Legal Ethics - Conflict of Interest

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ETHICS IN LITIGATION: ISSUES RAISED BY THE LEGAL
PROFESSION (PROFESSIONAL CONDUCT) RULES, 1998
This article addresses the impact of the Legal Profession (Professional
Conduct) Rules, 1998 in the context of ethics in litigation. The approach
is to consider the scheme and application of these Rules,1
to examine
the ethical norms applicable to the general conduct of proceedings in
court,2
and, more specifically and substantially, to analyse the extent to
which the Rules affect the process of cross-examination.3
1. SCHEME AND APPLICATION OF THE LEGAL PROFESSION
(PROFESSIONAL CONDUCT) RULES, 1998
THE Legal Profession (Professional Conduct) Rules (the LP (PC) Rules)
came into operation on 1st June 1998.4
They apply ‘to every advocate
and solicitor who has in force a practising certificate’.5
These Rules consist
of six parts concerning, respectively, ‘Preliminary’, ‘Practice’, ‘Relationship
and Dealings with Clients’, ‘Conduct of Proceedings’, ‘Defending Accused
Persons’, and ‘Conduct of Criminal Prosecutions by Practising Solicitor’.
This article focuses on ‘Part IV: Conduct of Proceedings’ and certain
other rules in the LP (PC) Rules to the extent that they are linked to
this topic. The LP (PC) Rules apply to interlocutory processes as well as
the trial or hearing unless by reason of their specific nature only a
particular process is addressed.6
The rules are facets of the duties which
an advocate and solicitor owes to the court, his client, the opposing
solicitor, other persons involved in the court process and the public.
Prior to the advent of the LP (PC) Rules, the Practice Directions and
Rulings, 1989 (PDR) (including guidelines issued by the Law Society)
governed ethical practice in general.7
It is provided in the LP (PC) Rules
that they prevail over the PDR ‘to the extent of any inconsistency’.8
Apart
from the PDR, the advocate and solicitor has always been required to
act within the ethical parameters mandated by his position as an ‘officer
of the court.’9
The ramifications of the terminology ‘officer of the court’
See below, ‘1. SCHEME AND APPLICATION OF THE LEGAL PROFESSION
(PROFESSIONAL CONDUCT) RULES, 1998’.
See below, ‘II. GENERAL CONDUCT OF PROCEEDINGS IN COURT’.
See below, ‘III. CROSS-EXAMINATION’.
LP (PC) Rules, GN S 156/98, r 1.
Ibid, r 2.
See, for example, r 70 of the LP (PC) Rules, which concerns the requirement of notice
before a judgment in default is entered.
The scope of the PDR is briefly considered below.
Ibid, r 2(3). For example, compare r 70 of the LP (PC) Rules with Paras 33(a) and (b)
of the PDR. The notice period for the entry of a judgment in default is now 48 hours
rather than 24 hours (the former position under the PDR).
See s 82(1) of the Legal Profession Act (Cap 161, 1997 Rev ed).
284 Singapore Academy of Law Journal (1999)
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can only be truly be described as an overriding principle to be applied to
all circumstances of legal practice. This principle now finds itself expressed
in the LP (PC) Rules as the obligation ‘to maintain the rule of law and
assist in the administration of justice’.10
However, in the complex system of court practice, principle needs to be
carefully defined, ideally in the form of specific directions so that the
advocates (and their clients) are in no doubt about proper conduct in the
great variety of circumstances in which they may find themselves.
Although the PDR does contain provisions guiding professional practice,11
few of these focus on the actual conduct of proceedings. While the
advocate and solicitor’s responsibility as an officer of the court has always
been paramount, the absence of a comprehensive code of ethics governing
the trial process may not always have guaranteed adherence to expected
standards. Moreover, the PDR, not being legislation, may have lacked
the moral and legal force necessary to stamp the ethical aspects of court
practice with the appropriate importance or authority. The LP (PC) Rules
are the first comprehensive body of rules on ethics in general, and they
have statutory force.
II. GENERAL CONDUCT OF PROCEEDINGS IN COURT
Primary obligations
The fundamental principle that an advocate and solicitor must represent
his client to the best of his ability12
and to endeavour to do his utmost in
this respect13
subject to the obligations arising from his role as an officer
of the court14
is formulated by Rule 54 of the LP (PC) Rules as follows:
... an advocate and solicitor shall conduct each case in such a manner
as he considers will be most advantageous to the client so long as it
does not conflict with the interests of justice, public interest and
professional ethics.
It is clear from this rule and the case law that the advocate and solicitor’s
obligation to act in the best interests of his client15
is necessarily limited
by his position as an officer of the court, which raises a separate set of
obligations relating to the system of justice as a whole.16
The term ‘officer
LP (PC) Rules, r 2(2)(a).
See, in particular, Chapters 1 and 7 of the PDR.
See, in particular, Part III, r 54 and Part V of the LP (PC) Rules.
R 2(2)(c) of the LP (PC) Rules provides that the advocate and solicitor must ‘act in
the best interests of his client and to charge fairly for work done’.
This role is specified by s 82(1) of the Legal Profession Act (Cap 161, 1994 Rev Ed).
See above, note 13.
See Whyatt CJ’s pronouncements in Shaw & Shaw Ltd v Lim Hock Kim (No 2) [1958]
MLJ 129 concerning the nature of, and relationship between, these two duties.
11 S.Ac.L.J. Ethics in Litigation 285
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of the court’ is no mere esoteric title about which the advocate can remain
passive. The position imposes a manifold duty comprising: obligations to
the court to maintain the rule of law and assist in the administration of
justice;17
a duty to the opposing party and his legal counsel to ensure
fairness in the litigation process; and a general public duty to ensure that
the integrity and dignity of the judicial system and the legal profession is
preserved.18
Duty not to deceive or mislead
His most basic obligation is not to deceive or mislead the court, any
other advocate and solicitor, witness, court officer, or other person or
body involved in or associated with court proceedings.19
This responsibility
extends to every function including the presentation and interpretation
of facts, drafting of pleadings and documents, legal argument and other
submissions to, or communications with, the court.20
The duty not to
intentionally mislead or deceive is only the bare minimum required of
the advocate and solicitor. As an officer of the court, he is expected to
advance the public interest in the fair administration of justice even if
this would jeopardise his client’s interests. Hence, he is required to inform
the court of ‘all relevant decisions and legislative provisions of which he
is aware whether the effect is favourable or unfavourable towards the
contention for which he argues’.21
In the same context, he is prohibited
from advancing submissions, opinions or propositions which he knows to
be contrary to the law.22
He is also expected to raise ‘any procedural
irregularity’ during the hearing and not reserve it for the appeal.23
Although this injunction is primarily intended to ensure that the advocate
and solicitor raises his opponent’s procedural defaults so that they are
adjudicated at first instance rather than on appeal, it also appears to
require him to raise any procedural irregularities for which he is
responsible even though such a revelation would adversely affect his
client’s case. This would be consistent with his duty to raise substantive
law sources whether or not they are favourable to his client.24
R 2(2)(a) of the LP (PC) Rules.
Ibid, r 2(2)(b). This includes the obligation ‘to facilitate access to justice by members
of the public’ (Ibid, r 2(2)(d)). The following discussion focuses on the various rules
which accentuate these various obligations. The rules take various forms including
those which are prohibitive in nature, those which provide the advocate and solicitor
with an option, and others which require him to take certain steps or even demand
that he ceases from acting.
Ibid, r 56.
Ibid, rr 59, 60(e), (f).
Ibid, r 60(c). See Glebe Sugar Refining Co Ltd v Trustees of the Port and Harbours of
Greenock [1921] WN 85.
Ibid, r 60(e)
Ibid, r 60(d)
Ibid, r 60(c). As already mentioned in this paragraph.
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Confidentiality
The LP (PC) Rules also recognise that the proper and fair administration
of justice may be served by confidentiality in certain circumstances as
much as it is by disclosure in the situations just discussed. Communications
between the advocate and solicitor and client in the context of the case
are generally25
protected from disclosure26
primarily to enable the client
to willingly confide in his lawyer so that he can be effectively represented.
The advocate and solicitor is permitted, even encouraged in certain
circumstances, to continue to represent a client who has confessed his
guilt to him in criminal proceedings.27
Of course, the advocate and solicitor
must not disclose the confession.28
Another example of the duty of the
advocate and solicitor to maintain silence about a matter concerns the
disclosure of the client’s previous convictions for the purpose of
sentencing. The advocate and solicitor is under no duty to disclose to the
court any convictions which are not on record before the court, or to
point out any errors or omissions in the record, if such disclosure ‘would
be to his client’s detriment’.29
The principle recognises that the matter of
disclosure of convictions is the prosecutor’s sole responsibility and that
any assistance given by the advocate and solicitor in this respect would
compromise his duty to his client. The advocate and solicitor’s role as an
‘officer of the court’ does not extend to assisting the prosecutor in this
context. However, the advocate and solicitor’s right not to disclose these
convictions does not mean that he is entitled to make any form of
representation which would give the impression that his client has none
of these convictions. In other words, while the advocate and solicitor
may remain neutral through non-disclosure, he must not make any
representation whatsoever that would misrepresent the circumstances.
Hence, the words in the rule that the advocate and solicitor ‘shall not
lend himself to any assertion that the client has no convictions nor ask a
prosecution witness whether there are previous convictions against the
client in the hope of receiving a negative answer’.30
As such conduct
would involve a dishonest element, the advocate and solicitor would be
neglecting his responsibility as an ‘officer of the court’. Here, he oversteps
the line between his neutral and non-active role of maintaining
There are exceptions. See, for example, s 128(a) and (b) of the Evidence Act (Cap 97,
1997 Rev Ed).
R 24 of the LP (PC) Rules; ss 128 and 131 of the Evidence Act.
R 74 of the LP (PC) Rules. The rule is discussed below.
R 24 of the LP (PC) Rules; s 128 of the Evidence Act.
R 78 of the LP (PC) Rules.
Ibid.
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confidentiality, which is permitted by the rule in the interest of his duty
to his client, and conduct which is unbecoming of ‘an officer of the court’.
In the same vein, although an advocate and solicitor may continue to act
for a client who has confessed his guilt to him, he must not ‘set up an
affirmative case inconsistent with the confession’.31
For example, his case
should not involve the contention that some other person committed the
offence or an alibi defence. Another aspect of the advocate and solicitor’s
duty of non-disclosure is the direction that he ‘shall not express his
personal opinion of his client’s guilt’ when conducting proceedings in
court.32
It is suggested that this principle applies to his opinion of his
client’s liability in a civil case.
Professional standing and independence
The advocate and solicitor’s professional standing and concomitant
obligation to avoid a conflict of interest in the course of proceedings is
emphasised by various rules. He is not to ‘allow his personal feelings to
affect his professional assessment of the facts or the law or to affect his
duty to the court’.33
As a general rule, an advocate and solicitor who has
been instructed to act on behalf of a person charged with a criminal
offence is expected to defend him even if he is of the opinion that the
person is guilty.34
The advocate and solicitor is prohibited from appearing
before a court in a matter where his relationship with the client would
make it ‘difficult for the advocate and solicitor to maintain his professional
independence’.35
He must also refuse to appear before a court if there is
a relationship between him and the court (or a judge of that court) hearing
the suit in case ‘the impartial administration of justice might appear to
be prejudiced’.36
He is not to accept instructions in a case in which ‘he
has reason to believe that he is likely to be a witness on a material
question of fact’.37
Indeed, he must discharge himself if it becomes
apparent that he is likely to be a witness on a material question of fact.38
His professional standing also requires that he refrain from giving
statements to the press (concerning the case he is conducting) which may
amount to a contempt of court or which interferes with a fair trial.39
Ibid, r 74.
Ibid, r 60(b).
Ibid, r 60(b)
This principle and other related provisions will be explored in more detail below,
under “Representing the ‘guilty’ client”.
R 65(a) of the LP (PC) Rules.
Ibid, r 65
Ibid, r 64(1).
Ibid, r 64(2). If he does discharge himself in these circumstances, he is required ‘to
take all reasonable steps to ensure that his client’s interest is not in any way
jeopardised’: r 64(3) of the LP (PC) Rules.
Ibid, r 67.
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Similarly, witnesses should not be offered money or other benefits
‘contingent upon the nature of the evidence given or upon the outcome
of a case’.40
Nor is the advocate and solicitor permitted to ‘post bail for
the client in a case where he is personally conducting the defence on
behalf of the client’.41
The professionalism of an advocate and solicitor
also requires him to fully respect the authority of the court and to act
accordingly.42
Fairness to other advocates and solicitors and parties
An advocate and solicitor is required to ‘treat his professional colleagues
with courtesy and fairness’.43
Where the advocate and solicitor seeks to
communicate with the court about any matter arising out of a case
‘pending or likely to be pending before the court’, he must notify the
representatives of the other parties in the suit of the matters which he
intends to raise and give them the ‘opportunity to be present or to reply’.44
And if the representative is not present when the advocate and solicitor
communicates with the court, the advocate and solicitor must ‘fully inform
that person of such discussion at the earliest opportunity’.45
Similarly,
while the principle that ‘there is no property in a witness’ is preserved by
the LP (PC) Rules,46
if the advocate and solicitor is aware that the witness
has been called or issued with a subpoena to appear in court by the
other party or the prosecution, the advocate and solicitor must inform
the advocate and solicitor of the other party or the prosecution of his
intention to interview or take statements from the witness.47
Other duties
of fairness and courtesy include: refraining from communicating with
represented clients except in the prescribed circumstances;48
not
influencing the client to determine a previous advocate and solicitor’s
retainer;49
observing the procedure for taking over a brief;50
honouring
his professional undertaking;51
taking responsibility for the fees of an
instructed advocate and solicitor;52
not voluntarily disclosing discussions
between himself and another advocate and solicitor without the consent
Ibid, r 68. This injunction does not extend to allowable disbursements and expenses
the witness is entitled to under the law: Ibid.
Ibid, r 82.
See ibid, r 55(a) of the LP (PC) Rules, which provides that he must ‘act with due
courtesy to the court’.
Ibid, r 47.
Ibid, r 63(1).
Ibid, r 63(2).
So that the advocate and solicitor may interview and take statements from any witness
or prospective witness: r 66 of the LP (PC) Rules.
LP (PC) Rules, r 66.
Ibid, r 48.
Ibid, r 49.
Ibid, r 50.
Ibid, r 51.
Ibid, r 52.
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of the latter;53
giving the prescribed notice before entering judgment by
default;54
granting an advocate and solicitor (whether involved in the
proceedings or not) the opportunity to answer any allegation against him
made in an affidavit;55
and not stating in a letter of demand ‘anything
other than that recoverable by due process of law’.56
In the specific context
of the criminal process, an advocate and solicitor ‘shall not in a plea in
mitigation make an allegation that is scandalous or calculated to vilify or
insult any person’.57
Appropriate response to impropriety
In particular situations, the advocate and solicitor’s duty extends beyond
compliance with directions in the course of proceedings. He may be
required to terminate his professional relationship with his client when
circumstances have arisen which make it difficult or impossible for him
to continue acting in a manner consistent with his position as an officer
of the court. Where, for instance, the advocate and solicitor becomes
aware that his client has committed perjury or ‘has otherwise been guilty
of fraud upon the court’, he is entitled to apply for a discharge from
acting further in the case.58
If he decides to continue, or the court decides
not to allow the application,59
he must ‘not perpetuate the perjury or
fraud’. The rule does not specify how this might be achieved where the
tainted evidence has already been put before the court and may be relied
upon. However, it seems to be clear that the advocate and solicitor must
exclude any reference to the evidence in his presentation to the court as
otherwise he may be perpetuating the perjury or fraud. For example, he
should not refer to the evidence in his speeches and submissions to the
court or raise it in the course of his examination of witnesses.
The question might be raised as to why, in view of the serious
circumstances of perjury or fraud upon the court, the advocate and
solicitor should not be permitted to terminate his role as of right. The
rule merely states that he may apply for a discharge, and that if he does
so, the court is at liberty to require him to continue.60
There are several
reasons why it is the court which must decide whether the advocate and
solicitor is to be discharged. In the first place, the wrong is committed
against the court and therefore the decision belongs to the court. Secondly,
whether the advocate and solicitor continues or is replaced will not change
Ibid, r 53.
Ibid, r 70.
Ibid, r 71.
Ibid, r 69.
Ibid, r 80.
Ibid, r 57(a).
Ibid, r 57(b).
Ie, r 57 of the LP (PC) Rules.
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the fact that perjury or fraud has been committed by the party. Thirdly,
there is the public interest in ensuring that the party receives adequate
representation so that there will be proper judicial determination of the
issues.61
This principle might be compromised by a change of legal
representation, particularly at a late stage of the proceedings. The fact
that the party has committed perjury or fraud in giving evidence does
not necessarily mean that he will fail on the merits, as there may be
other compelling evidence in his favour. The advocate and solicitor may
be willing to continue despite his client’s misconduct, particularly if he
believes that there is a case beyond the tainted evidence. As for the
lawyer who would rather stop acting altogether (for example, because he
can no longer conduct the case with the same conviction that he had
previously), it would be for him to persuade the court on his application
for a discharge that his client might be represented more effectively by
new counsel. The court would take into account all the circumstances
including, specifically, the prejudice which might be sustained by the party
in a civil case or an accused person in a criminal case by a change in
legal representation.62
Whereas the court may allow an advocate and solicitor to be discharged
in the above-mentioned circumstances, he is obliged to cease acting
(without an application to court) in certain prescribed situations: where
the client refuses to authorise the advocate and solicitor to make some
disclosure to the court which he is duty-bound to make;63
where the
advocate and solicitor becomes aware of the existence of a document
which should have been, but was not, disclosed on discovery, and the
client refuses to allow its immediate disclosure;64
and where he has come
into possession of a document belonging to another party ‘by some means
other than the normal and proper channels’, and his knowledge of its
contents would embarrass him in the discharge of his duties.65
In the
first two situations, the client should be told that his continued refusal to
comply with the requirement would leave the advocate and solicitor with
no option but to cease acting for him. Such drastic action would be
justified on the basis that the client may still comply with his obligation
by agreeing to the disclosure, but refuses to do so. In the third situation,
the advocate and solicitor’s continued involvement would be unjust to
him and might affect the standard of his representation of his client.
Although it might be argued that the client has forfeited his right to judicial
determination by reason of his abuse of the judicial process. For the various
circumstances in which an advocate and solicitor may withdraw, see ibid, r 42. Apart
from the specific instances, he may withdraw ‘where any other good cause exists’ (ibid,
r 42(g)).
The court may be more reluctant to allow the application at the later stage of
proceedings because of the limited time that would be available to the new counsel to
prepare for the trial.
LP (PC) Rules, r 58(a).
Ibid, r 58(b).
Ibid, r 58(c).
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Representing the ‘guilty’ client
In criminal cases, the advocate and solicitor may, having interviewed his
client or examined the evidence available to him, conclude that he is
guilty of the offence charged. Nevertheless, he is bound to defend the
client ‘irrespective of any opinion which [he] may have formed as to the
guilt or innocence of that person’.66
It should be noted that this rule
applies after he has agreed to act for the person charged with the
offence.67
An advocate and solicitor is always at liberty to refuse to act
at the outset, in which case the relationship of advocate and solicitor and
client does not come into being. Once the relationship is established, the
advocate and solicitor ‘shall endeavour to protect the client from being
convicted except by a competent court and upon legal evidence sufficient
to support a conviction’.68
The advocate and solicitor’s opinion of his
client’s innocence or guilt is irrelevant and must not compromise his duty
to represent and defend him to the best of his ability.69
It is the court,
not the advocate and solicitor, which has the sole responsibility for
determining liability.
The position of the advocate and solicitor is varied where his client makes
‘a clear confession of guilt’ to him. If the confession ‘is made before the
proceedings have commenced’, the advocate ‘may’ continue to act. Where
the confession is made ‘during the proceedings’, he ‘should’ continue to
act.70
A ‘clear confession of guilt’ does not merely connote an
incriminatory statement such as ‘I wanted him dead’ in relation to a
murder charge. There has to be a unequivocal assertion that he committed
the offence. Otherwise, this rule does not apply. The distinction between
a confession made before the proceedings have commenced and one made
afterwards takes into account the difficulties which the accused is likely
to face if a change in legal representation occurs at the trial. The
confession gives rise to important legal considerations. First, it is subject
to professional privilege and must not be disclosed.71
Secondly, the
advocate and solicitor must not ‘set up an affirmative case inconsistent
with the confession’.72
He would be perpetuating or aiding perjury if, for
example, he calls a witness to provide an alibi defence or suggests that
another person committed the offence.73
Therefore, if an advocate and
solicitor continues in spite of a clear confession of guilt having been made
to him, he would have to conduct his case within these imposed limits.
Ibid, r 72.
The words used are ‘on whose behalf he is instructed’.
Within the sphere of his role as ‘officer of the court’. See text at notes 9 and 10.
Unless such disclosure is permitted by the client. See s 128 of the Evidence Act (and
illustration (a)), and r 24 of the LP (PC) Rules.
Ibid.
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Accused’s right to decide
The LP(PC) Rules emphasise that in specific situations the advocate must
not act contrary to the accused’s intentions. The accused ‘must be allowed
complete freedom of choice whether to plead guilty or not guilty’.74
The
advocate and solicitor may advise his client how to plead, but that is the
limit to which he can go.75
Similarly, while the advocate and solicitor
‘...may advise a client about giving evidence in his own defence...’, ‘...the
client must be given complete freedom of choice whether to give evidence
or not’.76
The rationale here is that the plea and the issue of whether to
give evidence are fundamental matters which must be decided by the
accused person himself. However, the advice of the advocate and solicitor
may be crucial, as when the accused intends to plead guilty on the basis
of his mistaken assumption that he has committed an offence, or when
the accused is not aware of the consequences of giving evidence or failing
to give evidence on his own behalf.77
Presence of the advocate and solicitor and accused at a criminal trial
The importance of the advocate and solicitor’s continued presence at the
trial to ensure that the accused is properly represented at all times is
spelled out by two primary provisions. The first provides that he may
only be absent if ‘(a) there are exceptional circumstances which the
advocate and solicitor could not reasonably have foreseen; (b) he obtains
the consent of his client; and (c) a competent assisting counsel, who is
well-informed about the case and able to deal with any question which
might reasonably be expected to arise, takes over the conduct of the case
from the advocate and solicitor’.78
The second provision concerns the
absence of the accused. If the accused ‘absconds’ during the trial (at any
time prior to sentence), the advocate and solicitor is entitled to continue
to act for the accused. If he decides to do so, he is required to ‘conduct
the case on the basis of the instructions he has received as if the client is
still present in court but had decided not to give evidence’.79
Again, this
provision protects the accused’s position by ensuring that he is represented
even if he is absent. However, it is a matter of discretion for the advocate
and solicitor to exercise according to the circumstances. If, for instance,
the advocate and solicitor is not able to conduct the case in the absence
of the accused because of lack of instructions or information, then he
may not be in a position to continue to act.
Ibid, r 75.
Ibid.
Ibid, r 79.
For example, the advocate and solicitor might advise him not to give evidence because
of the inconsistencies which may be raised by the prosecution. The client would also
be advised of the adverse inferences which the court might draw if he does not take
the stand (pursuant to s 196(2) of the Criminal Procedure Code (Cap 68)).
Ibid, r 76.
Ibid, r 77.
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III. CROSS-EXAMINATION
The LP (PC) Rules introduce various provisions concerning the
examination of witnesses. The primary rule is that the advocate and
solicitor is ‘personally responsible for the conduct and presentation of
his case’ which includes exercising his ‘personal judgment’ upon the
questions which he asks.80
More specifically, he must exercise that
judgment ‘both as to the substance and the form of the questions put’.81
The duty extends to any statements which the advocate and solicitor
makes in court.82
Ethical considerations generally rise to the fore in cross-
examination more than any other area of the trial.83
The reason for this
is that statutory and common law rules seek the appropriate balance
between providing the cross-examiner with sufficient opportunity for
challenging or testing the evidence of the opposing witnesses and
protecting the latter and the court process from overly aggressive, abusive,
inappropriate or irrelevant questions. This balance is not easy to achieve
as the application of the rules depends on the unique circumstances and
testimony of each witness.
Some of the LP (PC) Rules must be examined against the background of
the Evidence Act,84
which imposes legal and ethical standards through
its control of the process of cross-examination. Indeed, the Rules may
have to be considered or even interpreted in the context of the Evidence
Act because of the latter’s status as primary legislation and the more
precise elucidation of its provisions. Yet, even the Evidence Act is not
always entirely clear or sufficiently comprehensive to cater to all the
circumstances in which abuse or injustice might arise. The extent to which
the Rules clarify the difficult areas will be examined. Another factor is
that some of the new rules impose duties which correspond or are similar
to common law principles established by the Singapore courts.
The effect of the new rules will be considered in the light of these
principles. The LP (PC) Rules also bring into operation certain principles
which are directly related to procedural justice; such as the duty of the
advocate to use his time efficiently and economically. Here, the freedom
of the advocate to present his case ‘in such a manner as he considers will
be most advantageous to the client’85
must be balanced against his
obligation to ‘assist in the administration of justice’86
and ‘to facilitate
Ibid, r 60(a). This rule also provides that he is to exercise his ‘personal judgment’
‘upon the substance and purpose of statements made’.
Ibid, r 61(b).
Ibid, rr 60(a) and 61(b).
As vividly revealed in the recent trial of Anwar Ibrahim, the former Deputy Prime
Minister of Malaysia.
Cap 97, 1997 Rev Ed.
LP (PC) Rules, r 54.
Ibid, r 2(2)(a). Also see r 54 which states that the conduct of the case must ‘not
conflict with the interests of justice, public interest and professional ethics’.
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access to justice by members of the public’87
by assisting the court ‘in
ensuring a speedy and efficient trial’.88
Practice directions also have a
role in ensuring the efficient use of the court’s time and will be considered.
Scope for challenging the witness’s credit and credibility
The LP (PC) Rules include specific provisions concerning questions
affecting credit and credibility. These will be examined within, and after
due consideration of, the legal framework established by the Evidence
Act.
Section 148 of the Evidence Act is the general provision which confers
the right upon the advocate to cross-examine a witness in relation to his
credibility:
When a witness may be cross-examined, he may, in addition to the
questions hereinbefore referred to, be asked any questions which
tend —
to test his accuracy, veracity or credibility;
to discover who he is and what is his position in life;
to shake his credit by injuring his character, although the answer
to such questions might tend directly or indirectly to criminate
him, or might expose or tend directly or indirectly to expose
him to a penalty or forfeiture.
(a)
(b)
(c)
The factors expressed in paragraphs (a) to (c) are concerned with the
credibility of the witness - the overall impression which a witness makes
as to his believability. The term ‘accuracy’ in paragraph (a) pertains to
his knowledge or experience of the facts to which he testifies and his
ability to recount those facts effectively in court. ‘Accuracy’ is a primary
element of the term ‘credibility’ (also in paragraph (a)), which has been
defined as including ‘such matters as the opportunities for and powers of
observation of the witness, his accuracy of recollection, and capacity to
explain what he remembers’.89
For example, the witness’s view of the
accident may have been obstructed or affected by poor light or his distance
from the scene, or he may have forgotten some details concerning the
incident. His credibility may also be affected by the manner in which he
testifies, as when the cross-examiner asks questions which reveal
contradictions within his testimony and/or his inability to answer questions
clearly or at all. ‘Credibility’ in the context of paragraph (a) has a
Ibid, r 2(2)(d).
Ibid, r 55(c). Also see r 55(b), which provides that the advocate must ‘use his best
endeavours to avoid unnecessary adjournments, expense and waste of the court’s time’.
Nokes, An Introduction to Evidence (4th ed), at pp 407–408. Cited by the Singapore
High Court in Kwang Boon Keong Peter v PP [1998] 2 SLR 592, at 692. In this case,
the court considered the term ‘credit’ in the context of impeachment under section
157 of the Evidence Act.
87
88
89

narrower meaning than credibility in the sense of the overall impression
which a witness makes as to his believability. ‘Credibility’ in the broader
sense is not merely affected by the witness’s opportunities for, and powers
of, observation and his accuracy of recollection, and capacity to explain
what he remembers. These are matters which directly affect the evidence.
His credibility might also be indirectly affected by the nature of his
character, previous actions and motives. These matters may affect the
credit of the witness not because of defective testimony (the concern of
the term ‘credibility’ in paragraph (a)), but because the character, previous
actions and motives of the witness may make him less credible or even
destroy his credibility. Therefore, credibility in the broader sense of the
overall impression which a witness makes as to his believability may be
affected by the nature of the evidence he gives (credibility in the narrower
sense of paragraph (a)) and the nature of his character (credit in the
sense of paragraph (c)). The effect which questions concerning credibility
and credit have on the overall credibility of the witness must depend on
the circumstances and there is no rule that one approach is more effective
than the other. It may be that the witness has an unimpeachable character
so that questions ‘to shake his credit by injuring his character’ in the
context of paragraph (c) would not be appropriate. However, questions
might be asked to test his powers of observation. Conversely, a witness’s
evidence may come across as extremely convincing, but the revelation of
facts in cross-examination showing him to be partial to the party who
called him or to be otherwise untruthful may put his testimony in a very
different light. Hence, in one case, a re-trial was ordered because the
lower court did not allow the defence to cross-examine the primary
prosecution witness on her character.90
The other word in paragraph (a) is ‘veracity’. Clearly, the advocate must
have the opportunity of asking questions to determine whether the witness
is lying. Normally, there is a motive involved which may require cross-
examination as to credit. Circumstances might be raised to show that the
witness is lying out of bias, because he has been bribed or to protect an
interest, or that he is a habitual liar. As to paragraph (b), personal
questions may have to be asked ‘to discover who he is and what is his
position in life’. The rationale here is that the court and the opposing
party are entitled to know the nature and circumstances of the man whose
evidence may affect the outcome of the case. More specifically, this may
be necessary to determine whether the witness has the knowledge,
experience or even expertise to give evidence on the matters in issue.
Hence, an ‘expert’ witness may be asked about his professional (or other)
qualifications and experience before he is allowed to testify. Questions
asked pursuant to paragraph (b) may have the same effect as those asked
pursuant to paragraph (c) if the character of the witness is revealed to
be less than that of a truthful man.
Lim Baba v PP (1962) MLJ 201.90

Section 148 appears to grant the cross-examiner unlimited license to attack
and even demolish the character of a witness.91
Apart from being
questioned on matters which put his credibility in issue, the witness may
be asked ‘any questions’ ‘to test’ whether he is lying (‘veracity’) and to
‘shake his credit by injuring his character’. This may be done
notwithstanding that ‘...the answer to such questions might tend directly
or indirectly to criminate him, or might expose or tend directly or
indirectly to expose him to a penalty or forfeiture’. Deeply personal
questions might be asked ‘to discover who he is and what is his position
in life’. Yet, as will be seen, important limitations are imposed on this
process.
Section 148(c) provides that a witness may be asked questions which
‘shake his credit by injuring his character’ even though ‘...the answer to
such questions might tend directly or indirectly to criminate him, or might
expose or tend directly or indirectly to expose him to a penalty or
forfeiture’. However, he is only required to answer if the question ‘relates
to a matter relevant to the suit or proceeding’. In these circumstances,
the immunities offered by section 134 would apply. This outcome results
from section 149, which provides:
If any such question relates to a matter relevant to the suit or
proceeding, section 134 shall apply thereto.
The rationale for the distinction between questions which relate to a
matter relevant to the suit or proceeding and questions which merely
concern the witness’s credibility is that the former are vital to the
determination of the substantive issues, and therefore the witness is
obliged to answer them unless he is entitled to rely on a particular
privilege. Hence, if an accomplice giving evidence as a prosecution witness
is questioned in cross-examination about his involvement in the crime,
and these questions would throw light on the accused’s role or liability,
he must answer notwithstanding the injury to his credit. Similarly, in a
civil case, a witness who is involved in the circumstances giving rise to
the facts in issue would be required to answer questions concerning his
conduct including any improprieties linked to those facts in issue.
The position is very different where the question concerns a matter which
does not relate to the issues in the proceedings. Here, the witness is not
required to answer the question if the court decides that he should not
be compelled to do so. In these circumstances, the court may, pursuant
Also see the terminology of s 383 of the Criminal Procedure Code, Cap 68, concerning
the evidence which may be adduced to attack the character of the maker of a statement
who is not called as a witness.
91

to section 150(1) of the Evidence Act, ‘warn the witness that he is not
obliged to answer it’. It would then be for the witness to decide whether
to answer the question. Section 150(1) of the Evidence Act provides:
If any question relates to a matter not relevant to the suit or
proceeding, except in so far as it affects the credit of the witness by
injuring his character, the court shall decide whether or not the
witness shall be compelled to answer it, and may, if it does not think
fit to compel him to answer the question, warn the witness that he
is not obliged to answer it.92
The court is vested with a discretion which is to be exercised by taking
into account the factors in section 150(2)(a)-(c):
92 The words ‘except in so far as it affects the credit of the witness by injuring his
character’ may give rise to the impression that such questions are excluded from the
discretion of the court. Such an interpretation would deprive the section of any purpose.
The ambiguity must be resolved by construing the words as enabling the court to
exercise a discretion when the question only concerns the credit of the witness. See
the preceding discussion in the text (after the reference to s.134). This was also the
preferred view of the High Court in Kwang Boon Keong v pp [1998] 2 SLR 592, at 603.
such questions are proper if they are of such a nature that the
truth of the imputation conveyed by them would seriously affect
the opinion of the court as to the credibility of the witness on
the matter to which he testifies;
such questions are improper if the imputation which they convey
relates to matters so remote in time or of such a character that
the truth of the imputation would not affect or would affect in
a slight degree the opinion of the court as to the credibility of
the witness on the matter to which he testifies.
such questions are improper if there is a great disproportion
between the importance of the imputation made against the
witness’s character and the importance of his evidence.
the court may, if it sees fit, draw from the witness’s refusal to
answer, the inference that the answer, if given, would be
unfavourable.
Paragraph (a) sets out the general principle that questions should not be
asked merely because they injure the witness’s credit. The condition is
that such questions must ‘seriously affect’ the court’s opinion of the
witness’s credibility in relation to the evidence which he gives. Indeed,
the literal effect of this provision is that questions which injure the
witness’s credit should not be put even if they would affect, but not
seriously affect, the court’s opinion. The basis of this approach seems to
be that a witness should not be embarrassed and denigrated in court
unless such an outcome is justified by the imputation conveyed by the
(a)
(b)
(c)
(d)

questions: they must ‘seriously affect’ the court’s opinion of the witness’s
credibility in relation to his testimony. It is also clear from paragraph (a)
that it is not enough that the questions ‘seriously affect’ the court’s opinion
of the witness’s credibility simpliciter. They must have this effect in relation
to the evidence which he gives in court. For example, the court might
exercise its discretion under this paragraph (by warning the witness that
he does not have to answer the question), in relation to questions
concerning the witness’s tendency to lie to a certain relative, if the court
believes that this is exceptional conduct specifically prompted by the
nature of the relationship between the witness and the relative, and that
it does not characterise his general attitude. If, on the other hand, the
proceedings involved the relative, then the witness’s behaviour towards
his relative would no doubt ‘seriously affect’ the court’s opinion as to his
credibility in relation to the evidence he gives against his relative, and the
court would not exercise its discretion in favour of the witness (that is,
the question would have to be answered).
Paragraph (b) contains two alternative grounds for exercising the
discretion against allowing the question. First, questions concerning facts
which are ‘so remote in time’ that the imputation which those questions
convey ‘would not affect or would affect in a slight degree the opinion of
the court’. Secondly, questions concerning facts ‘of such character’ that
the imputation which those questions convey ‘would not affect or would
affect in a slight degree the opinion of the court’. With regard to the
terminology ‘so remote in time’, it is unlikely that the court would allow
a 60 year-old witness to be questioned about his youthful indiscretions if
there is no other link between those circumstances and the case before
the court. The rationale here is that incidents concerning the witness’s
character in the distant past are unlikely to have a significant bearing on
the court’s assessment of that witness’s present believability. Of course,
this is a general proposition and it is for the court to determine (in the
exercise of its discretion) whether the question and the circumstances
justify a response from the witness.93
Facts ‘of such character’ involve a consideration of their nature and
significance in relation to the witness’s credibility. For example, although
the fact that the witness is known to constantly argue with people might
be regarded as a character defect, it is hardly a basis for showing him to
be untruthful. Paragraph (b) indicates that the court should warn the
witness that he is not obliged to answer the question even if the
Taylor states: ‘...all inquiries into discreditable transactions of a remote date, might,
in general, be rightly suppressed; for the interests of justice can seldom require that
the errors of a man’s life, long since repented of, and forgiven by the community,
should be recalled to remembrance at the pleasure of any future litigant’. See Taylor,
Law of Evidence, 1878, vol 2, para 1460. Also see R v Ghulam Mustafa 36 A 371, at
347, which is cited at Sarkar on Evidence, 13th ed, p 1378.
93

imputation conveyed by it ‘would affect in a slight degree’ the court’s
opinion. This is consistent with paragraph (a), which provides that answers
should only be required of questions which ‘seriously affect’ the opinion
of the court. Again, as in the case of paragraph (a), paragraph (b) is
concerned with the credibility of the witness in relation to his testimony
in court and nothing else.
Proportionality is the principle embodied by paragraph (c). It declares
questions to be improper if there is ‘a great disproportion’ between the
‘importance’ of the imputation and the testimony. Proportionality involves
measuring the nature of the imputation against the significance of the
witness’s testimony. The rationale of the principle is that a witness whose
evidence is relatively unimportant or merely supplementary should not
have to suffer the indignity and embarrassment of having his character
laid open for all to see unless it impinges directly on what he says. The
issue here is that the destruction of his character in such circumstances
(that is, in the context of the limited value of his evidence) is not vital to
the interests of justice. For example, if a police officer merely gives formal
evidence of how the accused was arrested and does not testify to the
issues in the case, it would not be proper to injure his credit unless the
lawfulness of the arrest is in issue and there is a reasonable basis for
assuming that he is being untruthful.
Stephen expressed his views on the proportionality principle in the
following manner:
I shall not believe...that...a person who is called to prove a minor
fact, not really disputed, in a case of little importance, thereby
exposes himself to every transaction of his past life, however
private.94
It is suggested that the principle may be broader than that defined by
Stephen, as it is conceivable that such a witness may have to appear in a
case of considerable importance and yet not be subject to attacks on his
character. The principle pertaining to the illustration just given of the
arresting officer should be the same if the proceedings involve a capital
crime. The court should not be restricted in the exercise of its discretion
by the ‘importance’ of the case (however ‘importance’ might be defined),
but should entertain a flexible approach according to the circumstances.
As paragraphs (a) to (c) of s 150(2) are concerned with the nature of the
imputation conveyed and the type of impropriety raised, it is necessary
to consider the forms of conduct which might be encompassed by these
provisions. Of course, what is acceptable behaviour and standards of
morality change in the course of time. The witness’s infidelity to his wife
might have been a basis for attacking his credibility in the past, perhaps
Stephen’s Digest, 5th ed, p 196.
94

on the premise that a gentleman does not commit adultery, and therefore
a witness who is not a gentleman cannot be completely credit-worthy.95
If the current commonality of such behaviour and the liberality of the
modern age has changed the social mores to such an extent (so that such
behavior is generally more acceptable: it is certainly no longer a crime),
it may be open to a court to decide that the witness’s conduct is an
entirely private matter which should not bear on his credibility. Applying
the terminology of paragraphs (a) to (c), questions concerning such
conduct would not ‘seriously affect the opinion of the court as to the
credibility of the witness’ (paragraph (a)). Moreover, ‘the truth of the
imputation would not affect or would affect in a slight degree the opinion
of the court as to the credibility of the witness’ (paragraph (b)), and the
proportionality principle in paragraph (c) would apply (such conduct
would not have a significant bearing on the witness’s evidence). While
these provisions are primarily concerned with the relevance of the
witness’s character to his credibility, they also take into account his right
to be treated with dignity so that those aspects of his private life which
are not salient to his credibility should not be raised. It should be
emphasised that while certain ‘indiscretions’ on the part of the witness
may not be relevant to credibility on the basis of their moral significance
alone, they may be relevant if connected to an issue in the proceedings
so that the witness’s veracity or accuracy of perception is affected. For
example, where a married witness lies to protect the secrecy of his affair
or the interest of his girl friend, or he is unable to give evidence about
his girl friend objectively because of his feelings for her, or is biased
against his wife in proceedings involving both spouses.
The issue of whether any crime of which the witness has been convicted
may be raised to attack his credibility merits attention. It would seem to
be clear that where the crime involved dishonesty, this could have a direct
bearing on credibility on the basis that the witness has an established
propensity to be untruthful. Of course, the court is free to disregard such
an imputation if such a conclusion is not appropriate in the circumstances,
as when the testimony appears for one or more reasons to be reliable. In
De Silva v PP,96
Gill J ruled that the witness’s admission in court that he
had been a ‘communist sympathiser’ (during the time of communist
infiltration in Malaysia) did not have the effect of discrediting his
testimony as he had given his evidence in a ‘straightforward and cogent’
manner.
The question also arises as to whether the cross-examiner may raise crimes
or misconduct not involving dishonesty. May the cross-examiner, for
instance, ask the witness whether or not he has been convicted of rape?
In the unreported case of R v Orion (1874), a witness was compelled to answer
questions concerning an extra-marital affair many years previously. The case is cited
in Stephen’s Digest, 5th ed, at p 141.
[1964] MLJ 81, at 83-84.
95
96

The argument could be made that a person who has intentionally
committed an offence which does not involve dishonesty (such as rape)
may nevertheless be less credit-worthy because he has deliberately
committed a serious offence. The combination of his criminal intent and
the nature of the offence committed may reveal an absence of moral
rectitude justifying the conclusion that he would have no qualms about
lying in court. As in the case of offences involving dishonesty, the court
would not accept the imputation of false testimony unless it is proper to
do so.97
Therefore, it is submitted that the range of crimes capable of
forming a basis for cross-examination need not be limited to offences of
dishonesty. However, not all crimes and misconduct would necessarily
bear on credibility. A traffic offence involving mere carelessness (in
contrast to unlawful intention) does not necessarily indicate a lack of
moral character. However, such an offence may be relevant to credibility
if the fact of the traffic accident is raised not to reveal dishonesty, but to
show that the injury sustained by the witness in the accident has affected
his memory, and therefore the accuracy of his recollection.98
Whatever the crime or misconduct of the witness, questions relating to
the same may only be put to him within the scope of the criteria set out
by paragraphs (a) to (c) of section 150(2).99
Accordingly, the indication
given by the first exception to section 155 that a witness may be asked
questions about any crime which he might have committed must be
interpreted in context.100
In the first place, a witness may not be asked
such a question on the off-chance that he might raise his own misconduct
hitherto unknown by the cross-examiner. The cross-examiner may only
ask such a question if he has reasonable grounds for so doing.101
It follows
that the cross-examiner should only ask such a question if he has
reasonably reliable information indicating that the witness may have
committed the crime(s). Secondly, the first exception 1 to section 155102
must be read subject to the general principle that questions asked in
cross-examination are required to be pertinent to the issues or to affect
the credibility of the witness in accordance with section 150. So, for
example, a conviction for driving without due care and attention, although
within the apparent ambit of Exception 1 to section 155, would rarely (if
ever) ‘seriously affect the opinion of the court as to the credibility of the
witness’, the condition laid down by paragraph (a) of section 150(2).
See De Silva v PP, above.
This is within the ambit of s 148(a) of the Evidence Act. See above.
These provisions have been discussed.
S 155 states the general rule: ‘When a witness has been asked and has answered any
question which is relevant to the inquiry only in so far as it tends to shake his credit
by injuring his character, no evidence shall be given to contradict him; but if he answers
falsely he may afterwards be charged with giving false evidence.’ Exception 1 states:
‘If a witness is asked whether he has been previously convicted of any crime and
denies it, evidence may be given of his previous conviction’.
See s 151 of the Evidence Act and r 60(h) of the LP (PC) Rules (both of which are
considered below).
See note 100.
97
98
99
100
101
102

Rule 60(h) of the LP(PC) Rules is pertinent in this context for it clearly
assumes that not every crime (or other misconduct) would be the
appropriate subject-matter for challenging the credibility of a witness.
The rule provides that an advocate and solicitor, ‘when conducting
proceedings in court’:
shall not suggest that a witness or other person is guilty of any crime,
fraud or misconduct or attribute to another person the crime or
conduct of which his client is accused unless such allegations go to
a matter in issue (including the credibility of the witness) which is
material to his client’s case and which appear to him to be supported
by reasonable grounds.
The cross-examiner may not ask (or in any other way suggest) that the
witness (or other person) is ‘guilty of any crime, fraud or misconduct’
unless the imputation directly concerns the matters in issue or affects
credibility. Where, for example, the defence alleges that someone else
committed the crime or civil wrong attributed to the defendant, evidence
pertaining to this issue (that is, evidence showing that the witness or
some other person could have committed the act) would directly affect
the outcome of the case. With regard to credibility, rule 60(h) must be
read subject to paragraphs (a)-(c) of section 150(2) which, as has been
seen, vest the court with a discretion to disallow questions concerning
credibility if they are regarded as improper according to the prescribed
criteria. Furthermore, as will be seen, a witness may not be questioned
on his credibility if the manner of cross-examination offends the standards
set by sections 151-154 of the Evidence Act. One of these standards, that
the question must be based on reasonable grounds (as provided by section
151), is also a requirement of rule 60(h).
The point should also be made that rule 60(h) does not permit a question
going to credibility unless the imputation is ‘material to his client’s case’.
The purport of these words is that the imputation that the witness has
committed a crime or fraud or other misconduct is not justified by the
rule unless, in the circumstances, it would materially affect his credibility.
Although the words ‘material to his client’s case’ are not elaborated upon
in the rule, some measure of their significance may be obtained from the
emphasis placed by paragraphs (a)-(c) of section 150(2) on the extent to
which an imputation would affect ‘the opinion of the court as to the
credibility of the witness on the matter to which he testifies’ (paragraphs
(a) and (b)) and the ‘importance of the imputation made against the
witness’s character’ (paragraph (c)). In any event, as primary legislative
provisions, these paragraphs of section 150(2) would override any
inconsistent interpretation which is applied to rule 60(h).
Paragraph (d) of s 150(2) is concerned with the situation in which the
question put to the witness is proper and he chooses not to answer it.
The court, in the exercise of its discretion pursuant to s 150(1), directs

the witness to answer the question. If he refuses to do so, the court may
‘if it sees fit, draw from the witness’s refusal to answer, the inference
that the answer, if given, would be unfavourable’. Put another way, the
court may rely on his failure to respond as a matter adversely affecting
credibility. As section 150 is solely concerned with the credit of the
witness, his failure to respond should not be a basis on which to infer the
existence or non-existence of the facts in issue; that is, guilt or liability.
Although, of course, such failure may have this effect indirectly for if his
credibility is adversely affected, his testimony would be accorded less
weight.
The extent to which the witness’s credibility would be affected must
depend on the nature of the question and the circumstances. The words
‘if it sees fit’ (in paragraph (d) of s 150(2)) mean that the court is not to
draw an unfavourable inference as a matter of course. A witness may
refuse to answer a question not because he has something to hide (the
basis for justifying the ‘the inference that the answer, if given, would be
unfavourable’), but for a reason unconnected with the truth of the
imputation. The witness might be insulted that such a question could
even have been asked of him. He may be too distraught to respond. He
might be determined to avoid implicating another person who was
involved in the matter about which the question was raised. He may not
have understood the question. No doubt, It may be difficult for court to
ascertain the reason for the witness’s refusal to answer without asking
him why he is not answering the question. Having done so, the court
might clarify the situation for the witness. For example, where the witness
has misunderstood the question, the court might ask the cross-examiner
to repeat or re-phrase the question. The ‘insulted’ witness might be told
that the law regards the question to be proper even if the imputation it
carries may be untrue, and that if it is untrue the witness should justify
his position by denying, rather than keeping silent about, the imputation.
The court might also regard it appropriate to point out to the witness
that his credibility may suffer if he does not answer the question.
Section 150 sets out the general criteria for the exercise of the court’s
discretion. Sections 151-154 impose further qualifications concerning
questions and answers in the course of cross-examination. Section 151
provides:
No such question as is referred to in section 150 ought to be asked
unless the person asking it has reasonable grounds for thinking that
the imputation which it conveys is well founded.
The clear purport of this provision is that the cross-examiner should not
be at liberty to attack the character of the witness indiscriminately. If
not for this rule, the cross-examiner might raise any imputation regardless
of its truth in an effort to smear the witness by false accusation. Such an
approach would not further the cause of justice, and would constitute an

unacceptable affront to the witness’s dignity. The seriousness of a breach
of the principle that questions must be asked on reasonable grounds is
underscored by the direction in section 152 that the court may report the
offending advocate to the appropriate authority with a view to the
engagement of the disclipinary process.
The following illustrations to section 151 offer examples of circumstances
which would constitute ‘reasonable grounds’:
An advocate is instructed by a solicitor that an important witness
is a professional gambler. This is a reasonable ground for asking
the witness whether he is a professional gambler.
An advocate is informed by a person in court that an important
witness is a professional gambler. The informant, on being
questioned by the advocate, gives satisfactory reasons for his
statement. This is a reasonable ground for asking the witness
whether he is a professional gambler.
A witness of whom nothing whatever is known is asked at
random whether he is a professional gambler. There are here
no reasonable grounds for the question.
A witness of whom nothing whatever is known being questioned
as to his mode of life and means of living gives unsatisfactory
answers. This may be a reasonable ground for asking him if he
is a professional gambler.
Illustration (a) appears to be concerned with information obtained from
the instructing solicitor, not just any solicitor. The rationale here is that
the instructing solicitor may, by reason of his involvement in the case, be
assumed to know the circumstances of the various witnesses. Reasonable
grounds would not be afforded where the advocate has merely received
information from someone that the witness is a professional gambler.
This is the clear purport of illustration (b) which only justifies reliance
on such information where the person is in court and gives ‘satisfactory
reasons’ for his assertion that the witness is a professional gambler. None
of the illustrations cover the usual situation in which the advocate might,
in the course of his conduct of the case, obtain well-based information
(showing that the witness is a professional gambler) from someone such
as his client, another witness or even someone unconcerned with the
proceedings. It is suggested that such circumstances should constitute
reasonable grounds as well even though not expressly covered by the
Illustrations. Some support for this view may be obtained from the fact
that Illustration (a) is predicated on the assumption that the instructing
solicitor may obtain credible information which would constitute
reasonable grounds on which the advocate at trial could put the question.
This principle applies with just as much force in the context of the more
normal practice in Singapore whereby the advocate conducts his own
case from the outset in the absence of an instructing solicitor.
(a)
(b)
(c)
(d)

It is clear that the advocate who knows nothing about the witness is not
permitted to ask him random questions about being a professional gambler
(the position in illustration (c)), but that reasonable grounds for asking a
witness whether he is a professional gambler may be established where
that witness gives ‘unsatisfactory answers’ having been asked questions
about ‘his mode of life and means of living’ (illustration (d)). The purport
of the latter illustration is that the witness’s own testimony must afford a
basis (reasonable grounds) for asking him whether he is a professional
gambler. The requirement of reasonable grounds as a basis for asking
questions affecting credibility is also found in Rule 60(h) of the
LP(PC)Rules, which has already been considered.
A question which injures the credit of a witness, and which the
court would ordinarily regard as proper according to the criteria in
s 150(2)(a)-(d), and which is based on reasonable grounds pursuant to
s 151, may nevertheless be disallowed if it is ‘indecent’ or ‘scandalous’ or
is ‘intended to insult or annoy’ or is ‘needlessly offensive in form’. These
qualifications are set out in sections 153 and 154 of the Evidence Act
and rule 61 of the LP (PC) Rules. Section 153 states
The court may forbid any questions or inquiries which it regards as
indecent or scandalous, although such questions or inquiries may
have some bearing on the questions before the court, unless they
relate to facts in issue or to matters necessary to be known in order
to determine whether or not the facts in issue existed.
Section 154 provides:
The court shall forbid any question which appears to it to be
intended to insult or annoy, or which though proper in itself, appears
to the court needlessly offensive in form.
These provisions have their respective spheres of operation. Under s 153
the court has a discretion to prohibit a question which it regards as
indecent or scandalous unless it bears upon the substantive issues (the
facts in issue). Put another way, the discretion extends to matters of
credibility only. Hence, in proceedings involving a charge of rape, this
section would not be contravened if the complainant is asked in cross-
examination whether she was a prostitute at the material time (assuming
there are reasonable grounds for such a question pursuant to section 151).
The question bears upon the element of consent which is a fact in issue
in such proceedings. Similarly, in a civil action for wrongful termination
of employment, the employer might be questioned about his attempted
sexual harassment of the employee and the latter’s unwillingness to
respond if such facts resulted in the dismissal (the facts in issue).
Where the question is not concerned with the facts in issue and it only
affects the witness’s credibility, the court will have to determine whether
the question is sufficiently necessary to the adjudication process so as to

outweigh the offence which might be given by the question. The matter
is completely witin the discretion of the court. As Ismail Khan J said in
Lim Baba v PP:103
If they [questions] are put to shake the credit of a witness the court
has complete dominion over them and may forbid questions even
though they have some bearing on the question before the court.
But if they relate to facts in issue or to matters necessary to be
known in order to determine whether or not the facts in issue existed,
the court has no discretion to forbid such questions though they
may be indecent or scandalous.
Unlike section 153, section 154 is a mandatory provision devoid of any
discretion. An advocate who asks questions intended to insult or annoy
the witness is guilty of an abuse of process for this is not an authorised
purpose of cross-examination. The court will also forbid a question which
is proper if it ‘needlessly offensive in form’. In these circumstances, the
advocate should rephrase the question or modify the terminology so that
its offensive character is eliminated.
Rule 61 of the LP (PC) Rules overlaps with both sections 153 and 154,
but is not entirely consistent with section 153. It provides:
In all cases, an advocate and solicitor shall —
[1962] MLJ 201, at 202.
See the above illustrations concerning the prostitute and employer.
The additional word ‘vilify’ is also included in the rule.
not make statements or ask questions which are scandalous or
intended to insult or calculated only to vilify, insult or annoy
either the witness or any other person or otherwise an abuse of
the function of the advocate and solicitor; and
exercise his own judgment both as to the substance and the
form of the questions put or statements made.
Unlike section 153, rule 61(a) imposes a complete ban on questions ‘which
are scandalous’ including questions which affect facts in issue. It is
submitted that the rule should not affect the objective of section 153,
which is to ensure that evidence essential to the determination of the
case is not shut out even if the question asked is ‘scandalous’.104
Even if
this interpretation is not acceptable, the rule, being subsidiary legislation,
must be read subject to the Evidence Act. As in the case of section 154,
rule 61(a) prohibits questions which are intended to ‘insult’ or ‘annoy’.105
This injunction is expressly extended to protect persons other than the
immediate witness. The rule also has a broader coverage in the context
of barring any question which amounts to abuse by the advocate of his
role. Essentially, this means that the advocate must only ask questions
(a)
(b)
103
104
105

which have a bearing on the issues in the suit and (subject to sections
150-154 of the Evidence Act) matters of credibility. Rule 61(b)106
and
rule 60(a)107
emphasise, inter alia, the duty of the advocate to conduct
the cross-examination in the proper manner.
Veracity in the method of questioning
Various rules in the LP (PC) Rules emphasise the duty of the advocate
not to mislead. Rule 56 provides:
An advocate and solicitor shall not knowingly deceive or mislead
the Court, any other advocate and solicitor, witness, Court officer,
or other person or body involved in or associated with Court
proceedings.
Rules 59 and 60(f) instruct the advocate that he ‘shall not contrive facts’
and ‘shall not concoct evidence or contrive facts’ respectively. The duty
not to mislead is an important aspect of the advocate’s role as an officer
of the court108
and his responsibility ‘to maintain the rule of law and
assist in the administration of justice’.109
In the context of cross-
examination, the advocate must exercise special care in the manner he
puts facts to the witness. Some leeway must be allowed in cross-
examination to ensure that the evidence of the witness if subjected to
scrutiny in the interest of ascertaining its truth. Therefore, cross-
examination often involves a battle of wits between cross-examiner and
witness. At times, the cross-examiner may have to use guile to expose
the unreliability of the witness, as when the latter is lulled into a false
sense of security and does not realise that he is being trapped or set up
for questions which will effectively challenge him. Such an approach (and,
indeed, other subtle forms of cross-examination) may be essential to
‘break’ the effect created by the witness in examination in chief or in his
affidavit of the evidence in chief. It is submitted that such an approach
does not contravene the aforementioned ethical rules as long as the cross-
examiner does not lie or put untruths to the witness. The essence of the
principle here is that the cross-examiner must not act dishonestly. He
must not mislead the court, the witness or other advocates or persons
involved in court proceedings. As long as he observes this requirement
he should not be constrained in the manner he puts facts to the witness.110
The paragraph is set out above.
This paragraph states that the advocate ‘shall be personally responsible for the conduct
and presentation of his case and shall exercise personal judgment upon the substance
and purpose of statements made and questions asked’. The paragraph is considered
in the context of Time and efficiency’ in cross-examination, below.
See s 82(1) of the Legal Profession Act (Cap 161, 1997 Rev ed).
LP (PC) Rules, r 2(2)(a).
Subject to other rules governing cross-examination, as to which see above.
106
107
108
109
110

This interpretation is consistent with other rules in the LP (PC) Rules
which grant a measure of freedom to the advocate in the interest of fair
representation of his client but draw the line between truth and falsehood.
In particular, the rules which permit the advocate to keep silent about
certain matters which might jeopardise his client’s case but prohibit the
advocate from misleading the court. These rules concern, firstly, the
protection of privileged communications and, secondly, the non-disclosure
of the client’s previous convictions in respect of sentencing. The advocate
has a responsibility to maintain the confidentiality of communications
protected by legal professional privilege and a duty not to mislead the
court by putting forward facts which he knows from those communications
to be untrue. The client may inform his advocate of facts adverse to the
client’s position in a criminal or civil case. If these communications are
protected by privilege, as would normally be the case,111
the advocate is
not permitted to disclose them unless the client consents or such disclosure
is required by law.112
The primary reason for such a principle is that full
disclosure is encouraged to ensure effective representation in the interest
of justice. However, the advocate’s knowledge of a confession or
admission means that he cannot present to the court, or allow his client
to present to the court, facts which those communications reveal to be
untrue. The LP (PC) Rules specifically provide in relation to a confession
that the advocate and solicitor must not ‘set up an affirmative case
inconsistent with the confession’.113
He would be perpetuating or aiding
perjury if, for example, he calls a witness to provide an alibi defence or
suggests that another person committed the offence.114
Although the
advocate and solicitor may continue115
to represent the client despite his
knowledge of facts indicating guilt or liability, he is necessarily limited in
the manner he would conduct the case.
With regard to the non-disclosure of the client’s previous convictions,
the advocate and solicitor is under no duty to disclose to the court any
convictions which are not on record before the court, or to point out any
errors or omissions in the record, if such disclosure ‘would be to his client’s
detriment’.116
The principle recognises that the matter of disclosure of
convictions is the prosecutor’s sole responsibility and that any assistance
given by the advocate and solicitor in this respect would compromise his
See s 128 of the Evidence Act and r 24 of the LP (PC) Rules. This is a general rule
to which there are exceptions. See s 128(a) and (b) of the Evidence Act.
See r 24 of the LP (PC) Rules, which also provides that the advocate and solicitor
may rely on communications to reply to or defend a disciplinary charge against him.
Ibid.
The advocate and solicitor is permitted, even encouraged in certain circumstances, to
continue to represent a client who has confessed his guilt to him in criminal
proceedings. See r 74 of the LP (PC) Rules.
111
112
113
114
115
116

duty to his client. The advocate and solicitor’s role as an ‘officer of the
court’ does not extend to assisting the prosecutor in this respect. However,
the advocate and solicitor’s right not to disclose these convictions does
not mean that he is entitled to make any form of representation which
would give the impression that his client has none of these convictions.
In other words, while the advocate and solicitor may remain neutral
through non-disclosure, he must not make any representation whatsoever
that would misrepresent the circumstances. Hence the words in the rule
that the advocate and solicitor ‘shall not lend himself to any assertion
that the client has no convictions nor ask a prosecution witness whether
there are previous convictions against the client in the hope of receiving
a negative answer’.117
As such conduct would involve a dishonest element,
the advocate and solicitor would be neglecting his responsibility as an
‘officer of the court’. Here he oversteps the line between his neutral and
non-active role of maintaining confidentiality, which is permitted by the
rule in the interest of his duty to his client, and conduct which is
unbecoming of ‘an officer of the court’.
Putting allegations to a witness
The common law rule which dictates that an advocate must not raise
evidence that contradicts the evidence of a witness which the advocate
could have, but did not, put to him in cross-examination,118
appears as
an ethical canon in the LP (PC) Rules. Rule 60(g) states that the advocate:
shall not by assertion in a speech make an allegation against a witness
whom he had an opportunity to cross-examine unless in cross-
examination he has given the witness an opportunity to answer the
allegation.
Ibid.
This is a well-established practice founded on case law. See the oft-quoted judgments
of Lord Herschell LC and Lord Halsbury in the leading English case of Browne v
Dunn (1893) 6 R 67, at pp 70, 76-77. Also see the succinct statement of principle in
the Indian case of Carapiet v Derderian AIR 1961 Cal 359, at p 362 (per Mukharji J).
In Seet Melvin v Law Society of Singapore [1995] 2 SLR 323, at p 338, Yong Pung
How CJ, citing Brown v Dunn, said: ‘There is an abundance of authority for the
proposition that if counsel ignores or omits to cross-examine a witness on material
points that go against his client’s case, they may be taken as an acceptance of the
truth of that part of the witness’s evidence. This is well-entrenched rule in the context
of ordinary adversarial proceedings.’ The practice has been adopted, or referred to,
in a number of cases in Singapore and Malaysia. See for example, Liza bte Ismail v
PP [1997] 2 SLR 454, at para 76; PP v Okonkwo [1993] 3 SLR 610; PP v Teoh Kah
Lin (unreported judgment of Amarjeet Singh JC, CC39/1994; 94 SC 371); Darwish
MKF Gobaishi v House of Hung Pte Ltd [1998] 3 SLR 435; Chua Beow Huat v PP
[1970] 2 MLJ 79; PP v Oh Teh Hwa, unreported judgment of Lai Kew Chai J
(CC 5/93; 93 SC 289); Wama bte Buang v Martin Lee, unreported judgment of Selvam
J ((OS 156 of 1990, dated 30 September 1993); Makin Nominees (Pte) Ltd (In
liquidation) & Anor v Ong & Co Pte Ltd, unreported Judgment of Lai Siu Chiu J
(1501 of 1993); Star Garments v Low Ee Suan Trading & Ors, unreported Judgment
of Lai Siu Chiu JC (1078 of 1987; 93 SC 032); Aik Ming (M) Sdn Bhd v Chang Ching
117
118

For example, the advocate acting for the defendant in a suit involving a
traffic accident is not permitted to allege in his closing speech that the
plaintiff’s witness was unable to see the accident, even if there is
supporting evidence for such an allegation (such as the distance of the
witness from the scene or his short-sightedness), unless the witness was
challenged in cross-examination on the matter of his ability to see the
incident. The ethical nature of the principle arises from the unfairness
which would result, and the injustice which may be caused, if the witness
is not given the simple opportunity of defending his own evidence against
counter-allegations.119
Moreover, the party who called the witness may
he have adduced further evidence to corroborate the witness’s testimony
if had been aware of the challenge to his witness’s evidence. Indeed, but
for the rule, the cross-examining advocate might take unfair advantage
of the opposing party by raising contradictory evidence for the first time
at the end of the proceedings without fear of a response.120
Selvam J said
in Darwish MKF Gobaishi v House of Hung Pte Ltd121
that the rule is
one of ‘essential justice’. As the rule affects the burden of proof,122
its
non-observance may destroy the case for the party concerned.123
Chuen [1995] 2 MLJ 770, at pp 794-796 (where Gopal Sri Ram JCA endorsed Browne
v Dunn); Teo Hock Guan & Anor (t/a Teo Meng Huah Construction) v Johore Builders
& Investments Sdn Bhd [1996] 2 MLJ 596; Sivalingam a/l Periasamy v Periasamy &
Anor [1995] 3 MLJ 395 and Yap Ban Tick & Ors v Standard Chartered Bank [1995]
3 MLJ 401 (in which Aik Ming (M) Sdn Bhd v Chang Ching Chuen (above) was
followed). Also see Allied Pastoral Holdings v Commr of Taxation [1983] NSWLR 1.
In his article, ‘Putting and suggesting in cross-examination’, [1984] MLJ xi, at p xv,
the Honourable Justice Shankar commented: ‘As the law stands today, it may not be
too far-fetched to say that a lawyer who does not put his case to his adversary’s
witnesses at the first opportunity, must so act at his peril.’ The rule applies to both
civil and criminal cases: R v Fenlon (1980) 71 Cr App R 307; Liza bte Ismail v PP
[1997] 2 SLR 454, at para 65.
As Yong Pung How CJ said in Liza bte Ismail v PP [1997] 2 SLR 454, at para 70: ‘As
a matter of procedural fairness, the witness should have the opportunity to explain
the material contradictions’.
In Allied Pastoral Holdings v Commr of Taxation [1983] NSWLR 1, at 23,Hunt J
explained the rationale in the following manner: ‘Firstly, it gives the witness the
opportunity to deny the challenge on oath, to show his mettle under attack (so to
speak), although this may often be of little value. Secondly, and far more significantly,
it gives the party calling the witness the opportunity to call corroborative evidence
which in the absence of such a challenge is unlikely to have been called. Thirdly, it
gives the witness opportunity both to explain or to qualify his own evidence in the
light of the contradiction of which warning has been given and also, if he can, to
explain or to qualify the other evidence upon which the challenge is to be based’.
These reasons were accepted by Yong Pung How CJ in Liza bte Ismail v PP [1997]
2 SLR 454, at para 66.
[1998] 3 SLR 435, at para 113.
Because the witness’s evidence, if unchallenged, would be accepted by the court.
See, for example, Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395;
Aik Ming (M) Sdn Bhd v Chang Ching Chuen [1995] 2 MLJ 770, at pp 794-796.
119
120
121
122
123

Nevertheless, the rule is not absolute and will only apply in the
appropriate circumstances. Hence, in PP v Okonkwo,124
Rubin JC, as his
Honour then was, decided that the failure of the prosecution to put its
case to a witness ‘did not create any element of surprise which the rule
in Browne v Dunn so clearly deprecates’.125
In the circumstances, the
prosecution’s case was ‘manifest from the outset’ and therefore the
omission did not constitute an acceptance by the prosecution of the
witness’s evidence.126
In Liza bte Ismail v PP,127
Yong Pung How CJ
said: ‘the rule in Browne v Dunn is a flexible rule of practice intended to
ensure procedural fairness in litigation’.128
If a witness’s story is
unsupported or unbelievable, the failure to cross-examine him will not
lead to the acceptance of that evidence. In Liza bte Ismail v PP, Yong
Pung How CJ determined that the position taken by the appellant witness
was ‘obviously fanciful’ and ‘wholly unsupported by the documentary
evidence’. Accordingly, ‘the prosecution’s failure to cross-examine her,
while undertaken at some peril to its own case, was not productive of
any adverse consequence’.129
The point is that a witness may have given
such a poor account of himself or his evidence that there is no point in
cross-examining him. In fact, this may be the appropriate tactical
manouever in case the witness uses the opportunity of cross-examination
to rectify his presentation. In Browne v Dunn,130
Lord Morris said: ‘a
story told by a witness may have been of so incredible and romancing a
character that the most effective cross-examination would be to ask him
to leave the box’.131
The rule in Browne v Dunn does not apply to an
incomplete cross-examination because the cross-examiner does not have
the opportunity to put his allegations to the witness.132
In Sect Melvin v
Law Society of Singapore,133
the Court of Appeal, while accepting that
the rule in Browne v Dunn was a ‘well-entrenched rule in the context of
ordinary adversarial proceedings’, expressed ‘some doubt whether this
principle applies equally and unexceptionably to the failure or omission
of counsel for an accused person to cross-examine a co-accused’. This
qualification may be justified on the basis that the rule is essentially
concerned with the need for the opposing parties in litigation to clarify
[1993] 3 SLR 610.
Ibid, at 630.
Also see PP v Teoh Kah Lin (unreported judgment of Amarjeet Singh JC,
CC39/1994; 94 SC 371), which involved similar circumstances.
[1997] 2 SLR 454, at para 68.
See the various considerations set out by the writer in the previous paragraph.
[1997] 2 SLR 454, at para 70.
Browne v Dunn (1893) 6 R 67, at 79.
This proposition was accepted by Yong Pung How CJ in Liza bte Ismail v PP [1997]
2 SLR 454, at para 76. Also see PP v Teoh Kah Lin (unreported judgment of Amarjeet
Singh JC, CC39/1994; 94 SC 371); Transport Ministry v Garry [1973] 1 NZLR 120.
For example, where the witness absconds. See Dr Shanmuganathan v Periasamy s/o
Sithambaram Pillai [1997] 3 MLJ 61, at 77-78.
[1995] 2 SLR 323, at 338.
124
125
126
127
128
129
130
131
132
133

their respective positions and focus on the issues. While co-defendants in
criminal or civil proceedings may need to challenge each other in the
course of litigation, they are not in the polarised positions of prosecutor
and accused or plaintiff and defendant, the scenario apparently
contemplated by the rule in Browne v Dunn. However, this is a matter
which remains to be decided.
Finally, it should be said that if a party fails to plead a material allegation
in his pleading as required by the rules,134
but he raises the allegation at
the trial which is not challenged by the opposing party, the rule in Brown
v Dunn does not apply.135
Otherwise, the rule in Brown v Dunn could be
used to circumvent the pleading rule. Strictly speaking, the adduction of
evidence concerning material facts which have not been pleaded should
not be permitted.
Cross-examiner’s responsibility to use his time resourcefully
In his speech at the opening of the Opening of the Legal Year, 1995, the
Honourable Chief Justice, having noted that the number of outstanding
civil and criminal cases had increased in the course of 1994, stated:
...this was due to some considerable extent to the court taking longer
to complete hearings of cases, and that this was in turn due to the
totally disproportionate time taken up by cross-examinations in many
cases. While it is true that cross-examination is an important part of
our legal process, there can hardly be any valid reason, for example
(apart from the inadequacy of counsel) for a plaintiff in what is
essentially an accident case being cross-examined for several days,
or, worse, for a complainant in a rape case being subjected in the
witness box to cross-examination for more than two weeks. Singapore
judges, brought up in a classical tradition, are amongst the most
patient and tolerant of judges, but I am afraid that they will have in
future to be less tolerant and less accommodating in the face of
what clearly are examples of misuse of the legal process.136
The issue of what is an appropriate period of time for cross-examination
must depend on the nature of the case, the character of the witness and
his evidence, and the objectives to be gained from the examination. If, as
Wigmore says, cross-examination is ‘is beyond any doubt the greatest
legal engine ever invented for the discovery of truth’,137
then this process
Because it is a material fact. See O 18, r 7 (RC).
See Makin Nominees (Pte) Ltd (In liquidation) & Anor v Ong & Co Pte Ltd (Judgment
of the High Court dated 18-20 September, 1996; Suit no 1501 of 1993).
Singapore Academy of Law Newsletter, February, 1995, Issue No 34, at p 6.
Wigmore on Evidence, 3rd ed, 1974, vol 5, para 1367.
134
135
136
137

is sufficiently important to justify any length of time necessary to achieve
the truth. The key principle is ‘necessity’ so that however much time is
used for cross-examination, it must be necessary to achieve the objectives
of the process. These objectives are not achieved by repetition of questions
at various stages of the cross-examination (unless, for example, the witness
did not hear the question when first asked), or by questions which are
irrelevant, or by questions which are otherwise inefficient or inappropriate
(that is, questions which do not achieve those objectives). Accordingly,
while it would not be correct to arbitrarily limit the time for cross-
examination, advocates must be aware of their duty to ensure that the
time used (whether short or long) is necessary.
The court has always had, and continues to have, the power to ensure
that the appropriate trial procedures and rules of evidence are complied
with and that that the proceedings are conducted fairly.138
However, it
has been generally unwilling to exert overt control over the manner in
which the parties examine witnesses. This reluctance has its root in the
traditional principle of the adversary system that the parties should not
be restricted in the conduct of their cases.139
The LP (PC) Rules and
recent practice directions140
are the first provisions specifically concerning
the use of time in cross-examination.
The LP (PC) Rules contain specific provisions concerning the use of time
in the conduct of proceedings. Rule 55 provides that the advocate and
solicitor ‘shall at all times’:
See Pinsler JD, ‘The Inherent Powers of the Court’ [1997] SJLS 1, from 12; Dockray
MS, ‘The Inherent Jurisdiction to Regulate Civil Proceedings’ [1997] 1 LQR 120.
See, for example, Teng Boon How v Pendakwa Raya [1993] 3 MLJ 553; Roseli bin
Amat & Ors v PP [1989] 2 MLJ 65; Lee Ching Poh v Ching Kee Sun & Ors [1962]
MLJ 146; Lim Ker v Chew Seok Tee [1967] 1 MLJ 236 (HC); [1967] 2 MLJ 253 (FC);
Leng Lan v SM Yesudian [1939] MLJ 222. Hock Hua Bank (Sahah) Bhd v Yong
Liuk Thin & Ors [1995] 2 MLJ 213; Hadmor Productions Ltd & Ors v Hamilton &
Annr [1983] 1 AC 191, at 233; Jones v National Coal Board [1957] 2 QB 55.
See below.
use his best endeavours to avoid unnecessary adjournments,
expense and waste of the court’s time; and
assist the court in ensuring a speedy and efficient trial and in
arriving at a just decision.
(b)
(c)
Other more general provisions indicate this responsibility as well. Rule
54 provides that an advocate and solicitor:
shall conduct each case in such a manner as he considers will be
most advantageous to the client so long as it does not conflict with
... the interests of justice, public interest and professional ethics’.
138
139
140

Rule 60(a) makes the advocate ‘personally responsible for the conduct
and presentation of his case’ and provides that ‘he shall exercise personal
judgment upon the substance and purpose of statements made and
questions asked’. These provisions emphasise that the process of cross-
examination involves responsibilities beyond the duly owed by the
advocate to his client. The rules give effect to the advocate and solicitor’s
obligations ‘to assist in the administration of justice’141
and ‘to facilitate
access to justice by members of the public’.142
Delays hinder access to
justice because the court is unable to give the appropriate attention to
other litigants, and potential claimants, concerned by the time taken, may
be discouraged from pursuing legitimate actions. In Mechanical & General
Inventions Co v Austin,143
Lord Sankey LC endorsed the remarks of the
Master of the Rolls in the same case concerning the cross-examination of
certain witnesses at the trial:
There is a tedious iteration in some of the questions asked, and
prolonged emphasis is laid on some matters, trivial in relation to
the main issues. Cross-examination is a powerful and valuable
weapon for the purpose of testing the veracity of a witness and the
accuracy and completeness of his story. It is entrusted to the hands
of counsel in the confidence that it will be used with discretion; and
with due regard to the assistance to be rendered by it to the court,
not forgetting at the same time the burden that is imposed upon the
witness. We desire to say that in our opinion the cross-examination
did not conform to the above conditions, and at times it failed to
display that measure of courtesy to the witness which is by no means
inconsistent with a skillful, yet powerful, cross-examination.144
Several important points arise from this quotation which inexperienced
advocates would do well to keep in mind. First, questions should not be
repeated unless this is necessary. Second, the time spent on cross-
examination should be proportional to the importance of the issues
involved. Summing up the first two points, ‘...a protracted and irrelevant
cross-examination not only adds to the cost of litigation but is a waste of
public time’.145
The same principle applies to cross-examination on
R 2(2)(a) of the LP (PC) Rules.
Ibid, r 2(2)(d).
(1935) AC 346.
Ibid, at 359. This passage was cited by Lai Siew Chiu JC, as her Honour then was,
in Wong Kai Chung v The Automobile Association of Singapore (Suit No 2415/
1986; judgment dated 30/1/1992). Her Honour stated that if these principles had
been followed the trial would have been ‘considerably shorter than the 6+ days it
took’.
(1935) AC 346, at 360. Also see Yong Yin Siew v Chong Sheak Thow [1988] 3 MLJ
115, at 118.
141
142
143
144
145

irrelevant documents.146
Third, the cross-examiner must never ignore (or
forget about) the court even during the most absorbing of examinations.
The advocate’s priority is to persuade the court as to the state of the
evidence (or lack thereof). This can only be achieved by total concern
with the effect of the testimony on the court, not the impression which
the client may have of the advocate’s prowess. Hence, he must cross-
examine ‘with due regard to the assistance to be rendered by [the cross-
examination] to the court’.147
This necessarily means that every question
asked in cross-examination must have a precise purpose whether in itself
or in relation to other questions.148
Such an approach eliminates time-
wasting. Fourth, the witness is not to be treated as an enemy or an object
of hatred merely because he or she is giving evidence for the opposing
party. Basic courtesy shown to a witness is ‘by no means inconsistent
with a skillful, yet powerful cross-examination’.149
The emphasis on the efficient use of time is evident from recent case-
law. In Lim Young Sien v PP,150
Yong Pung How CJ, in the Court of
Criminal Appeal,151
said:
In our judgment, the purpose of the time-honoured practice of
applying for leave before counsel embarks on cross-examining a
witness on previous inconsistent statements is to prevent precious
judicial time from being wasted unnecessarily. For that purpose it is
important that the trial judge is satisfied that the previous statement
is ‘inconsistent’ or contradictory’ within the meaning of the section.
His Honour referred to the various categories of inconsistency discussed
by Taylor J in Muthusamy v PP152
for the purpose of putting a witness’s
previous inconsistent statement to him pursuant to section 147 of the
Evidence Act. These included: (a) minor differences not amounting to
discrepancies; (b) apparent discrepancies; (c) serious discrepancies; and
(d) material contradictions. His Honour concluded that only ‘serious
discrepancies’ and ‘material contradictions’ ‘are sufficient to invoke the
operation of section 147’.153
See Wong Kai Chung v The Automobile Association of Singapore (above), in which
Lai Siew Chiu JC, as her Honour then was, pointed out that the fact that a document
is disclosed on discovery does not mean that it must be the subject of cross-
examination.
(1935) AC 346, at 359.
As when the cross-examiner needs to ask questions to establish certain facts before
he asks the questions which focus on those facts. For example, where the advocate
asks preliminary questions to establish that the witness made a statement on a previous
occasion so that the inconsistencies between that statement and what is said in court
may be brought out.
Ibid.
[1994] 2 SLR 257.
As it then was.
[1948] MLJ 57.
[1994] 2 SLR 257, at 262. Also see Kwang Boon Keong v PP [1998] 2 SLR 592, at 605.
146
147
148
149
150
151
152
153

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Legal Ethics - Conflict of Interest