Public Prosecutor v Soh Chee Wen: Litigation Privilege in Criminal Proceedings
In Public Prosecutor v Soh Chee Wen and Quah Su-Ling, the High Court of Singapore addressed whether the Prosecution is entitled to assert litigation privilege, particularly concerning communications with witnesses during the preparation of conditioned statements and court testimony. The court held that the Prosecution can assert litigation privilege, but this privilege is subject to exceptions, including the 'necessity exception,' where the accused's need for the evidence outweighs the Prosecution's interest in confidentiality. The court also clarified the approach to cross-examination regarding witness preparation and the potential application of implied waiver.
1. Case Overview
1.1 Court
High Court1.2 Outcome
The court accepted that the Prosecution is entitled to assert litigation privilege, but that litigation privilege is subject to a number of exceptions of potentially broad applicability.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court judgment on whether the Prosecution can assert litigation privilege, especially regarding communications with witnesses. The court held that the Prosecution can assert litigation privilege.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Prosecution | Government Agency | Ruling Clarified | Neutral | Hri Kumar Nair SC, Peter Koy, Teo Guan Siew, Nicholas Tan, Randeep Singh, Tan Ben Mathias, Loh Hui-Min, Ng Jean Ting, David Koh |
| Soh Chee Wen | Defense | Individual | Ruling Clarified | Neutral | Narayanan Sreenivasan SC, Lim Wei Liang Jason, Tan Zhen Wei, Victoria |
| Quah Su-Ling | Defense | Individual | Ruling Clarified | Neutral | Philip Fong Yeng Fatt, Sui Yi Siong, Lau Jia Min, Jaime |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Hoo Sheau Peng | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Hri Kumar Nair SC | Attorney-General’s Chambers |
| Peter Koy | Attorney-General’s Chambers |
| Teo Guan Siew | Attorney-General’s Chambers |
| Nicholas Tan | Attorney-General’s Chambers |
| Randeep Singh | Attorney-General’s Chambers |
| Tan Ben Mathias | Attorney-General’s Chambers |
| Loh Hui-Min | Attorney-General’s Chambers |
| Ng Jean Ting | Attorney-General’s Chambers |
| David Koh | Attorney-General’s Chambers |
| Narayanan Sreenivasan SC | K&L Gates Straits Law LLC |
| Lim Wei Liang Jason | K&L Gates Straits Law LLC |
| Tan Zhen Wei, Victoria | K&L Gates Straits Law LLC |
| Philip Fong Yeng Fatt | Eversheds Harry Elias LLP |
| Sui Yi Siong | Eversheds Harry Elias LLP |
| Lau Jia Min, Jaime | Eversheds Harry Elias LLP |
4. Facts
- The Prosecution applied for further arguments on whether it could assert litigation privilege.
- The Defence objected to cross-examination of witnesses based on litigation privilege.
- The Prosecution accepted that its duty of disclosure prevails over any claim to litigation privilege.
- The Prosecution proposed a 'necessity exception' to litigation privilege.
- The court considered the approaches to litigation privilege in other common law jurisdictions.
- The court considered whether oral communications fall within the scope of litigation privilege.
5. Formal Citations
- Public Prosecutor v Soh Chee Wen and another, Criminal Case No 9 of 2019, [2019] SGHC 235
6. Timeline
| Date | Event |
|---|---|
| Hearing on Prosecution's objection to cross-examination of witnesses | |
| Hearing on Prosecution’s application for further arguments on evidential issues | |
| Judgment reserved |
7. Legal Issues
- Litigation Privilege
- Outcome: The court held that the Prosecution is entitled to assert litigation privilege, subject to certain exceptions.
- Category: Substantive
- Sub-Issues:
- Scope of litigation privilege
- Conditions for asserting litigation privilege
- Exceptions to litigation privilege (necessity exception, fraud exception, implied waiver)
- Related Cases:
- [2007] 2 SLR(R) 367
- [2006] 2 SCR 319
- [2016] 5 SLR 590
- [2010] 1 SLR 833
8. Remedies Sought
- No remedies sought
9. Cause of Actions
- No cause of actions
10. Practice Areas
- Criminal Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals | Court of Appeal | Yes | [2007] 2 SLR(R) 367 | Singapore | Cited as authority on the distinction between legal advice privilege and litigation privilege, and the underlying rationale of litigation privilege. |
| Minister of Justice v Sheldon Blank (Attorney General of Ontario, The Advocates’ Society and Information Commissioner of Canada (Interveners)) | Supreme Court of Canada | Yes | [2006] 2 SCR 319 | Canada | Cited for its exposition of the rationales behind legal advice privilege and litigation privilege, particularly the need to allow parties to prepare their cases in private. |
| Muhammad bin Kadar and another v Public Prosecutor | N/A | Yes | [2011] 3 SLR 1205 | Singapore | Cited regarding the Prosecution’s duty of disclosure in criminal proceedings. |
| Muhammad bin Kadar and another v Public Prosecutor | N/A | Yes | [2011] 4 SLR 791 | Singapore | Cited regarding the Prosecution’s duty of disclosure in criminal proceedings. |
| R v Bunting and Others | N/A | Yes | (2002) 84 SASR 378 | Australia | Cited for the approach in Australia of recognizing a solicitor-client relationship between the Crown and its prosecutors. |
| R v King | N/A | Yes | [2007] 2 NZLR 137 | New Zealand | Cited for the position in New Zealand that litigation privilege for the prosecution follows from its general availability in criminal proceedings. |
| ARX v Comptroller of Income Tax | Court of Appeal | Yes | [2016] 5 SLR 590 | Singapore | Cited for its discussion of the principles of implied waiver of legal professional privilege, which the court finds applicable to litigation privilege. |
| Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd | N/A | Yes | [2010] 1 SLR 833 | Singapore | Cited for the principle that the fraud exception applies to both legal advice and litigation privilege. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| No applicable statutes | |
15. Key Terms and Keywords
15.1 Key Terms
- Litigation privilege
- Legal advice privilege
- Necessity exception
- Implied waiver
- Fraud exception
- Duty of disclosure
- Witness preparation
- Conditioned statements
- Cross-examination
15.2 Keywords
- litigation privilege
- criminal proceedings
- witnesses
- evidence
- Singapore
- prosecution
- disclosure
- cross-examination
16. Subjects
- Evidence
- Privilege
- Criminal Law
17. Areas of Law
- Evidence Law
- Criminal Procedure