CHELVA RAJAH SC RECALLS HIS FIRST SHOWING IN THE COURT OF APPEAL

Mr Chelva Rajah SC’s memories are a treasure trove for history buffs.  During the first ten minutes of our interview, he paints a serene picture of life in 1950s Singapore.  “There was a pair of semi-detached houses side by side on Balmoral Road.  One was occupied by Mr C C Tan and his mother-in-law and the other by Mr Cheah Heng Sin and my dad, the eponyms of Tan Rajah & Cheah.”  He continues on this path for a while, recalling with a smile the warm friendship between his mother and Mrs Cheah.

Among these vivid memories of domestic life are recollections of his early years in practice at Tan Rajah & Cheah.  These formative years were shaped by his interactions with Mr C C Tan and Mr Cheah Heng Sin. His father, Dr A P Rajah, was serving in the foreign service at that time, although he would return to practice in 1974 before going on to the Bench in 1976.

HIS FIRST APPEAL

It was in his second year of practice that Mr Rajah did his first High Court trial.  “It was a worksite injury,“ he says, recalling the case.  “I was acting for the contractor and Mr Howard Cashin for the injured workman who was suing my client.  My client’s insurers denied liability under the insurance policy claiming the contractor had breached its terms and that the workman was not the contractor’s employee.  I joined the insurers as a third party.”

The High Court allowed the workman’s claim for damages against the contractors but dismissed their third-party claim.  “I was not sure whether to appeal or not and consulted Mr Tan.  We went through the judgment and he felt there were grounds for an appeal.  He could sense I was somewhat diffident.  He knew Mr Cashin had acted for the Plaintiff.  He said, ‘Howard is a very good advocate.  Why not you get him to lead you in this appeal?  There’s no conflict in him acting for the contractor against the third party and he is, after all, very familiar with the case.”  On Mr Tan’s advice, Mr Rajah went to see Mr Cashin, whom he had got to know on the cricket field.  “To cut a long story short, we worked together on the appeal and we won,” he says, describing his first experience of the apex court, albeit as second chair. 

Since that early appearance, Mr Rajah has appeared in the Court of Appeal numerous times (he admits that he still gets butterflies right before opening his case).  This journey has given him a front-row seat to the changing nature of the appellate world.  “These days, your detailed case is set out in a written Appellant’s Case.  In those days, it was just a petition of appeal setting out the bare bones of your case.  Your appeal hearing could go on for as long as two or three days, but nowadays, an appeal from a 20-day trial can take no more than two hours.”

THE COURT OF APPEAL TODAY

While both oral and written advocacy are still key, Mr Rajah says the weightage between the two has changed.  “There is so much more written advocacy needed these days, but mind you, how you distil and present your arguments is still very important.”  The approach also changes as you move from the court of first instance to the appellate arena.  In the former, advocates are often concerned with eliciting and establishing facts, while the latter deals with the lower court’s interpretation of those facts.

Beyond skills, there’s also the question of style.  To Mr Rajah, there is no one winning style. Using the analogy of opening a door, he explains that some advocates prefer to “kick it open” while others “slowly turn the handle”. Which one is he, I probe.  “I’m more of the handle-turning sort, although sometimes I want to just kick down the door,” he laughs.

I ask about clients in the closing minutes of our chat. I observe that they may sometimes be eager to appeal at all costs, even when it seems like such appeals would be futile. Mr Rajah responds “If it is a hopeless case ‘yes’, but there is a difference between “hopeless” and “difficult”.  The Court below may have made findings or interpretations of fact or law adverse to your client’s case.  If there is some prospect of being able to persuade the CA to do otherwise, though it may still be a difficult appeal, it is not necessarily futile.  If your client wishes to proceed with a difficult appeal, you do so.  If the CA takes a similar view to the Court below, it may often seem that the appeal was futile and doomed to fail.  But this may not be quite so apparent before the hearing.”

As he makes his point, I suddenly see the appeal of making your point by turning the handle, rather than kicking down the door.  Well played, Mr Rajah.

Mr Chelva Rajah SC joins Justice Belinda Ang and Justice Steven Chong for Perspectives from the Bench – To Appeal Or Not To Appeal, a rare opportunity to hear firsthand the workings of the appellate courts, how they handle the appeal process, and how they prepare for their hearings. Registrations for the session on 19 October are now open.

The views and opinions expressed in these articles are those of the individual author/interviewee and do not represent the views of SAL Group or its subsidiaries.