Judges must not pre-judge

Singapore, Home > Breaking News > Singapore > Story, Dec 9, 2009
Judges must not pre-judge
Mini-mart operator's appeal prompts Judicial Commissioner's remark; By K. C. Vijayan, Law Correspondent
JUDGES must not pressure parties in a case to settle their dispute quickly, nor should they make up their minds about the case before hearing all the arguments.
(source: http://www.straitstimes.com/BreakingNews/Singapore/Story/STIStory_464357.html)

This principle was underlined in a case Judicial Commissioner Steven Chong heard within a week of being appointed to the bench in October.

He made the remarks after hearing the appeal of a mini-mart operator who claimed that an earlier trial judge had been biased against him.

Mr Sambasivam Kunju had taken the management committee of Nim Garden to court for alleged breach of contract when it changed the terms of his mini-mart lease on the Yio Chu Kang condominium premises.
He referred to comments the district judge had made during his three-day trial in March as evidence that the judge had decided on the outcome beforehand.
Among other things, the judge had told him that he did not care who was in the right or wrong, and that even if Mr Sambasivam won, he would be awarded just $1.
The judge repeatedly told Mr Sambasivam that he was wasting 'everybody's time' and told him 'it's your grave you are digging' if he continued to pursue the case.
Mr Sambasivam said the judge's remarks compelled him to settle the matter on the third day even though he had not finished giving evidence, as it had seemed clear that the decision would go against him. The 45-year-old, who represented himself, later took the matter to the High Court, which ordered a retrial under a different judge.
Said the judicial commissioner in a written judgment released last month: 'This case is a timely reminder that due process is one of the cornerstones of our judicial system. It is the duty of a trial judge to allow a litigant to present his case and not to pre-judge its merits.'
He did not name the judge, and made it clear that he was basing his verdict on affidavits filed by Mr Sambasivam, which were supported by an ex-employee and were not contradicted by lawyers for the condo management committee. He had no verbatim transcripts or tapes to go on and it would not be 'appropriate' for him to verify the remarks with the trial judge, he said.
He described the remarks as going beyond 'mere discourtesy' and could not be justified under any circumstances. They were enough for him to conclude that there had been inappropriate judicial interference and that a retrial should be ordered 'in the interest of justice'.
The judicial commissioner also went to some lengths to explain the limits of judicial interference. A judge may ask questions during a hearing, but he must not convey the impression that he has made up his mind about the outcome.
The test would be whether a reasonable person sitting through a trial believes that it had been conducted fairly, he said, citing a Court of Appeal decision.
He also referred to a case in Britain in which a judge told a mother mid-way through the hearing that he was in favour of letting the father have contact with their illegitimate child.
The judge also warned her against continuing the case as she might be liable to pay costs. The woman agreed to let the father contact the child but later appealed for a retrial, maintaining that the judge had already made up his mind without hearing her out.
The judicial commissioner said great care must be taken not to impose any undue pressure on a party to settle a case. In this case, it should have been clear to the judge that Mr Sambasivam was extremely reluctant to do so.
Mr Sambasivam told The Straits Times yesterday he was grateful to be given a second chance to have his case heard: 'Kudos should go to the judiciary and I am very happy for the way things have turned out.'
Two days ago, a closed-door meeting on his case was heard in the Subordinate Courts before District Judge Leslie Chew. It will be brought up again next month.
vijayan@sph.com.sg
Additional reporting by Sujin Thomas

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Remarks made
THE remarks by the district judge to Mr Sambasivam Kunju went 'beyond mere discourtesy', said Judicial Commissioner Steven Chong. According to court documents, the district judge said:
# 'Right now, my sole impression of your integrity is zero. You will suffer the consequences when I make the judgment.'
# 'It's like you win the battle but lose the war. If that happens, I'll award $1 judgment. I'm sure anybody here will be happy to take $1 from his pocket and pay you.'
# 'Do you want to rethink your strategy now?'
# 'Even if you win, you suffered a loss; does it make sense to go on if you are not getting anything?'
# 'Nim Minimart has suffered a loss, even if you win this case, you get zero.'
SUJIN THOMAS
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Comments in civil suit not uncommon
LAWYERS say it is not uncommon for some judges to comment on the issues during the course of a civil suit, or even tell off one or both parties.
Unlike a criminal trial, the judge would have read the affidavits and knows the relative merits of each side's case.
Any comments suggesting one party reconsider its position would have been made in the interest of saving both parties costs.
'Judges know the parameters and generally do not overstep the limits of what they can say,' said lawyer Niru Pillai of Global Law Alliance, who stressed this case was the exception rather than the rule.
He noted there were also judges who went out of their way to explain to parties not represented by lawyers the legal process and the mechanics of the particular case.
But they are careful not to cross the line.
'When there is a perception of alleged impropriety, even if in reality it was not so, the courts would move for the case to be heard again,' said lawyer Mark Goh.
'This follows from the golden rule that justice must not only be done but must be seen to be done,' he added.
Lawyer Lee Terk Yang also pointed out that it is one thing for a judge to push the parties to rethink the decision and quite another to completely belittle their case.
'However, strong remarks put to lawyers are not uncommon especially if the matters raised are frivolous.'
But in this case, the remarks were made to a litigant who was not represented by a lawyer, which Mr Koh Tien Hua from Harry Elias Partnership felt were a bit 'too harsh'.
As to reasons for making such comments, the lawyers contacted did not think it had anything to do with pressure on judges to clear cases quickly.
Senior Counsel Sundaresh Menon of Rajah & Tann, who was also a former judicial commissioner, said: 'I am not concerned by this case because I don't think this is a common situation at all.
'Nor do I think that the courts are under any pressure to clear cases even if it compromises due process.
'But very occasionally when a miscarriage of justice occurs, the system must be robust enough to deal with it in order to protect public confidence in the judiciary which is a vital institution in our country.
'This is precisely what has happened in this case.'
Source: Straits Times © Singapore Press Holdings Ltd.
http://www.straitstimes.com/BreakingNews/Singapore/Story/STIStory_464357.html


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