is recognition for honest work and, if one works hard and passionately, the opportunities will present themselves.

Joining Politics

In spite of his busy legal career, Davinder answered the call to serve the country. In 1988, he was elected as a Member of Parliament (MP) under the People’s Action Party (PAP) ticket, making him the first Sikh parliamentarian in Singapore’s post-independence history. There were two reasons he took on this challenge.

Firstly, he saw his MP role as an opportunity to widen his horizon and assist the less fortunate. Davinder felt his perspective of life was being shaped by his experience as a professional working in the city every day. He did not wish to lose sight of the fact that there were people who were not as fortunate and who needed help.

“I have known Mr Singh for at least 20 years, since the days when he was a MP serving the residents of Toa Payoh Central branch. We still keep in touch and meet up with other branch members for meals. He is a kind man who is always willing to help the poor and needy. Despite his heavy work schedule, he looked after the residents who queued, sometimes late into the night, to meet him. He earned the trust of the various clan and merchant associations because he was always humble. He never took credit, always praising others for their good work.”
-Mr Chia Ah Sah JP, BBM(L), PBM, PB Vice Chairman Toa Payoh Central Branch

On a more personal level, he decided to join politics because his mother wished it, and he knew it would have made his father proud as well. His family had the highest regard for Singapore’s first Prime Minister, Mr Lee Kuan Yew, and this was Davinder’s opportunity to  with him. Following Mr Lee’s passing in March 2015, Davinder explained the greatness of the man in a Straits Times interview: “I sat with and talked to this genius who, more than anyone, understood human nature and societies, who had the third eye and could see trends and dangers, which we mere mortals were blind or oblivious to, and who knew with complete confidence what was best for his people and Singapore.”

While Davinder served as MP for the Bishan-Toa Payoh Group Representation Constituency for 18 years and did his utmost to address the concerns of the residents, his political journey was not without challenges. As an MP, he faced the never-ending task of striking a balance between his professional commitments and the needs of his constituency while, at the same time, ensuring that he had ample time for his sons.

When Davinder was elected into Parliament, the idea of a Sikh MP was new to the Sikh community. There was naturally much jubilance within the community on his election. As much as he chooses not to take credit, Davinder played an important role as a link between the Sikh community and the government. In 1996, he was joined in Parliament by Mr Inderjit Singh. Together, they were highly successful in presenting the Sikh community as one that punches well above its weight.

The famous American author, poet and philosopher, Mr Henry David Thoreau, once said: “As a single footstep will not make a path on the earth, so a single thought will not make a pathway in the mind. To make a deep physical path, we walk again and again. To make a deep mental path, we must think over and over the kind of thoughts we wish to dominate our lives.”

In a similar vein, Davinder has unendingly trained his legal mind to emerge as one of the brightest, if not the brightest, legal minds in Singapore, marking his life with exceptional professional accomplishments and selfless service to the nation and community.

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.