High Court rejects bids by two King’s Counsel to act for drug traffickers on death row

The High Court has dismissed bids by two King’s Counsel, one from Australia and the other from Britain, to be admitted to the Singapore Bar on an ad hoc basis so that they can act for four convicted drug traffickers on death row.

In a written judgment on Jan 30, Justice Woo Bih Li said there were no special reasons to grant the applications for ad hoc admission.

Mr Theodoros Kassimatis and Mr Edward Fitzgerald had filed separate applications in 2023, each seeking to act for two inmates.

Mr Kassimatis was admitted as a barrister and solicitor of the Supreme Court of Victoria, Australia, in 2001. He was appointed Senior Counsel in November 2016 and Queen’s Counsel in March 2017.

He had sought admission to act for Jumaat Mohamed Sayed and Saminathan Selvaraju.

Mr Fitzgerald was called to the Bar of England and Wales in November 1978. He was appointed Queen’s Counsel in January 1995. 

He had sought admission to act for Datchinamurthy Kataiah and Lingkesvaran Rajendaren.

The four inmates were convicted of heroin trafficking and given the mandatory penalty between 2015 and 2018. Their respective appeals against conviction were dismissed between 2016 and 2020. 

On Aug 22, 2022, they applied for permission to start a constitutional challenge against provisions of the Misuse of Drugs Act that shift the burden of proof for specific elements of the offence to the accused person.

They argued that these provisions violate the presumption of innocence that is protected under the Constitution.

The bid was dismissed by the High Court on Nov 25, 2022. One of the judge’s reasons was that the subject matter of their application was not susceptible to judicial review.

The four then filed further applications in an attempt to appeal against the High Court’s decision.

Mr Kassimatis and Mr Fitzgerald subsequently applied for ad hoc admission to act for the four.

The two King’s Counsel filed written submissions and made oral submissions before Justice Woo through Datchinamurthy on Nov 23, 2023.

Under the Legal Profession Act, a foreign counsel seeking ad hoc admission must first meet certain requirements before the court considers whether there is a special reason to admit them.

One of the mandatory requirements states that the individual must have special qualifications or experience for the purpose of the case.

In the present case, Justice Woo found that Mr Fitzgerald has special experience in cases involving judicial review, but Mr Kassimatis did not meet this requirement.

As for whether there were special reasons, Justice Woo said the mere fact that the case raised issues of public importance was not sufficient to admit the two foreign lawyers.

The inmates had argued that a special reason exists as they have been unable to find local lawyers to represent them.

Justice Woo said the reasons for the unsuccessful efforts to engage local counsel were relevant.

The judge highlighted that the inmates’ friends had approached two local lawyers, who stated that “the facts of the four cases are such that the pending challenge has no merit”.

Justice Woo said it would be incongruous to allow foreign lawyers to be admitted when local counsel are of the view that there is no merit on the facts. 

The judge added that the four inmates have been able to access substantive legal assistance, even without formal representation.

He noted that a Malaysian lawyer had prepared some documents for them, and that the written submissions they filed were drafted with legal terms and arguments.

Justice Woo said there was nothing to prevent foreign counsel from taking part in the preparation of the written submissions.