ADVOCATES AND SOLICITORS (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Health and Law (Mr K. M. Byrne): Mr Speaker, Sir, beg to move, "That the Bill be now read a Second time."

Sir, this Bill seeks to provide for the more effective supervision, of advocates and solicitors and of solicitors' clerks. The Bill seeks in the proposed section 41A to empower the Singapore Bar Committee to make rules to provide for the keeping of accounts by advocates and solicitors in respect of money held by them on behalf of their clients.

In the proposed section 41B provision is made for the delivering of an annual certificate by an accountant in respect of such accounts. It is felt that these provisions will enable a more effective control to be exercised over the keeping of clients' money by advocates and solicitors. The proposed section 41B provides for the maintenance and administration of a compensation fund to enable compensation to be paid where any person has sustained loss in consequence of the dishonesty of any advocate or solicitor or any clerk or servant employed by him in connection with his practice. Failure to comply with the rules relating to the keeping of accounts will constitute a disciplinary offence for which a complaint can he made to the Bar Committee, and it is also provided that a certificate to practise will not be issued to an advocate and solicitor unless he satisfies the Registrar that he has complied with the provisions relating to the keeping of accounts and the delivery of an accountant's certificate.

Power is given to the State Advocate-General to refer any information touching on the conduct of a solicitor in his professional capacity to the Bar Committee. That is provided for in clause 7.

In order to prevent abuses, it is proposed that a solicitor will not be allowed to make an agreement with his client for the payment of a commission, percentage or salary to him. This is provided for in clause 11.

The provisions relating to the employment of solicitors' clerks are contained in the proposed new section 35, which is clause 8 of the Bill. It is provided that no solicitor shall, without the consent of the court, employ any person who has been struck off the roll, or suspended from practice, or who has been convicted of an offence involving dishonesty of touting or of holding himself out to be a qualified person or who has been listed as a tout or who is a public servant. The purpose of this amendment is to remove all opportunities for touting and to ensure that only persons of integrity will be employed in the offices of advocates and solicitors. It is, however, intended to permit the employment of advocates and solicitors and qualified persons even if they had previously been in Government service. I will move an amendment at the Committee stage of the Bill to make this intention clear.

Provision is made for the ad hoc admission of Queen's Counsel to appear in cases in Singapore. I shall be moving an amendment to this clause to provide that such Queen's Counsel may only be admitted by the court for one or more special reasons in the public interest and that such Queen's Counsel have special qualifications or experience for the purpose of the case for which they are to be admitted. Before admitting such persons, the court will have regard to the views of the State Advocate-General and the Bar Committee.

Sir, the present position in Singapore is that Queen's Counsel can be admitted to the Singapore Bar without much formality, and the practice has been that no opposition is raised by the Singapore Bar Committee or the State Advocate-General. In the Federation of Malaya, however, statutory provisions have been strictly enforced, and in a recent case, the Chief Justice of the Federation has decided that the provisions of section 7 of the Federation Advocates and Solicitors Ordinance, 1947, must be complied with. This requires, inter alia, that the person applying to be admitted must satisfy the Board appointed by the Bar Council that he has an adequate knowledge of the laws of the Federation. There is no corresponding provision requiring knowledge of the laws of Singapore in Singapore. All that is required in Singapore is that the persons seeking admission should satisfy the examiners that they have an adequate knowledge of the practice and etiquette of the profession and of the English language. Queen's Counsel, therefore, have had no difficulty in satisfying the examiners. In the Federation there have been no applications other than the one which recently came before the Chief Justice made by a non-resident practitioner, while in Singapore there has been a number of such admissions.

The proposal for ad hoc admissions will restrict the admission of non-resident practitioners, as Queen's Counsel will only be admitted to appear in a particular case. It is proposed to restrict the right still further by requiring the Queen's Counsel seeking admission to show that he has special qualifications and experience for the purpose of the case. The court is further required to have regard to the views of the State Advocate-General and of the Bar Committee before admitting such a person.

Sir, the power to grant leave to qualified persons and managing clerks to appear before the Judge or Registrar in Chambers is to be extended to enable such persons to appear in Chambers before a District Judge or Registrar of a District Court.

Sir, I beg to move.

Question proposed.

Mr David Marshall: Mr Speaker, Sir, this is a good Bill and I welcome it. I compliment the Government particularly on the tact and good sense shown by them in listening to criticisms - unfortunately not usual - in weighing those criticisms and reappraising their stand with sincerity. The Government has now produced a Bill which I believe and hope will receive a welcome from all sides of this House in respect of all its aspects.

Sir, though the Government is roasting the people of Singapore on a spit like a barbecued lamb -

Mr Speaker: Order. Are those extravagant phrases really necessary? They are completely irrelevant to the Bill. We are dealing with the Advocates and Solicitors (Amendment) Bill, and the Member for Anson is endeavouring to generate heat.

Mr David Marshall: No, Sir, I am not seeking to generate heat. I am seeking to explain, Mr Speaker, that however strongly we may feel about some other conduct, nevertheless, in this context where they offer us a drop of water, I want to say that I am grateful for that drop of water and I thank them for this Bill.

Dr Toh Chin Chye: Hear, hear!

Mr Speaker: Order. That is perfectly in order. But I think when the Member embarks on extravagant phrases which are completely irrelevant to the Bill, I think the Speaker is entitled to pull him up.

Mr David Marshall: I will not argue with your entitlement, Sir, I would like to say that the members of the Bar, as a group of professional persons with special privileges, privileges which give them the right to a career of dignity and, in most cases, of profit [Laughter] Should I add, Sir, or would this generate heat? Not as much profit nor power as certain lustful politicians for politics and position. The members of the Bar are conscious that they carry special responsibilities to the community they serve. I know that there has been considerable anxiety, Mr Speaker, caused amongst members of the Bar of Singapore as a result of the widely publicized occasion when a member of the Bar committed a breach of trust of vast sums of money. The extent of the defalcations and the repute of the advocate and solicitor concerned brought home with a shock to all in the Bar the possibility that this incident or similar incidents may recur. And it is in these circumstances that the Bar has been very anxious to create a compensation fund to which the Bar itself would contribute whereby clients who suffer pecuniary loss from the misconduct of a member of the Bar may be compensated out of a fund for which all members of the Bar would be equally responsible. And in conformity with the high traditions of its profession, the Singapore Bar seeks to implement the concept, Sir, that all members should be responsible for the pecuniary loss arising from the professional misconduct of any one member, in order to protect the community in its trust of this professional group.

The proposed section 41D, which creates the compensation fund, is the first effort in this part of the world to implement the concept of the pecuniary responsibility of a group of professional men for the misconduct of one of themselves. This clause is only part of the answer to the problem. It is my hope, and I believe the hope of many members of the Bar, that as soon as the fund grows in strength, amending legislation will be introduced to enable clients who suffer pecuniary loss from criminal misconduct of solicitors to claim from the fund the full loss and not merely to receive an ex-gratia grant. Furthermore, Sir, I would like to see in due course this fund becoming the insurer for all pecuniary loss arising not only from criminal misconduct but also from the negligence of a member of the Bar. When this is achieved, the Bar will have made adequate provisions to meet to the full its responsibilities commensurate with the privileges which it enjoys.

I appreciate that this is not at present possible and will not be possible for some time until the fund is of adequate size. It is my hope that the aim will be kept in sight and that the Bar, as a whole, must carry the full burden of pecuniary loss arising out of negligence or misconduct of its individual members in order to maintain and enhance the trust and respect of the community.

The compensation fund will be of particular assistance to many young men now coming into the profession whose background is not publicly known, and whom the public will be the readier to trust if they know that should their trust be misplaced they can always seek redress from the compensation fund. It is my hope, Sir, that though the younger members of the Bar are the ones who will benefit most by this provision, nevertheless the Bar Committee will see to it that there will be differential payments to the compensation fund in order to assist junior members of the Bar in their first few years when they may be unable to meet the full normal quota that is expected of all of us.

I would also like to say, Sir, that I welcome the provisions for compulsory and exhaustive accounting by solicitors. Sir, it is a curious thing that many members of the Bar, in common with most members of the public, loathe accounts.

Dr Toh Chin Chye: What about accountants?

Mr David Marshall: Many have but a sketchy idea of accounting. It is true that, this will help accountants. But I am certain that the Government did not introduce these provisions to help the accountants. But these provisions, and I refer to sections 41A and 41B, are good in that they compel exhaustive accounting under the supervision of professional accountants to avoid any possibility not merely of conscious fraud, Sir, which is very rare, but of innocent mishandling of clients' funds. I know that it would mean a certain expense to the member of the Bar and bear heavily again on the younger members who have recently joined the profession and who practise on their own. This additional burden can be heavy for this small group, but for the welfare of the profession as a whole it seems to me that the provisions of sections 41A and 41B are essential and the small group of junior advocates and solicitors who are practising on their own must carry the additional burden.

Sir, I am particularly delighted with the action of the Government in adverting to views expressed in respect of section 7A, the clause whereby Queen's Counsel are permitted to come to Singapore' specifically for one case. As it originally stood, Sir, that clause would have permitted Queen's Counsel to come at will and pleasure. Very fortunately Sir, and I would like to say this; that it is not a matter of professional jealousy cm the part of the Bar, but it is a matter of reoognising that if the members of the Bar in Singapore are deprived of the opportunity of handling important cases, such deprivation can have an effect on their own efficiency. I say, Sir, that I am indeed glad that, by a fortuitous coincidence, there was a widely publicized case which went before the Chief Justice of the Federation of Malaya, himself an expatriate, who nevertheless criticised any suggestion that Queen's Counsel may practise in the Federation as of right. I think it is important to read it and to recognise the good sense the Government showed in giving weight to the view expressed by the Chief Justice of the Federation and in seeking to amend their provisions to conform with a view which clarified the position.

Sir, I am reading from the Straits Times of the 5th of April, 1962 and the heading is: THE CHIEF JUSTICE ON 'OUTSIDE COMPETITTON'. It is dated from Kuala Lumpur and it says:

The Chief Justice, Dato Sir James Thomson, today dismissed an application by an eminent Queen's Counsel to appear in a civil appeal here next week, saying that the legal profession here should enjoy a certain measure of protection from competition from outside.

At one stage of the hearing, Dato Sir James commented: "If all the cream is taken away by members of the English Bar, there will only remain skimmed milk for local lawyers."'

Sir, a sense of consideration for the local Bar which does him credit.

'In his judgment, the Chief Justice said: "The application is made by a very eminent Queen's Counsel and it is admittedly made for the purpose of coming to this country on a single occasion to appear in a single case.

It is to be noted that it is the first occasion since the setting up of a judicial system of the modern type in this country that it has been thought necessary or desirable to make any such application.

I am, of course, aware that such applications have been made from time to time in the former Straits Settlements and the State of Singapore, but this is the first occasion in the history of this country that such an application has been made."

Dato Sir James said the application raised two difficult questions. In the first place, the public interest had to he considered.'

I am happy to note, Sir, that that phrase has been utilised by the Government:

He said: "There is here a young, rising legal profession, and in the public interest it may well be that the profession should enjoy a certain measure of protection from competition from outside.

For myself, I would not countenance for a moment, unless compelled to do so by the strongest statutory requirement, any attempt to protect the local profession simply and solely for the benefit of its members.

That would be wrong in itself, and it would be contrary to the intention of the Statute which is clearly to be construed with an eye to one thing and one thing only - and that is the public interest.

The point, however, is whether it is not in the public interest, as distinct from the individual interests of practitioners, that the profession should enjoy a certain measure of protection."

Dato Sir James added: "Again it would appear that, as between the profession locally and the profession in England, there is no reciprocity.

If it is to be a one-way traffic, the question arises whether that is altogether consistent with the status of an independent country."

Unfortunately, we cannot claim that last element. But you will see, Sir, how vigorously he came out. A sense of justice, not merely for the profession, individuals, but for the stature of the profession and in the public interest.

I am happy to note, Sir, that we do not exclude a Queen's Counsel completely. I am sure no member of the Bar would seek that. But rather, we permit Queen's Counsel to be admitted in the court's discretion, Sir, and not in that of any administrative or Government officer - if it is in the public interest.

You will recognise, Sir, that in a State where there are, I understand, some 150 members of the Bar, there are certain aspects of the law which are rarely adumbrated. I have in mind, for example, Sir, a case of two or three years back, or maybe a little more, where one oil company was claiming over $5 million from another oil company in respect of deposits of oil which were taken over by the Japanese. Now, that was a particularly difficult case with overtones of international law, the law of confiscation during the War, and in that case it was quite appropriate that the Government itself should have had Queen's Counsel from England, and the oil companies concerned themselves engaged Queen's Counsel. But, Sir, you are not unconscious of other occasions which, if not frivolous, and however important to the individuals concerned, were not of a character to require the presence of eminent Queen's Counsel, since the issues involved were such as were dealt with daily by members of the Bar locally. But because of the wealth of the parties, Sir, we saw not one, or two, but teams from the English Bar to handle the issues.

Sir, it is not Queen's Counsel we want, except very rarely, and I am glad to see the provision made where on such occasions they can be admitted, but it is solicitors that we need, and that is why I have not moved, and I would like to emphasise it, will not as yet move, any amendment to this Bill to prevent non-citizens of Singapore and Malaya from practising in Singapore. This should come, Sir, this must come, but I will not seek to urge it until I am completely satisfied that, in fact, we have from our University an adequate supply of those trained of a calibre such as those we have had the pleasure of seeing graduate but recently.

Sir, it will be my pleasure to support and vote for this Bill.

11.09 p.m.

Mr Rajah: Sir, this is indeed a very happy occasion. To be able to agree with the Member for Anson on anything that he propounds in this Assembly has been one of my dearest wishes since he entered this Assembly. This evening, Mr Speaker, we are completely at one. This is made doubly pleasurable when the Member for Anson and I can agree completely and wholeheartedly with the Government. I wonder if such occasions will occur in the future. I hope they do; perhaps after merger, they might.

Mr Speaker, Sir, I welcome the Bill and, if I may say so, I am in complete agreement with its provisions. As the explanatory statement says, Mr Speaker:

'This Bill amends the Advocates and Solicitors Ordinance to provide for the more effective supervision of solicitors and solicitors' accounts and the control of the employment of solicitors' clerks.'

Mr Speaker, Sir, if I may be forgiven, I am myself a solicitor practising in this country, and I do not object one bit to the more effective supervision that is being imposed upon me and my firm and those like me who are practising in Singapore. I do not object to it, Mr Speaker, for this reason: it is my good fortune to practise as a solicitor, and as a solicitor, it is my duty and my privilege to uphold the rule of law in this country. Without the rule of law, the basic foundation of our system of government will disappear. On that basis, I am happy to be a solicitor and I am happy to be associated in the maintenance of the rule of law. But when one occupies a position of privilege and, if I may say so, a position of power, that position necessitates that one does not exercise privilege and power wantonly, that there must be curbs on that power. I am glad that these curbs are being imposed on this honourable profession in order that it might remain and continue to remain and, if I may say so, occupy an even more honourable position in our society.

Mr Speaker, Sir, the other point which might be controversial and on which I wish to speak, is the question of admission of Queen's Counsel. I only recently came to understand that a part of the provision of this new section is not entirely in accord with the wishes of the general members of the Bar. I was only informed this afternoon that during my absence from Singapore this particular provision was posed before the general meeting of the Bar Committee and they felt in their wisdom that the phrase "in the public interest" should be omitted. I am not in a position to know the reasons for that conclusion which the meeting of the Bar came to. But as a Member of the Assembly, I am speaking more in the general interest of the country and of the future of Singapore in relation to the Federation. I would say that in all such matters, the Singapore Bar should work in unity with the Federation Bar, and I support this provision although it would appear that I am at variance with my fellow practitioners at the Bar on the basis that in future the Singapore Bar and the Federation Bar, in view of the political future of the two territories, should work together. I say that in all earnestness, Mr Speaker, Sir, because the Bar is intimately connected with politics and because we are the upholders of the rule of law and, without the rule of law, our political system cannot survive.

Mr Byrne: Mr Speaker, Sir, I am delighted to hear the words of kindness that flowed from the Member for Anson for once in our lifetime.

Dr Toh Chin Chye: It will never happen again!

Mr Byrne: Mr Speaker, Sir, we are sagacious enough to know that it would be useful for us to take these words at their mere face value.

Mr David Marshall: That is churlish.

Mr Byrne: Mr Speaker, Sir, on the matter which the Member for Farrer Park referred to just now, I was surprised to receive a note from the State Advocate-General this morning informing us that this particular provision of the Bill had been considered by the Bar Committee and that they were most dissatisfied with it. And in the letter to the State Advocate-General from the Secretary of the Bar Committee, the Bar Committee referred the State Advocate-General to a resolution approved at a general meeting of the Singapore Bar held on 28th April, 1962, where the Member for Anson's amendment to include a proviso after the words "discretion", "for special reasons in the public interest" was considered. He drew our attention to the fact that the proviso was defeated by a majority vote. But nevertheless, I think, Mr Speaker, Sir, it is necessary in all these matters for us to keep in line with the Federation, and I think despite the views that the Bar Committee holds we would be acting appropriately if we proceeded to enact this clause.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole Assembly.

Assembly immediately resolved itself into a Committee on the Bill.-[Mr Byrne].

Bill considered in Committee.

11.18 p.m.

[Mr Speaker in the Chair]

Clause 1 ordered to stand part of the Bill.

Clause 2-

The Chairman: The first amendment* is dependent on the new clause. I think we will deal with that under the provisions of Standing Order 71, paragraph 11. We will come back to that after we have passed the new clause. Amendment (ii) then. Mr Minister.

*The amendment, standing in the name of the Minister for Health and Law, reads as follows : - .

In page 1, lines 6 and 7, to leave out 'Advocates and Solicitors Ordinance (hereinafter in this Ordinance referred to as the "principal Ordinance")' and insert "principal Ordinance".

Mr Byrne: Sir, I beg to move,

In page 1, to leave out lines 10 to 18 inclusive,

and

In page 2, to leave out lines 1 to 4 inclusive, and insert- " Ad hoc 7A.-(1) Notwithstanding any - admission. thing to the contrary contained in this Ordinance the Supreme Court may for one or more special reasons in the public interest and for the purpose of any one case admit to practise as an advocate and solicitor any person - (a) who holds Her Majesty's patent as Queen's Counsel; (b) who does not ordinarily reside in Malaya but who has come or intends to come to Singapore for the purpose of appearing in such case; and (c) who has special qualifications or experience for the purpose of such case.".

I have already explained the purpose of this amendment, Mr Speaker, Sir.

Amendment agreed to.

Mr Byrne: Sir, I beg to move,

In page 2, line 17, at end, to insert-

"(3) Before admitting a person under the provisions of this section the Court shall have regard to the views of the State Advocate-General and the Singapore Bar Committee.".

I have also explained the purpose of this amendment.

The Chairman: Will the Minister please take his seat?

I think amendment (iv)* should have come before that in order of time.

• Amendment (iv), standing in the name of Mr Marshall, reads as follows:-

In page 1, line 12, to leave out "at its discretion" and insert "for special reasons in the public interest".

Mr David Marshall: If it please you, Mr Speaker, when I come to it I will inform the House that I am not moving. I am happy to have seen it incorporated.

The Chairman: Thank you. Then will the Minister move?

Mr Byrne: I have moved, Mr Speaker, Sir.

Amendment agreed to.

The Chairman: There are consequential amendments on the addition of new sub-clause (3). Those consequential amendments will be made.

Clause 2, as amended, ordered to stand part of the Bill.

Clauses 3 and 4 ordered to stand part of the Bill.

Clause 5-

Mr Byrne: Sir, I beg to move,

In page 3, line 1, to leave out "Section" and insert "Subsection (1) of section".

Sir, this is a typographical error. The relevant provision is contained in subsection (1) of section 21 of the Ordinance.

Amendment agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

Clauses 6 and 7 ordered to stand part of the Bill.

Clause 8-

Amendment made: In page 3, lines 27 and 28, to leave out "(other than an advocate and solicitor or a qualified person)".-[Mr Byrne]

Mr Byrne: Sir, I beg to move,

In page 4, line 6, at end, to add-

"Provided that the provisions of paragraph (g) of this subsection shall not apply to any public officer who is an advocate and solicitor or a qualified person.".

The amendment, Sir, is to clarify the intention of the section, that is, the restriction arising from service in the Government shall not apply to advocates and solicitors or qualified persons. As it stands, the clause will appear to allow a solicitor to employ an advocate and solicitor or a qualified person who has, for example, been convicted of an offence involving dishonesty. This is not the intention, and the amendment makes the provision clear.

Amendment agreed to.

The Chairman: There is a consequential amendment+ which will be made.

• The consequential amendment reads as follows:

In page 4, line 6, to leave out the full-stop and insert a colon.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9-

The Chairman: There is an amendment to the marginal note:

In page 5, to leave out "41B and 41C" and insert "41B, 41C and 41D".

That will be done.

Clause 9 ordered to stand part of the Bill.

Clause 10 ordered to stand part of the Bill.

Clause 11-

Mr Byrne: Mr Speaker, Sir, I beg to move,

In page 11, line 11, to leave out "Section" and insert "Subsection (1) of section".

This also is a typographical error. The relevant provision is contained in sub section (1) of section 49 of the Ordinance.

Amendment agreed to.

Clause 11, as amended, ordered to stand part of the Bill. New clause- 'Amendment Section 2 of the Advocates and of section 2 Solicitors Ordinance (hereinafter in this Ordinance referred to as the 2. "principal Ordinance") is hereby amended by inserting immediately after the word "Malaya" at the end of the definition of "qualified person" appearing therein the words "or in the University of Singapore".'-[Mr Byrne].

Brought up, and read the First Time.

Mr Byrne: Mr Speaker, Sir, I beg to move, "That the clause be read a Second time."

Sir, this new clause is to provide for the admission of graduates of the University of Singapore. The University of Singapore was constituted on the 13th December, 1961, and the graduates in law are now graduates of the University of Singapore. At the same time, it is proposed to reserve the right of law graduates of the University of Malaya to apply for admission.

Question put, and agreed to.

Clause read a Second time and added to the Bill.

The Chairman: The usual consequential amendments will be made.

Clause 2-

Mr Byrne: Sir, I beg to move,

In page 1, lines 6 and 7, to leave out 'Advocates and Solicitors Ordinance (hereinafter in this Ordinance referred to as the "principal Ordinance")' and insert "principal Ordinance".

This, Sir, is a consequential amendment.

Amendment agreed to.

Bill reported with amendments; read a Third time and passed.