Ng Jern-Fei QC: His Thoughts on His Journey to become a Queen’s Counsel

Ng Jern-Fei QC is a Malaysian and an English barrister and who was recently made Queen’s Counsel in February 2018. On 18 June 2018, Jern-Fei was very kind to speak at an interview session hosted by the Asian International Arbitration Centre. The session was titled ‘Defying Expectations: Thoughts on life as a barrister and the opportunities and challenges at the Bar.’ Some of the areas covered his motivations to practice at the English Bar, his successes and failures, and the skills needed to be an advocate.

It was a very interactive interview event with the interviewers Tatiana Polevshchikova (Senior Case Counsel, AIAC) and Crystal Wong (Senior Associate, Lee Hishammuddin Allen & Gledhill). There were also a lot of questions from the floor, with the majority of attendees drawn from young lawyers, law graduates and law students.

It was an inspirational session. Jern-Fei was very generous in sharing his knowledge and experience. I have had the privilege to have worked with Jern-Fei on several matters over the years. He is a role model for many lawyers and Malaysians out there.

Set out below are excerpts I took from the session. Any misquotes or inaccuracies are mine alone.

What motivated Jern-Fei to practice at the English Bar?

Picture courtesy of The Star

Jern-Fei explained that when he graduated in 2001, the legal profession was very different then. It never crossed his mind to apply for pupillage in the UK. Unlike many of his other peers, he did not apply for pupillage in his final year of law school. It was only when he started on the Bar Vocational Course, he then started to think about applying for pupillage.

He asked around for advice.  To get feedback and reactions on whether he should take the plunge. Almost universally, the response was for him to not do it. To not apply for pupillage. What was said to him was that “It was very unlikely, if not impossible, to succeed.” One thing also stuck vividly in his head. The statement that was put to him on whether he saw anyone else with his background practicing at the English Bar. What evidence did he have of someone of his background pursuing pupillage and then securing tenancy?

That motivated him to try even harder. What did he have to lose? At most, he would get his applications turned down. It was then a surprise when he did secure several interviews and also received pupillage offers.

When Jern-Fei accepted the offer of pupillage at Essex Court Chambers, he knew it was the most daunting of all the offers. It would be the hardest to secure tenancy after the pupillage. He went in with low expectations and perhaps that allowed him to enjoy the pupillage process even more.

He concluded his reply with some advice and some reflection. Never be afraid to do something out of the box. He chose a less orthodox route and took a chance on a different path that took him on a completely different route altogether. Never let someone tell you that you cannot do something because of who you are.

He had spent all his schooling before A levels in Malaysia. He emphasised that he was not extraordinary and he was very much from the same background as all the other Malaysians in the room. When he embarked on this path, he had no one similar he could turn to. No one from a similar background. When he took silk, he was then determined to be a role model for the future generation of lawyers. If he could do this, then all of us could do the same.

What were some of his toughest failures?

Jern-Fei shared his memory of his first case as an advocate. He was sent off to the county court in a town in the south coast of England. He earned GBP50 for that case, barely enough to cover his expenses to travel to the court. He was to argue a case to recover a credit card debt. On his opposite side, he had the litigant in person who was a single mother. She in turn brought her elderly mother to the court hearing, both of them glowering at him.

He then faced the deputy district judge who then promptly addressed him as “Mr Ng”. By then, he had learned that if someone pronounced his surname correctly, they had taken the trouble to learn the pronunciation in order to really give it to him. He tried to defuse the situation by acknowledging that the defendant’s predicament was very unfortunate. However, a debt is a debt and that it must be repaid.

The judge then snapped back at him, “Mr Ng, any tears that you may shed for the opposite side are mere crocodile tears. You are here as you just want your pound of flesh.”

That was a tough court appearance for him, and to get knocked back on his very first court appearance. Jern-Fei reflected that with life and in practice, there will be speed bumps along the way. Don’t let those speed bumps floor you. Build on them. Think back to what went wrong, develop your aptitude to be impervious to criticisms, and develop a thick skin to brickbats, difficult clients and difficult judges.

There were also times when things were very tough for him at the Bar, and where he almost quit. But instead of giving up, he went back to the drawing board. He asked “How can I differentiate myself? What makes me stand out?”

In taking the steps to differentiate himself, he was conscious that he might not get a lot of advocacy opportunities being in a big set. He did not want to wait later in practice to only gain more advocacy experience. So he developed one area of practice in indirect tax work. Going to the tax tribunals, acting for taxpayers, and it gave a lot of opportunities to be an advocate.

Six years after that county court experience, Jern-Fei shared that he was then arguing as a sole advocate on a tax matter before the European Court of Justice. On the opposing side were five member states of the EU. Six years after that, he was making his application to be made QC.

So build on any speed bumps that may come your way. Think back to what went wrong, develop your aptitude to be impervious to criticisms, and develop a thick skin to brickbats, difficult clients and difficult judges.

What were some of his greatest successes as an advocate?

He referred to a case where he worked with Malaysian counsel, Lim Chee Wee and Sharon Chong. They were acting for a Thai client in a Singapore arbitration. On the opposite side was a well-known global commodity trader who instructed an English law firm and eventually instructed a Singapore Senior Counsel. The sole arbitrator was also another Singapore Singapore Counsel.

The opposing side had pleaded their case in a particular way. As the respondent, Jern-Fei had then prepared his opening speech based on this pleaded case. Both sides had one hour for their opening speeches. The opposing SC then opened his case. 10-15 minutes into the SC’s opening speech, Jern-Fei realised that the speech now did not resemble the party’s pleadings and that the SC had departed to advance a different case theory.

On the spot, Jern-Fei then had to cross out half his speech and come up with new points. He had about 45 minutes left in order to draft up a new speech, make reference to the evidence and to also cite the necessary legal authorities.

Jern-Fei’s client was eventually successful in the case. But the success that he wanted to take away was the fact that the legal team was able to respond to an unexpected change on the day itself. The team was able to have the versatility in order to adapt. That can only come from knowing your brief well enough so that you can be prepared for anything.

In his view, what are the key skills for an advocate?

He highlighted four skills.

First, find the key issue at the heart of your case. What is the key point to winning this case? A lot of people may say that there are a hundred issues and with a hundred more documents. He has found that with every case, there are one or two key issues or wedge issues. When you win on those issues, they will cascade to the next series of issues. So if you win on those wedge issues, it tilts the case and the decision maker, whether the judge or arbitrator, will now more likely find in favour of you on the other issues as well.

Secondly, make clear from the outset what you want the decision maker to decide on. This applies for written or oral submissions. He shared a useful tip from a senior QC. With every written submission, the opening paragraph must summarise what they want from the court or tribunal and why they should get it. There is nothing more frustrating than reading a 50-page submission and having to wait until page 47 to understand what does the advocate want from the tribunal or court. Making it clear from the outset acts as the compass for the reader to follow the rest of your reasoning.

Thirdly, brevity of expression. Don’t say in 100 words what you can say in 10 words. The simplest and plainest language are often the most effective. Distil your case into simple concepts.

Lastly, the need to be versatile. You must prepare for all your cases and be able to react to all situations. You may have prepared a script for your cross-examination or a script for your opening submissions but you must be prepare for anything. Preparing comes from knowing all your materials and documents. Allow them to percolate in your mind.

Finally, what did it feel like to be appointed Queen’s Counsel?

Jern-Fei answered that the overarching feeling was the sense of responsibility. It was a responsibility to speak to the next generation of lawyers and to share with them. As he had earlier mentioned, he had no role model when he went embarked on this path as a barrister. There was no one he could relate to.

He now hoped to be a role model for the next generation of dispute resolution lawyers and litigators. To be able to empower people and to say that if you put your mind to it, you can do it. If he could do it, then any of us could also similarly do it. We just had to have the right level of application and effort. It is with these events that gives him the opportunity to share with other lawyers.

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