District Court of Singapore

Public Prosecutor v Diana Qiu Liu Ping
[2022] SGDC 135

Criminal Procedure – Legal Profession – Duties – Prosecution urging court to make costs order against defence counsel personally – Whether defence counsel had acted without reasonable competence – Whether just to make personal costs order

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9100/2022/01.]

13 June 2022

District Judge Kaur Jasvender:

1 This is an appeal by the Public Prosecutor against my decision to dismiss its application for an order of costs against lead counsel, Mr Kalidass s/o Murugaiyan (‘Mr Kalidass’). The statutory power to order costs provided for in section 357(1) Criminal Procedure Code 2010 (‘CPC’) reads as follows:

357.—(1) Where it appears to a court that costs have been incurred unreasonably or improperly in any proceedings (for example, by commencing, continuing or conducting a matter the commencement, continuation or conduct of which is an abuse of the process of the Court) or have been wasted by a failure to conduct proceedings with reasonable competence and expedition, the court may make against any advocate whom it considers responsible (whether personally or through an employee or agent) an order —

(a) disallowing the costs as between the advocate and his or her client; or

(b) directing the advocate to repay to his or her client costs which the client has been ordered to pay to any person.

2 The basis for the prosecution’s application is that costs had been wasted by a failure to conduct proceedings with reasonable competence and expedition. The specific incident of conduct which is the subject of complaint by the prosecution against counsel is that he ought not to have initiated a Newton Hearing, and the following allegations were made in that regard:

(a) He failed to send the charges and SOF to Dr Ung on a timely basis.

(b) He did not appear to have asked Dr Ung if he considered material information, or why he regarded such information as immaterial.

(c) He failed to ensure that Dr Ung’s report met the minimum standards of an expert report.

Chronology of proceedings

3 On 26 August 2020, the accused, Diana Qiu Liu Ping (‘Mdm Qiu’) was charged with seven counts of cheating under s 417 Penal Code (Cap 224, Rev Ed 2008). She was then unrepresented. She indicated that she wished to plead guilty and the case was fixed before me on 8 September 2020. She pleaded guilty to three charges and consented to five charges being taken into consideration for the purpose of sentence. The prosecution sought a global sentence of 10 months’ imprisonment. I granted an adjournment for her to make care arrangements for her two children and adjourned sentencing to 22 September 2020.

4 In the meantime, on 17 September 2020, Mdm Qiu instructed Kalidass Law Corporation to act for her. A three week adjournment was granted to 12 October 2020 for counsel to take instructions from her.

5 On 1 October 2020, Mdm Qiu went to see a psychiatrist, Dr Ung Eng Khean (“Dr Ung”). The case was adjourned to 6 November 2020 as counsel had yet to receive the psychiatric report. The report dated 15 October 2020 was received by counsel on 21 October 2020. Dr Ung stated that she suffered from moderate major depressive disorder (‘MDD’) which was a significant contributory factor to the offending.

6 On 26 October 2020, counsel sent a letter of representations to the prosecution. As the prosecution had yet to reply by 6 November 2020, the case was adjourned to 26 November 2020.

7 On 26 November 2020, the prosecution objected to the calling of a Mandatory Treatment Order (‘MTO’) suitability report. In the meantime, Mdm Qiu was on 25 November 2020 admitted to the Institute of Mental Health (‘IMH’) for her ‘worsening depression’ (see D13). I called for the MTO Report and adjourned the sentencing to 11 January 2021.

8 On the application of the prosecution, the case was adjourned to 26 January 2021. Thereafter, the case was adjourned to 22 February 2021 as the parties just had sight of the MTO report and counsel required time to take instructions from Mdm Qiu. The MTO report stated that there is no evidence of mental illness around the time of the offending.

9 On 22 February 2021, the defence submitted that a Newton Hearing is necessary due to the conflict in opinions between the psychiatrists. On the other hand, the prosecution submitted that a Newton Hearing was not necessary because the report is ‘deficient’ as Dr Ung had failed to properly consider the issue of contributory link. I agreed with the defence and fixed a pre-trial conference (‘PTC’) on 15 March 2021 for parties to take dates for a Newton Hearing. The Newton Hearing was fixed on 12 and 13 August 2021. The dates were confirmed at a further PTC on 11 June 2021.

10 On 12 August 2021, Mdm Qiu was admitted to Tan Tock Seng Hospital. She was given a two-day medical certificate with a diagnosis of major depressive disorder with psychotic symptoms. The two-day hearing was vacated and a PTC was fixed on 16 August 2021. The Newton Hearing was refixed on 25 and 26 October 2021. The hearing on 25 October 2021 started at 3pm on the application of the prosecution. The hearing could not be completed within the one and a half days and was fixed for further hearing on 4, 5, 21 and 22 April 2022 because the prosecution was unable to take earlier hearing dates. On 4 April 2022, after the half a day cross-examination and re-examination of Dr Ung, the defence withdrew its reliance on Dr Ung’s report.

11 I turn now to address the specific allegations against counsel.

Alleged failure to send all relevant material to Dr Ung

12 It has been held that counsel have a clear and continuing duty to properly instruct the experts that they appoint which extends to providing the experts with the relevant material as may be necessary (see Pacific Recreation Pte Ltd v SY Technology Inc and another appeal [2008] 2 SLR(R) 491 at [89], Miya Manik v Public Prosecutor and another matter [2021] 2 SLR 1169 at [74]) and Wong Tian Jun De Beers v Public Prosecutor [2021] SGHC 273 (‘De Beers’) at [27]).

13 It was accepted by counsel that the charges and Statement of Facts (‘SOF’) were not provided when counsel’s associate first wrote to Dr Ung on 28 September 2020. Dr Ung also did not ask for these documents. Dr Ung’s report was furnished to the defence on 21 October 2020. On 9 November 2020, counsel’s associate sought clarification on the severity of the mental disorder at the time of her offending. On 12 November 2020, the charges, SOF and the criminal record were provided to Dr Ung.

14 The MTO report put up by Dr Manu Lal dated 18 January 2021 was uploaded in the eCasefile on 21 January 2021. On 12 March 2021, the MTO Report was forwarded by the defence to Dr Ung and he was informed that the case would be proceeding to a Newton Hearing and the purpose of the hearing.

15 Learned counsel defended himself by stating that upon realising at a very early stage that the charges and SOF were not sent, the documents were forwarded to Dr Ung. In addition, the criminal record (‘CRO’) was also forwarded. It was submitted that this was done to fulfil the “clear and continuing duty” to provide all relevant material and that “[t]his was almost one year prior to the guidance of the Court of Appeal in Miya Manik that was referred to in … De Beers”. However, counsel did not explain what prompted these documents to be forwarded after the report was put up.

16 It is my surmise that the documents were probably forwarded because Dr Ung had in his report referred to the charges as ‘misappropriation’ of funds and the reference to ‘first offence’ was inaccurate. The charges, SOF and CRO were forwarded within one month. This does show that counsel went through the report and ensured that Dr Ung was apprised of all the facts. As regards the MTO report, it was forwarded on 12 March 2021 for Dr Ung’s review. It was therefore forwarded before the PTC on 15 March 2021 when the Newton Hearing dates were taken and confirmed on 11 June 2021. I therefore did not agree with the Prosecution’s position that there was a failure by counsel to forward relevant materials to Dr Ung.

Alleged failure to ask Dr Ung whether he had considered material information or why he regarded such information as immaterial

17 In Zhou Tong and Others v Public Prosecutor [2010] 4 SLR 534 at [19], the High Court identified an obligation of all counsel “to carefully assess the merits of their clients’ cases before engaging in court proceedings” to avoid misusing the court’s time.

18 As regards the charges, SOF and CRO, Dr Ung was asked by the defence to comment on whether the documents provided would result in a change of his opinion which he had expressed in his report. Dr Ung provided a clarification report on 24 November 2020 in which he addressed specifically only the criminal record. It was contended by the prosecution that counsel ought to have followed-up with Dr Ung on his failure to review the other crucial documents.

19 I noted that counsel had not merely forwarded the charges and SOF but had specifically asked Dr Ung to consider if the charges and SOF would change his opinion. Whilst Dr Ung may not have addressed the issue specifically in his further report, in my view, counsel could reasonably be entitled to act on the basis that Dr Ung would have informed him if his opinion had been affected. In any case, that was not counsel’s position. He submitted that it is a leap to suggest that the correspondence with Dr Ung would represent the sum total of all interactions between counsel and Dr Ung. There is of course a privilege attached to the interactions between counsel and Dr Ung. I had no basis to disagree with counsel’s submission.

20 As regards Dr Manu Lal’s report, it was submitted by the prosecution that counsel had pressed for a Newton Hearing without even knowing Dr Ung’s responses to the findings in the MTO report and Dr Ung attended the Newton Hearing without even having read the report. The prosecution also relied on Dr Ung’s evidence in cross-examination that he presumed there was a contributory link to submit that counsel had either not asked Dr Ung to explain the contributory link or he did nothing about it.

21 Taking the last point first. It is important to keep in mind that hindsight cannot be used to evaluate the decision of counsel to rely on the report to proceed with the Newton Hearing. I therefore did not find it appropriate to rely on the answers which Dr Ung gave pertaining to his opinion under the searching cross-examination. In any case, this argument also ignored the answers which Dr Ung had given on the contributory link preceding the answer in question in cross-examination and his evidence in examination-in-chief.

22 With regard to the fundamental issue that counsel had pressed on with the Newton Hearing without knowing or discussing with Dr Ung his response to Dr Manu Lal’s report, as Dr Ung stated he not read the MTO report, in response to my question, counsel stated that he had discussions with Dr Ung via the telephone to understand the reports. He submitted as follows[note: 1]:

But suffice to say, Your Honour, we had not come to Court without Dr Lal’s report being discussed with Dr Ung. But I can’t give evidence from the Bar in respect of that. So that’s the reason why I have restrained myself from saying more. But, Your Honour asked me pointedly---

…

So that is the only thing that I can say. And that’s why I drew Your Honour’s attention to the examination-in-chief very carefully to show that specific questions were asked about impulsivity and the offence, the planning nature of the offence, and how that occurred, about her work life. So, that I would say is the objective evidence of what I intended to elicit from him, firstly. And, of course, we do not tell the witnesses what to say, but no one calling a witness would call the witness and put him on the stand and not know what he will say. And I would say, I knew what my witness---what his responses were going to be.

…

Yes, Your Honour. So---which is why I also drew Your Honour’s attention to one small point about, “Are you still a doctor with Prisons?” If there was no discussion, how would I know that he was no longer a doctor with Prisons, for example, Your Honour.

Accordingly, I gave the benefit of the doubt to counsel on the interactions which took place with Dr Ung on the MTO report.

23 Counsel had when Dr Ung completed his evidence, and after taking his client’s instructions, reconsidered the position on continuing with the Newton Hearing. I agreed with counsel’s submission that ‘[t]his is evidence that Defence acted in as it should have i.e. to continue to assess the merits of the case at all times’.

Alleged failure to ensure that Dr Ung’s report met the minimum standards required of an expert report

24 The primary obligation of a counsel is to use ‘all reasonably available legal means’ to advance his client’s interests (see The Legal Profession (Professional Conduct) Rules 2015 (“PCR”), r 12). This is of course subject to his position as an officer of the court and the duty to assist in the administration of justice. In this regard, PCR, r 9 provides:

…

(e) A legal practitioner must, in any proceedings before a court or tribunal, conduct the legal practitioner’s case in a manner which maintains the fairness, integrity and efficiency of those proceedings and which is consistent with due process.

25 The limited instances when the court can make an order against counsel is when costs have been wasted improperly or unreasonably which amounts to an abuse of process or by a failure to conduct proceedings with reasonable competence and expedition.

26 As to the meaning of the phrase “reasonable competence”, the standard is that the counsel must be “proved to have given advice, [done] acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do.” (Ridehalgh at 233, citing Saif Ali v Sydney Mitchell & Co [1980] AC 198 cited in Zhou Tong and others v Public Prosecutor [2010] 4 SLR 530).

27 The Court of Appeal in Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 in the context of a review application under s 394H CPC held at [55]:

… if the application was objectively without merit and that would have been clear to any reasonable defence counsel (as opposed to being merely a weak case on the merits), then the advocate in question would have failed in his or her professional duty to act with reasonable competence. …that advocate would have failed to play the role expected of him or her in the criminal process, and this would be a very significant factor in favour of making a personal costs order against that advocate. It is also important to underscore the fact that these observations are being made in the context of a review application and not an appeal (which is given as of right to every convicted accused person and for which the threshold for an adverse costs order to be made against defence counsel may well be higher). [Emphasis in original judgment]

28 Here, I was considering an application which arose in the first instance in the context of sentencing upon a plea of guilt. An accused’s psychiatric condition is always a relevant factor in the sentencing process (see Lim Ghim Peow v Public Prosecutor [2014] SGCA 52; [2014] 4 SLR 1287 [25]). As such, when does a counsel step out of line in relying on a favourable report? Should the accused be obliged to accept the judgment of his counsel whether to rely on the report, or is the accused entitled to obtain the judgment of the court?

29 In my view, counsel cannot be faulted for relying on a psychiatric report which is in favour of the accused for sentencing purposes unless it is apparent from a plain reading that the report is ‘bound to fail’ (see Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394 at [70]) or is patently deficient. I did not find this high threshold had been met.

30 I think it is important to make the observation that whilst counsel had initiated the Newton Hearing, he had obtained the judgment of the court on 22 February 2021 to proceed with it. The court is the final gatekeeper in deciding whether the conflict of opinions should be decided at a Newton Hearing. In this regard, Dr Ung stated in no uncertain terms that Mdm Qiu suffered from MDD of moderate severity which was a significant contributory link to her offending. In contrast, Dr Manu Lal asserted that there was no mental disorder at the relevant time. The entire background which is relevant was that in 2016, Mdm Qiu saw a psychologist at a polyclinic. She was diagnosed with adjustment disorder with mixed anxiety and depressed mood which was perpetuated by her maladaptive coping styles. In June 2018, she divorced after enduring an abusive marriage and had to move out of the matrimonial home. In the following month, between 12 to 18 July 2018, she committed the offences. In 2020, she received psychiatric treatment at IMH for ‘worsening depression’, and in 2021 she was treated for MDD with psychotic features.

31 As for whether there was a contributory link, Dr Ung stated at [27] of his report that there “is a link between states of depression and anxiety with poor judgment (decision-making) and increased impulsivity” which he said were pertinent factors which had contributed to the offending behaviour. He referred to several pieces of psychiatric literature in support. Whilst Dr Manu Lal found that Mdm Qiu did not suffer from any mental disorder, he stated, “In my view, her offending behaviour is best understood as a psychologically unhealthy maladaptive strategy to compensate for the multiple losses in her life.”

32 I agreed with the defence that it should be allowed to question Dr Manu Lal on his opinion. I did not think I was in a position to reject out of hand the opinion of Dr Ung. I agreed that the matter should proceed to a Newton Hearing to give Mdm Qiu an opportunity to prove that she indeed suffered from a mental disorder at the relevant time which contributed to the offending.

33 In my view, when the alleged conduct complained of arises in the context of sentencing at first instance, the court must be extremely cautious in awarding costs personally against a counsel, as counsel are often retained in cases which are weak or doomed to fail. As the court is the final arbiter in deciding whether the case should proceed to a Newton Hearing, I did not find the prosecution’s application to be appropriate.

34 In all the circumstances, this was not a clear case and just to make the costs order sought by the prosecution, and the application was therefore dismissed.[Context] [Hide Context]

^{[note: 1]}NE 21 April 2022, pg 72, lines 22-26, lines 28-32, pg 73, 1-5 & 7-11.