_id,_item_id,title,content,pdf-link,pdf-content,timestamp,url,unique_id,_commit 55,b699d2fd72a3abf75ffb00305b18fbfe4e5330cb,"In the Matter of Ravi s/o Madasamy (Respondent), Advocate & Solicitor","In the Matter of Ravi s/o Madasamy (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from a reference made by the Attorney-General (AG) touching upon the conduct of the Respondent (the Complaint). The Complaint was in respect of criminal proceedings (the Proceedings) where the Respondent was at all material times acting for the accused. Shortly after the criminal proceedings had concluded and the Court had issued its judgment, the Respondent, in an interview with the Online Citizen Asia (TOC Asia), made several false and misleading accusations against the Public Prosecutor and/or the AG which had discredited the Attorney-General’s Chambers (AGC). A video recording of the interview was published online. In response to the interview, the Deputy Attorney-General (the DAG) wrote to the Respondent, alleging that the Respondent was aware that his allegations were false and thereby requesting for an apology and retraction of what was said during the interview. The Respondent maintained that there was sufficient basis, “both objective and subjective”, for the statements to be made and had refused to provide an apology. Thereafter, the Respondent commenced HC/S 1068/2020 (Suit 1068) against the AG, the DAG and the prosecutors who had carriage of the Proceedings, alleging that the AG et al had committed the tort of misfeasance in public office and were in breach of their statutory duty under the Legal Profession (Professional Conduct) Rules 2015 (PCR). These events were publicised by the Respondent via Facebook posts. The following charges were preferred against the Respondent at the onset of the proceedings: First Charge The Respondent made false and/or misleading allegations which were intended to convey to listeners of the interview and/or readers of TOC Asia that the Public Prosecutor and/or the AG had acted in bad faith, maliciously and/or improperly, so as to discredit the AGC and/or its legal officers in the eyes of the public, and thereby committed an act amounting to misconduct under section 83(2)(h) of the Legal Profession Act 1966 (the Act). Second Charge The Respondent made baseless accusations of misconduct and/or a threat to commence legal proceedings against fellow legal practitioners on his Facebook page, and is thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Act read together with Rule 7(2) of PCR. Third Charge The Respondent made a statement on his Facebook page which contained a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers, and is thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Act read together with Rule 8(3)(b) of the PCR. Fourth Charge The Respondent sent a letter to the AGC threatening to commence legal proceedings against the AG, the DAG, and members of the prosecution who had carriage of the Proceedings, and is thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Act read together with Rule 7(2) of the PCR. Additionally, three alternative charges were tendered against the Respondent citing section 83(2)(h) of the Act for misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. Findings by the Disciplinary Tribunal (DT) The DT found that the First Charge was not made out. The DT found that the Second, Third, and Fourth Charges were made out but no cause of sufficient gravity for disciplinary action arose. The DT also ordered the Respondent to pay the Law Society costs in the amount of S$3,000 (inclusive of disbursements) pursuant to section 93(2) of the Act. The Council’s Decision The Law Society applied for a review under section 97(1) of the Act of the DT’s findings in relation to the First Charge, contending that the Respondent’s misconduct amounted to due cause and warranted the imposition of more serious sanctions under section 83(1) of the Act. The Court dismissed the Law Society’s application. Court of Three Judges The Law Society then applied to the Court of Three Judges, contending that the Second, Third, and Fourth Charges gave rise to due cause of sufficient gravity for disciplinary action under section 83(1) of the Act. The Court of Three Judges agreed with the Law Society’s contention, and ordered that the Respondent be suspended for five years commencing from 21 March 2023. The Court of Three Judges also ordered the Respondent to bear the Law Society’s costs. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/04/Apr_25_DT_Reports_Ravi_1.pdf,"DT 6/2021 IN THE MATTER OF RAVI S/O MADASAMY, AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) REPORT Coram: Mr Amarjeet Singh, SC Mr Philip Ling Solicitors for the Law Society The Respondent (In person) WongPartnership LLP Wendy Lin Titus Teo K K Cheng Law LLC 12 Marina Boulevard, #28-01 Marina Bay Financial Centre Tower 3 Singapore 018982 Tel: 6416 8000 Fax: 6532 5722 (Ref: LWQ/20210427) 1 North Bridge Road #14-01 High Street Centre Singapore 179094 Tel: 6518 4778 Fax: 6518 4887 (Ref: MR.1145.21) Dated this 20th day of December 2021. 1 I. Introduction 1. These proceedings arise out of a reference made by the Attorney-General (“AG”) in his letter dated 23 October 2020 to the Law Society of Singapore[Note 1] of information touching upon the conduct of Mr Ravi s/o Madasamy of 28 Ceylon Road, #05-04, Singapore 429621 (the “Respondent”), pursuant to s. 85(3)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) (the “Complaint”).[Note 2] 2. The Complaint was in respect of criminal proceedings that had finally concluded in the Court of Appeal on 19 October 2020, in which the Respondent was at all material times acting for the accused person. 3. The Respondent is an Advocate and Solicitor of the Supreme Court of Singapore of about 24 years standing, having been called to the Singapore bar on 31 May 1997. The Respondent is currently practising with K K Cheng Law LLC. He was, at the time when the events giving rise to the subject matter of the Complaint arose, practising with Carson Law Chambers. 4. On 25 March 2021, the Honourable the Chief Justice appointed Mr Amarjeet Singh, SC as the President, and Ling Daw Hoang Philip as a member, of this Disciplinary Tribunal (“DT”) to hear and investigate the matter. Pursuant to s. 93(1) of the LPA, the DT is to hear and investigate into the matter and submit its findings to the Chief Justice. 2 5. By a Notice of Disciplinary Tribunal Proceedings dated 30 March 2021, the Respondent was given notice that Disciplinary Tribunal proceedings have been commenced against him and he is required to answer the allegations contained in the Complaint and the statement of the case that accompanied the said notice. II. The Charges 6. Following the Complaint, the Law Society preferred 4 charges against the Respondent. The 1st Charge is a standalone charge. The 2nd, 3rd and 4th Charges each have Alternative Charges. The four Charges and three Alternative Charges were variously made under the LPA and/or the Legal Profession (Professional Conduct) Rules (“PCR”) and their particulars and the grounds supporting them are as follows: 1ST CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 19 October 2020 attend a live interview with Online Citizen Asia in which you made, inter alia, the following statements in relation to the Court of Appeal's decision in Gobi a/l Avedian v Public Prosecutor [2020] SGCA 102: “... the Public Prosecutor has been overzealous in his prosecution and that has led to the death sentence...” 3 “And one of the things which is troubling in this decision today, is that the Court noted that the Attorney General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal. Then that begs the questions and calls into the fairness of the administration of justice in Gobi's case by the Prosecution...” “... because the Prosecution as the Court observed, ran a different case in the High Court and the Court of Appeal. So therefore, the Prosecution, essentially the fairness of the Prosecution, is called into question by the Court itself.” which are false and/or misleading allegations intended to convey to listeners of the interview and/or readers of The Online Citizen Asia that the Public Prosecutor and/or the Attorney General had acted in bad faith, maliciously and/or improperly, so as to discredit the Attorney General Chambers and/or its legal officers in the eyes of the public, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 2ND CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statements: 4 “... when these government lawyers who handled the Gobi's case are the wrongdoers.” “I have already taken instructions from Gobi and his family to commence proceedings against Mr. Lucien Wong (AG), Mr Hri Kumar (Deputy AG), Mr Faizal SC in court. I will file the writ of summons in the next few days for both personally against all 3 of the above Government lawyers and also against their offices in which they hold public appointment. They have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi's case...” which statements contain a baseless accusation of misconduct and/or a threat to commence legal proceedings against your fellow legal practitioners, and you are thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Legal Profession Act (Cap 161) read together with Rule 7(2) of the Legal Profession (Professional Conduct) Rules. ALTERNATIVE 2ND CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statements: “... when these government lawyers who handled the Gobi's case are the wrongdoers.” 5 “I have already taken instructions from Gobi and his family to commence proceedings against Mr. Lucien Wong (AG), Mr Hri Kumar (Deputy AG), Mr Faizal SC in court. I will file the writ of summons in the next few days for both personally against all 3 of the above Government lawyers and also against their offices in which they hold public appointment. They have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi's case... “ which statements contain a baseless accusation of misconduct and/or a threat to commence legal proceedings against your fellow legal practitioners, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 3RD CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statement: “I will also commence proceedings against law society if it does not do its part to protect lawyers and their independence of the profession if it entertains any further complaints or partcipates [sic] in any harassment by AG to harass me in doing my job.” 6 which statement contains a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers, and you are thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Legal Profession Act (Cap 161) read together with Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules. ALTERNATIVE 3RD CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statement: “I will also commence proceedings against law society if it does not do its part to protect lawyers and their independence of the profession if it entertains any further complaints or partcipates [sic] in any harassment by AG to harass me in doing my job.” which statement contains a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 7 4TH CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 21 October 2020 send a letter to the Attorney General Chambers threatening to commence legal proceedings against Attorney General Mr Lucien Wong S.C., Deputy Attorney-General Mr Hri Kumar Nair, S.C, and members of the prosecution who had carriage of the matter in CA/CCA 20/2017 and CA/CM 3 of 2020, and you are thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Legal Profession Act (Cap 161) read together with Rule 7(2) of the Legal Profession (Professional Conduct) Rules. ALTERNATIVE 4TH CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 21 October 2020 send a letter to the Attorney General Chambers threatening to commence legal proceedings against Attorney General Mr Lucien Wong S.C., Deputy Attorney-General Mr Hri Kumar Nair, S.C, and members of the prosecution who had carriage of the matter in CA/CCA 20/2017 and CA/CM 3 of 2020, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 7. In these proceedings, the Law Society was represented by Messrs WongPartnership LLP. The Respondent was unrepresented and appeared in person. 8 III. Background facts Criminal proceedings of Mr Gobi a/l Avedian 8. The Complaint against the Respondent stems from concluded criminal proceedings with regard to one Gobi a/l Avedian (“Gobi”). Gobi, a Malaysian, then 26 years of age, who arrived in Singapore by land via the Woodlands Immigration and Customs checkpoint on 11 December 2014, was arrested on suspicion of having in his possession two packets of granular substance containing a prohibited drug. The gross weight of the packets before analysis was 905.8 grams. Gobi was subsequently charged under s. 7 read with s. 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) of importing a class ‘A' drug, containing after scientific analysis 40.22 grams of diamorphine (“the Drugs”), an offence punishable by death under s. 33(1) and Schedule 2 of the MDA (the “Capital Charge”). 9. At the conclusion of Gobi’s trial, Justice Lee Seiu Kin (“Lee J”), having sieved through and analysed the evidence, held that Gobi in his defence had rebutted the presumption under s. 18(2) of the MDA (the “s. 18(2) presumption”) that he had knowledge that the granular substance he possessed was diamorphine as charged. Hence, Lee J acquitted Gobi of the Capital Charge, and convicted him instead on an amended lesser charge of attempting to import the said diamorphine believing it to be a controlled drug under Class C instead (the “Amended Charge”), which constituted a non-capital charge. Accordingly, Lee J sentenced Gobi to 15 years’ 9 imprisonment and 10 strokes of the cane. The High Court's decision can be found in PP v Gobi a/l Avedian [2017] SGHC 145.[Note 3] 10. The Prosecution being dissatisfied appealed to the Court of Appeal in CA/CCA 20/2017 against the decision of Lee J as stated above (the “Appeal”). The Appeal was grounded on the Prosecution’s submission that Lee J in the High Court had erred in finding that the s. 18(2) presumption had been rebutted, as Gobi’s evidence was highly suspicious and there were weaknesses and inconsistencies in respect thereof. 11. On 25 October 2018, the Court of Appeal accepted the Prosecution’s submissions and disagreed with the findings of Lee J that the s. 18(2) presumption had been rebutted. Accordingly, the Court of Appeal allowed the appeal, set aside Gobi's conviction on the Amended Charge and convicted Gobi on the original Capital Charge instead. The Court of Appeal's decision can be found in PP v Gobi a/l Avedian [2019] 1 SLR 113 (“Gobi (CA)”). [Note 4] 12. The Public Prosecutors who argued the Appeal in the Court of Appeal were different from those who had conduct of the trial in the High Court, whereas the defence team was the same. 13. Seven months later, on 27 May 2019, the Court of Appeal issued its judgment in the case of Adili Chubuike Ejike v PP [2019] 2 SLR 254 (“Adili”).[Note 5] In Adili, 10 the Court of Appeal held, for the first time, that wilful blindness could not be the subject of the presumption under s. 18(1) of the MDA. 14. On 3 January 2020, Gobi filed CA/CM 1 of 2020 (“CM1”) seeking leave pursuant to s. 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) and s. 11(2) of the Criminal Procedure Rules for the Court of Appeal to review its earlier decision in Gobi (CA) in light of (among other things) the new development in the law established in Adili. Gobi was represented by the Respondent in CM1. 15. On 25 February 2020, upon leave being granted by the Court of Appeal in CM1, Gobi filed CA/CM 3 of 2020 (the “Criminal Motion”) for the Court of Appeal to undertake the said review. Gobi was represented by the Respondent in both CM1 and the Criminal Motion. 16. On 20 April 2020, the Court of Appeal in its review jurisdiction issued a letter directing both parties in the Criminal Motion to file further written submissions in respect of questions it had raised,[Note 6] which were duly filed by the parties on 1 June 2020.[Note 7] The Criminal Motion was thereafter heard on 16 June 2020. At the conclusion of the hearing, judgment was reserved by the Court of Appeal exercising its review jurisdiction. 17. On 19 October 2020, the Court of Appeal, after reviewing the case, orally delivered brief grounds of its Judgment (the “Oral Judgment”) [Note 8], as set out 11 in its Minute Sheet 9 . The Court of Appeal set aside Gobi's conviction on the Capital Charge and reinstated Gobi's conviction on the Amended Charge as had been decided by Lee J in the High Court. 18. The full Judgment of the Court of Appeal after review can be found in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (the “Review Judgment”).[Note 10] In the Review Judgment, the Court of Appeal, relying on the new legal principles established in Adili, held that wilful blindness could similarly not be the subject of the s. 18(2) presumption. The Court of Appeal found that the Prosecution’s case against Gobi at the trial was one of wilful blindness to, and not that of actual knowledge of the nature of the Drugs. Accordingly, the Prosecution was not entitled to invoke the s. 18(2) presumption as it had. As the earlier decision of the Court of Appeal in the Appeal was premised on a finding that Gobi had failed to rebut this presumption, that can no longer form the basis of his conviction on the Capital Charge. In the premises, the Court of Appeal set aside Gobi’s conviction in Gobi (CA) and reinstated the conviction and the sentence imposed by Lee J on the Amended Charge. The Online Citizen Asia Interview: 19. On 19 October 2020, immediately after the delivery by the said Court of Appeal of the Oral Judgment (the full judgment of which was available for collection thereafter), the Respondent attended a live interview with The Online Citizen Asia to discuss the same (the “Interview”), which was video-recorded and uploaded on 12 The Online Citizen Asia's website and its Facebook page on the same day (ie. 19 October 2020). [Note 11] 20. In the Interview, the Respondent made, inter alia, the following statements concerning the AG and/or the Public Prosecutor which form the basis of the 1st Charge (collectively the “Interview Statements”): [Note 12] a. that the Public Prosecutor had been “overzealous in his prosecution” of Gobi, and “that has led to the death sentence of Gobi” (“First Statement”); b. that it was “troubling” that the Court noted that the “Attorney-General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal”, and that “begs the question and calls into the fairness of the administration of justice in Gobi's case by the Prosecution” (“Second Statement”); and c. that the Public Prosecutor, among others, should apologise to Gobi for the suffering Gobi and his family had gone through because “the Prosecution, as the Court observed, ran a different case in the High Court and the Court of Appeal”, and therefore “essentially the fairness of the Prosecution, [was] called into question by the Court itself.” (“Third Statement”) 21. According to the Law Society, as at 26 February 2021, the Interview uploaded on The Online Citizen Asia's Facebook page had been viewed around 93,000 times, 13 shared 659 times, had garnered about 1,300 “reactions”, and had 454 comments. [Note 13] 22. An article titled “Court of Appeal sets aside death sentence of Malaysian inmate, cites miscarriage of justice” was also subsequently uploaded on The Online Citizen Asia's website on 19 October 2020, containing extracts of the Respondent's Interview Statements.[Note 14] 23. On the same day ie. 19 October 2020, the Attorney-General’s Chambers (“AGC”) issued a press statement (“AGC Press Statement”), in which it took issue with certain statements made by the Respondent in the Interview Statements; in particular, the allegation that the Public Prosecutor had been “overzealous” in the prosecution of Gobi. [Note 15] 24. On 20 October 2020, the AGC wrote to the Respondent, stating that by the Interview Statements, the Respondent has made serious allegations that the Public Prosecutor had acted in bad faith or maliciously in the prosecution of Gobi, and that the Respondent is or must be aware that these allegations are false and highly inflammatory (the “AGC Letter”). In the AGC Letter, the AGC also stated that it was highly improper and contrary to the Respondent’s obligations as an officer of the court to have made the said allegations. The AGC demanded that the Respondent apologise and unconditionally retract all the Interview Statements in writing by noon on 22 October 2020. [Note 16] 14 Subsequent actions/conduct by the Respondent 25. On 20 October 2020, the Respondent uploaded the AGC Letter on his Facebook page with an accompanying post (the “First Facebook Post”) containing (among other things) the following statements (the “Facebook Statements”) which form the basis of the 2nd Charge, the Alternative 2nd Charge, the 3rd Charge and the Alternative 3rd Charge: [Note 17] a. that the “government lawyers who handled Gobi's case are the wrongdoers”; b. the Respondent has already taken instructions from Gobi and his family to commence proceedings against AG Mr Lucien Wong, S.C., Deputy Attorney-General (“DAG”) Mr Hri Kumar Nair, S.C., and Mr Mohamed Faizal, S.C. (“Mr Faizal”), and they “have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi’s case”; and c. that the Respondent will also commence proceedings against the Law Society if it entertains any further complaints or participates in any “harassment” by the AG. 26. On 22 October 2020, the Respondent wrote to the AGC (the “Response Letter”), in which the Respondent stated that he did not deny making the Interview Statements referred to in paragraph 2 of the AGC Letter, but denied the AGC’s 15 allegations that these statements were made with actual knowledge or reasons to believe that they were false. The Respondent countered with explanations and criticisms of the handling of the prosecution against Gobi, including threats made against him personally, and refused to apologise or to retract the Interview Statements. He reiterated that he had firm instructions from Gobi and his family to commence legal proceedings against the AG, the DAG, and members of the Prosecution who had carriage of the matter in the Appeal and Criminal Motion, and demanded a public apology by the relevant officers of the AGC by the next day. [Note 18] 27. The Response Letter was subsequently uploaded on the Respondent's Facebook page on the same day whereby the Respondent, in his post (the “Second Facebook Post”), repeated that he had strict instructions to commence legal proceedings as set out in the Response Letter.[Note 19 ] The contents of the Response Letter and the Second Facebook Post form the basis of the 4th Charge and Alternative 4th Charge. Suit No. 1068 of 2020 28. On 4 November 2020, the Respondent commenced an action in the High Court in Suit No. 1068 of 2020 (“Suit 1068”) on behalf of Gobi against AG Mr Lucien Wong, S.C., DAG Mr Hri Kumar Nair, S.C. and Mr Faizal, and 4 other Deputy Public Prosecutors who had conduct of the prosecution of Gobi alleging in the Suit, inter alia, that the defendants had committed the tort of misfeasance in public office and/or were in breach of their statutory duty under the PCR.[Note 20] 16 29. The defendants successfully applied to strike out the Statement of Claim in Suit 1068 and the action was dismissed by the Court. IV. Procedural history 30. Pursuant to the timelines / directions given in letters dated 5 April 2021 and 8 April 2021 issued by the Secretary to the DT to WongPartnership LLP and the Respondent: 31. a. the Respondent filed his Defence on 20 May 2021; b. the Law Society filed its List of Documents on 3 June 2021; c. the Respondent filed his List of Documents on 3 June 2021; and d. the Respondent filed his Affidavit of Evidence in Chief on 6 July 2021. Pursuant to leave granted by the DT on 2 July 2021, the Law Society filed its Statement of Case (Amendment No. 1) on 30 June 2021. 32. The hearing was fixed for 28 to 30 July 2021 (“DT Hearing”). After the DT Hearing, the Law Society and the Respondent filed their respective written submissions on 10 September 2021, and their respective Reply Submissions on 24 September 2021. 17 A. Respondent’s Defence 33. In the Respondent’s Defence, the Respondent:- a. admitted that the Interview was conducted after the hearing in which the Court of Appeal delivered the Oral Judgment, and that he did make the Interview Statements ([13] & [14]); b. denied that the Interview Statements were false and misleading, that he made the Interview Statements so as to discredit the AGC and/or its legal officers in the eyes of the public, and that he was alleging that the Public Prosecutor had acted in bad faith, maliciously and/or improperly in prosecuting Gobi and that such alleged conduct led to the death penalty being imposed on Gobi ([17] & [18]); c. averred that he was entitled to the defence of fair criticism in respect of the Interview Statements, as particularized at [10] of the Defence; d. averred that he was entitled to the defence of fair criticism in respect of the Facebook Statements, as particularized at [14] of the Defence; and e. averred that the statement in the Response Letter (concerning the instructions received by him to commence legal proceedings) was not a threat and in any event, the Respondent did subsequently commence legal proceedings on behalf of Gobi on the latter’s instructions ([17]). 18 B. Respondent’s Affidavit of Evidence in Chief (“RAEIC”) 34. In the RAEIC, the Respondent gave evidence of the background facts leading up to these proceedings. Apart from outlining his experience in acting for Gobi following his conviction by the Court of Appeal on the Capital Charge and, in particular, his filing of the Criminal Motion on behalf of Gobi which eventually led to the Review Judgment, the Respondent also referred to another set of proceedings, HC/OS 111/2020 (“OS 111”), commenced by him on behalf of Gobi and another prisoner (Dachinamurthy) seeking an interim stay of execution of their death sentences, pending investigation of allegations that “executions are carried out by kicking to the back of the neck” [Note 21]. The paragraphs which follow are a summary of the Respondent’s evidence and account of the relevant events which transpired thereafter in OS 111. 35. On 4 February 2020, at a pre-trial conference for OS 111, Senior State Counsel Wong Woon Kwong who appeared for the AG made the statement “I am also instructed to state that we are expressly reserving all rights against Mr Ravi” (the “Reservation Statement”), which made the Respondent perceive that he was under a threat as he was acting on his client’s instructions in commencing OS 111. 36. The Respondent commenced HC/OS 181/2020 (“OS 181”) on behalf of Gobi and Datchinamurthy on 10 February 2020, seeking a declaration that the Reservation Statement constituted an express or implied threat against himself and infringed the rights of Gobi and Datchinamurthy under Article 9(3) of the Constitution of the Republic of Singapore. [Note 22] 19 37. OS 111 and OS 181 were both dismissed by the High Court on 13 February 2020 and the Respondent filed Notices of Appeal on behalf of Gobi and Dachinamurthy on 19 February 2020 against the decision of the High Court (the “Judicial Review Appeals”). 38. On 13 August 2020, the Court of Appeal dismissed the Judicial Review Appeals. In the judgment of the Court of Appeal (Gobi a/l Avedian v Attorney-General [2020] 2 SLR 883), the Court did however observe that the Reservation Statement “might reasonably have been construed as intimidating”, which the Respondent had asserted supported his subjective view that the same constituted an express or implied threat. [Note 23] 39. In relation to the 4 Charges and 3 Alternative Charges preferred against him, the Respondent essentially reiterated and elaborated on the defences raised by him in his Defence. 1st Charge 40. In respect of the 1st Charge which is grounded on the Interview Statements, the Respondent reiterated his defence of fair criticism to justify his First Statement that the Public Prosecutor had been “overzealous” in the prosecution of Gobi, and “that has led to the death sentence of Gobi”, on the basis that there is plainly reasonable basis for the same, by reason of the Prosecution “detracting from their earlier factual concession that Gobi had in fact believed Vinod or Jega, and then arguing on appeal on the opposite factual premise that Gobi did not believe Vinod or Jega, an argument which the Court of Appeal accepted in Gobi (CA) at [39]- 20 [43]… thus leading to the death sentence being imposed on Gobi until the conviction was set aside in the Judgment”. [Note 24] 41. The Respondent further asserted that the Prosecution can also be fairly criticized to be overzealous on two fronts:- [Note 25] a. the Prosecution had, in their submissions for CM1, “not only made harsh characterizations of “abuse of process”, but sought to uphold the Court of Appeal’s findings in Gobi (CA) that Gobi had not believed Vinod and Jega when this was a fact that they had taken a contrary position on at Gobi’s trial”; and b. in view of the fact that Adili “had already cast doubts on the approach of using the s18(2) presumption to presume wilful blindness despite not expressly ruling so then, the Prosecution should have conducted a review of all drug cases which may potentially be impacted by Adili. However, they only adopted such a practice after the Judgment was delivered”. 42. In respect of his Second Statement that it was ‘troubling” that the Court noted that “Attorney-General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal”, the Respondent asserted that he was entitled to make the same as a matter of personal opinion in all the circumstances of the case, for the same reasons outlined above. [Note 26] 21 43. The Respondent further maintained that he was entitled to make such statement in the public forum by reason of the decision of the Court of Appeal in Shadrake Alan v Attorney-General [2011] 3 SLR 778 (at [85]). [Note 27] [Note 28] 44. In respect of his Third Statement that “the fairness of the Prosecution was called into question by the Court”, the Respondent reiterated his submission that “the Prosecution had detracted from their earlier factual concession at trial in order to seek a conviction on the capital charge against Gobi on appeal (and which they had succeeded)”, and had thereby not carried out “its overarching duty of fairness in the prosecution of accused persons in criminal proceedings in general”. [Note 29] 2nd Charge and Alternative 2nd Charge 45. In respect of that part of his Facebook Statements stating that the “government “lawyers who handled Gobi's case are the wrongdoers”, the Respondent, in reliance on his same submission above regarding the Prosecution having detracted from their earlier factual concession at trial, asserted that the Prosecution “may be said to have misled the court and it must therefore follow that the criticism of the prosecutors as “wrongdoers” in relation to their conduct of Gobi (CA) is a rationally supported and reasonable one”, and that this “further lends weight to a fair criticism that they were perpetuating their “wrongdoings””. [Note 30] 46. The Respondent also referred to and relied upon the Reservation Statement made by the Prosecution in OS 111 as a “factor” which “lends weight to the fair 22 criticism that the AGC officers having conduct of Gobi’s case as a whole are the “wrongdoers””. [Note 31] 47. In respect of that part of his Facebook Statements stating that he “has already taken instructions from Gobi and his family to commence proceedings… [t]hey have to be held accountable … and be subject to rigorous cross-examination and public scrutiny of their conduct”, apart from advancing the same submission that there are “reasonable and rationally supported bases” for him to make the statement that the legal officers from the AGC should be held accountable, the Respondent also pointed out that such statement was not made in his personal capacity but on behalf of Gobi, that all he had done was to convey to members of the public that Gobi and/or his family members had instructed him to commence a civil suit on Gobi’s behalf against the members of the Prosecution who had carriage of Gobi’s case to enforce Gobi’s rights, and that a distinction should be drawn between a statement to commence proceedings against another legal practitioner in the legal practitioner’s personal capacity and a statement to commence proceedings against another legal practitioner on behalf of a client. [Note 32] 48. The Respondent also reiterated the fact that he did ultimately commence an action on behalf of Gobi against the prosecutors on the basis of tort of misfeasance in public office and/or breach of statutory duty. [Note 33] 23 3rd Charge and Alternative 3rd Charge 49. In respect of that part of his Facebook Statements stating that he “will also commence legal proceedings against the law society…”, the Respondent relied on s. 38(1)(d) of the LPA which provides that “[t]he purposes of the [Law Society] shall be … to represent, protect and assist members of the legal profession in Singapore ….”.[Note 34] On this basis, the Respondent submitted that while the Law Society may be statutorily obliged to take steps under s. 85(3) of the LPA upon receipt of complaints from the AGC, it “may be said to have failed in its statutory duty under s 38(1)(d) of the LPA” on the facts of his case in view of what had transpired in OS 111. [Note 35] 4th Charge and Alternative 4th Charge 50. The Respondent relied on the same matters as canvassed by him in his defence to the 2nd Charge and Amended 2nd Charge, as summarized at [45] to [48] above. C. Law Society’s Aide Memoire 51. In the Aide Memoire tendered by the Law Society on 26 July 2021 for its oral opening at the DT Hearing, the Law Society made submissions in relation to the 4 Charges and 3 Alternative Charges against the Respondent, which are summarized below. 24 1st Charge 52. Firstly, the Law Society contends that read individually or collectively, in the context of the Interview, the Interview Statements implied that: a. the Prosecution acted unfairly / improperly / in bad faith in the Appeal (leading to Gobi’s death sentence); and b. this alleged lack of fairness / improperness by the Prosecution was called into question by the Court of Appeal in Gobi (Review). and the Respondent’s conduct thus runs foul of s. 83(2)(h) of the LPA. [Note 36] 53. Secondly, the Law Society contends that the defence of fair criticism relied upon by the Respondent is not made out, for the following reasons: a. there is no rational basis for the Interview Statements, because the Prosecution had a reasonably arguable case on Appeal; and b. the Interview Statements were not made by the Respondent in good faith, because, inter alia, the Respondent levelled accusations that the Prosecution acted unfairly / improperly which led to the imposition of the death sentence on Gobi without any rational basis, he chose to make the Interview Statements on a public forum, well knowing that it would reach a larger audience, he had allegedly conveniently omitted several 25 important points which would have provided a more complete picture of the state of the proceedings, and he made no effort to correct / clarify any of the Interview Statements after reviewing the written Review Judgment or the AGC Letter, but instead allegedly further aggravated the matter by making the Facebook Posts. 54. The Law Society also makes the point that it is one thing to note and state factually that the Prosecutor had run a different case in the Appeal, and quite another to go on to level the accusation that the Prosecution had therefore acted improperly / unfairly / in bad faith in the Appeal, and that such improperness / unfairness was also called into question by the Court of Appeal. 2nd Charge (and Alternative 2nd Charge) 55. Firstly, the Law Society submits that the making by the Respondent of the Facebook Statements against the AG and officers of the AGC who handled Gobi’s case (ie. calling them “wrongdoers” whom he had received instructions to commence legal proceedings against and who “have to be accountable to Gobi” and “be subject to rigorous cross-examination and public scrutiny”) in a public forum is, in itself, plainly discourteous and not fair, and runs foul of Rule 7(2) of the PCR [Note 37]. This is regardless of whether these statements had merit. 56. Secondly, the Law Society contends that the defence of fair criticism likewise relied upon by the Respondent is bound to fail, because this is no defence to the 26 mischief intended to be prevented by Rule 7(2) of the PCR and there is in any event no rational basis for the Respondent to have made the Facebook Statements. 57. Thirdly, the Law Society contends that the conduct of the Prosecution in OS 111 and OS 181 relied upon by the Respondent; in particular, the Reservation Statement (summarized at [35] above) is irrelevant to these proceedings, because the “wrongdoers” whom the Respondent was referring to in the First Facebook Post were not the AGC officers who had conduct of OS 111 and OS 181, but those who had conduct of the Appeal and the Criminal Motion. The Law Society further submits that the Court of Appeal (in its reported judgment in Gobi a/l Avedian v Attorney-General [2020] 2 SLR 883) did not actually find the Reservation Statement to be discourteous, only that it was “unnecessarily vague”, and that, in any event, the Respondent’s subsequent conduct also demonstrated that he was in fact not “threatened” or offended by the Reservation Statement. 3rd Charge (and Alternative 3rd Charge) 58. Firstly, the Law Society contends that the Respondent’s statements that he “will also commence legal proceedings against the law society… if it entertains any further complaints or participates [sic] in any harassment by AG” are clearly discourteous because it included a threat to commence legal proceedings against the Law Society and implied that the Law Society was acting improperly if it acted on any complaint from the AG, and thereby ran foul of Rule 8(3)(b) of the PCR. [Note 38] 27 59. Secondly, the Law Society contends that the Respondent’s defence of fair criticism is not an element to be considered when determining whether Rule 8(3) of the PCR has been breached, and the fact that the Respondent had made threats / offensive remarks against the Law Society in a public forum in itself runs foul of Rule 8(3)(b) of the PCR. 60. Thirdly, the Law Society contends that there was no basis for the Respondent’s said statement and they were not made in good faith because: a. the Law Society is statutorily obliged to act on complaints from the AG under s. 85(3) of the LPA and this was not pointed out by the Respondent; and b. the allegation against the Law Society was made without any supporting evidence or facts. 4th Charge (and Alternative 4th Charge) 61. As the Respondent is relying on the same matters canvassed by him in his defence to the 2nd Charge and Amended 2nd Charge, the Law Society is likewise relying on the same matters canvassed by it in support thereof, as summarized at [55] to [57] above. 28 D. Respondent’s Opening Statement 62. In the Respondent’s Opening Statement, the Respondent reiterates his reliance on fair criticism in defence to the Charges and Alternative Charges preferred against him. He also made submissions in relation to the said Charges and Alternative Charges, which are summarized below. 1st Charge 63. The Respondent submits that it is “plainly true that the Prosecution had caused the death sentence to be wrongly imposed on Gobi”, and that this point was not rebutted by the Law Society in its Aide Memoire. He went on the summarise the grounds on which he is basing his defence of fair criticism, as raised and adduced in his Defence and RAEIC. In particular, he highlighted that the Court of Appeal did express its misgivings over the manner in which the Prosecution ran a different case at trial and in the Appeal in the prosecution of Gobi. He also pointed out that he did clarify the statements made by him in the Interview by way of the Response Letter which according to him set out the rational bases for making the Interview Statements. 2nd Charge (and Alternative 2nd Charge) 64. The Respondent similarly relies on the defence of fair criticism and asserts that there are likewise rational bases for criticism of the Prosecution’s conduct in “detracting from their factual concession at trial and therefore leading to the 29 death sentence being wrongly imposed on Gobi by the Court of Appeal”. He also reiterated his reliance on the events in OS 111 and OS 181 and, in particular, the making of the Reservation Statement, as being relevant to the issue of the meaning of the term “government lawyers” as used by him and whom he had described as “wrongdoers” in the Facebook Statements. He made the point that the fact that the Statement of Claim in Suit 1068 had been struck out by the Court did not mean that there was no rational basis for making these statements. 65. As for that part of his Facebook Statements pertaining to the commencement of proceedings against the AG, the DAG and Mr Faizal, the Respondent reiterated his submission that he did not suggest that he had the intention to commence legal action against these individuals in his personal capacity, and that a distinction should be drawn between a statement to commence proceedings against another legal practitioner in the legal practitioner’s personal capacity and a statement to commence proceedings against another legal practitioner on behalf of a client. He argues that the mere conveyance of a client’s intention to commence legal action against a fellow legal practitioner cannot, without more, amount to a threat or discourtesy in the solicitor’s personal capacity and thereby constitute improper conduct on the part of the solicitor himself. 3rd Charge (and Alternative 3rd Charge) 66. The Respondent contends that that part of his Facebook Statements pertaining to commencement of proceedings against the Law Society must be viewed in context, and that the Reservation Statement made in OS 111 is relevant as it sheds 30 light on and is suggestive of the “differential treatment” accorded to these 2 statements, which he says is “in violation of equality before the law under Article 12(1) of the Constitution”. 4th Charge (and Alternative 4th Charge) 67. The Respondent essentially relies on the same matters as canvassed by him in his defence to the 2nd Charge and Alternative 2nd Charge. The DT Hearing 68. The DT Hearing took place over 2 days on 28 and 29 July 2021, during which the Respondent was cross-examined by Counsel for the Law Society on 29 July 2021. 69. In the course of such cross-examination, the Respondent raised the following further points by way of clarification / explanation: a. in respect of his Second Statement “[a]nd one of the things which is troubling in this decision today, is that the Court noted that the Attorney General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal. Then that begs the questions and calls into the fairness of the administration of justice in Gobi's case by the Prosecution..."", he was implying that the Public Prosecutor acted unfairly, 31 but he denied he was trying to say that the Public Prosecutor had thereby acted improperly.[Note 39] b. in making reference to the “government lawyers” as “wrongdoers” in his Facebook Statements, he meant that “they are acting as potential defendants”, and “to the extent that … there was a breach of their fairness in terms of they are ministers of justice and administration of justice” and “[t]hey have committed a wrong, means civil wrong”.[Note 40] Subsequently, he further explained that by “wrongdoers”, he also had in mind the “various breaches that have taken place” which formed the subject of the claim in Suit 1068. [Note 41] c. he “didn’t say anywhere that the AGC was malicious … [t]he AGC is overreacting to my statement” and “[w]hether you want to call it bad faith or malicious, I didn’t have those words in mind”. [Note 42] E. The Law Society’s Closing Submissions and Reply Closing Submissions 70. Based on the evidence of the Respondent adduced under cross-examination at the DT Hearing on 29 July 2021, the Law Society made further submissions (by way of Closing Submissions (“LSCS”) and Reply Closing Submissions (“LSRS”)) in relation to the four Charges and three Alternative Charges against the Respondent, which are summarized below. 32 1st Charge 71. Firstly, the Law Society contends that the Respondent did not dispute or deny in the Response Letter that what he was seeking to and did convey by the Interview Statements at the time of the Interview, was that the Public Prosecutor had acted in bad faith or maliciously in the prosecution of Gobi. 72. Secondly, the Law Society contends that the Respondent had conceded that the Interview Statements implied that the Prosecution had acted unfairly, and this would also suggest that the Prosecution acted dishonestly or improperly. 73. Finally, the Law Society contends that what the Respondent had always intended to convey by the Interview Statements is further confirmed by the fact that just a day later, he had referred to the “government lawyers” as being “wrongdoers” in the Facebook Statement. 74. As submitted in its Aide Memoire, the Law Society reiterates its case that the Interview Statements made by the Respondent run foul of s. 83(2)(h) of the LPA, a catch-all provision which can be invoked when the conduct in question does not fall within any of the enumerated grounds in s. 83 but is nevertheless considered unacceptable (see Law Society of Singapore v Ng Chee Seng [2000] 1 SLR(R) 466 at [40]). [Note 43] 75. In respect of the Respondent’s defence of fair criticism, the Law Society likewise reiterates its contention that this is not made out for the following reasons: 33 a. there is no rational (much less highly cogent) basis for the Interview Statements; and b. 76. the Interview Statements were not made in good faith In its LSRS, the Law Society also points out that the Respondent had in his Closing Submissions accepted that by the Interview Statements he was suggesting that there was “impropriety on the part of the Prosecution”, and the word “impropriety” conveys to the public that the Prosecution had acted “improperly”. 2nd Charge (and Alternative 2nd Charge) 77. Firstly, the Law Society contends that the ordinary meaning of the word “wrongdoers” implied that the AG and the officers of the AGC had engaged in serious misconduct or even illegality, as evidenced by the fact that in the First Facebook Post, the Respondent had asserted that a claim would be filed against the AG, the DAG and Mr Faizal “personally” and that they “have to be held accountable … in court and be subject to rigorous cross examination and public scrutiny of their conduct of Gobi’s case”. 78. Secondly, the Law Society contends that the First Facebook Post contained a threat to commence legal proceedings against the AG and members of the AGC. It was pointed out that if, as the Respondent contends, his intention was only to communicate an intention to commence legal action, there would be no need to 34 publish the First Facebook Post. It is also contended that the Respondent wanted to pressure / intimidate the AGC to back off / not file any complaint against him, as is evident from the Respondent’s statement in the First Facebook Post that “[t]he public should demand the AG to retract this letter and apologise”. 79. As submitted in its Aide Memoire, the Law Society reiterates its case that the Facebook Statements made by the Respondent runs foul of Rule 7(2) of the PCR, on the basis that it is plainly discourteous for the Respondent to call the AG and officers of the AGC, in a public forum, “wrongdoers” who should be subjected to public scrutiny in Court, and to threaten legal proceedings against them, regardless of whether the Facebook Statements had merit. 80. In respect of the Respondent’s defence of fair criticism, the Law Society likewise reiterates its contention that this is no defence to the mischief intended to be prevented by Rule 7(2) of the PCR, because accusations / threats against a fellow practitioner should not be levelled (much less in a public forum), regardless of whether they are true or not. The Law Society also reiterates the point that in any event, there is no rational basis for the Respondent to have made the Facebook Statements. 81. Finally, the Law Society makes the same point that the conduct of the Prosecution in OS 111 and OS 181 is irrelevant to these proceedings and that the Respondent was in fact not threatened / offended by the Reservation Statement as demonstrated by his subsequent conduct. 35 82. In its LSRS, the Law Society also submits that it is clear from the Respondent’s Closing Submissions that he does not dispute that he was implying from the Interview Statements that there was misconduct on the part of the AG, DAG and Mr Faizal (as well as the Prosecution team in Gobi’s case). 3rd Charge (and Alternative 3rd Charge) 83. The Law Society reiterates the contentions made in its Aide Memoire on this issue (as set out at [58] to [60]), and further contends that the reliance placed by the Respondent on the fact that the Law Society did not act against the Reservation Statement is misplaced as being an afterthought, irrelevant and that in any event, there was no “threat” made against the Respondent and hence nothing for the Law Society to act on. 4th Charge (and Alternative 4th Charge) 84. The Law Society likewise reiterates the contentions made in its Aide Memoire on this issue (as set out at [55] to [57] above). F. The Respondent’s Written Submissions and Reply Submissions 85. The Respondent’s Written Submissions (“RWS”) and Reply Submissions (“RRS”) in relation to the 4 Charges and 3 Alternative Charges against him, tendered subsequent to the conclusion of the DT Hearing, are summarized below. 36 1st Charge 86. Apart from maintaining his defence of fair criticism, the Respondent essentially reiterates the points made by him in his RAEIC on this issue. In particular, he maintains that the Interview Statements are not false or misleading and did not impute bad faith or malice on the part of the Prosecution. He further asserts that he was only questioning the fairness of the Prosecution towards himself and Gobi in view of the entire history of the matter, in the sense that the AG should have acted fairly in a certain manner, and that there was no element of bad faith or malice suggested thereby. 2nd Charge (and Alternative 2nd Charge) 87. In respect of the word “wrongdoers” contained in the Facebook Statements, the Respondent contends that the meaning to be attributed to or understood by it:- a. must be considered in the context of the circumstances leading to the making of the Facebook Statements; and b. 88. is inextricably linked to the Interview Statements. The Respondent submits that if he succeeds in establishing that there were rational bases for the Interview Statements, it must likewise mean that there were rational bases for his use of the word “wrongdoing”, on the basis that it would be plain in this situation that the prosecutors had done wrong to Gobi. The 37 Respondent also referred to what he described as the AGC’s “inexplicable conduct” of questioning how he had come to be discharged from representing Gobi and Dachinamurthy in the appeals against OS 111 and OS 181. 89. The Respondent also relies on his clarification given under cross-examination at the DT Hearing that in using the term “wrongdoers”, he was referring to a civil wrong. He referred to the definition of “civil wrong” in Oxford References as meaning “[a]n infringement of a person’s rights, for which the person wronged may sue for damages or some other civil remedy”, and contends that it is arguable that Gobi’s rights to be treated fairly had been infringed by the Prosecution’s conduct such that they could reasonably be described as “wrongdoers” in the civil sense. 90. In relation to the striking out of the Statement of Claim and the dismissal of the action in Suit 1068 commenced by him on behalf of Gobi, the Respondent contends that the fact that some of the legal requirements to found the claims in the tort of misfeasance of public office and breach of statutory had not been met, which constituted the basis for the said striking out and dismissal, is independent of the question of whether there are rational bases for the allegations to have been made against the defendants in the action and, in particular, the making of the statements that the prosecutors had done wrong to Gobi personally. 91. Finally, the Respondent reiterates his submission that that part of his Facebook Statements stating that he “has already taken instructions from Gobi and his 38 family to commence legal proceedings …” did not amount to threats by him in his own capacity, and that a distinction should be drawn between a statement to commence proceedings against another legal practitioner in the legal practitioner’s own capacity and a statement to commence proceedings against another legal practitioner on behalf of a client. 3rd Charge (and Alternative 3rd Charge) 92. In relation to that part of the Facebook Statements stating that he “will commence proceedings against law society”, the Respondent contends that this statement does not impute the insinuation that the Law Society has misused its statutory powers, having regard to the context in which it was made, whereby:- a. the Respondent had just given the Interview in which he had appealed for the AGC to apologise for its officers’ conduct in Gobi’s matter; b. to which the AGC had responded to demand the retraction of the Interview Statements and an unconditional apology, failing which the AGC would file the necessary complaint against the Respondent; and c. to-date, nothing had been done by the Law Society about the Reservation Statement. 39 93. In light of the above, the Respondent submits that a possible alternative reading of the said statement could be that he would “commence proceedings” against the Law Society in the event that by entertaining further complaints from the AG, it has not done its part to protect members of the legal profession and their independence, having regard to s. 38(1)(d) of the LPA (relevant extract reproduced at [49] above). 94. The Respondent further submits that the said statement could not be objectively construed as a threat, when one compares it with the terms of the Reservation Statement as well as the AGC’s demand for an apology against the Respondent in the AGC Letter. In particular, the Respondent submits that compared to the Reservation Statement, the said statement was not as wide or open-ended, as the scope under which he had claimed he would commence legal proceedings against the Law Society was only limited to the situation of the Law Society entertaining the AG’s complaint which he had asserted amounted to a failure on the part of the Law Society to protect him as a member of the Bar. 4th Charge (and Alternative 4th Charge) 95. The Respondent reiterates the same point canvassed by him in his RAEIC in support of his defence to the 2nd Charge and Amended 2nd Charge ie. that his statement that he had “firm instructions from Gobi and his family to commence legal action and enforce his rights” against the AG and the DAG etc. did not suggest that he had the intention to commence legal action against them in his own capacity. 40 96. The Respondent further asserts that he had valid reasons to upload the Response Letter on his Facebook page because the said letter also contained his rebuttal against the AGC’s allegations by explaining why there are both objective and subjective bases for the Interview Statements, and he was entitled to exercise his right of reply and put forth his account of events in the public manner he did, given how the AGC themselves had also brought the matter up in the public forum by issuing the AGC Press Statement. IV. Findings and determination of the DT A. 1st Charge 97. The primary issue which we have to consider under the 1st Charge is whether, in making the Interview Statements and posting the same on his Facebook page, the Respondent has been guilty of misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA. In our view, this, in turn, depends ultimately on whether the Interview Statements constitute fair criticism which the Respondent is entitled to rely upon in his defence. 98. As noted by the Law Society in its LSCS (at [32]), it is trite that s. 83(2)(h) of the LPA is a catch-all provision which can be invoked when the conduct in question does not fall within any of the other enumerated grounds in s. 83 but is nevertheless considered unacceptable (see Law Society of Singapore v Ng Chee Seng). 41 99. It is also settled that in Disciplinary Tribunal proceedings, the burden is on the Law Society to prove the charge(s) preferred against the advocate and solicitor beyond reasonable doubt (see The Law Society of Singapore v Terence Tan Bian Chye [2007] SGDSC 10 at [19]). [Note 44] 100. The concept of fair criticism was considered in the context of contempt of court proceedings in Shadrake Alan v Attorney-General [Note 45], where the Court of Appeal (at [81] & [82]) held that the following (non-exhaustive) factors set out in AG v Tan Liang Joo John [2009] 2 SLR(R) 1132 (at [81] & [82]) [Note 46] ought to be considered:- a. The criticism must be made in good faith and must also be respectful. b. The extent to which the criticism is supported by argument and evidence ie. there must be some reason or basis for the criticism. c. The manner in which the criticism is made ie. is must generally be expressed in a temperate and dispassionate manner. d. The act or words in question must not impute improper motives to nor impugn the integrity, propriety and impartiality of judges or the courts. 101. The concept of fair criticism has found statutory recognition in the Administration of Justice (Protection) Act 2016 (No. 19 of 2016), in which s. 3(1)(a), which deals with acts which constitute contempt of court, states by way 42 of Explanation 1 that “Fair criticism of a court is not contempt by scandalising the court … ”.[Note 47] This provision and the defence of fair criticism thereunder was recently considered by the Court of Appeal in Wham Kwok Han Jolovan v Attorney General and others [2021] 1 SLR 804. [Note 48] 102. The concept of fair criticism was also raised as a defence and considered by the Disciplinary Tribunal in disciplinary proceedings against an advocate and solicitor in The Law Society of Singapore v Chia Ti Lik [2011] SGDT 4, [Note 49] in which one of the charges preferred against the respondent, also under s. 83(2)(h) of the LPA, was based on statements made by him in a blog post which contained allegations against the AG, the Deputy Solicitor General and the AGC and its officers. It was also raised and considered recently in another set of disciplinary proceedings, The Law Society of Singapore v Ravi s/o Madasamy [2020] SGDT 8 [Note 50 ], which likewise concerned statements in an article published and posted on the online website www.onlinecitizen.com containing what was alleged to be baseless attacks against the impartiality and integrity of State Prosecutors in Singapore. 103. In the context of the 1st Charge, in which the complaint against the Respondent is grounded on statements made by him concerning the AGC (and its officers), the AG and the office of the Public Prosecutor as well, we likewise accept that the principles underpinning the concept of fair criticism and the factors to be taken into account thereunder as laid down by the Court of Appeal in Shadrake Alan v Attorney-General, is a relevant consideration in determining whether the charge has been made out. In this connection, we note the observations of the 43 Court of Three Judges in Re Gopalan Nair [1992] 2 SLR(R) 969 (at [48]) that “[t]he office of the AG, like that of a judge, is an essential pillar of our legal system”. [Note 51] 104. As far as the actual text and contents of the Interview Statements are concerned, we are of the view that the meaning to be ascribed thereto, and what the Respondent had intended to convey thereby, have to be considered in the light and context of all the facts and circumstances leading up to the Interview; in particular, the observations made by the Court of Appeal in the Review Judgment. 105. We also accept that the broad approach to be taken, in determining whether the Interview Statements can be considered fair criticism, should be in the manner explained by the High Court in the first instance decision of Attorney-General v Shadrake Alan [2011] 2 SLR 445 as follows (at [72]): “… It is not necessary to establish an unassailable basis for the criticism made against it or even a basis which is objectively more reasonable than not. The reason, and I should emphasise this, is because a court, in deciding whether the defence of fair criticism is made out, is not required or concerned to determine whether the criticism was proved or disproved as a fact. In my view, it is sufficient for the defendant to give some rational basis for the criticisms he makes. However, the cogency of the rational basis required to support the allegation would increase correspondingly with the seriousness of the allegation made.” (emphasis added) 44 106. Accordingly, the question of whether any of the statements comprised in the Interview Statements constitutes fair criticism, as contended by the Respondent, depends in the final analysis on whether the Respondent had any rational basis for making the same, having regard in particular to the seriousness of the allegations levelled. It is, strictly speaking, not necessary for us to assess the truth or otherwise of these statements, and/or whether they have been proved or disproved factually. 107. Bearing in mind the above guiding principles, we turn now to consider the First Statement in the Interview Statements viz “… the Public Prosecutor has been overzealous in his prosecution and that has led to the death sentence …”. We pause here to note that the word “zealous” (an adjective of the noun “zeal” – which means, inter alia “such desire displayed in pursuit of an objective, or in advancing a cause”), according to the New Shorter Oxford Dictionary 8th Ed Volume 2 at page 3758, means “[f]ull of zeal, active in the promotion of a person or cause” or “[Of] an action etc.: marked by zeal”, which may be equated to being enthusiastic in the pursuit of an objective. 108. It cannot be disputed that the word “prosecution” in the First Statement is a reference to the Prosecution’s Appeal to the Court of Appeal against the decision of Lee J convicting Gobi of the Amended Charge. It is therefore necessary to consider the conduct of the Appeal by the Prosecution, as disclosed and analysed by the Court of Appeal in the Review Judgment. This, in turn, requires an examination of the nature of the case run by the Prosecution at first instance 45 before Lee J in the High Court, which is conveniently summarized by the Court of Appeal in the Review Judgment. 109. To recapitulate, Gobi had claimed trial to a capital charge of importing the Drugs, an offence under s. 7 of the MDA. At his trial in the High Court, the sole issue was whether he had rebutted the presumption of knowledge under s. 18(2) of the MDA. Lee J accepted Gobi’s defence that he believed the Drugs to be a mild one of “disco drugs” mixed with chocolate, rather than diamorphine, which is a controlled drug under Class A of the First Schedule to the MDA. In the circumstances, Lee J held that Gobi had rebutted the s. 18(2) presumption and accordingly acquitted him of the Capital Charge under s. 7 of the MDA. However, Lee J found that on the basis of the Applicant’s own defence, he was guilty of an offence of attempting to import a controlled drug under Class C of the First Schedule to the MDA. Lee J therefore convicted the Applicant of a reduced non-capital charge in these terms (ie. the Amended Charge) and sentenced him to 15 years’ imprisonment and 10 strokes of the cane. 110. In the Review Judgment (and in the Oral Judgment delivered in Court), the Court of Appeal found that based on the questions put by the Prosecution to Gobi at the trial before Lee J, and the Prosecution’s response when asked by Lee J to clarify its case, as well as the structure of its closing submissions, the Prosecution’s case at the trial was one of wilful blindness and not actual knowledge, and that it sought to establish this through the s. 18(2) presumption (at [105], [109] & [115]). 46 111. The Court of Appeal in the Review Judgment noted that there was a change in the Prosecution’s case in the Appeal because it is undisputed that the Prosecution’s case in the earlier Appeal before the Court of Appeal was one of actual knowledge, and that such change in the case it ran in the earlier Appeal prejudiced Gobi, for the following reasons: a. Gobi’s evidence at trial was that Vinod, the person for whom he was delivering the Drugs, had told him that the Drugs were “a mild form of drugs mixed with chocolate for [use] in discos” and would not attract the death penalty, and that he believed that this was true in the light of the subsequent assurance of his friend, Jega, that the Drugs were “not … very dangerous” and “should not be a problem” (see the Review Judgment at [120]). b. The question that was put by the Prosecution to Gobi was that he “had no reason to trust Vinod when [Vinod] told [him] that the drugs [he was] bringing in were only chocolate drugs” (see the Review Judgment at [105(a)]). c. The Prosecution failed to put to Gobi that he did not in fact believe what Vinod and Jega had told him about the nature of the Drugs (see the Review Judgment at [105(b)]). d. Based on the Prosecution’s response when asked by Lee J to clarify its case, it is clear that the Prosecution’s position was not that Gobi 47 disbelieved Vinod or Jega, but that, objectively speaking, he had no reason to believe them. Accordingly, Lee J understood the Prosecution’s case to be that Gobi trusted Vinod’s and Jega’s assurances as to the nature of the Drugs, even though he ought not to have done so (see the Review Judgment at [109] & [116]). e. As a result, Gobi was never squarely confronted with the case that he did not in fact believe what he had been told by Vinod and Jega, and so could not have responded to such a case. In these circumstances, it was ultimately prejudicial for Gobi to have been faced with a case of actual knowledge in the earlier Appeal, premised on the contention that he did not in fact believe the assurances he had been given by Vinod and Jega as to the nature of the Drugs (see the Review Judgment at [120]). 112. In the Review Judgment, the Court of Appeal also took the opportunity to further emphasise the importance of the Prosecution running a consistent case so as to give the accused a fair chance of knowing the case that is advanced against him and what evidence he has to adduce (and to what standard of proof) in order to meet that case, and that the Prosecution is not permitted to seek a conviction on a factual premise which it has never advanced, and which it has in fact denied in its case against the accused person (see the Review Judgment at [119]). 113. The role and duty of the Prosecution in criminal proceedings were also considered and explained by the Court in Re Parti Liyani [2020] [Note 52]. In the words of Sundaresh Menon CJ (at [38] & [39]): 48 “It is a basic proposition that the Prosecution is under a fundamental duty to assist in the administration of justice, and must present the evidence against an accused person fairly and impartially, and without malice, fear or favour, in accordance with the law (see rr 15(1) and 15(2) of the PCR). Furthermore, r 15(6) of the PCR imposes a duty on the Prosecution to inform the court of any apparent error, whether of fact or of law, and any apparent omission of fact or procedural irregularity which ought to be corrected. … prosecutors are ministers of justice who must always act in the public interest and it is generally unnecessary for the Prosecution to adopt a strictly adversarial position in criminal proceedings … (see Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] 2 SLR 533) 114. In Public Prosecutor v Wee Teong Boo, the Court of Appeal cited the following extract from a speech delivered extra-judicially by Steven Chong JCA to legal service officers and assistant public prosecutors (at [137]): [Note 53] “The accused, the Court and the community are entitled to expect that in performing his function in presenting the case against an accused person, the Prosecutor will act with fairness and detachment with the sole and unadulterated objective to establish the whole truth in accordance with the law. … The role of the Prosecutor therefore excludes any notion of winning or losing a case. … His role is to seek and achieve justice, and not merely to convict. The role is to be discharged with an ingrained sense of dignity and integrity.” 115. It cannot be gainsaid that where the offence(s) for which the accused person is charged carries the death penalty and what may be expressed as the near- 49 irretrievable finality of punishment, as in the case of the criminal proceedings against Gobi, it is even more imperative and essential that the Prosecution strictly and scrupulously observes its role, functions and duties as outlined above. 116. Having regard to the above findings and observations made by the Court of Appeal in the Review Judgment and in the Oral Judgment, as well as the Court’s exposition on the role and duty of the Prosecution in criminal proceedings, we are of the view that it cannot be said that the First Statement is devoid of any reasonable, rational or objective basis. 117. As emphasised strongly and found by the Court of Appeal in the Review Judgment, there was a change in the case that the Prosecution ran in the Appeal, compared to the case that it ran at the trial, and it was the different case run by the Prosecution in the Appeal which, factually speaking, ultimately resulted in the Court of Appeal setting aside Gobi’s conviction on the Amended Charge and convicting him on the Capital Charge. 118. In the circumstances, we consider that it was not unreasonable or irrational for the Respondent in making the Interview Statements to have entertained and voiced by way of opinion, through his use of the term “overzealous” (which in our view does not inherently carry or imply any negative or offensive connotation), to characterise what appeared to him to be the Prosecution’s attitude and conduct in pursuing and securing Gobi’s conviction on the Capital 50 Charge, in a manner which (as found by the Court of Appeal in the Review Judgment) constituted an impermissible departure from the case that it ran at trial, ultimately resulting (factually speaking) in the death sentence being imposed on Gobi. 119. In doing so, the Respondent in the course of the Interview had indeed referred to and recounted the factual circumstances leading up to the setting aside of Gobi’s conviction on the Capital Charge, including the fact that it was precipitated by the change of law pertaining to the issue of whether the doctrine of wilful blindness can be the subject of the presumption under s. 18(1) of the MDA arising from the Court of Appeal’s decision in Adili, and that the Public Prosecutor ran a different case in the High Court and the Court of Appeal in its prosecution of Gobi. This satisfies the requirement spelt out by the Court of Appeal in Wham Kwok Han Jolovan v Attorney General and others (at [44]) that the facts and materials relied on to form the rational basis should be referred to in the post containing the fair criticism. 120. We also note that in the sentence immediately preceding the First Statement, the Respondent had made reference to the role of the Prosecution in prosecuting accused persons, especially on a charge which carries the death penalty, emphasising that it was “extremely important” that the Prosecution is fair to both sides ie. the State and the accused person (echoing the exhortations of Steven Chong JCA in his extra-judicial speech referred to at [114] above). It is clear to us that it was in that specific context that the Respondent had used the word 51 “overzealous” to express and convey his view of how the Prosecution had conducted the Appeal against Gobi. 121. As for the Second Statement in the Interview Statements viz “And one of the things which is troubling in this decision today, is that the Court noted that the Attorney General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal. Then that begs the questions and calls into the fairness of the administration of justice in Gobi's case by the Prosecution...”, we reiterate at the outset that it is a fact, as found by the Court of Appeal in the Review Judgment, that the Prosecution “ran a different case in the High Court and the Court of Appeal”. 122. We find that the Respondent likewise had a reasonable, rational and objective basis to form and express his view that he found this to be “troubling”, which word bears the ordinary meaning of “causing stress or anxiety” and also does not carry any negative connotation, and to further state as his opinion that it “calls into question the fairness of the administration of justice in Gobi’s case by the prosecution”, given that the life of the accused person was at stake. It bears reiterating that it forms no part of our inquiry to determine whether this statement can be proved or disproved as a fact. Suffice for us to highlight that even the Court of Appeal itself before the review hearing was troubled over this issue, to the extent of raising pointed questions on the same and, we may respectfully say unusually, directing the parties in CM 3 to file further written submissions thereon. [Note 54] 52 123. Turning finally to the Third Statement in the Interview Statements viz “... because the Prosecution as the Court observed, ran a different case in the High Court and the Court of Appeal. So therefore, the Prosecution, essentially the fairness of the Prosecution, is called into question by the Court itself."", the first part concerning the different case run by the Prosecution in the High Court and the Court of Appeal, which essentially repeats part of the Second Statement, is factual in nature. As for the second part, we find that there is some reasonable, rational and objective basis for the Respondent to have formed and articulated the view that essentially “the fairness of the Prosecution” in its conduct of the Appeal against Gobi had been “called into question by the Court”, in that the Court of Appeal in the Review Judgment did find that “the Prosecution’s change in the case that it ran on appeal, as compared to the case that it ran at the trial, prejudiced [Gobi]” (at [120]). Having regard to the overall context in which the Interview Statements were made, we are of the view that through his use of the word “fairness”, the Respondent was in substance and reality referring to and commenting on the conduct of the earlier Appeal in the Court of Appeal by the Prosecution, ie. the Prosecution in running a different case, and not the general conduct of the members of the Prosecution (or the AGC or AG for that matter) per se. 124. In the premises, we are unable to accept the Law Society’s submission that the Interview Statements constitute or contain false or misleading allegations, and/or that in making the same, the Respondent had intended to convey that the Public Prosecutor and/or the AG had acted in bad faith, maliciously 53 and/or improperly, and to discredit the AGC and/or its legal officers, or to otherwise cast any aspersions on these individuals or the office they occupy. As noted by the High Court in the first instance judgment of AttorneyGeneral v Shadrake, to make out the defence of fair criticism, it is not necessary to establish an unassailable basis for the criticism. Accordingly, the focus of our inquiry is not to determine whether the Interview Statements were proved or disproved as a fact and, in particular, whether they are false and misleading allegations as contended by the Law Society and whether the Respondent had intended to convey the meaning or message sought to be attributed to him. 125. In this connection, the Respondent was cross-examined on his making of the Interview Statements at the DT Hearing on 29 July 2021. He steadfastly and unshakeably maintained, which we accept, that he never said anywhere or made the imputation that the AGC had acted in bad faith, maliciously or improperly, and that what he was saying is that there was a breach on the part of the public prosecutor, as ministers of justice, of its duty to act with fairness in the administration of justice. [Note 55] 126. All things considered, we are of the view that the Interview Statements made by the Respondent constitute fair criticism. We also find that there is nothing which conclusively shows or compellingly suggests that the Respondent was acting otherwise than in good faith in making the Interview Statements. In this connection, Counsel for the Law Society has submitted that the Interview 54 Statements cannot have been made by the Respondent in good faith for the following reasons: a. the Respondent had without any rational basis levelled accusations that the Prosecution had acted in bad faith / maliciously / improperly / unfairly which led to the imposition of the death penalty on Gobi; b. the Respondent chose to make the Interview Statements in a public forum, well knowing that it would reach a larger audience; and c. the Respondent should have shown more due care and attention before making such serious allegations against the Prosecution and on a public forum, particularly where he had not had sight of the Court of Appeal’s written judgment. 127. With all due respect, we do not see much merit in any of the above grounds. In the first place, nowhere in the Interview Statements did the Respondent explicitly accuse the Prosecution of having acted in bad faith, maliciously or improperly, and, as noted at [125] above, we accept that the Respondent also did not implicitly convey, or intend or seek to convey, any such meaning or message either in making the Interview Statements. 128. As for the fact that the Interview Statements were made in a public forum, we are of the view that the outcome of the review hearing culminating in the 55 Review Judgment which involved the death penalty was very much a matter of topical public interest as the Court of Appeal had reviewed its earlier decision and seen it fit to quash the death penalty it imposed in the earlier Appeal. Accordingly, the giving by the Respondent of the Interview and his making of the Interview Statements in a public forum does not negate the element of good faith. The Respondent had a reasonable and objective basis for making the Interview Statements to inform the public of the outcome of the Court of Appeal’s decision in reviewing its earlier one, and he did not in bad faith or maliciously or improperly cast or intend to cast any such aspersions on the AGC or its officers, nor discredit them as alleged. The Law Society in its crossexamination of the Respondent or by the Respondent’s affidavit was unable to show that it was otherwise. 129. To conclude, we find that the Interview Statements which form the basis of the 1st Charge constitute fair criticism by the Respondent. It follows that the elements constituting the 1st Charge have not been proven beyond reasonable doubt by the Law Society, as the Respondent cannot be said or regarded to have conducted himself in a manner unbefitting an advocate and solicitor in making the Interview Statements. 130. In the circumstances, we determine and find that the 1st Charge has not been made out. The Respondent as such is not guilty of the misconduct as charged. 56 B. 2nd Charge and Alternative 2nd Charge 131. The Law Society’s case against the Respondent under the 2nd Charge and Alternative 2nd Charge, which rely on the same grounds as particularised in the said charges, is that in stating in the Facebook Statements that the “government lawyers who handled Gobi’s case are the wrongdoers”, and that he had instructions to commence proceedings against the AG, the DAG and Mr Faizal who “have to be accountable to Gobi” and “be subject to rigorous crossexamination and public scrutiny of their conduct of Gobi’s case”, and posting these statements on his Facebook page (ie. the First Facebook Post), the Respondent made a baseless accusation of misconduct and/or threat to commence legal proceedings against his fellow legal practitioners and he:- a. is thereby guilty of improper conduct under s. 83(2)(i) of the LPA read together with Rule 7(2) of the PCR (2nd Charge); and/or alternatively, b. has thereby committed an act amounting to misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA (Alternative 2nd Charge). 57 132. In respect of the 2nd Charge, s. 83(2)(i) of the LPA [Note 56] applies to a situation where an advocate and solicitor:- (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any of the following as amounts to improper conduct or practice as an advocate and solicitor: (i) any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of this Act; 133. Rule 7(2) of the PCR provides that “[a] legal practitioner must treat other legal practitioners with courtesy and fairness”. 134. Accordingly, the first issue which arises for determination under the 2nd Charge or the Alternative 2nd Charge is whether, in referring to the “government lawyers” (ie. the persons who had conduct of the Appeal in Gobi’s case) as “wrongdoers”, in what sense was that word used when the Respondent stated that he had received instructions to commence proceedings against the AG, the DAG and Mr Faizal and that they “have to be accountable to Gobi … in court and be subject to rigorous cross-examination and public scrutiny of their conduct in Gobi’s case”, and whether as such the Respondent had breached his duty to treat these individuals with courtesy and fairness and was thereby guilty of improper conduct. 58 135. We will therefore first address the meaning of “wrongdoers” and what the Respondent had intended to convey through his use of this word to describe the “government lawyers” in the Facebook Statement. The Law Society’s contention is that this word contained a “baseless accusation of misconduct and/or threat to commence legal proceedings against his fellow legal practitioners”, as in its ordinary meaning such word implied that the AG and the officers of the AGC had engaged in serious misconduct or even illegality. The Respondent, on the other hand, clarified in his evidence under cross-examination at the DT Hearing on 29 July 2021 [Note 57] and in his RWS at [38] that what he meant was that these individuals had committed a “civil wrong”. He further asserted that his characterization of the AGC officers having conduct of Gobi’s case as “wrongdoers” constituted fair criticism (see his RAEIC at [71]). 136. In his RAEIC (at [71]), the Respondent had further explained that his use of the phrase “government lawyers” also encompassed the acts of “officers from the AGC in relation to the judicial review proceedings” ie. in OS 111 and OS 181 and, in particular, the Reservation Statement, as a factor lending weight to his characterization of the AGC officers having conduct of Gobi’s case as wrongdoers. 137. Having reviewed the entire text of the First Facebook Post in which the Facebook Statements are contained and considered the context in which these statements were made, we are of the view that the Respondent did not refer and could not have been referring to the acts / conduct of the AGC officers having 59 conduct of OS 111 and OS 181 in his use of the phrase “government lawyers” therein. This is because the Respondent in the First Facebook Post was responding directly to the AGC’s demand for an apology in the AGC Letter in respect of the Interview Statements, which concerned solely the Prosecution’s conduct of the Appeal in Gobi’s case, and there is no reference to or mention of any of the matters pertaining to OS 111 and OS 181. 138. Having considered the submissions made on behalf of the Law Society, we however accept as reasonable the Respondent’s explanation that by “wrongdoers” he meant that the individuals he had in mind had committed a civil wrong. In A Dictionary of Modern Legal Usage by Bryan A Gaenar (1987, Oxford University Press), the word “wrongdoer” is defined as “one who violates the law. The term is used of tortfeasors as well as for criminals…”. In Black’s Law Dictionary (10th Edition), the same meaning is ascribed to this word. The Respondent’s evidence was that he did not mean or intend to convey that they were guilty of serious misconduct / illegality. This is borne out by the fact that, amongst other things, in the very next paragraph of the First Facebook Post, the Respondent had gone on to state that he had already taken instructions to commence legal proceedings against the AG, the DAG and Mr Faizal, which he in fact did by way of a civil Suit 1068, alleging civil wrongs in the tort of misfeasance in public office and breach of statutory duty on the part of these individuals. There is no reference to any criminal proceedings or the prospect / possibility thereof. 60 139. Under cross-examination, the Respondent steadfastly maintained his position:[Note 58] Q ---on the 20th October, you posted it on your Facebook, and you said that the government lawyers are wrongdoers. A Wrongdoers, meaning they are acting as potential defendants. Q And you said you were going to commence proceedings against them because they have to be held accountable in Court and subject to public scrutiny, yes? A Yes, owing to miscarriage of justice. Q Were you not then referring to the wrongdoing that you were set--you set out in the claim that was filed eventually in Suit 1068? A You see, it is not my claim. Q On behalf of Mr Gobi. A On behalf of the rights of Gobi, as his counsel … But my point is when I made that statement, I didn’t say anywhere that the AGC was malicious. Q Right. A The AGC is overreacting to my statement. 61 Q Okay, you disagree you were implying that they acted maliciously, is that right? A … whether you want to call it bad faith or malicious, I didn’t have those words in mind. I was saying, basically, that they should be fair in the manner in which they not only treated me as--as---as counsel, … … Q Okay so you were not trying to imply that the public prosecutor was acting in bad faith or maliciously, yes? A I was saying that the public prosecutor was a wrongdoer to the extent that they have conduct the---the---they---the---there was a breach of their fairness in terms of they are ministers of justice and administration of justice in the context of running a different case… Q Okay, so what you were--- A When I said wrongdoers – now, let me be very clear – I’m saying that they are defendants. Q Okay. A They have committed a wrong, means civil wrong. 62 140. We now turn to the second issue, that the Respondent having admitted that he meant that the “government lawyers” had committed a “civil wrong” ie. a tortious act, whether he was then justified in making the further statement and publishing it on Facebook that he had received instructions to commence proceedings against the AG, the DAG and Mr Faizal, and that they “have to be accountable to Gobi” and “be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi’s case”. The Law Society’s case is that this public statement constitutes a threat to commence legal proceedings against the AG and the members of the AGC who had conduct of the Appeal as fellow legal practitioners. 141. In his defence, the Respondent sought to draw a distinction between a statement by a legal practitioner to commence proceedings in his personal capacity against another legal practitioner, on the one hand, and a statement to commence legal proceedings against another legal practitioner on behalf of a client, on the other. 142. Whilst we do not consider this further statement by the Respondent to constitute a threat to commence legal proceedings, but simply a statement of his intention to do so (which was ultimately carried out), we entirely agree with the Law Society that the Respondent should have communicated such intention privately to the AGC in the course of his ongoing exchange of correspondence with them (or separately to each of the individuals against whom the intended legal proceedings were directed), instead of announcing it in a public forum such as Facebook. 63 143. Furthermore, to the extent that the Respondent was alleging misconduct on the part of these individuals through his characterization of them as “wrongdoers” and against whom he had received instructions to commence legal proceedings, the right and proper course of action would be for him, if at all, to refer the matter to the appropriate body to deal with it. 144. In this connection, we agree with and are guided by the observations made in the following commentary on Rule 7(2) of the PCR in Jeffrey Pinsler SC, Legal Profession (Professional Conduct) Rules 2015 – A Commentary (Academy Publishing, 2016) (“Pinsler”) cited in The Law Society’s Closing Submissions (at [65b.]): [Note 59] “A lawyer’s duty as a professional also requires him to act responsibly when he makes a complaint, or represents a client who wishes to make a complaint, concerning the alleged misconduct of another lawyer. The complaint must be substantiated and properly communicated to the Law Society. It is not proper for a lawyer to make allegations about another whether they are true or not … The learned Chief Justice [in Law Society of Singapore v Ravi s/o Madasamy [2015] 3 SLR 1187 at [36]] stated: “to accuse another solicitor of misconduct is a serious matter that should not be taken lightly. In this connection, it would generally be inappropriate for a solicitor to allege misconduct on the part of another solicitor for a purpose other than to lodge a formal complaint with the Law Society.”” 64 145. We also agree with the position taken by the Law Society that in making the Facebook Statements, the Respondent had failed to abide by what is prescribed in The Law Society of Singapore, Practice Direction 6.1.1 – Media Comments and Internet / Social Media (31 January 2019), which provides, inter alia, that members of the legal profession representing parties in legal proceedings who comment on those proceedings in the public via posts on websites, blogs, social media or social messaging platforms should (amongst other things) refrain from making inappropriate comments or improper disclosures and avoid adverse remarks on the conduct or character of the opposing party. [Note 60] 146. As for the point sought to be made by the Respondent that his further statement was simply to commence legal proceedings on behalf of a client and this should be distinguished from a situation of a legal practitioner threatening to commence legal proceedings in his personal capacity against another legal practitioner, we are of the view that this does not assist him. A similar situation arose in The Law Society of Singapore v Terence Tan Bian Chye, where a solicitor wrote to another law firm on behalf of his client (ie. not in that solicitor’s personal capacity) alleging misconduct on the part of the law firm in the following terms: “[w]e note that you have not been able to respond to any of our charges of misleading the court. Again, to you, misleading the court seems to be a minor matter … Accordingly our clients will be reporting the cases of deception by your firm to the Law Society. We are representing our clients and taking their instructions, …”. The solicitor was found by the Disciplinary Tribunal to be in 65 breach of, inter alia, Rule 47 of the PCR (the previous iteration of the current Rule 7(2) of the PCR), which held as follows (at [27]-[28]):- “Accusing another law firm of practicing deception and of misleading the court are serious allegations that ought not to be made. Even if there were reasons for the allegations the proper thing to do is to refer the matter to the appropriate body to deal with it”. … justification is no defence to the mischief intended to be prevented by Paragraph 24(d), and indeed the entire Paragraph 24, of the PD and Rule 47 of the PCR. Otherwise, every other advocate and solicitor can say he was justified in writing such letters and defeat the whole purpose of this particular PD and PCR”. 147. In relation to the Respondent’s argument that the mere conveyance of a client’s intention to commence legal action against a fellow legal practitioner cannot, without more, amount to a threat or discourtesy in the solicitor’s personal capacity, we are of the view that even if there is merit in this submission, it is also of no assistance to him on the facts and in the circumstances of the present case. The statement made by him regarding the commencement of legal proceedings against the AG, the DAG and Mr Faizal has been considered and assessed by us in the light of his own evidence at the hearing as stated at [139] above, and also as clearly premised on his characterization of these individuals as “wrongdoers” in the immediately preceding paragraph in the Interview Statements. 66 148. Dealing finally with the Respondent’s defence that his use of the word “wrongdoers”, although meant in the “civil” sense, to describe the AGC officers having conduct of Gobi’s case constitute fair criticism, we reject the same and in doing so accept the Law Society’s submissions that based on the observations made in Pinsler and The Law Society of Singapore v Terence Tan Bian Chye (as set out at [144] & [146] above) (ie. that it is not proper for a solicitor to make allegations of misconduct about another solicitor whether they are true or not and that justification is no defence to the mischief intended to be prevented by Rule 47 of the PCR), this is likewise of no avail to the Respondent. 149. In the result, we are of the view that in making the Facebook Statements, taken as a whole, the Respondent had fallen short of his duty as prescribed under Rule 7(2) of the PCR to treat his fellow legal practitioners with the requisite level of courtesy and fairness. 150. In the circumstances, we determine and find that the 2nd Charge is made out by the Law Society. 151. Accordingly, we find the Respondent guilty of improper conduct as an advocate and solicitor, in the course of acting for his client, under s. 83(2)(b)(i) of the LPA read with Rule 7(2) of the PCR, in that he offended by failing to treat his fellow legal practitioners as mentioned above with courtesy and respect. 152. In light of our determination and finding that the 2nd Charge has been made out, it is unnecessary for us to make findings on the Alternative 2nd Charge. 67 C. 3rd Charge and Alternative 3rd Charge 153. The Law Society’s case against the Respondent under the 3rd Charge and Alternative 3rd Charge is that in further stating in the Facebook Statements that he will also “commence proceedings against law society if it does not do its part to protect lawyers … if it entertains any further complaints or participates in any harassment by AG to harass me in doing my job”, and posting this statement as part of the First Facebook Post, the Respondent made a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers and he:- a. is thereby guilty of improper conduct under s. 83(2)(i) of the LPA read together with Rule 8(3)(b) of the PCR (3rd Charge); and/or b. has thereby committed an act amounting to misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA (Alternative 3rd Charge). 154. Rule 8(3)(b) of the PCR provides that “[a] legal practitioner must not act towards any person in a way which is fraudulent, deceitful or otherwise contrary to the legal practitioner’s position as a member of an honourable profession”. 155. The issue which arises for determination under the 3rd Charge is whether, in making these statements against and concerning the Law Society, the 68 Respondent had acted in a manner contrary to his position as an advocate and solicitor and was thereby guilty of improper conduct. 156. As highlighted by the Law Society in the LSCS (at [80]), one of the guiding principles undergirding Rule 8(3)(b) of the PCR, as prescribed under Rule 8(1)(a), is that a legal practitioner who deals with any person must be honest and courteous. We are also guided by the following commentary on Rule 8(3) in Pinsler highlighting examples of when and how this rule is engaged, which deal with abuse of public officers and persons with official functions (cited in the LSCS at [81]):- “Lawyers have also been fined using threatening language against a legal officer of the HDB, for threatening a court interpreter, for being offensive to public prosecutors, for writing threatening letters, for making offensive remarks about the President of the Shariah Court in a written submission, for disrespectful conduct towards the Commissioner of Labour (including an allegation that the Commissioner was biased), for writing offensive letters to the Medical Council, for writing a threatening letter to a third party on a personal matter on the firm’s letterhead…” 157. In Re Gopalan Nair (at [45]), the Court of Three Judges noted that “the writing of offensive or abusive letters could subject a solicitor to disciplinary action”, referring to the publication by Sir Thomas Lund, A Guide to the Professional Conduct and Etiquette of Solicitors p 70, in which it is stated that “writing of offensive and improper letters by a solicitor, whether to a client, another 69 solicitor, a government department, or any other member of the public, is professionally improper conduct”. 158. We are of the view that the statement by the Respondent that he will commence proceedings against the Law Society if it “entertains any further complaints” or “participates in any harassment by AG” not only carries a clear threat directed at the Law Society, but also contains an unwarranted accusation that the Law Society is or will be complicit in any alleged “harassment by AG”, all of which constitute conduct falling short of the Respondent’s duty to act and deal courteously with the Law Society as required under Rule 8(1)(a) of the PCR. We also agree that the severity of the Respondent’s conduct is exacerbated by the fact that such threat was made in a public forum. 159. We further accept the Law Society’s submission that it is not open to the Respondent to rely on the defence of fair criticism. As highlighted in LSCS (at [83b.]), the Law Society is legally required by statute to act on complaints from the AG under s. 85(3) of the LPA. Accordingly, the Respondent had no basis whatsoever to threaten legal proceedings against the Law Society for so acting, or to suggest or insinuate that the Law Society was “participating” or otherwise complicit in any such complaint(s) made or to be made by the AG and thereby misusing its statutory powers under the LPA. 160. As for the Respondent’s argument of differential treatment being accorded to his statement to commence legal proceedings against the Law Society and the Reservation Statement, in support of his defence of fair criticism, we agree with 70 the Law Society that this is misconceived. As pointed out by the Law Society, no mention is made of the Reservation Statement, or of the lack of action taken by the Law Society arising therefrom, in the First Facebook Post. 161. Further and in any event, as pointed out in Pinsler and The Law Society of Singapore v Terence Tan Bian Chye, it was open to the Respondent to refer the matter to the appropriate body to deal with it, but he did not do so. In our view, this is telling and betrays the fact that in the Respondent’s own estimation, there is nothing in or arising from the Reservation Statement which warranted any action to be taken by the Law Society. 162. In the circumstances, we determine and find that the 3rd Charge has been made out. In light of this, it is unnecessary for us to make findings on the Alternative 3rd Charge. 4th Charge and Alternative 4th Charge 163. The Law Society’s case against the Respondent under the 4th Charge and Alternative 4th Charge is that in sending the Response Letter to the AGC in which he reiterated that he had instructions from Gobi and his family to commence legal proceedings against the AG, the DAG, and members of the Prosecution who had carriage of the matter in the Appeal and Criminal Motion, and in uploading the said letter on his Facebook page for public viewing (ie. the Second Facebook Post), the Respondent:- 71 a. is thereby guilty of improper conduct under s. 83(2)(i) of the LPA read together with Rule 7(2) of the PCR (4th Charge); and/or b. has thereby committed an act amounting to misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA (Alternative 4th Charge). 164. It is common ground that the Respondent relies, in his defence to the 4th Charge and Alternative 4th Charge, on the same grounds as for his defence to the 2nd Charge and Alternative 2nd Charge. The Law Society is likewise relying on the same matters and advancing the same arguments as in the 2nd Charge and Alternative 2nd Charge, save to add that in reiterating in the Response Letter that he had instructions to commence proceedings against the AG, the DAG and the members of the Prosecution having conduct of the Appeal and the Criminal Motion, the Respondent had further aggravated matters. 165. Accordingly, for the same reasons as we have explained and relied upon at [131] to [152] above in arriving at our conclusions and findings on the 2nd Charge, we determine and find that the 4th Charge is made out, and it is unnecessary for us to make findings on the Alternative 4th Charge. V. Appropriate punishment 166. Having found the Respondent guilty of the 2nd Charge, the 3rd Charge and the 4th Charge and Alternative 4th Charge, we turn now to consider what would be the appropriate sanction(s) to be imposed. 72 167. In this connection, s. 93(1) & (2) of the LPA provide as follows:- Findings of Disciplinary Tribunal 93. —(1) After hearing and investigating any matter referred to it, a Disciplinary Tribunal shall record its findings in relation to the facts of the case and according to those facts shall determine that — (a) no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be); (b) while no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be), the regulated legal practitioner should be — (i) ordered to pay a penalty that is sufficient and appropriate to the misconduct committed; (ii) reprimanded; (iii) ordered to comply with one or more remedial measures; or (iv) subjected to the measure in sub-paragraph (iii) in addition to the measure in sub-paragraph (i) or (ii); or (c) cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be). (2) Where a Disciplinary Tribunal makes a determination under subsection (1)(b)(i), (ii) or (iv) or (c), the Disciplinary Tribunal may make an order for payment by any party of costs, and may, in such order, specify the amount of those costs or direct that the amount be taxed by the Registrar. 168. Notwithstanding our finding that the Respondent is guilty of improper conduct under s. 83(2)(b)(i) of the LPA, we consider that such improper conduct does not disclose cause of sufficient gravity to warrant disciplinary action under s. 83 of the LPA, as the charges made out do not involve dishonesty (with all its cognate 73 meanings), trustworthiness or moral turpitude, or a conviction for a criminal offence. 169. As emphasized by the Court of Three Judges in Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 (at [24]): “The starting point, therefore, is that the Supreme Court (in the form of the court of three Judges) is the ultimate tribunal having control over all advocates and solicitors. However, it should be appreciated that it does not follow from this fact per se that the court of three Judges must necessarily hear all cases where the Disciplinary Tribunal finds that the advocate and solicitor’s conduct falls within one or more of the limbs of s 83(2) of the Act … In our view, it is only the most serious cases that must be heard by the court of three Judges.” 170. However, we are of the view that the Respondent should be ordered to pay a penalty sufficient and appropriate to such improper conduct pursuant to s. 93(1)(b)(i) of the LPA. 171. In arriving at this conclusion, we took into consideration the following mitigating circumstances: a. as highlighted by the Respondent in his RAEIC (at [28]) (which we accept), if not for the Respondent’s representation of Gobi in the review proceedings which culminated in the Review Judgment, Gobi would have been executed and there would have been a grave miscarriage of justice; and 74 b. in the course of acting for Gobi, the Respondent had to contend with what we accept he genuinely perceived to be a threat arising from the Reservation Statement, which the Court of Appeal in Gobi a/l Avedian v Attorney-General [2020] 2 SLR 883 did find “might reasonably have been construed as intimidating”. 172. Having carefully considered the matter, we determine that for the 2nd Charge and the 4th Charge, a collective penalty of S$4,000 would be sufficient and appropriate in respect of the improper conduct of which the Respondent has been found guilty. 173. As for the 3rd Charge, we determine that a penalty of S$2,000 would be sufficient and appropriate. 174. As a guideline, we refer to The Law Society of Singapore v Ravi s/o Madasamy [2012] SGDT 12, where the Respondent was found guilty of misconduct under s. 83(2)(h) of the LPA for making various allegations against a Judge in the course of a hearing in which he appeared as a litigant in person (eg. accusing the Judge of being prejudiced racially), and ordered by the Disciplinary Tribunal to pay a penalty of S$3,000. 75 VI. Costs 175. We also order the Respondent to pay to the Law Society costs in the amount of S$3,000 (inclusive of disbursements) pursuant to s. 93(2) of the LPA. VII. Summary 176. In summary, our findings and determination are as follows: a. the Respondent is not guilty in respect of the 1st Charge; b. the Respondent is guilty of improper conduct as charged under the 2nd Charge, the 3rd Charge and the 4th Charge; in light of this, it is unnecessary for us to make findings on their alternative charges; c. pursuant to s. 93(1)(b)(i) of the LPA, while no cause of sufficient gravity for disciplinary action exists under s. 83 of the LPA, the Respondent should be ordered to pay a total penalty of S$6,000 in respect of the said charges that he has been found guilty, which is sufficient and appropriate to the misconduct committed; and d. pursuant to s. 93(2) of the LPA, the Respondent pay costs in the amount of S$3,000 (inclusive of disbursements) to the Law Society. 20th 77 [Note 1] Agreed Bundle of Documents Volume 2 (“ABD 2”) Tab 57 [Note 2] The Law Society’s Bundle of Authorities (“LSBOA”) Tab 2 [Note 3] LSBOA Tab 13 [Note 4] LSBOA Tab 14 [Note 5] LSBOA Tab 4 [Note 6] ABD 2 Tab 49 [Note 7] ABD 2 Tab 51 & Tab 52 [Note 8] Exhibit “L-1” [Note 9] Exhibit “L-1” [Note 10] LSBOA Tab 9 [Note 11] ABD 2 Tab 57 p. 276-282 [Note 12] ABD 2 Tab 57 p. 284-285 [Note 13] ABD 2 Tab 67 [Note 14] ABD 2 Tab 57 p. 276-279 [Note 15] Respondent’s Written Submissions Annex B [Note 16] ABD 2 Tab 55 [Note 17] ABD 2 Tab 68 [Note 18] ABD 2 Tab 56 [Note 19] ABD 2 Tab 57 p. 370 [Note 20] ABD 2 Tab 59 & Tab 60 [Note 21] Agreed Bundle of Documents Volume 1 (“ABD 1”) Tab 13 [Note 22] ABD 1 Tab 18 [Note 23] LSBOA Tab 8 78 [Note 24] Respondent’s Affidavit of Evidence in Chief (“RAEIC”) at [62]-[63] [Note 25] RAEIC at [64] [Note 26] RAEIC at [65] [Note 27] Respondent’s Bundle of Authorities (“RBOA”) Tab L [Note 28] RAEIC at [66] [Note 29] RAEIC at [68] [Note 30] RAEIC at [69] [Note 31] RAEIC at [70]-[71] [Note 32] RAEIC at [73]-[74] [Note 33] RAEIC at [76] [Note 34] RBOA Tab D [Note 35] RAEIC at [78]-[80] [Note 36] LSBOA Tab 2 [Note 37] LSBOA Tab 3 [Note 38] LSBOA Tab 3 [Note 39] Notes of Evidence of hearing on 29 July 2021 (“NE 29.07.21”) at 61:8 to 62:11 [Note 40] NE 29.07.21 at 58:14-16, 60:5-7 & 60:15-18 [Note 41] NE 29.07.21 at 76:23 to 78:1 [Note 42] NE 29.07.21 at 58:28-31 & 59:4-5 [Note 43] LSBOA Tab 11 [Note 44] LSBOA Tab 19 [Note 45] LSBOA Tab 16 [Note 46] LSBOA Tab 6 79 [Note 47] LSBOA Tab 1 [Note 48] LSBOA Tab 20 [Note 49] LSBOA Tab 17 [Note 50] LSBOA Tab 18 [Note 51] LSBOA Tab 15 [Note 52] RBOA Tab K [Note 53] RBOA Tab J [Note 54] ABD 2 Tab 49 [Note 55] NE 29.07.21 at 58:28-29, 59:28-31, 60:5-8 & 62:1-11 [Note 56] LSBOA Tab 2 [Note 57] NE 29.07.21 at 60:15-18 [Note 58] NE 29.07.21 at 58:14 to 59:7 & 60:3-18 [Note 59] LSBOA Tab 21 [Note 60] LSBOA Tab 23 ",2025-04-11T04:00:42+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2025/,"In the Matter of Ravi s/o Madasamy (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2025/",1216 53,3cb2e4404dd3bee7ad0eef1ac47f8a3fbe5134e3,"In the Matter of Teo Kim Soon Danny (Respondent), Advocate & Solicitor","In the Matter of Teo Kim Soon Danny (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent. The following amended charges (the Charges) were preferred against the Respondent: First Charge Failing to exercise proper supervision over an unauthorised person within the meaning of section 32(2) of the Act (the Unauthorised Person) by allowing the Unauthorised Person to attend to the Complainant without the Respondent’s presence, to take instructions on a debt collection matter and thereby enabled the Unauthorised Person to cause the Complainant to execute documents to engage a debt collector, thereby breaching Rule 32 of the Legal Profession (Professional Conduct) Rules 2015 (PCR) and being guilty of improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Legal Profession Act 1966 (the Act). Second Charge Failing to take reasonable steps to implement adequate systems, policies and controls in the Respondent’s firm for ensuring that Respondent’s firm complied with the applicable written law relating to client’s money, thereby breaching Rule 35(4) of the PCR and being guilty of improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Act. Third Charge Omitting to adequately address or respond to a request by the Complainant for a GST tax invoice, thereby being guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Act. Fourth Charge Failing to exercise proper supervision over the Unauthorised Person, to wit: Allowing/permitting/suffering the Unauthorised Person to sign the name of the Respondent’s firm on a letter of demand issued on the letterhead of the Respondent’s firm and send the said letter of demand to the Complainant’s debtor without the Respondent’s knowledge; Permitting/suffering the Unauthorised Person and/or a company in which one the Unauthorised Person was the sole director and shareholder at the material time, to receive a commission on monetary instalments that were paid by the Complainant’s debtor, thereby breaching Rule 32 of the PCR and being guilty of improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Act. Findings and Determination of the Disciplinary Tribunal (DT), Council’s Sanctions The Respondent admitted to the Charges. The DT found that the Charges were made out on the facts beyond a reasonable doubt, but did not give rise to cause for sufficient gravity for disciplinary action under section 83 of the Act. The DT recommended that the Respondent should be ordered to pay a penalty of S$12,000.00, which is, in the DT’s view, sufficient and appropriate to the misconduct committed. The DT ordered, pursuant to section 93(2) of the Act, that the Respondent pay the Law Society $3,500.00 in costs. Pursuant to section 94(3)(a) of the Act, the Council of the Law Society adopted the DT’s findings and ordered the Respondent to pay a penalty of $12,000.00. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/03/Mar_25_DT_Report_Danny_Teo_Kim_Soon.pdf,"DT 5 OF 2022 IN THE MATTER OF TEO KIM SOON DANNY AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal: Ms Deborah Evaline Barker, S.C. – President Mr Harish Kumar – Advocate Counsel for the Law Society of Singapore Counsel for the Respondent Ms Christine Tee Hui Min Allen & Gledhill LLP Mr Steven Lam Templars Law LLC Dated this 5th day of October 2022 IN THE MATTER OF TEO KIM SOON DANNY AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 1. The Law Society of Singapore (the ""LSS"") originally preferred the charges attached in Schedule 1 hereto against the Respondent by way of its Statement of Case (“SOC”) dated 25 March 2022. There were five primary charges, all of which stem from a failure to properly supervise a clerk, one Jeremy Yan Yu Yee (“Jeremy”), formerly employed by the Respondent’s firm, Advance Law LLP (“Advance Law”) in a debt collection matter involving a debt of $9,759.30, and of not implementing an adequate system of controls in Advance Law. This allowed Jeremy, without the Respondent’s knowledge, to get the Complainant to execute documents engaging a debt collector, Empire Collection Pte Ltd—although it does not appear what exactly, if anything, this debt collector did. 2. At the Respondent’s request, the Complainant paid a deposit of $2,140 but Jeremy got the Complainant to pay this sum to CJ Consultancy Pte Ltd (“CJ Consultancy”), of which Jeremy was the sole director and shareholder, instead of to Advance Law’s client’s account. Despite this, the Respondent issued his personal receipt for this deposit. As the Complainant subsequently signed a Warrant to Act in favour of DG Law LLC, the Respondent believed that his firm had not been engaged. However, subsequently, Jeremy issued a letter of demand on the letterhead of Advance Law and pocketed a 15% commission on 3 instalments of the debt paid by the Complainant’s debtor. 3. The Respondent filed his Defence to this SOC on 29 April 2022 essentially admitting to the facts and the charges. 4. Parties filed their respective List of Documents on 11 May 2022. 5. A Pre-hearing conference (""PHC"") was held on 25 May 2022. The Tribunal raised some concerns in relation to the charges and noted that the facts were essentially not in dispute. The parties requested for time for the LSS to consider amending the charges and for discussions between the parties as to the factual position. Directions were given for a further PHC on 10 June 2022 and for a hearing to be fixed on 1 August 2022. 6. A further PHC was held on 10 June 2022 at which the Tribunal made directions for the filing of an Amended SOC, an Amended Defence, an Agreed Statement of Facts (“ASOF”), an Agreed Bundle of Documents (“AB”) and Submissions on Sentencing and Mitigation (“Submissions”). 1 7. The LSS duly filed its Amended SOC on 13 June 2022 and the Respondent filed his Amended Defence on 23 June 2022. The ASOF and AB were filed on 7 July 2022. Parties filed their respective Submissions and bundles of authorities on 22 July 2022. 8. In the ASOF and Respondent's Submissions, the Respondent admitted to all 4 amended charges preferred under Section 83(2)(b) of the Legal Profession Act 1966 (the ""LPA"") and the 3 amended alternative charges under Section 83(2)(h) of the LPA. The amended charges are set out in Schedule 2. 9. In their Submissions, the LSS submitted that the Respondent's conduct was not sufficiently serious to warrant a reference to the Court of 3 Judges, relying on the authorities of LSS v Sandhu Viviene Kaur [2022] SCDT 1 (""Viviene Kaur""), LSS v Tan Chwee Allan (""Allan Tan""), LSS v. Tan See Leh Jonathan [2020] 5 SLR 418 (""Jonathan Tan""), LSS v. Yeo Siew Chye Troy (""Troy Yeo"") and LSS v Krishna Morthy [2015] SGDT 7 (""Krishna Morthy"") and distinguishing the facts of those cases. LSS submitted that given the facts and circumstances, balancing all things and taking into account the appropriate authorities, and that the Respondent was guilty of breaches of Section 83(2)(b) and/or 83(2)(h) of the LPA , this Tribunal should make a determination under Section 93(1)(b)(i) that while there was no cause of sufficient gravity, a substantial penalty of at least $10,000 should be imposed. 10. The LSS highlighted that the Respondent failed to properly supervise Jeremy and that the degree of supervision ought to have been calibrated to a higher standard given that Jeremy was an “unauthorised person” under the LPA who had been working for the Respondent for only a year on an ad-hoc basis since 2019. 11. The LSS highlighted the lack of adequate systems, controls or policies for dealing with clients' monies but noted that there is no evidence that a) this resulted in lapses for any other than the present case; and b) the Respondent was aware of Jeremy’s wrongful actions at the material time. Further, the amount of client monies involved ($2,140) was relatively small. 12. The LSS submitted that unlike the case of Krishna Morthy (which involved the sum of $108,000) the Respondent's conduct had not crossed the threshold to warrant a finding of a cause of sufficient gravity for disciplinary action 13. The Respondent for his part admitted to the charges but submitted that there was an honest oversight on his part and misplaced trust by him in 2 Jeremy, which led to his admitted breaches as reflected in the amended charges. He highlighted that since the complaint he had implemented a “stricter due diligence system” and hired more office managers to oversee the administrative and accounts staff and ensure that his firm is properly managed. The Respondent urged the Tribunal to impose a monetary penalty and a warning and/or reprimand. 14. At the hearing, the Tribunal called on the LSS to clarify its submission that the charges and the facts were not such as to justify a reference to the Court of 3 Judges and that a penalty of at least $10,000 should be imposed. The LSS was also asked to clarify what it meant by a penalty of at least $10,000. The Respondent was asked to submit on his implied contention that no reference to the Court of 3 Judges was appropriate and also on what penalty the Respondent was contending would be appropriate. 15. The LSS reiterated that this is a case where there is no cause of sufficient gravity for disciplinary action but one where a monetary penalty is appropriate as the factual matrix does not push this matter into the category of more serious complaints. The LSS highlighted that there is no evidence here of dishonesty or deceit or of other ""severe facts"", such as conflict of interest, fee-sharing arrangements or facilitating the commitment of serious offences such as criminal breach of trust or cheating. 16. The LSS submitted that the 1st and 4th Charges relate to the Respondent's failure to adequately supervise Jeremy. The LSS then went through the authorities and submitted that the Respondent was largely unaware of Jeremy's actions and that the failure to supervise in this case falls in seriousness somewhere between the Vivien Sandhu case and the cases of Jonathan Tan and Troy Yeo. 17. The 2nd Charge involves a failure to implement adequate systems, controls and policies. The Respondent had relied on Jeremy's representations as to the receipt of monies instead of checking and there was no adequate system in place. However, the LSS submitted that this case does not cross the threshold (for sufficient gravity) and the lapse here was an isolated instance. 18. As for the 3rd charge, the Respondent was at fault in failing to adequately address the Complainant's request for a GST invoice to be issued (he was in no position to do since his firm had not received the deposit; even if it had, it would not have been appropriate to issue a GST invoice). In their written submissions, the LSS noted that the Respondent's conduct appeared to be a ""one-off oversight"" and there was no evidence of improper motive. 19. The Respondent for his part submitted that: a) There is no evidence of dishonesty or deceit on his part; 3 b) He did not try to cheat the Complainant and ""did not receive a single cent from the [Complainant]""; c) He was largely unaware of Jeremy's acts; d) His failing was that he should have supervised Jeremy more closely and implemented a better office management system; and e) The cases of Vivien Sandhu and Krishna Morthy could be distinguished on the facts and pointed out the financial benefits enjoyed by the solicitors in those cases. He also emphasized that in the present case, unlike for example the case of Alan Tan, he had from ""the word go"" been upfront with the IC and informed the DT he was not contesting the charges. 20. After hearing the parties' submissions and clarifying the facts, the Tribunal accepted the submission of both parties that a reference to the Court of 3 Judges was not justified in the present case and that a penalty should be imposed. 21. With respect to the quantum of the penalty to be imposed, the LSS submitted that in the present case there was an aggravating factor because the Respondent has been found guilty in a similar prior case in which he had left his client unattended and allowed an unauthorised person to interview and take instructions from the client. In that case the Court of 3 Judges imposed a suspension 18 months but there was also an issue there that the Respondent had in addition acted in conflict of interest. The LSS submitted that taking the aggravating factor into account a penalty of up to $15,000 would ordinarily have been appropriate. 22. However, in the present case there are also mitigating factors in that the Respondent pleaded guilty at a very early stage and accepted all charges and has also instituted remedial changes in his firm. The LSS thus submitted that a penalty of $12,000 to $13,000 should be imposed. 23. The Respondent agreed that a financial penalty should be imposed but submitted that this should not cross the $10,000 mark. Relying on the case of Vivien Sandhu, he submitted that a figure of $6,000 would be fair. He pointed out in that case, the firm received financial rewards which were never refunded. However, the Respondent here did not receive any financial reward and there was a lack of deceit or dishonesty on his part. He had failed to follow up with the Complainant when the issue arose but had taken a certain course from the inception. He therefore submitted that a fine of between $7,000 to $8,000 with no order as to costs should be imposed. 24. With respect to costs, the LSS submitted that costs of $5,000 to $6,000 and reasonable disbursements of $500 should be ordered. The Respondent 4 maintained his submission that no order as to costs should be made but added that if an order on costs were to be made, it should not exceed $5,000. 25. The Tribunal notes that a failure by a legal practitioner to supervise his staff is a serious matter for the reasons put forward by the LSS namely: a) The necessity to protect the public so that anyone who approaches a lawyer can expect to receive legal advice from people who are duly qualified and authorised; and b) In order to uphold public confidence in the standing and reputation of the legal profession. The penalty to be imposed in this case should reflect these concerns. 26. Taking into consideration all the factors, including the lack of dishonesty or deceit on the part of the Respondent, the quantum of monies involved and the fact that the Respondent derived no benefit from the transaction and has since put in place remedial measures to ensure better management and supervision of staff, and bearing in mind both the aggravating and mitigating factors, the Tribunal determines pursuant to Section 93(1)(b)(i) of the LPA that while the Respondent’s conduct does not disclose any cause of sufficient gravity for disciplinary action under Section 83, he should be ordered to pay a penalty that is sufficient and appropriate to the misconduct committed which we would recommend be a sum of $12,000. 27. Finally, pursuant to Section 93(2) of the LPA, the Tribunal orders the Respondent to pay the LSS’s costs fixed at $3,500 (inclusive of disbursements). Dated this 5th day of October 2022 _______________________ ________________ Deborah Evaline Barker, SC Harish Kumar President Member 5 Schedule 1 First Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 7 December 2020, failed to exercise proper supervision over Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, by allowing Jeremy Tan Yu Yee to attend to the Complainant, Khoo Teng Aik, without your presence, to take instructions on a debt collection matter and thereby enabled the said Jeremy Tan Yu Yee to cause the Complainant to execute documents, on behalf of Drink Express Trading, to engage a debt collector, and you are thereby guilty of a breach of Rule 32 of the Legal Profession (Professional Conduct) Rules 2015, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act 1966. Alternative First Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 7 December 2020, failed to exercise proper supervision over Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, by allowing Jeremy Tan Yu Yee to attend to the Complainant, Khoo Teng Aik, without your presence, to take instructions on a debt collection matter and thereby enabled the said Jeremy Tan Yu Yee to cause the Complainant to execute documents, on behalf of Drink Express Trading, to engage a debt collector, in breach of Rule 32 of the Legal Profession (Professional Conduct) Rules 2015, and you are thereby guilty of such misconduct unbefitting an advocate and solicitor as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. i Second Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, between 7 December 2020 and August 2021, failed to take reasonable steps to implement adequate systems, policies and controls in Advance Law LLC for ensuring that Advance Law LLC complied with the applicable written law relating to client’s money, to wit: (1) you failed to verify whether the sum of S$2,140.00 intended to be paid by the Complainant, Khoo Teng Aik, as a deposit to Advance Law LLC, even though you issued a receipt for the said sum; and/or; (2) you allowed or permitted or suffered the sum of S$2,140.00 to be paid into UOB Account No. XXXXXX4799 belonging to CJ Consultancy Pte Ltd, a company in which Jeremy Tan Yu Yee was the sole director and shareholder at the material time, instead of an account of Advance Law LLC, even though you issued a receipt for the said sum; and/or (3) you failed to ensure that the sum of S$2,140.00 intended to be paid by the Complainant as a deposit to Advance Law LLC was paid to a client account of Advance Law LLC; and you are thereby guilty of a breach of Rule 35(4) of the Legal Professional (Professional Conduct) Rules 2015, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Professional Act 1966. Second Alternative Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, between 7 December 2020 and August 2021, failed to take reasonable steps to implement adequate systems, policies and controls in Advance Law LLC for ensuring that Advance Law LLC complied with the applicable written law relating to client's money, to wit: (1) you failed to verify whether the sum of S$2, 140.00 intended to be paid by the Complainant, Khoo Teng Aik, as a deposit to Advance Law LLC was in fact ii received by Advance Law LLC, even though you issued a receipt for the said sum; and/or (2) You allowed or permitted or suffered the sum of S$2,140.00 to be paid into a UOB Account No. XXXXXX4799 belonging to CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, instead of an account of Advance Law LLC, even though you issued a receipt for the said sum; and/or (3) You failed to ensure that the sum of S$2,140.00 intended to be paid by the Complainant as a deposit to Advance Law LLC was paid to a client account of Advance Law LLC, and you are thereby guilty of such misconduct unbefitting an advocate and solicitor as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. Third Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, between 7 December 2020 and August 2021, refused and/or failed to issue a GST tax invoice to the Complainant, Khoo Teng Aik, when such GST tax invoice was requested by the Complainant, and you are thereby guilty of grossly improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act 1966. Fourth Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 21 December 2020, failed to exercise proper supervision over one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, to wit, you allowed or permitted or suffered Jeremy Tan Yu Yee to sign the name of Advance Law LLC on a letter of demand issued on the letterhead of Advance Law LLC and send the said letter of demand to Sri Kaligambal Enterprises Pte Ltd without your knowledge, and you are thereby guilty of a breach of Rule 32 of the Legal Profession (Professional Conduct) Rules 2015 and/or the Law Society of iii Singapore's Practice Directions 3.11.1, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act 1966. Alternative Fourth Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 21 December 2020, failed to exercise proper supervision over one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, to wit, you allowed or permitted or suffered Jeremy Tan Yu Yee to sign the name of Advance Law LLC on a letter of demand issued on the letterhead of Advance Law LLC and send the said letter of demand to Sri Kaligambal Enterprises Pte Ltd without your knowledge, and you are thereby guilty of such misconduct unbefitting an advocate and solicitor as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. Fifth Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 21 December 2020, permitted or suffered one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, to make use of your name and the name 'Advance Law LLC' in a debt recovery matter, to wit, you permitted or suffered Jeremy Tan Yu Yee to write and send a letter of demand threatening legal proceedings on the letterhead of Advance Law LLC, on behalf of Drink Express Trading, to Sri Kaligambal Enterprises Pte Ltd, for the profit of Jeremy Tan Yu Yee and/or CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, who received a 15% commission on 3 monetary instalments that were paid by Sri Kaligambal Enterprises Pte Ltd to Drink Express Trading, in contravention of Section 77 (1)(b) of the Legal Profession Act 1966, and you are thereby guilty of a breach of Section 83(2)j) of the Legal Profession Act 1966. iv Alternative Fifth Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 21 December 2020, permitted or suffered one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, to make use of your name and the name 'Advance Law LLC' in a debt recovery matter, to wit, you permitted or suffered Jeremy Tan Yu Yee to write and send a letter of demand threatening legal proceedings on the letterhead of Advance Law LLC, on behalf of Drink Express Trading, to Sri Kaligambal Enterprises Pte Ltd, for the profit of Jeremy Tan Yu Yee and/or CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, who received a 15% commission on 3 monetary instalments that were paid by Sri Kaligambal Enterprises Pte Ltd to Drink Express Trading, in contravention of Section 77(1)(b) of the Legal Profession Act 1966, and you are thereby guilty of grossly improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act 1966. Further Alternative Fifth Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 21 December 2020, permitted or suffered one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, to make use of your name and the name 'Advance Law LLC' in a debt recovery matter, to wit, you permitted or suffered Jeremy Tan Yu Yee to write and send a letter of demand threatening legal proceedings on the letterhead of Advance Law LLC, on behalf of Drink Express Trading, to Sri Kaligambal Enterprises Pte Ltd, for the profit of Jeremy Tan Yu Yee and/or CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, who received a 15% commission on 3 monetary instalments that were paid by Sri Kaligambal Enterprises Pte Ltd to Drink Express Trading, in contravention of Section 77(1)(b) of the Legal Profession Act 1966, and you are thereby guilty of such misconduct v unbefitting an advocate and solicitor as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. vi Schedule 2 First Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 7 December 2020, failed to exercise proper supervision over Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, by allowing Jeremy Tan Yu Yee to attend to the Complainant, Khoo Teng Aik, without your presence, to take instructions on a debt collection matter and thereby enabled the said Jeremy Tan Yu Yee to cause the Complainant to execute documents, on behalf of Drink Express Trading, to engage a debt collector, and you are thereby guilty of a breach of Rule 32 of the Legal Profession (Professional Conduct) Rules 2015, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act 1966. Alternative First Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 7 December 2020, failed to exercise proper supervision over Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, by allowing Jeremy Tan Yu Yee to attend to the Complainant, Khoo Teng Aik, without your presence, to take instructions on a debt collection matter and thereby enabled the said Jeremy Tan Yu Yee to cause the Complainant to execute documents, on behalf of Drink Express Trading, to engage a debt collector, in breach of Rule 32 of the Legal Profession (Professional Conduct) Rules 2015, and you are thereby guilty of such misconduct unbefitting an advocate and solicitor as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. i Second Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, between 7 December 2020 and August 2021, failed to take reasonable steps to implement adequate systems, policies and controls in Advance Law LLC for ensuring that Advance Law LLC complied with the applicable written law relating to client’s money, to wit: (1) you failed to verify whether the sum of S$2,140.00 intended to be paid by the Complainant, Khoo Teng Aik, as a deposit to Advance Law LLC was in fact received by Advance Law LLC, even though you issued a receipt for the said sum; and/or (2) you allowed or permitted or suffered the sum of S$2,140.00 to be paid into a UOB Account No. XXXXXX4799 belonging to CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, instead of an account of Advance Law LLC, even though you issued a receipt for the said sum; and/or (3) you failed to ensure that the sum of S$2,140.00 intended to be paid by the Complainant as a deposit to Advance Law LLC was paid to a client account of Advance Law LLC, and you are thereby guilty of a breach of Rule 35(4) of the Legal Profession (Professional Conduct) Rules 2015, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act 1966. Second Alternative Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, between 7 December 2020 and August 2021, failed to take reasonable steps to implement adequate systems, policies and controls in Advance Law LLC for ensuring that Advance Law LLC complied with the applicable written law relating to client’s money, to wit: (1) you failed to verify whether the sum of S$2,140.00 intended to be paid by the Complainant, Khoo Teng Aik, as a deposit to Advance Law LLC was in fact received by Advance Law LLC, even though you issued a receipt for the said sum; and/or ii (2) you allowed or permitted or suffered the sum of S$2,140.00 to be paid into a UOB Account No. XXXXXX4799 belonging to CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, instead of an account of Advance Law LLC, even though you issued a receipt for the said sum; and/or (3) you failed to ensure that the sum of S$2,140.00 intended to be paid by the Complainant as a deposit to Advance Law LLC was paid to a client account of Advance Law LLC, and you are thereby guilty of such misconduct unbefitting an advocate and solicitor as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. Third Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, between 7 December 2020 and August 2021, omitted to adequately address or respond to a request by the Complainant, Khoo Teng Aik, for a GST tax invoice for the sum of S$2,140.00. PARTICULARS (1) On 7 December 2020, the Complainant requested, through one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC, for a GST tax invoice for the sum of S$2,140.00; (2) On 10 August 2021, the Complainant requested that you, on behalf of Advance Law LLC, provide a GST tax invoice for the sum of S$2,140.00. You informed the Complainant that Advance Law LLC would “have to issue invoice” and you had “already instructed [your] Accounts [Department]” to check on the matter, and that you would speak to Jeremy Tan Yu Yee on the issue; (3) Thereafter, on 10 August 2021, you spoke to Jeremy Tan Yu Yee and were informed that the sum of S$2,140.00 was not paid to or received by Advance Law LLC, that Advance Law LLC had not been appointed by the Complainant to carry out the debt-collection work, and that Jeremy Tan Yu Yee would follow up with the Complainant on his request for a GST tax invoice. (4) In light of your conversation with Jeremy Tan Yu Yee, you ought, but failed, to inform the Complainant that the GST tax invoice for the sum of S$2,140 would not be issued by Advance Law LLC as the sum of S$2,140.00 was not paid to or received by Advance Law LLC and that Advance Law LLC had not been appointed by the Complainant to carry out the debt-collection work; iii and you are thereby guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. Fourth Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 21 December 2020, failed to exercise proper supervision over one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, to wit: (1) You allowed or permitted or suffered Jeremy Tan Yu Yee to sign the name of Advance Law LLC on a letter of demand issued on the letterhead of Advance Law LLC and send the said letter of demand to Sri Kaligambal Enterprises Pte Ltd without your knowledge; (2) you permitted or suffered Jeremy Tan Yu Yee and/or CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, to receive a 15% commission on 3 monetary instalments that were paid by Sri Kaligambal Enterprises Pte Ltd to Drink Express Trading; and you are thereby guilty of a breach of Rule 32 of the Legal Profession (Professional Conduct) Rules 2015 and/or the Law Society of Singapore’s Practice Directions 3.11.1, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act 1966. Alternative Fourth Charge That you, Teo Kim Soon Danny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or around 21 December 2020, failed to exercise proper supervision over one Jeremy Tan Yu Yee, a then-employee of Advance Law LLC who was an unauthorised person within the meaning of Section 32(2) of the Legal Profession Act 1966, to wit, (1) you allowed or permitted or suffered Jeremy Tan Yu Yee to sign the name of Advance Law LLC on a letter of demand issued on the letterhead of Advance iv Law LLC and send the said letter of demand to Sri Kaligambal Enterprises Pte Ltd without your knowledge; (2) you permitted or suffered Jeremy Tan Yu Yee and/or CJ Consultancy Pte Ltd, a company in which one Jeremy Tan Yu Yee was the sole director and shareholder at the material time, to receive a 15% commission on 3 monetary instalments that were paid by Sri Kaligambal Enterprises Pte Ltd to Drink Express Trading; and you are thereby guilty of such misconduct unbefitting an advocate and solicitor as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act 1966. v ",2025-03-11T04:00:57+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2025/,"In the Matter of Teo Kim Soon Danny (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2025/",1202 54,550bc9e616971c651a96fa45ddf886e7fde27eb5,"In the Matter of Sandhu Viviene Kaur (Respondent), Advocate & Solicitor","In the Matter of Sandhu Viviene Kaur (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent. The following amended Charge (the amended Charge) was preferred against the Respondent: Failing to exercise proper supervision over the staff working under her in that she had instructed the said staff to submit an application online using her CorpPass for a grant without supervising the said staff in the completion and/or submission of the application, thereby breaching rule 32 of the Legal Profession (Professional Conduct) Rules 2015 (PCR), which amounts to improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b)(i) of the Legal profession Act 1966 (the Act). Findings and Determination of the DT, Council’s Sanctions The Respondent admitted to the amended Charge. The DT found that the Charges were made out on the facts beyond a reasonable doubt, but did not give rise to cause for sufficient gravity for disciplinary action under section 83 of the Act. The DT recommended that the Respondent should be ordered to pay a penalty of S$4,000.00, which is, in the DT’s view, sufficient and appropriate to the misconduct committed. The DT made no order as costs. Pursuant to section 94(3)(a) of the LPA, the Council of the Law Society adopted the DT’s findings and ordered the Respondent to pay a penalty of $4,000.00. To access the full report, click here. In the Matters of Seah Zhen Wei Paul (1st Respondent) and Rethnam Chandra Mohan (2nd Respondent) (Collectively, the Respondents), Advocates & Solicitors The disciplinary proceedings against the Respondents arose out of a reference by the Registrar of the Supreme Court on 19 March 2021, pursuant to section 85(3)(b) of the Legal Profession Act (the Act) on behalf of the members of the Court of Appeal in Civil Appeal No. 146 of 2019 (CA 146) comprising the Honourable Chief Justice Sundaresh Menon, the Honourable Justice Andrew Phang Boon Leong, the Honourable Justice Judith Prakash, the Honourable Justice Steven Chong and the Honourable Justice Quentin Loh. The following charges were preferred against the 1st Respondent: First Charge and First and Second Alternatives The 1st Respondent when acting on behalf of his clients, allowed CA 146 to proceed and/or facilitated the continued prosecution of the said appeal, even after he had negotiated and concluded a settlement of the underlying dispute which resulted in the appeal being academic, thereby causing a wastage of the time and resources of a five-coram Court of Appeal, thereby breaching Rule 9(2)(a) of the Legal Profession (Professional Conduct) Rules 2015 (PCR) and such conduct amounted to a breach of his duty to assist in the efficient administration of justice vis-à-vis the appeal process before the Court of Appeal, thereby being guilty of grossly improper conduct in the discharge of his professional duty as an Advocate & Solicitor of the Supreme Court of Singapore within the meaning of section 83(2)(b) of the Act; thereby breaching Rule 9(1)(a) and/or 9(1)(e) of the PCR, and such conduct amounted to a breach of his duty to assist in the efficient administration of justice vis-à-vis the appeal process before the Court of Appeal, thereby being guilty of improper conduct or practice as an Advocate & Solicitor of the Supreme Court of Singapore under section 83(2)(b) of the Act; and such conduct amounts to a breach of his duty to assist in the efficient administration of justice vis-à-vis the appeal process before the Court of Appeal, thereby being guilty of such misconduct unbefitting an Advocate & Solicitor of the Supreme Court of Singapore or as a member of an honourable profession under section 83(2)(h) of the Act. Second Charge and First and Second Alternatives The 1st Respondent, on behalf of his clients, had entered into a settlement agreement on 28 November 2019, wherein it was agreed that his clients would proceed with CA 146 notwithstanding the settlement of the dispute and that the fact of the settlement would not be disclosed to the Court of Appeal unless strictly necessary and only upon specific queries from the Court of Appeal, which said conduct amounted to a breach of his duty of candour as he misled the Court of Appeal by way of a deliberate suppression of the disclosure of relevant information to the Court of Appeal, thereby being guilty of grossly improper conduct in the discharge of his professional duty as an Advocate & Solicitor of the Supreme Court of Singapore under section 83(2)(b) of the Act; thereby being guilty of a breach of Rule 9(2)(a)(i) of the PCR which amounts to improper conduct or practice as an Advocate & Solicitor of the Supreme Court of Singapore under section 83(2)(b) of the Act; thereby being guilty of such misconduct unbefitting an Advocate & Solicitor of the Supreme Court of Singapore or as a member of an honourable profession under section 83(2)(h) of the Act. The following charges were preferred against the 2nd Respondent: First Charge and First Alternative The 2nd Respondent, when conducting proceedings before the Court of Appeal in CA 146 on behalf of a client, did knowingly mislead the Court, by omitting to inform the Court of Appeal that his client had entered into a settlement agreement, until expressly questioned by the Court of Appeal, thereby breaching Rule 9(2)(a)(i) of the PCR and being guilty of improper conduct or practice as an Advocate & Solicitor of the Supreme Court of Singapore under section 83(2)(b) of the Act; thereby being guilty of such misconduct unbefitting an Advocate & Solicitor as an officer of the Supreme Court of Singapore or as a member of an honourable profession within the meaning of section 83(2)(h) of the Act. Second Charge and Second Alternative The 2nd Respondent, had allowed the appeal in CA 146 to proceed and/or facilitated the continuance of CA 146, even after his client had entered into a settlement agreement, resulting in the appeal being academic, thereby causing a waste of the time and resources of a five-coram Court of Appeal, which conduct amounts to a breach of your duty to assist in the administration of justice in the conduct of CA 146, thereby breaching Rule 9(1)(a) of the PCR and being guilty of improper conduct or practice as an Advocate & Solicitor of the Supreme Court of Singapore under section 83(2)(b) of the Act; thereby being guilty of such misconduct unbefitting an Advocate & Solicitor as an officer of the Supreme Court of Singapore or as a member of an honourable profession within the meaning of section 83(2)(h) of the Act. Findings of the Disciplinary Tribunal (DT) The DT found that the 1st Respondent was guilty of the First and Second Charges and their alternatives. The DT found that the 2nd Respondent was guilty of the First Alternative Charge and the Second Charge. The DT ordered that the Respondents each pay the sum of $15,000.00 as costs to the Law Society. Court of Three Judges The Court of Three Judges disagreed with the DT’s findings in relation to the 2nd Respondent and found that the First Charge had been made out against the 2nd Respondent. The Court ordered that the 1st Respondent be suspended from practice for a period of three years commencing from 17 August 2024, and that the costs fixed at the sum of $10,000.00 to be paid by the 1st Respondent to the Law Society, which sum reflected his concession of liability at the start of the hearing. The Court ordered that the 2nd Respondent be suspended from practice for a period of three years commencing from 1 June 2024, and that the costs fixed at the sum of $16,000.00 to be paid by the 2nd Respondent to the Law Society. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/03/Mar_25_DT_Report_Viviene_Sandhu.pdf,"DT 18 of 2021 IN THE MATTER OF SANDHU VIVIENE KAUR (AN ADVOCATE AND SOLICITOR) AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) DISCIPLINARY TRIBUNAL REPORT Disciplinary Tribunal Mr Tan Chuan Thye, SC Mrs Gina Lee-Wan Counsel for the Law Society of Singapore Counsel for the Respondent Mr Chu Hua Yi (FC Legal Asia LLC) Mr R S Bajwa (Bajwa & Co) Mr Andy Chiok (AM Legal LLC) Mr Rajwin Singh Sandhu (Rajwin & Yong LLP) Introduction 1. The Respondent advocate and solicitor was admitted to the rolls on 21 March 1998 and at all material times practised as a partner of Clifford Law LLP (""Clifford Law""). The complainant is Aw Wee Chong Nicholas, an advocate and solicitor. He was a partner in Clifford Law when he made the complaint on 27 August 2020. By then, he had agreed, following a mediation, to leave the practice at the end of 2020. 2. The complaint related to certain applications the Respondent had made in the name of Clifford Law to the Singapore National Employers Federation (""SNEF"") and Enterprise Singapore (""ES"") for monetary grants. It alleged that the Respondent had made misrepresentations, false and inaccurate declarations, and fraudulently misled SNEF and ES. It further alleged that the applications were made without the consent of the Complainant and/or while the Respondent had the intention to dissolve Clifford Law. Procedural history 3. The Law Society laid four charges against the Respondent (see Statement of Case dated 22 July 2021). These related to: (a) her acceptance of a grant from SNEF in May 2019 knowing she was not authorised to do so; (b) to her applying for an ES grant in July 2019 knowing she was not authorised to do so; (c) making an incorrect declaration in the application to ES; and (d) failing to promptly notify or declare to ES that the declaration was incorrect. The Law Society alleged that the Respondent had been guilty of grossly improper conduct contrary to s 83(2)(b) of the Legal Profession Act (Cap. 161) (""the Act""). The Law Society additionally laid four alternative charges that the Respondent's actions amounted to misconduct unbefitting of an advocate and solicitor contrary to s 83(2)(h) of the Act. 2 4. This Disciplinary Tribunal (""DT"") was appointed on 2 August 2021 to hear and investigate the matter. Directions were given on 20 August 2021 after hearing counsel. 5. The DT heard evidence on 18 and 19 October 2021 as scheduled. Chu Hua Yi appeared for the Law Society, and RS Bajwa, Andy Chiok Beng Piow and Rajwin Singh Sandhu appeared for the Respondent. 6. Mr Aw was the sole witness for the Law Society. At all material times, there were four partners in Clifford Law and Mr Aw had alleged that he and Montague Choy had objected to the applications to SNEF and ES. It was therefore somewhat surprising that Mr Choy did not come forward to testify. The Respondent had four witnesses file affidavits of evidence in chief. Apart from herself, affidavits were filed by Michael Loh Yik Ming, the fourth partner in Clifford Law, as well as by two non-legal staff of the practice. 7. The Law Society closed its case in the course of the hearing on 19 October 2021. Thereafter, the DT heard evidence from one of the non-legal staff and heard the evidence in chief and some cross examination of Mr Loh. The matter was part-heard. 8. Shortly before the adjourned hearing on 1 December 2021, the DT was informed that the Law Society had decided to withdraw the original charges and the Respondent had decided to take a certain course of action to a single revised charge. Following directions given on 1 December 2021, this revised charge was filed on 27 December 2021 with an agreed statement of facts (""the ASOF""). The Law Society's written submissions on the revised charged were filed on 3 January 2022 as were the Respondent's submissions. 3 9. The Respondent confirmed via Zoom at a hearing on 5 January 2022 that she accepted the revised charge which is in the following terms: “That, you, Viviene Kaur Sandhu Mrs Viviene Cerasi, an Advocate and Solicitor of the Supreme Court of Singapore, are guilty of breaching Rule 32 of the Legal Profession (Professional Conduct) Rules 2015 (the “Rules”) by failing to exercise proper supervision over the staff working under you in Clifford Law LLC, namely, one Trina Wong and one Lacey Chia, in that on or around 19 July 2019, you had instructed the said Trina Wong and Lacey Chua to make an application online using your CorpPass for a grant for an information technology solution known as “TessaCloud” from Enterprise Singapore (“ES Grant”) without supervising Trina and/or Lacey in the completion and/or submission of the ES Grant application which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b)(i) of the Legal Profession Act (Cap. 161).” The agreed facts 10. The DT adopts the terms in the revised charge hereinafter. 11. The ASOF records that on or around 19 July 2019, the Respondent instructed Ms Wong and Ms Chia, both non-legal employees of Clifford Law, to apply for the ES Grant. Ms Wong and Ms Chia were guided over the telephone by an ES Grant consultant while making the application online. 12. The online form required a declaration as to whether Clifford Law was or had been engaged in any civil suit or proceedings in any jurisdiction in the last 5 years. They answered ""No"". This was done without first checking or verifying with the Respondent. Ms Wong and Ms Chia also answered ""Yes"" to the following statements: 4 ""We, the Applicant, declare that the facts stated in this application and the accompanying information are true and correct to the best of our knowledge and that we have not withheld/distorted any material facts. We understand that we have a continuing duty to promptly notify the Agency if there is any change affecting the information set out in this application form and declaration. We understand that we may face prosecution if we provide false or misleading statements or fail to disclose material facts, and the Agency may, at its discretion, withdraw the grant and recover immediately from us any amount of the grant that may have been disbursed."" 13. The Respondent did not supervise Ms Wong and Ms Chia in the completion and/or submission of the ES Grant application. Paragraph 11 of the ASOF is in the following terms: ""The Respondent did not know that the declarations had to be made in the ES Grant application and/or that the answers provided were incorrect as she did not exercise proper supervision over Trina and Lacey when they made the ES Grant application"". 14. The above-mentioned responses by Ms Wong and Ms Chia were incorrect as Clifford Law had been named as a defendant in proceedings in the High Court of Singapore in 2017. 15. The ES Grant was approved on 5 August 2019. The submissions 16. The Law Society submitted that the DT is to consider the following 4 factors in determining the appropriate sanction, citing Law Society v Tan See Leh [2020] 5 SLR 418: protection of the public; safeguarding the collective interest and standing of the legal profession; the punishment of the offender; and the notion of deterrence. 5 17. It accepted that public interest is not a primary consideration in this case and emphasised the factors of deterrence and punishment. The ES Grant application was made online using the Respondent's personal CorpPass and she had a personal responsibility to check the information being provided was correct. The Respondent failed to do so as she did not read the application form before the application was made or supervise Ms Wong or Ms Chia when they were completing and submitting the form. 18. The Law Society also stressed the Respondent did not check the form after it had been submitted. It was also submitted that the Respondent did not take any steps to rectify the incorrect information submitted to the authorities. 19. Importance was placed on the fact that the ES Grant was awarded to Clifford Law. It was not returned after the fact that the application contained incorrect information. The ES Grant was in the amount of $17,864 (Agreed Bundle pg 485). 20. The Law Society sought a monetary penalty commensurate with the benefit received by the Respondent arising from her abdication of her duty. Any lesser sanction was said to be an insufficient deterrent to the Respondent and/or other legal practitioners and would allow her to retain the benefit of her admitted breach of Rule 32 of the Rules. In oral submissions, counsel for the Law Society confirmed though that it was not seeking a disgorgement of the amount of the ES Grant. This must be correct as the grant benefitted Clifford Law, not the Respondent. 6 21. In mitigation, the Respondent cited her contributions to the Law Society and the legal profession. In the former, she has been involved in committee work since 2008. She has been active in taking on Legal Aid Bureau work, and as a primary justice lawyer at the Community Justice Courts and been recognised by the judiciary for her contributions as a volunteer lawyer. She has also done pro bono work for the Migrant Workers Centre and Centre for Domestic Employees. In addition, she is on the training faculty for practice trainees and involved in raising community awareness of the law. She has also made consistent yearly generation financial contributions to various Law Society fund raising programmes over the years. 22. The Respondent drew attention to [38] of her defence filed on 1 September 2021 where she had accepted responsibility for the incorrect responses in the ES Grant application and that she should have supervised the application being made by Ms Wong and Ms Chia and the consultant and should not have left it entirely to them. Quite properly, it was submitted that time, resources, and expense would have been saved if the course taken after the hearings on 18 and 19 October 2021 had been embarked upon earlier. 23. The Respondent said that a reprimand would be the appropriate sanction as the Law Society accepted that she did not knowingly allow the incorrect responses to be made, and that she could not have taken steps to correct the responses since she did not know they were incorrect (Respondent's Submissions at [5]). The focus of the revised charge was accordingly said to be the Respondent's failure to supervise Ms Wong and Ms Chia, and no other state of mind. The Respondent has further confirmed that she has caused Clifford Law to implement procedures to ensure there is no future lapse in supervision of the staff irrespective of their seniority. 7 24. On the Law Society's submission for a fine commensurate with the benefit of the ES Grant, the Respondent said there was no evidence that the grant would not have been approved if there was no error in the responses and adduced a letter dated 21 July 2021 that Clifford Law had sent to ES clarifying the response about court proceedings involving the law practice. Counsel for the Respondent confirmed at the hearing on 5 January 2022 that there has been no response from ES to the letter, and counsel for the Law Society accepted this confirmation. DT's analysis 25. Rule 32 is in Part 3 of the Rules, which sets out the rules applicable to the practice of Singapore law and practice in the Singapore courts. The placement is somewhat odd given that it is Part 4 of the Rules which deals with rules applicable to the management and operation of law practices which logically would be a more appropriate and relevant place for the rule. Professor Jeffrey Pinsler in his commentary on the Rules (Academy Publishing, 2016) makes the point that Rule 32 should be read with Rules 35 and 36 which appear in Part 4 (see [32.002]). Rule 32 reads: ""A legal practitioner must, regardless of the legal practitioner’s designation in a law practice, exercise proper supervision over the staff working under the legal practitioner in the law practice"". 26. The literal text of the Rule does not expressly specify that the supervision is to be in relation to work in legal practice or related to legal practice, but it should not be controversial that this limitation should be read into the Rule. It cannot be the case that the Rules seek to control what a legal practitioner has his staff do for him in relation to his personal matters, subject always to the legal practitioner himself being bound to act in a manner befitting a member of an honourable profession. On the facts of the present case, the ES Grant was open only to Singapore law practices satisfying the threshold requirements set out in Rule 3 of the Legal Procession (Law Practice Entities) Rules 2015 (see Agreed Bundle at p 478). 8 Accordingly, the application for the ES Grant would be sufficiently connected to the law practice of Clifford Law and the Respondent would have a responsibility falling under Rule 32 to supervise the making of the ES Grant application by Ms Wong and Ms Chia. 27. In Law Society of New South Wales v Foreman (1991) 24 NSWLR 238, the Court of Appeal of New South Wales, Australia opined: ""... [T]he responsibilities of a solicitor for the proper conduct of the practice of which he is a part extend beyond his own actions and the work that he does. The obligations placed upon a solicitor by the regulatory legislation to which he is subject involve that he, to a proper extent, take steps to ensure that the statutory obligations in respect, to take one example of the maintenance of a trust account, are complied with. ... [A] solicitor has also responsibilities in respect of staff employed by him or his practice in the conduct of legal matters. It is not necessary or desirable that the court attempt to formulate in detail the principles on which such obligations rest or the application of them, in general terms, to the practice of law. The kinds of practices now carried on vary considerably and the managerial and other structures within legal practices vary and will, no doubt, vary further to meet the needs of a changing profession. ... It is therefore proper to confine what is said in this case to the responsibilities of a sole practitioner in respect of a non-qualified person who has been given the duty of conducting matters involving the application of the law and requiring the observance of proper standards of conduct. ... What will be required for the discharge of a solicitor’s responsibilities in a case such as the present must, even within such confines, be affected by the circumstances of the case. It will, for example, be affected by the solicitor’s knowledge on a continuing basis of the competence and integrity of the clerk. It will be affected also by the nature of the transactions taking place or apt to take place within the clerk’s scope of activities. But, without seeking to be definitive or exhaustive, it will be of assistance to see as involved in the conduct of a solicitor’s practice, inter alia, five things: (1) a knowledge of the law to be applied; (2)the proper application of the law to the individual transactions carried out by the clerk; (3) the efficient and effective processing of those transactions from their commencement to the completion of them; (4) the observance of the statutory and other requirements in respect of the dealing with moneys received into the practice; and (5) the observance of the general obligations of those involved in the conduct of a legal practice, relating to, for example, conflict of interest, the conduct of fiduciaries, and the general ethics and etiquette of lawyers and those associated with them. 9 I do not mean by this that a solicitor must himself scrutinise every step of such transactions or that in every case he must be concerned with all such transactions. He may be in a position from past knowledge and experience of the clerk to exercise a more general rather than a particularised supervision of such matters. But he must give attention to the extent of supervision necessary in each case and maintain a sufficiently close oversight of cases in which principles of the kind to which I have referred are apt to come into operation"". [italics added] 28. The Court of Three Judges in Law Society v Tan Chwee Wan Allan [2007] 4 SL(R) 699 ""emphatically agreed"" with the quoted observations (at [41]). The need to apply the requirements of proper supervision according to the circumstances of each case explains the varying sanctions in different proceedings. In Tan Chwee Wan Allan, a secretary had deposited client's monies into the office account rather than the clients' account. The legal practitioner refunded the money to the clients' account promptly on discovery and voluntarily left practice for over two years after being informed he had breached the Solicitors Accounts Rules (see [51]). In those circumstances, the legal practitioner was censured for his failure to supervise his secretary and required to give an undertaking to not practice as a sole practitioner for a period of two years. 29. The circumstances in Law Society v Yeo Siew Chye Troy [2019] 5 SLR 358 were quite different. The legal practitioner there employed an unqualified person to establish a conveyancing department and did not adequately or properly supervise him, with the result that the employee committed multiple instances of cheating and/or criminal breach of trust. The legal practitioner was suspended from practice for a period of four years. Similarly, in Law Society v Tan See Leh Jonathan [2020] 5 SLR, the legal practitioner employed someone who had been unable to renew his practising certificate but allowed him to communicate with clients as if he were an advocate and solicitor and to share in the legal fees earned on cases he worked on. The legal practitioner was suspended from practice for three months, a period which would have been longer but for certain mitigating factors (see [13]). 10 30. Notably, the Law Society's Council has reprimanded practitioners in situations where there has been a failure to supervise (see Law Society's submissions at [30]). Unfortunately, the circumstances of those cases are not entirely clear and so offer little guidance to the DT. 31. In the present case, the basic facts are these: Clifford Law was to make an application to ES for a financial grant; the application sought support for up to 70% of the proposed expenditure of $25,520 on information technology equipment; and a consultant was engaged to help Clifford Law make the application. On these basic facts, a legal practitioner delegating the filling in of the application to her staff should have made the effort to make herself aware of what information ES required and what questions ES required responses to and the form of the responses. These are general obligations for one involved in legal practice, which the DT emphasises is not simply an economic activity but a professional one and an honourable one. 32. Furthermore, the DT considers it unarguable that had a wet ink signature been required on the application form, the Respondent would have been obliged to read through the form and become aware that declarations were requested, including the declaration concerning the involvement of Clifford Law in any court proceedings. That the application was made online should not mean a lower level of supervision is acceptable. This is particularly so when the use of the online system involved a security mechanism such as CorpPass. Such a mechanism is the present-day equivalent of a wet-ink signature, and a legal practitioner can reasonably be expected to exercise sufficient supervision to know not only in general outline what the mechanism was being used for but to know in sufficient detail the information that the mechanism was confirming. Mechanisms such as CorpPass are intended to make transactions in the present-day more efficient and secure, and while they also make it more convenient to transact, the convenience should not lull one into dangerous complacency. 11 33. Given that the application for the ES Grant was not a routine matter of legal practice, the fact that Ms Wong and Ms Chia had some years of experience working in a law practice is neither here nor there. The DT is therefore unable to accept the Respondent's submission that their experience meant that she could exercise less supervision in this instance. The DT is also unable to accept that the presence of a consultant meant that the Respondent should not have been more involved to know what the application required. A consultant would be aware of the requirements of ES but would not be aware of the correctness of Clifford Law's responses. Specifically, the consultant would not know what information Ms Wong or Ms Chia had about Clifford Law that was relevant to the application. As counsel for the Law Society put the point, the Respondent had abdicated her responsibility to provide correct answers to ES or to supervise the provision of the correct answers to ES. It was a different situation from Ms Wong or Ms Chia acting in their own name on behalf of Clifford Law 34. In these circumstances, the DT considers that a monetary penalty is necessary and appropriate. 35. The DT considers that the starting point would be that a fine of $5,000 is sufficient and appropriate to the misconduct. This would reflect the seriousness of the failure to supervise, in particular to ensure that the CorpPass was used to provide appropriate and correct information to ES. The DT would, however, allow some discount, albeit constrained by the seriousness of the lack of supervision, for the Respondent having accepted responsibility in her Defence for the incorrect responses in the ES Grant application and her failure to supervise Ms Wong and Ms Chia (and the consultant). The DT accepts and is sympathetic to the stress and anxiety the Respondent has had to face in these proceedings notwithstanding that early acceptance of responsibility. 12 Determination 36. For the above reasons, pursuant to s 93(1)(b)(i) of the Act, the DT determines that while no cause of sufficient gravity for disciplinary action exists under s 83 of the Act, the Respondent should be ordered to pay a penalty of S$4,000 (or such amount as the Council may subsequently determine under s 94(3)(a) of the Act) which this DT views is sufficient and appropriate to the Respondent’s misconduct. 37. The DT makes no order as to costs. Dated this 19th day of January 2022 ___________________ _____________________ Mrs Gina Lee-Wan Tan Chuan Thye, SC, President 13 ",2025-03-11T04:00:57+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2025/,"In the Matter of Sandhu Viviene Kaur (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2025/",1202 50,5f194aabf32d645c317011037a797f7f7bec589c,"In the Matter of Kasturibai d/o Manickam (Respondent), Advocate & Solicitor","In the Matter of Kasturibai d/o Manickam (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from the Complainant and her brother (the Brother), whom the Respondent acted for in the sale of a property. In the course of this, the Respondent prepared six documents for the Complainant to be signed by the Complainant. The Respondent signed as witness to the Complainant’s signature to the documents when she did not in fact witness the Complainant signing them. Five of these six documents were then sent to the firm representing the purchasers of the property (the Purchasers’ solicitors), intending that they be relied upon for the purchase. The following main charges, referencing section 83(2)(b) of the Legal Profession Act 1966 (the Act) for grossly improper conduct in the discharge of professional duty as an advocated and solicitor, were preferred against the Respondent: Revised First Charge For intentionally signing as witness to the signature of the Complainant on five documents in the course of acting for the Complainant and the Brother, when in fact the said documents were not signed in her presence by the said Complainant, further providing the signed documents bearing her signature as witness, to the Purchasers’ solicitors, when she knew that she had not witnessed the Complainant signing the documents, intending for the same to be relied upon. Revised Second Charge For intentionally signing as witness to the signature of the in the course of acting for the Complainant and the Brother, when in fact the said documents were not signed in her presence by the said Complainant. The Respondent had agreed to not contest the Revised Alternative 1st Charge and the Revised Alternative 2nd Charge have been made out. However, the Revised 1st Charge and Revised 2nd Charge (collectively Principal Charges) would still be proceeded with. Findings of the Disciplinary Tribunal (DT) The DT was of the view that the Principal Charges were made out and that there was cause of sufficient gravity for disciplinary action under section 83(1) of the Act. The DT also ordered costs of $10,000. Court of Three Judges The Court ordered that the Respondent be suspended for a period of 12 months, commencing 1 April 2024. The Court further ordered that the Respondent pay costs of $10,000 (all in). To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/02/Feb_25_Kasturibai_full_DT_report_compressed.pdf,"DT/07/2022 IN THE MATTER OF KASTURIBAI MANICKAM (AN ADVOCATE &SOLICITOR) AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Coram President: Ms Koh Swee Yen, S. C. Advocate &Solicitor: Mr Chong Yee Leong Solicitors for the Law Society: Solicitors for the Respondent: Mr Paras Lalwani Mr Sreenivasan Narayanan, S. C. DREW & NAPIER LLC 10 Collyer Quay #10-00 Ocean Financial Centre Singapore 049315 Ref: PML/480516 K&L GATES STRAITS LAW LLP 9 Raffles Place $32-00 Republic Plaza Singapore 048619 Ref: and Mr A. Rajandran M/S A. RAJANDRAN 5001 Beach Road #08-16 Golden Mile Complex Singapore 199588 Ref: RAJ.2405.2022.at Dated this 11th day of October 2022 I. INTRODUCTION 1. These proceedings concern a complaint (""Complaint"") by Ms Santha Devi d/o V. Puthenveetil Kesava Pillay (""Complainant"") against Ms Kasturibai Manickam (""Respondent""). The Respondent is an Advocate and Solicitor of the Supreme Court of the Republic of Singapore of 25 years' standing. At all material times, the Respondent was a Director in East Asia Law Corporation. 2. On 9 May 2022, the Honourable Chief Justice Sundaresh Menon appointed this Disciplinary Tribunal (""DT"") to hear and investigate this matter. II. CHARGES AND PROCEEDINGS OF THE TRIBUNAL 3. The Law Society initially formulated 12 charges (""Original Charges"") against the Respondent, as stated in the Law Society's Statement of Case.l 4. At the first Pre-Hearing Conference fixed on 23 June 2022 (""1St PHC""), Counsel for the Law Society informed the DT that the Respondent wanted to make representations to the Law Society, and both parties sought timelines for this. The DT directed, inter alia, that the Respondent is to file her representations by 7 July 2022, and the Law Society is to file its reply to the Respondent's representations by 18 July 2022. 5. On 2 August 2022, the Law Society informed the DT by way of a letter that ""since [the 1S`J PHC, the parties have been communicating in ~•espect of the Respondef~t's representations to the [Laia~ Society)"",z and that ""~pJarties have recently agreedfor the [Law Society) to prefer certain revised charges against the Respondent, ar~d for the Respondent to take a ce~~tazn course of action in respect of these revised cl~a~ges.""3 6. On the same day, the Law Society sent the proposed revised charges (""Revised Charges"") to the DT. The Revised Charges are as follows: REVISED FIRST CHARGE You, Kasturibai Manickam, an advocate and solicitor, during the period sometime between 7 September 2020 and 5 November 2020, (a) intentionally signed as witness to the signature of Ms Santha Devi d/o V. Puthenveetil Kesava Pillay (""Complainant"") on 5 documents —namely, (i) an Instrument of Transfer; (ii) a Letter of Confirmation dated 16 September 2020; (iii) a Seller's Stamp Duty Declaration form under Section 22A of the Stamp Duties Act (Cap. 312, 2021 Rev. Ed.); (iv) a Letter of Authority dated 27 October 2020; and (v) a Letter of Authority dated 4 November 2020 (collectively, the ""Documents"") 1 2 3 Statement of Case at [29]. Law Society's Letter to the Tribunal dated 2 August 2022 at [3]. Law Society's Letter to the Tribunal dated 2 August 2022 at [4]. — in the course of acting for the Complainant and her brother, Mr Raman s/o Puthenveetil Kesava Pillay, in the sale of a property located at Blk 85 Pheng Gek Avenue #18-17 N1N Residence Singapore 348217 (""Property""), when in fact the said Documents were not signed in your presence by the said Complainant, and (b) provided the signed Documents bearing your signature as witness, to the solicitors for the Purchaser of the Properly, M/s Advent Law Corporation, when you knew that you had not witnessed the Complainant signing the Documents, intending for the same to be relied upon, and accordingly, you are guilty of grossly improper conduct in the discharge ofyour professional duty within Section 83(2)(b) of the Legal Profession Act (Cap. 161, Rev. Ed. 2020) (""LPA""). REVISED ALTERNATIVE FIl2ST CHARGE You, Kasturibai Manickam, an advocate and solicitor, during the period sometime between 7 September 2020 and 5 November 2020, (a) intentionally signed as witness to the signature of Ms Santha Devi d/o V. Puthenveetil Kesa~a Pillay (""Complainant"") on 5 documents —namely, (i) an Instrument of Transfer; (ii) a Letter of Confirmation dated 16 September 2020; (iii) a Seller's Stamp Duty Declaration form under Section 22A of the Stamp Duties Act (Cap. 312, 2021 Rev. Ed.); (iv) a Letter of Authority dated 27 October 2020; and (v) a Letter of Authority dated 4 November 2020 (collectively, the ""Documents"") — in the course of acting for the Complainant and her brother, Mr Raman s/o Puthenveetil Kesava Pillay, in the sale of a property located at Blk 85 Pheng Gek Avenue #18-17 NIl~ Residence Singapore 348217 (""Property""), when in fact the said Documents were not signed in your presence by the said Complainant, and (b) provided the signed Documents bearing your signature as witness, to the solicitors for the Purchaser of the Property, M/s Advent Law Corporation, when you knew that you had not witnessed the Complainant signing the Documents, intending for the same to be relied upon, and accordingly, you are guilty of misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court pursuant to Section 83(2)(h) of the Legal Profession Act (Cap. 161, Rev. Ed. 2020). REVISED SECOND CHARGE You, Kasturibai Manickam, an advocate and solicitor, during the period sometime between 7 September 2020 and 5 November 2020, intentionally signed as witness to the signature of Ms Santha Devi d/o V. Puthenveetil Kesava Pillay (""Complainant"") on a Statement of Account dated 4 November 2020 in the course of acting for the Complainant and her brother, Mr Raman s/o Puthenveetil Kesava Pillay, in the sale of a property located at Blk 85 Pheng Gek Avenue #18-17 I~]IN Residence Singapore 348217 (""Property""), when in fact the said Statement of Account was not signed in your presence by the said Complainant, and when you knew that you had not witnessed the Complainant signing the said Statement of Account, and accordingly, you are guilty of grossly improper conduct in the discharge of your professional duty within Section 83(2)(b) of the Legal Profession Act (Cap. 161, Rev. Ed. 2020). REVISED ALTERNATIVE SECOND CHARGE You, Kasturibai Manickam, an advocate and solicitor, during the period sometime between 7 September 2020 and 5 November 2020, intentionally signed as witness to the signature of Ms Santha Devi d/o V. Puthenveetil Kesava Pillay (""Complainant"") on a Statement of Account dated 4 November 2020 in the course of acting for the Complainant and her brother, Mr Raman s/o Puthenveetil Kesava Pillay, in the sale of a property located at Blk 85 Pheng Gek Avenue #18-17 NIN Residence Singapore 348217 (""Property""), when in fact the said Statement of Account was not signed in your presence by the said Complainant, and when you knew that you had not witnessed the Complainant signing the said Statetnent of Account, and accordingly, you are guilty of misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court pursuant to Section 83(2)(h) of the Legal Profession Act (Cap. 161, Rev. Ed. 2020). 7. The DT conducted the second Pre-Hearing Conference on 4 August 2022 (""2°d PHC""), where, inter alia, the DT asked the parties for an update on the current status of the Revised Charges. Counsel for the Law Society stated that since the 1St PHC, the parties have been corresponding with each other, and the Respondent has made several rounds of representations. Accordingly, Counsel for the Law Society sought leave from the DT to amend the Original Charges to the Revised Charges. 8. Counsel for the Law Society further informed the DT that the parties have agreed to proceed on a statement of agreed facts in order to avoid an evidentiary hearing, and that the Respondent had agreed to not contest that the Revised Alternative First Charge and Revised Alternative Second Charge (collectively ""Alternative Charges"") have been made out. However, the Law Society stated that it would still be proceeding on the Revised First Charge and Revised Second Charge (collectively ""Principal Charges""). As such, the DT made the following directions at the 2°d PHC: a. statement of agreed facts with supporting documents to be filed and served by 10 August 2022; b. Opening Statements/Written Submissions, Bundle of Authorities and any additional Bundle of Documents to be filed and served by 15 August 2022; c. the hearing dates on 17 and 18 August 2022 to be vacated; and d. the hearing is fixed for half-day on 19 August 2022 at 10.00 am, with half-day reserve in the afternoon. 9. On 10 August 2022, the Law Society sent the statement of agreed facts dated 10 August 2022 (""Agreed Statement of Facts"") to the DT. Thereafter, on 15 August 2022, the Law Society filed and served its opening statement and bundle of authorities, and the Respondent filed and served her opening statement, written submissions, bundle of authorities, and bundle of documents. 10. However, in a change of events, the Law Society wrote to the DT on 16 August 2022 (""16 August Letter"") requesting an urgent Pre-Hearing Conference to be held, to discuss the issue of the Respondent's purported introduction, in the documents filed by the Respondent on 15 August 2022, of ""a whole host of new (and disputed) allegations and matters (collectively, the ""Disputed Matters "") whzch weYe not agreed by parties to be included in the Agreed Statement of Facts)"". 4 The alleged ""new (and disputed) allegations and matters"" (""Disputed Matters"") as set out in the Law Society's 16 August Letter are reproduced below:s 11. 4 5 6 ~ a. the allegation that the Respondent took precautions to ensure that the Complainant properly signed the documents which are the subject of the Revised Charges (""Documents""), and that this is evidenced by her purportedly contemporaneous attendance notes dated 9 September 2020 and 4 November 2020 (collectively, the ""Attendance Notes"") —made inter alia at paragraph 9(b) of the Respondent's opening statement and paragraph 17 of the Respondent's written submissions; b. the allegation that it was the Complainant and her brother, Raman, who asked the Respondent to dispense with their physical attendance for the purposes of attestation of the Documents, so as to minimise their risk of being infected by COVID-19, as they are elderly persons and had pre-existing illnesses, and that the Respondent was merely acceding to this alleged request -made inter alia at paragraph 9(c) of the Respondent's opening statement and paragraph 18, 35, 36, 44, 58, 77, 88, and 99 of the Respondent's written submissions; and c. statements (which have been taken out of context by the Respondent) made by the Inquiry Committee (""IC"") in the IC's Report, as well as the IC itself —see paragraphs 14, 27, 43 and 103 of the Respondent's written submissions as well as Annex A to the Respondent's written submissions. The Law Society's position was that the Respondent's actions were ""improper, [and) wholly inconsistent with parties' agreement to proceed on the basis of the [Agreed Statement of Facts).""6 Accordingly, the Law Society stated that it ""will be preferring the Original Charges against the Respondent, and requests that afull evidential heating take place in the matter for the DT to deternZine the facts of the case. ""~ 16 August Letter at [5]. 16 August Letter at [5]. 16 August Letter at [8] . 16 August Letter at [13]. 12. The DT urgently held the third Pre-Hearing Conference on 17 August 2022 (""3''`~ PHC"") to address the complications that arose on the eve of the oral hearing. At the 3`d PHC, after hearing the parties, the DT gave leave for the parties to file and serve submissions on the following two issues: a. whether, after the submission of the Agreed Statement of Facts which included a set of revised charges, the Law Society retains the discretion to prefer other charges; and b. the circumstances that give the Law Society the right to prefer other charges, other than the revised charges included in the Agreed Statement of Facts. 13. On 18 August 2022, the Law Society wrote to the DT (""18 August Letter"") stating that ""[hJaving conside~~ed the matter fuf•ther, the [La~v Society) wishes to inform the DT that whilst it maintains that the Respondent's inclusion of the Disputed Matters in the Respondent's 15 Aug Documents constitutes a breach of the Agreement reached bet►veen parties to proceed on the basis of the [Agt~eed Statement of Facts), it will nevertheless prefef~ only the Revised Charges and their alternatives against the Respondent.""g 14. The Law Society then stated in the 18 August Letter that ""insofar as the Disputed Matters af~e conce~~ned, it is the [Law SocietyJ's position that the Disputed Matters may have an impact on sentencing (albeit at the Court of Three Judges stage). In the circumstances, the [La~v Society) humbly requests that a Newton Hearing be conducted in order for the Tribunal to make a deter°urination orr the backgroundfacts of the matter.""9 15. In the premises, the DT made the following directions: a. The Law Society and the Respondent are to file and exchange their respective affidavits) setting out their evidence on the facts that they wish to rely on (insofar as the facts are not in the Agreed Statement of Facts) for the purposes of the submissions as to whether the conduct of the Respondent comes within s 83(2)(b) ors 83(2)(h) of the LPA before midnight, 18 August 2022. b. The Law Society and the Respondent are to confirm the names of their respective witnesses by 12 pm, 18 August 2022. c. A Newton hearing (with cross-examination and brief re-examination) be conducted in the morning of 19 August 2022 for the purposes of determining these facts —the Law Society's witnesses) will take the stand first followed by the Respondent's witness(es). 18 August Letter at [5]. 18 August Letter at [7]. d. The parties will make oral submissions in the afternoon of 19 August 2022 on whether the conduct of the Respondent comes within s 83(2)(b) ors 83(2)(h) of the LPA. III. BACKGROUND FACTS 16. 10 As set out in the Agreed Statement of Facts: lo a. The Complainant and her brother, Mr Raman s/o Puthenveetil Kesava Pillay (""Raman"") were the registered proprietors of the property situated at Block 85, Pheng Gek Avenue, #18-17 NIN Residence Singapore 348217 (""Property""). The Complainant and Raman held the Property as tenants-in-common in equal shares. b. The Property was sold on 7 September 2020 to two individuals (""Purchasers""), who were represented in the transaction by M/s Advent Law Corporation (""Advent""). The Respondent acted for the Complainant and Raman in the sale of the Property. c. The Complainant and Raman appointed East Asia Law Corporation (""Firm"") as the ""Vendor's Solicitors"" in their Option to Purchase dated 29 July 2020. d. The Firm had previously acted for the Complainant and/or Raman in several matters prior to the sale of the Property. In all these matters, the lawyer having conduct was the late Mr Premchand Soman. e. In addition, Raman's wife, Ms Rosie Lim (""Rosie"") was, at the material time, employed by the Firm as a legal secretary /office manager for more than 20 years. £ In the course of acting for the Complainant and Raman in the sale of the Property, the Respondent prepared (unless otherwise stated below) inter alia the following six documents (collectively the ""Documents""): i. A Transfer Instrument dated 7 September 2020 (""Transfer Instrument"") prepared by Advent. This document was amongst several documents sent to the Purchasers' solicitors, Advent, under cover of the Firm's letter dated 18 September 2020. ii. A letter of confirmation and a seller stamp duty declaration, both dated 16 September 2020 (""Letter of Confirmation"" and ""Seller Stamp duty Declaration""). These documents were amongst the documents sent to Advent under cover of the Firm's letter dated 18 September 2020. Agreed Statement of Facts at [4] — [12]. iii. A letter of authority from the Complainant for the net sale proceeds to be paid to the Firm dated 27 October 2020 (""Letter of Authority""). This document was sent to Advent under cover of the Firm's letter dated 27 October 2020. iv. A letter of authority from the Complainant dated 4 November 2020 (""Further Letter of Authority""). This document was sent to Advent under cover of the Firm's letter dated 5 November 2020. v. A statement of account dated 4 November 2020 (""Statement of Account"") g. All six Documents were signed by the Complainant. The Respondent signed as witness to the Complainant's signature to the Documents. However, the Respondent did not in fact witness the Complainant signing the Documents. h. The Respondent subsequently sent five of the six Documents to Advent, intending that they be relied upon by the Purchasers. The Property was sold to the Purchasers for the total sale price of S$1,250,000. IV. THE HEARING AND THE FINDINGS OF THE TRIBUNAL A. Newton Hearing 17. On 19 August 2022, the Tribunal conducted the oral hearing, starting with the Newton hearing. At the Newton hearing, the Complainant and the Respondent took the stand to give their evidence on the Disputed Matters. 18. The material factual issues before the Tribunal at the Newton hearing were as follows: 19. a. whether the Respondent took precautions to ensure that the Complainant properly signed the Documents, and if this is evidenced by the Respondent's purportedly contemporaneous attendance notes dated 9 September 2020 and 4 November 2020 (collectively, the ""Attendance Notes""); and b. whether it was the Complainant and her brother, Raman, who asked the Respondent to dispense with their physical attendance for the purposes of attestation of the Documents, so as to minimise their risk of being infected by COVID-19, as they were elderly persons and had pre-existing illnesses, and that the Respondent was merely acceding to this alleged request. Preliminarily, on the first issue, Counsel for the Law Society accepted during the hearing that the Law Society ""takes no position on"" the question of whether the Attendance Notes were made contemporaneously, and that ""the Law Society will not be pu~•suing [theJ point that the ttvo attendance notes are fabricated.""11 In light of the Law Society's stated position above, and in the absence of any evidence or indication to the contrary, the DT proceeded on the premise that the Attendance Notes were made contemporaneously and were not fabricated by the Respondent. 20. Therefore, the first issue boiled down to whether the Respondent took precautions to ensure that the Complainant properly signed the Documents. 21. The Respondent relies on three facts in support of her case that she took ""precautions"" to ensure that the Complainant properly signed the Documents, namely (collectively, the ""Precautions""): a. that the Respondent spoke to the Complainant on the phone in the course of the matter (""First Precaution""); b. that the Documents were explained to the Complainant prior to her signing them, either by the Respondent herself, or by a staff of the Firm on her instructions (""Second Precaution""); and that after the Complainant and Raman signed the Documents, Raman would inform a staff of the Firm to confirm that they had signed the documents, and that the documents would be forwarded to Rosie (""Third Precaution""). 22. On the First Precaution, the Respondent's evidence is that although she had not met nor emailed the Complainant between July 2020 and November 2020 when she acted for the Complainant and Raman in the sale of the Property,12 she spoke to the Complainant on the telephone about four to five times on the various documents that the Complainant had to sign, and also about the promissory notes dated 30 January 2014.13 In any event, the Respondent's case is that she contacted the Complainant and Raman on at least two occasions, on 9 September 2020 and 4 November 2020, as evidenced by the Attendance Notes. 23. According to the Respondent, she spoke to the Complainant and Raman at the same time, when the two of them were at Raman's home.14 The Respondent would ask either Rosie or Mr Magit bin Madik (""Magit""), a senior conveyancing secretary at the Firm, to call Raman's mobile phone via either Rosie's mobile phone or the Firm's hunting line. ls 24. On the Second Precaution, the Respondent's evidence is that she explained three of the Documents to the Complainant prior to her signing the same: the Letter of Authority, the "" 12 13 la is Transcripts, 19 August 2022, pp 87:8-88:29. Transcripts, 19 August 2022, p 49:3-15; Respondent's AEIC at [4]. Respondent's AEIC at [4]. Transcripts, 19 August 2022, p 37:7-12; Respondent's AEIC at [8]. Transcripts, 19 August 2022, pp 80:20-81:8. Statement of Account, and the Further Letter of Authority,16 as was also evidenced by the Attendance Notes. The remaining three documents, the Transfer Instrument, Letter of Confirmation, and the Seller's Stamp Duty Declaration were allegedly explained to the Complainant by Magit, ""as instructed by [the Respondent)"". i~ 25. On the Third Precaution, the Respondent's evidence is that after the Complainant had signed the Documents, she admittedly did not call the Complainant, but Raman would have informed Magit to confirm that both the Complainant and Raman had signed the documents accordingly and that the documents would be forwarded to Rosie.18 26. On the other hand, the Complainant's evidence is that the Respondent ""did i~ot, even once, c~rll or meet [her) in the course of the Com~eyancing Transaction"", and that she ""sinzply Izad no communication with the Respondent throughout"". 19 The Complainant also maintains that ""[tJhe Respondent did not advise [her) at all in ~•espect of the Documents, rror did [the Respondent) check ~~ith [her) if [she) had signed the Documents"".20 In support of this, the Complainant tendered a copy of her call logs taken from her mobile phone between 27 October 2020 and 4 November 2020.21 27. The Complainant's evidence is also that throughout the sale of the Property, she only dealt with her brother and not anyone from the Firm, as her brother handled all the legal matters pertaining to the sa1e.22 28. With regard to the First and Second Precautions, the DT finds that as evidenced by, and recorded in, the Attendance Notes, the Respondent contacted the Complainant and Raman on at least two occasions, on 9 September 2020 and 4 November 2020 and that the Respondent had explained the Letter of Authority, the Statement of Account, and the Further Letter of Authority to the Complainant and Raman prior to them signing the same. For completeness, this finding is not inconsistent with the Complainant's call logs taken from her mobile phone recording no calls from the Respondent, because it is likely that the Respondent contacted the Complainant and Raman through Raman's mobile phone instead. 29. As for the remaining three Documents, while there is nothing to challenge the Respondent's evidence that the Respondent had instructed Magit to explain those documents to the Complainant and Raman, in the absence of Magit's testimony at the evidentiary hearing, the DT is unable to conclusively find if Magit had in fact explained those documents to the Complainant and Raman. Similarly, with regard to the Third 16 17 18 19 20 Respondents AEIC at [5] and [8]. Respondents AEIC at [6]. Respondent's AEIC at [10]. Complainants AEIC at [12]; see also Transcripts, 19 August 2022, p 30:27-32. Complainant's AEIC at [12]; see also Complainant's AEIC at [23] and [24], and at [18] pertaining to the Further Letter of Authority and Statement of Account. Complainant's AEIC at [12]. Transcripts, 19 August 2022, pp 29:27 and 30:9, 19-22. 21 ZZ Precaution, the Tribunal is unable to conclusively find if Raman had informed Magit to confirm that both the Complainant and Raman had signed the documents accordingly and that the documents would be forwarded to Rosie. 30. On the second issue, the Respondent's evidence is that the Complainant made the request to dispense with her physical attendance for the purposes of attestation of the Documents (""Request"") to Raman, who communicated the same request to Magit.23 31. However, when cross-examined on the same, the Respondent was unable to provide further details about the Request, such as when the Request was made by Raman to Magit, or when the Request was conveyed from Magit to her.24 32. On the other hand, the Complainant's evidence is that she ""did not, either [herself) or through Raman, request the Respondent to dispense ~~ith [her) physical attendance at her Firm for the pugposes ofsigning the Document."" She explained that "" she isJ healthy and have no pre-existing illnesses, [and that) had [she) been asked to go down to the Respondent's firm to sign the Documents, [she) would certainly have done so.""25 33. In the absence of any positive evidence put forth by the Respondent that the Request was made, the Tribunal finds that it is unable to accept the Respondent's assertion in respect of the second issue. Additionally, and without affecting the Tribunal's primary finding on the second issue, the Tribunal is of the view that the Respondent's evidence on this point constitutes multiple hearsay, as neither Magit nor Raman were called to testify at the evidentiary hearing. Accordingly, the Respondent's evidence on Raman's communication of the Request to Magit involves multiple hearsay, and would have been inadmissible. 34. For the avoidance of doubt, the DT makes no determination at this stage on whether and what effect the above findings on the Precautions and the Request should have on the sentencing of the Respondent. B. Wlretlrer the Principal Charges are made out 35. To reiterate, as the Respondent has taken the position that she would not be contesting the Alternative Charges, the primary question before the DT is whether the Principal Charges are made out. In the event the DT finds that the Principal Charges are not made out, the DT still has to determine whether, on the Alternative Charges, there exists cause of sufficient gravity for disciplinary action against the Respondent under s 83 of the LPA. 36. The Principal Charges are framed around s 83(2)(b) of the LPA, which provides as follows: z3 24 25 Transcripts, 19 August 2022, pp 52:27-31, 53:17-19. Transcripts, 19 August 2022, p 54:1-31. Complainant's AEIC at [13] and [24]. (2) Subject to subsection (7), such due cause may be shown by proof that an advocate and solicitor — (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his or her professional duty or guilty of such a breach of any of the following as amounts to improper conduct or practice as an advocate and solicitor: (i) any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of this Act; (ii) Part SA or any rules made under section 70H; any rules made under section 36M(2)(r); (iii) 37. Having considered the submissions from the Respondent and the Law Society, the DT is of the view that the Principal Charges are made out for the reasons set out below. 38. Counsel for the Law Society submits that the case of LaN~ Society of Singapore v Chia Choon Yang [2018] 5 SLR 1068 (""Chia Cl~oo~t Yafzg"") stands for the proposition that the mere act of false attestation involves dishonesty, and constitutes grossly improper conduct in the discharge of a solicitor's professional duty within s 83(2)(b) of the LPA. In particular, he refers to one extract from the judgment (at [15]): At the outset, we disagreed with the Respondent that his offence did not involve any dishonesty. It has been noted that the submission of a false document by an errant solicitor with the intention that it be acted on involves an element of deceit (Rajasooria v Disciplinary Committee [1955] MLJ 65 at 70). The Resuondent's act of false attestation in this case ~zecessnrily involved dishonesty liven that he had asserted a fact or a state of affairs that he knew was untrue. Even on the assumption that the Respondent had no reason to disbelieve Mr Li's assurance that Mr Loy had signed the POA, the fact remains that by signing the POA as a witness and then affixing his seal and completing the notarial certificate, the Respondent had falsely asserted that he had personally witnesses the execution by Mr Loy of the POA. Further, he did so knowing that third parties would or might rely on his seal and notarial certificate in treating the POA as genuine and validly executed. The Respondent might not have known whether Mr Loy had in fact signed the POA. But he did know that Mr Loy had done no such think in Itis presence. Yet this is what he falsely asserted had taken place, and it cannot seriously be disputed that the making of such a statement, which the Respondent knew to be false and which he knew would likely be relied on by third Uarties as true, involved dishonesty. (emphasis added) 39. In response to Counsel for the Law Society's submission and the DT's question on the effect of the Court of Three Judges' observation in Chia Choon Yang at [15], Counsel for the Respondent submits that dishonesty must be a finding of fact, and that the Court in Chia Choon Yang cannot be taken to have laid down a general legal proposition that f~egaYdless of the circumstances, the very act of false attestation necessarily involves dishonesty.26 40. The DT is unable to accept the submission made by the Counsel for the Respondent. The Court of Three Judges' statement that an act of false attestation necessarily involves dishonesty must be situated in the context of, and is consistent with, the Court's observations about the severity of false attestation cases in general. The Court in Chia Choon Yang stated that: 12. We find, and it is undisputed, that the Respondent was guilty of grossly improper conduct, the gravity of which must not be understated. A notary public has an important role in assuring the authenticity of documents and the identities of the signatories. The failure to properly discharge such a role compromises public confidence in notaries public and inevitably in the legal profession as a whole. Indeed, such is the severity with which the court treats cases of false attestation that a solicitor who ""falsely attests to witnessing the signature of a person on a document commits a disciplinary offence evefz if Ize is certain that the document was signed by that person [emphasis added] (Law Society of Singapore v Sum Chong Mun [2017] 4 SLR 707 (""Sum Chong Mun"") at ~42~)• 55. In closing, we emphasise that the gravity of such offences should not be understated. It is dishonest of a solicitor to sign a false certificate claiming that he had witnessed the execution of a document when he had not in fact done so. Such conduct will be visited with severe consequences and solicitors should ensure that they do not yield to the temptation to lower their guard just because they imagine that no harm will ensue. (emphasis added) 41. Furthermore, even though this DT is not bound by the decisions of other disciplinary tribunals, it is noted that other disciplinary tribunals have similarly taken the position that the Court of Three Judges in Chia Choon Yang had laid down a general legal proposition that the very act of false attestation necessarily involves dishonesty. 42. For example, in Law Society of Singapore v Mohammed Lutfi Bzn Hussin [2021] SGDT 6, the disciplinary tribunal commented at [20] that: 26 Transcripts, 19 August 2022, p 129:8 — 131:31. The Court of Three Judges went on to state in Law Society of Si~zQ~rpore v Chi~r Clzoofz Yang that a solicitor's act of false attestation would necessarily involve dishonesty, as he would be asserting a fact relating to a state of affairs which he knows to be untrue. ... We find ourselves unable to agree with Mr Pereira that Chia Choon Yang and Sum Chong Mun can be considered ""far removed"" from the present case. The Court of 3 Judges in those cases had underscored the solemn duty of attestation that a solicitor undertakes, leaving no doubt that false attesting to having personally witnessed a party si~nin~ a document would involve an element of dishonesty and is an act that the court will view severely. (emphasis added) 43. In Law Society ofSir~gapore v Thirumu~~thyAyernaar~ Panzbayan [2021] SGDT 7 at [17][18], the disciplinary tribunal also took the position that: ... in any event, the recent decision by the Court of Three Judges in Chia Choon Yang is instructive on the issue of false attestation of documents amounting to dishonesty. in the present case, the Respondent has admitted that he appended his signature and affixed his seal as an advocate and solicitor, thereby attesting that the POA was signed in his presence by the Complainant despite him not actually having witnessed the execution of the POA. Given that the Respondent did so knowing that third parties would or might rely on his attestation and treat the POA as genuine and validly executed, the Res_pondent's act of false attestation involved dishonesty. (emphasis added) 44. Additionally, while Counsel for the Respondent sought to distinguish the present case from other cases involving false attestation by lawyers (including the cases relied on by the Law Society), the main distinguishing factor that was raised by Counsel for the Respondent was the ""absence of the element of dishonestly [sic] in the p~°esent case and in the circumstances leading the Respondeizt to sign as witness"".27 45. However, the Respondent has admitted that she signed as witness to the Complainant's signature to the Documents, thereby attesting that the Documents were signed in her presence by the Complainant despite not having in fact witnessed the Complainant signing the Documents. The Respondent also admitted to having done so intending that five of the six Documents be relied upon by third parties, i.e. the Purchasers. As such, the DT finds that the Respondent's conduct as described above necessarily imports an element of dishonesty, and is sufficiently serious to constitute grossly improper conduct in the discharge of her professional duties within the meaning of s 83(2)(b) of the LPA. 27 Respondent's Written Submissions at [32]; Respondent's Opening Statement at [13]-[14]. C. Wlietlzer there exists cause of sufficiefzt gravity for disciplinary actio~z against the Respofident under s 83 of the LPA 46. With regard to this issue, the Law Society's submission was again that the weight of the legal authorities lies in favour of a finding that in cases involving false attestations by solicitors, cause of sufficient gravity for disciplinary action exists under s 83 of the LPA. 47. In response to a question by the DT, Counsel for the Respondent candidly admitted that he did not have any local authority where a lawyer attested to the signing by a deponent when the lawyer did not witness it, and the sanction was not one of suspension or more severe.28 However, he cited the case of Law Society of Singapore v .Iasmine Goi~~rimani d/o Daniel [2010] 3 SLR 390 (""Jasmine Gowrimana""') as the ""leading authority on when a case has to go up to the Court of Three Judges and when it need not"",29 and directed the DT's attention to the Court's observation at [31]that the role of a disciplinary tribunal is to ""perform[) a ""altering"" or ""sifting"" function in order to ensure that less se~~ious (and a fortiori, trivial or frivolous) cases are not referred to the court of three Judges."" 48. Accordingly, Counsel for the Respondent submitted that the present case need not be referred to the Court of Three Judges, in light of where the Respondent sits on the harmculpability matrix.3o 49. Counsel for the Respondent argues that the Respondent's culpability is low, for the following reasons:31 2g 29 3o 31 a. the Respondent did not act for personal benefit; b. the Respondent did not act on instruction of any third party; c. the Respondent did not prefer her interests over that of the Complainant and Raman; d. the Respondent's motivation for signing as a witness was to assist two elderly clients to avoid travel during the COVID-19 pandemic; e. the Respondent had previously dealt with the Complainant and Raman, and the Firm was named as their solicitors by them; and f. the Respondent has been forthcoming and forthright from the start and has a clean record. Transcripts, 19 August 2022, pp 128:29 — 129:7. Respondent's Written Submissions at [71]. Respondent's Written Submissions at [77]-[89]. Respondent's Written Submissions at [88]. 50. 51. Counsel for the Respondent also submits that there was no harm caused, or at most a very low degree of harm, for the following reasons:32 a. the transaction was legitimate; and b. while the Complainant had an issue with Raman in terms of the division of sales proceeds, in resolving that claim with Raman, the Complainant did not reverse or adjust for the division of sales proceeds that the Respondent had carried out based on the written documents that she had. The DT is of the view that the cases are also clear on this front: an act of false attestation should be regarded as sufficiently serious to constitute cause of sufficient gravity for disciplinary action within the meaning of s 93(1)(c) of the LPA. The table below sets out a summary of the cases cited by the Law Society and touched on by the Respondent, which clearly shows that where a respondent lawyer is found guilty for false attestation, there is almost always a finding that there exists cause of sufficient gravity for disciplinary action: Cases cited Whether the respondent lawyer was found guilty of an offences) under ss 82(b) or 82(li) of the LPA Whether the disciplinary tribunal found that there exists cause of sufficient gravity for disciplinary action against the Respondent under s 83 of the LPA Lati~~ Society of Szngapot~e v Suez Chong Mun and another [2016] SGDT 5 The respondent lawyer pleaded guilty to one charge under s 83(2)(b) of the LPA. Yes Law Society of Singapore v Chia Choon Yang [2017] DT 10 The respondent lawyer pleaded guilty to one charge under s 83(2)(b) of the LPA. Yes Law Society of Singapore v Mohammed Lutfi Bin Hussin [2021] SGDT 6 The respondent lawyer was convicted of two charges: one under s 83(2)(b), and another under s 83(2)(h) of the LPA. Yes Law Society of Singapore v Thiru~~urthy Ayernaar Pambayan [2021] SGDT ~ The respondent lawyer Pleaded guilty to one charge under s 83(2)(b) of the LPA. Yes 32 Respondent's Written Submissions at [89]. 52. The factors raised by Counsel for the Respondent at paragraphs [49] and [50] above are at best factors that may be considered in sentencing, but that is ultimately a matter for the Court of Three Judges to decide. 53. In view of the DT's findings at paragraph 51 above, the DT determines pursuant to s 93(1)(c) of the LPA that cause of sufficient gravity against the Respondent exists under s 83 of the LPA. V. CONCLUSION 54. In summary, having regard to our findings and for the reasons given above, the DT finds that both Principal Charges are made out on the evidence. The DT further determines under s 93(1)(c) of the LPA that cause of sufficient gravity for disciplinary action exists under s 83 of the LPA and that the entire matter involving both charges should be referred to the Court of Three Judges. 55. We thank counsel for the Law Society and counsel for the Respondent for their assistance in this matter. We ask that the parties put in their submissions oncosts within seven days of this decision, and the DT will make the necessary orders pursuant to s 93(2) of the LPA. Dated this 11th day of October 2022 ~ ~~ Koh Swee Yen, S. C. President Chong Yee Leong Advocate &Solicitor ",2025-02-11T04:00:43+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2025/,"In the Matter of Kasturibai d/o Manickam (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2025/",1189 51,296055e3c8bfb3770b0ee9586b803dcdb4f4cc2e,"In the Matter of Eugene Singarajah Thuraisingam (Respondent), Advocate & Solicitor","In the Matter of Eugene Singarajah Thuraisingam (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from a complaint made by the Court of Appeal in CA/CCA 22/2019 and CA/CCA 24/2019. The following charges, referencing section 83(2)(b) of the Legal Profession Act 1966 (the Act) for improper conduct in the discharge of his professional duty as an advocate and solicitor, were preferred against the Respondent: First Charge For breach of Rule 29 of the Legal Profession (Professional Conduct) Rules 2015 (PCR), in that whilst he was acting as advocate and solicitor in CA/CCA 24/2019 (CCA 24), he had made or permitted allegations to be made against another legal practitioner (the Lawyer) in his written submissions for CCA 24 filed on 19 March 2021 (his Submissions) without giving the Lawyer the opportunity to respond to the said allegations: by attempting to contact the Lawyer only on 17 March 2021 to inform him of the allegations he intended to, and did, make in his Submissions; or by writing to the Lawyer only on 19 March 2021, which is the date he had filed his Submissions, to inform the Lawyer of the allegations he made against the Lawyer in his Submissions. Second Charge For breach of Rule 29 of the PCR, in that in the course of CCA 24, in that whilst he was acting as advocate and solicitor in CCA 24, he had made or permitted allegations to be made against two legal practitioners in his Submissions without giving the two said legal practitioners the opportunity to respond to the said allegations by failing to inform them of the allegations he had made against them in his Submissions. The Respondent pleaded guilty to the two Charges. Findings of the Disciplinary Tribunal (DT) The DT found that the Charges were made out, but there was no cause for sufficient gravity, and that the Respondent should be ordered to pay a penalty that is sufficient and appropriate to the misconduct committed, which in the DT’s view would be an amount of $10,000. Council accepted the findings of the DT and imposed a financial penalty of $7,500 on the Respondent. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/02/Feb_25_Eugene_Thuraisingam_full_DT_report_compressed.pdf,"DT/07/2023 IN THE MATTER OF EUGENE SINGARAJAH THURAISINGAM (AN ADVOCATE & SOLICITOR) AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Coram President: Ms Koh Swee Yen, S.C. Advocate & Solicitor: Mr Harish Kumar Solicitors for the Attorney-General: Solicitors for the Respondent: Mr Jeyendran Jeyapal Ms Sarah Shi Ms Chow Zi En Mr Suang Wijaya Ms Sophia Ng Mr Ng Yuan Siang ATTORNEY-GENERAL’S CHAMBERS 1 Upper Pickering Street Singapore 058288 Ref: AG/CIV/LPS/CMPL/2022/1 EUGENE THURAISINGAM LLP 1 Coleman Street #07-06 The Adelphi Singapore 179803 Ref: ET/2017-1065 Dated this18th day of September 2023 I. INTRODUCTION 1. These proceedings concern a complaint (“Complaint”) made by the Court of Appeal in CA/CCA 22/2019 and CA/CCA 24/2019 (“CA”) under section 85(3)(a) of the Legal Profession Act 1966 (2020 Rev Ed) (“LPA”) against Mr Eugene Singarajah Thuraisingam (“Respondent”). 2. The Respondent is an Advocate and Solicitor of the Supreme Court of the Republic of Singapore of 22 years’ standing. At all material times, the Respondent was a partner at M/s Eugene Thuraisingam LLP (“ET LLP”). 3. On 27 April 2023, the Honourable Chief Justice Sundaresh Menon appointed this Disciplinary Tribunal (“DT”) to hear and investigate this matter. II. CHARGES AND PROCEEDINGS OF THE TRIBUNAL 4. The Attorney-General (“AG”) filed the Statement of Case against the Respondent on 16 March 2023. 5. On 18 May 2023, counsel for the Respondent informed the DT that the Respondent intended to take a certain course, and requested, amongst other things, for a Pre-Hearing Conference (“PHC”) to be fixed for, amongst other things: (i) a hearing date to be scheduled for the Respondent to take a certain course; and (ii) parties to provide their respective positions on sentencing.1 The DT scheduled the PHC for 26 May 2023.2 6. During the PHC on 26 May 2023, counsel for the Respondent confirmed that the Respondent would be taking a certain course and that parties would be submitting an Agreed Statement of Facts (“ASOF”). Accordingly, the DT made the following directions: a. The ASOF to be filed by 16 June 2023; b. The hearing is fixed for 19 June 2023 at 2.30 pm; c. The AG to file and serve submissions on the appropriate determination by 30 June 2023; and d. Counsel for the Respondent to file and serve reply submissions on the appropriate determination by 7 July 2023. 1 The Respondent’s Letter to the DT dated 18 May 2023 at [2]. 2 The DT’s email to parties dated 19 May 2023. 7. On 16 June 2023, the AG filed the Statement of Case (Amendment No. 1) (“SOC”),3 and informed the DT that the SOC was to stand as the ASOF. The AG sought, and the DT granted, permission for the AG to amend the Statement of Case accordingly pursuant to rule 18(1) of the Legal Profession (Disciplinary Tribunal) Rules,4 and for the SOC to stand as the ASOF. 8. The parties attended before the DT on 19 June 2023. During the hearing on 19 June 2023, the Respondent pleaded guilty to the two primary charges set out in the SOC, which are reproduced below:5 1st Charge You, EUGENE SINGARAJAH THURAISINGAM, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act 1966, to wit, by your breach of Rule 29 of the Legal Profession (Professional Conduct) Rules 2015, in that in the course of CA/CCA 24/2019, in which you were acting as advocate and solicitor for Mr Tamilselvam a/l Yagasvranan, you had made or permitted allegations to be made against Mr Dhanaraj James Selvaraj (“Mr Selvaraj”) in your written submissions for CA/CCA 24/2019 which were filed on 19 March 2021 (“your Submissions”) without giving Mr Selvaraj the opportunity to respond to the said allegations: 1. by attempting to contact Mr Selvaraj only on 17 March 2021 to inform him of the allegations you intended to, and did, make in your Submissions; or 2. by writing to Mr Selvaraj only on 19 March 2021, which is the date you had filed your Submissions, to inform him of the allegations you made against him in your Submissions. 2nd Charge You, EUGENE SINGARAJAH THURAISINGAM, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act 1966, to wit, by your breach of Rule 29 of the Legal Profession (Professional 3 The Attorney-General’s Chambers’ (“AGC”) Letter to the DT dated 16 June 2023 at [2]. 4 See AGC’s Letter to the DT dated 16 June 2023 at [3] and the DT’s email to parties dated 16 June 2023. 5 SOC at [19]. Conduct) Rules 2015, in that in the course of CA/CCA 24/2019, in which you were acting as advocate and solicitor for Mr Tamilselvam a/l Yagasvranan, you had made or permitted allegations to be made against Mr Mohammad Shafiq bin Haja Maideen and Mr Sheik Umar bin Mohamed Bagushair in your written submissions for CA/CCA 24/2019 which were filed on 19 March 2021 (“your Submissions”) without giving the two aforementioned legal practitioners the opportunity to respond to the said allegations by failing to inform them of the allegations you had made against them in your Submissions. 9. On 19 June 2023, the DT recorded the Respondent’s plea of guilt. 10. Subsequently, the AG and the Respondent filed their submissions and reply submissions on the appropriate determination on 30 June 2023 and 7 July 2023 respectively. III. BACKGROUND FACTS 11. 6 As set out in the SOC:6 a. The Respondent acted as counsel for Mr Tamilselvam a/l Yagasvranan (“Mr Tamilselvam”) in CA/CCA 24/2019. This was an appeal from a High Court trial involving Mr Tamilselvam. The appeal concerned the appropriate amendments to be made (if any) to Mr Tamilselvam’s charges in the light of the acquittal of a coaccused person of a capital charge under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (as the legislation was cited at the time of CA/CCA 24/2019). The lawyers who represented Mr Tamilselvam in the High Court trial were Mr Dhanaraj James Selvaraj (“Mr Selvaraj”), and his assisting counsel, Mr Mohammad Shafiq bin Haja Maideen (“Mr Shafiq”), and Mr Sheik Umar bin Mohamed Bagushair (“Mr Umar”) (collectively, the “Original Trial Counsel”). b. On 23 September 2021, the CA in CA/CCA 24/2019 delivered its judgment in respect of Mr Tamilselvam’s appeal in Imran bin Mohd Arip v Public Prosecutor and another appeal [2021] 2 SLR 1198 (“Imran v PP”). The judgment highlighted the following issues pertaining to the Respondent’s conduct. c. On 25 February 2021, one day before ET LLP’s written submissions were due to be filed for CA/CCA 24/2019, ET LLP sought a four-week extension of time from the CA to file its submissions on the basis that Mr Tamilselvam had given ET LLP instructions which had to be investigated. ET LLP informed the CA that as Mr Tamilselvam’s instructions related to allegations against his “previous solicitors, SOC at [3] – [8]. [ET LLP] may also need to write to his previous solicitors for clarification”. The CA granted a final three-week extension of time, with ET LLP’s submissions due to be filed on 19 March 2021. d. On 19 March 2021, ET LLP filed its submissions (“ET LLP’s Submissions”), which contained grave allegations against Mr Selvaraj and, by implication, against Mr Shafiq and Mr Umar. The material portions of ET LLP’s Submissions are reproduced below: “34. Tamilselvam instructs that he had aligned himself with Pragas and taken those positions at trial for reasons of litigation strategy and because the charge preferred against him at trial was one of common intention. 35. Further, in the course of preparing these submissions, Tamilselvam instructs that: a) When Tamilselvam instructed his previous counsel, Mr. James Selvaraj (‘Mr. Selvaraj’), that he wishes to call one ‘Prakash’ – the supplier of the two cartons of cigarettes – as a defence witness, Mr. Selvaraj informed Tamilselvam that there was no need to implicate the supplier and that ‘we don’t have time for all that’; b) Mr. Selvaraj had prepared a document containing answers to possible Examination-In-Chief (‘EIC’) questions and told Tamilselvam [to] answer all the possible questions [in the] EIC in accordance with what Mr. Selvaraj had prepared for Mr Tamilselvam; c) Mr. Selvaraj told Tamilselvam to follow what Pragas had stated in his statements so that their stories would match each other and that it would be easier to put forward Tamilselvam’s defence that way as both Tamilselvam and Pragas were being charged with a common intention charge; d) When Tamilselvam informed Mr. Selvaraj that he wishes to run his defence in accordance with Tamilselvam’s Statements and raised concerns as to whether following Pragas’ statements would adversely affect his credibility, Mr. Selvaraj informed Tamilselvam that he need not to worry as he would be similarly acquitted if Pragas was acquitted, given that they both face a common intention charge; and e) Mr. Selvaraj informed Tamilselvam that the main crux of the defence would [be] that the plastic bag which contains the drugs that was seized by CNB is not the same plastic bag that Pragas had passed to Imran. However, we are instructed that this was never properly explored, nor put to the relevant witnesses at trial. (collectively the ‘Allegations’) If required, we are instructed that Tamilselvam is willing and prepared to depose of [sic] the Allegations in an affidavit. 36. We pause at this juncture and note that pursuant to Rule 29 of the Legal Profession (Professional Conduct) Rules and the Law Society of Singapore Practice Direction 8.1.1, we are obliged to provide Mr. Selvaraj with an opportunity to respond to the Allegations, so as to provide this Honourable Court with a full and balance[d] picture of the allegations made against him. However, given the impending deadline for these submissions, we regret to inform this Honourable Court that we are presently in the midst of obtaining Mr Selvaraj’s response to the Allegations. We had attempted to contact Mr Selvaraj over the telephone but was unfortunately unable to reach him. As such, we had to send the letter to Mr Selvaraj today and request that he provided his response to the Allegations within 1 week, i.e by 26 March 2021. A copy of our letter to Mr Selvaraj of even date is enclosed herein, for this Honourable Court’s reference. We will write to inform this Honourable Court of Mr Selvaraj’s response to the Allegations as soon as practicable.” [emphases added in bold] e. Despite ET LLP having sought an extension of time to file submissions from the CA on the basis that, among other things, ET LLP “may also need to write to [Mr Tamilselvam’s] previous solicitors for clarification”, ET LLP wrote to only one of the three Original Trial Counsel, i.e., Mr Selvaraj, on the same day that ET LLP’s Submissions were filed. The Original Trial Counsel were not given the opportunity to respond to the grave allegations against them in ET LLP’s Submissions, before they were filed. f. On 1 April 2021, ET LLP informed the CA that it had obtained a response from Mr Selvaraj regarding the allegations in ET LLP’s Submissions, though the response had been provided by all three Original Trial Counsel in a joint letter dated 24 March 2021 (“Joint Letter”). In the Joint Letter, the Original Trial Counsel unequivocally denied the allegations in ET LLP’s Submissions. ET LLP initially resisted disclosure of “Mr Selvaraj’s” response to the CA, asserting that it contained matters which were “confidential”, “not appropriate to be disclosed”, or not “practicable” to disclose, and should not be disclosed to the Court, unless otherwise directed. The CA then sought clarification from ET LLP on (a) why it had not been possible to obtain Mr Selvaraj’s response before ET LLP filed its submissions and (b) the basis for ET LLP’s claim that the response from Mr Selvaraj was confidential. On 19 April 2021, ET LLP disclosed the Joint Letter to the CA. No explanation was given to the CA as to why ET LLP had earlier asserted that the Joint Letter could not be disclosed, and why ET LLP was thereafter changing its position. The CA noted that when the Joint Letter was disclosed, it “became clear … that Mr Selvaraj was not the only counsel with conduct of Tamil[selvam]’s defence at the trial” before the High Court. IV. FINDINGS OF THE TRIBUNAL 12. Given that the Respondent has pleaded guilty to the two primary charges set out in the SOC, there are two issues for the DT’s determination: a. Whether any cause of sufficient gravity for disciplinary action exists under section 83 of the LPA; b. If issue (a) is answered in the negative, whether the Respondent should be subject to the measures under section 93(1)(b) of the LPA, and if so, what the appropriate measure should be. A. Whether any cause of sufficient gravity for disciplinary action exists under section 83 of the LPA 13. In the AG’s Submissions on Penalty dated 30 June 2023 (“AG’s Submissions”), the AG submits that the Respondent should be ordered to pay a penalty of $15,000 under section 93(1)(b)(i) of the LPA, as this penalty is “sufficient and appropriate to the misconduct committed” by the Respondent.7 14. Similarly, in the Respondent’s Reply to the AG’s Submissions dated 7 July 2023 (“Respondent’s Reply”), the Respondent leaves it to the DT to impose “a fair and just penalty, in the event that this DT agrees with the Honourable Attorney-General that there is no cause of sufficient gravity for disciplinary action against Mr Thuraisingam, but that it is appropriate for him to pay a penalty sufficient and appropriate to the misconduct committed pursuant to s 93(1)(b)(i) of the Legal Profession Act 1966”.8 15. Having considered the circumstances of the case, the DT determines (under section 93(1)(a) of the LPA) that no cause of sufficient gravity for disciplinary action exists under section 83 of the LPA against the Respondent for both charges. This is consistent with previous cases involving a breach of Rule 29 of the Legal Profession (Professional 7 AG’s Submissions on Penalty at [6]. 8 Respondent’s Reply to the AG’s Submissions at [2]. Conduct) Rules 2015 (“PCR”) where a penalty under section 93(1)(b)(i) of the LPA was deemed to be sufficient and appropriate.9 B. Whether the Respondent should be subject to the measures under section 93(1)(b) of the LPA, and if so, what the appropriate measure should be 16. Having decided under section 93(1)(a) of the LPA that no cause of sufficient gravity for disciplinary action exists under section 83 of the LPA, the only remaining issue is whether the Respondent should be subject to the measures prescribed under section 93(1)(b) of the LPA, and if so, what the appropriate measure should be. 17. As stated at [13], the AG’s position is that under section 93(1)(b)(i) of the LPA, the Respondent should be ordered to pay a penalty of $15,000 for both charges. Further, the AG also requests that the DT order costs in its favour in the sum of $4,000 (all in).10 Taking reference from the penalty imposed in The Law Society of Singapore v Carolyn Tan Beng Hui and Au Thye Chuen [2020] SGDT 10 (“Carolyn Tan”), with “the necessary calibration to account for the specific facts of the current case, which presumably feature more aggravating factors than in Carolyn Tan”,11 the AG argues that a $15,000 penalty is sufficient and appropriate to the Respondent’s misconduct for the following reasons: a. The Respondent had made five allegations against three legal practitioners (either directly or by implication) in his written submissions for CA/CCA 24/2019, without giving the three legal practitioners any opportunity to respond;12 b. Each of these five allegations was “extremely grave” and of a “very serious nature”;13 c. The Respondent had specifically requested the Court for an extension of time to file his written submissions, as Mr Tamilselvam’s instructions related to allegations against his previous solicitors and ET LLP might need to write to them for clarification. Despite seeking the extension for this specific reason, the Respondent did not provide the three legal practitioners any opportunity to respond to the allegations before making them in his submissions.14 9 See for example, The Law Society of Singapore v Carolyn Tan Beng Hui and Au Thye Chuen [2020] SGDT 10 where a global penalty of $10,000 was imposed on Ms Carolyn Tan who was found guilty of, amongst other things, one charge for breaching Rule 29 of the PCR. 10 AG’s Submissions on Penalty at [14]. 11 AG’s Submissions on Penalty at [8]. 12 AG’s Submissions on Penalty at [10(a)]. 13 AG’s Submissions on Penalty at [10(b)]. 14 AG’s Submissions on Penalty at [10(c)]. 18. d. The Respondent is a senior lawyer, who was admitted to the roll in 2001. With his experience of over two decades, the Respondent presumably would have known the implications making such grave allegations against fellow members of the Bar without giving them any opportunity to respond.15 e. The AG noted the Court of Appeal’s observation in Imran v PP of a “disturbing trend” in recent years where, in a bid to escape the consequences of their crimes, accused persons seek to level accusations and allegations against their previous lawyers, including by having their newly appointed lawyers make allegations against their previous lawyers in their submissions before the Court. Given the Court’s observation, the AG urged the DT that “there is a need to ensure that such a “disturbing trend” is quashed and a penalty that sufficiently deters such conduct is therefore warranted.”16 In the Respondent’s Reply, the Respondent does not propose any quantum for the penalty, but highlights two mitigating factors for the DT’s consideration in determining the sufficient and appropriate penalty in the present case: a. First, the Respondent had consistently demonstrated remorse and contrition for his breaches of Rule 29 of the PCR.17 i. At the outset of the hearing of CA/CCA 24/2019, the Respondent admitted to the CA that he had breached the PCR, took full responsibility, and unreservedly apologised;18 ii. After the Council of the Law Society of Singapore determined that no cause of sufficient gravity existed for formal investigation and asked the Respondent whether he wished to be heard before the Court, the Respondent wrote back to express his unconditional remorse, stating that he accepted the findings and recommendation of the Inquiry Committee;19 iii. Before this DT, the Respondent pleaded guilty to the charges at the earliest opportunity.20 15 AG’s Submissions on Penalty at [10(d)]. 16 AG’s Submissions on Penalty at [11]. 17 Respondent’s Reply to the AG’s Submissions, at [5]. 18 Respondent’s Reply to the AG’s Submissions, at [5.1]. 19 Respondent’s Reply to the AG’s Submissions, at [5.2]. 20 Respondent’s Reply to the AG’s Submissions, at [5.3]. b. The Respondent’s remorse and contrition can be distinguished from the lack of remorse by Ms Carolyn Tan (“Ms Tan”) in Carolyn Tan.21 c. Second, the circumstances surrounding the Respondent’s breaches of Rule 29 of the PCR ought to still be relevant in the determination of the sufficient and appropriate penalty for those breaches. In essence, ET LLP was under time constraints when deciding whether to include Mr Tamilselvam’s allegations in the submissions. ET LLP and Mr Tamilselvam only decided to include the allegations in the reply submissions on 16 March 2021, when Mr Tamilselvam’s reply submissions were to be filed by 19 March 2021. Further, the Respondent also considered that it would be “courteous to speak with Mr Selvaraj to give him advance notice of the incoming letter, and tried reaching Mr Selvaraj at his office and mobile phone numerous times on 17, 18, and 19 March 2021”. On 19 March 2021, ET LLP filed and served Mr Tamilselvam’s reply submissions containing the allegations bearing in mind that the CA had made clear that the present extension of the deadline to file the reply submissions was a final extension.22 19. The Respondent also sought to further distinguish the case of Carolyn Tan by noting that the penalty of $10,000 imposed on Ms Tan under s 93(1)(b)(i) of the LPA arose from distinct breaches of Rules 7(1), 7(2), 13(2) and 29 of the PCR, which in turn arose from separate acts involving different interests. In particular, the allegations that were the subject of her breaches of Rules 7(1) and 7(2) of the PCR were made in multiple documents over distinct occasions. The Respondent submits that this is another aggravating factor that does not feature in the present case, where both charges arose from the same set of submissions.23 20. After considering the submissions from the AG and the Respondent, the DT is of the view that pursuant to section 93(1)(b)(i) of the LPA, the Respondent should be ordered to pay a penalty of $10,000 for the reasons set out below. 21. From the outset, the DT notes that there are very few cases which have addressed the appropriate quantum of the penalty for breaches of Rule 29 of the PCR. Reference shall therefore be made to the case of Carolyn Tan, where a global penalty of $10,000 was imposed on Ms Tan, who was found guilty of, amongst other things, one charge for breaching Rule 29 of the PCR. Both parties have also focused their submissions on the case of Carolyn Tan to argue what the sufficient and appropriate penalty should be in the present case. 22. The DT agrees with the Respondent that his consistent demonstration of remorse for his breaches of Rule 29 of the PCR is a relevant mitigating factor in determining the quantum 21 Respondent’s Reply to the AG’s Submissions, at [7]. 22 Respondent’s Reply to the AG’s Submissions, at [9] – [26]. 23 Respondent’s Reply to the AG’s Submissions, at [8]. of the penalty. In particular, the DT notes that the Respondent had pleaded guilty to the charges at the earliest opportunity and in that way evidenced remorse and saved resources. 24 The Respondent’s remorse can be contrasted with Ms Tan’s conduct in Carolyn Tan, where Ms Tan had shown a lack of remorse. 23. In Tan Beng Hui Carolyn v Law Society of Singapore [2023] 1 SLR 602 (“Carolyn Tan (CA)”) at [51], the Court of Appeal noted that: “The Appellant’s lack of remorse was indeed a relevant factor. The charge was never about the making of false allegations, but that she had persistently resorted to making discourteous remarks against a fellow practitioner. The lack of remorse was therefore relevant in determining the penalty for failing to accord courtesy to a fellow legal practitioner… The Council was right in relying on these remarks as indicate of her lack of remorse… Hence, … coupled with the lack of remorse on the Appellant’s part, were sufficient aggravating factors that justified the Council’s decision on the penalty”. 24. Additionally, the DT notes the Respondent’s submission that the case of Carolyn Tan can also be distinguished from the present case in that the penalty of $10,000 imposed on Ms Tan under s 93(1)(b)(i) of the LPA arose from three distinct breaches of the PCR, which in turn arose from separate acts involving different interests.25 In particular, the allegations that were the subject of her breaches of Rules 7(1) and 7(2) of the PCR were made in multiple documents over distinct occasions. 26 In contrast, the Respondent’s breaches of Rule 29 of the PCR arose from the same set of submissions. 25. In Carolyn Tan (CA) at [51], the Court of Appeal also noted that: “…The Council was also not wrong in considering the fact that the allegations were contained in multiple documents. They were not found in the 20 September 2018 E-mail alone, but also in the other documents specifically mentioned in the IC Report. Hence, the multiple occasions on which the allegations were made… were sufficient aggravating factors that justified the Council’s decision on the penalty.” 26. That said, the DT also recognises the force of the AG’s submission that the allegations made by the Respondent are of a “very serious nature” and “extremely grave,” and should accordingly be an aggravating factor when determining the quantum of penalty. The allegations are reproduced below: 24 See Law Society of Singapore v Dhanwant Singh [2020] 4 SLR 736 at [123]. 25 Tan Beng Hui Carolyn v Law Society of Singapore [2023] 1 SLR 602 at [22]. 26 Tan Beng Hui Carolyn v Law Society of Singapore [2023] 1 SLR 602 at [51]. “a) When Tamilselvam instructed his previous counsel, Mr. James Selvaraj (‘Mr. Selvaraj’), that he wishes to call one ‘Prakash’ – the supplier of the two cartons of cigarettes – as a defence witness, Mr. Selvaraj informed Tamilselvam that there was no need to implicate the supplier and that ‘we don’t have time for all that’; b) Mr. Selvaraj had prepared a document containing the answers to possible Examination-In-Chief (‘EIC’) questions and told Tamilselvam [to] answer all the possible questions [in the] EIC in accordance with what Mr. Selvaraj had prepared for Tamilselvam; c) Mr. Selvaraj told Tamilselvam to follow what Pragas had stated in his statements so that their stories would match each other and that it would be easier to put forward Tamilselvam’s defence that way as both Tamilselvam and Pragas were being charged with a common intention charge; d) When Tamilselvam informed Mr. Selvaraj that he wishes to run his defence in accordance with Tamilselvam’s Statements and raised concerns as to whether following Pragas’ statements would adversely affect his credibility, Mr. Selvaraj informed Tamilselvam that he need not to worry as he would be similarly acquitted if Pragas was acquitted, given that they both face a common intention charge; and e) Mr. Selvaraj informed Tamilselvam that the main crux of the defence would [be] that the plastic bag which contains the drugs that was seized by CNB is not the same plastic bag that Pragas had passed to Imran. However, we are instructed that this was never properly explored, nor put to the relevant witnesses at trial.” 27. In Carolyn Tan, Ms Tan had permitted a letter from Tan & Au LLP to the Registrar of the Supreme Court to be filed, which contained the following allegation against another legal practitioner, Mr David Kong Tai Wai: “Mr David Kong had lied on oath that [Ms Tan] did not call him. He has committed perjury and/or false statements under oath”.27 Allegations of perjury and giving false statements under oath are serious. Likewise, the Respondent has also made serious allegations here against the other lawyers, including that they refused to run Mr Tamilselvam’s case in accordance with Mr Tamilselvam’s instructions; that they placed a false version of events before the Court; and that they coached witnesses.28 28. The principle in Rule 29 of the PCR is that a legal practitioner is responsible to an opposing legal practitioner for maintaining due process and promoting the administration of justice. 29 Additionally, a legal practitioner must always accord to another legal 27 Tan Beng Hui Carolyn v Law Society of Singapore [2023] 1 SLR 602 at [15]. 28 See Imran bin Mohd Arip v Public Prosecutor and another appeal [2021] 2 SLR 1198 at [93]. 29 Jeffrey Pinsler, S.C., Legal Profession (Professional Conduct) Rules 2015 – A Commentary (Singapore Academy Publishing, 2016) at [29.002] – [29.003]; see also Rules 7(1) and 27 of the PCR. practitioner the proper respect due to the latter as a member of a noble and honourable profession. 30 It therefore stands to reason that if an allegation against another legal practitioner is extremely grave or of a very serious nature, there is a corresponding higher onus on the legal practitioner making the allegation to ensure that the other legal practitioner is given the opportunity to respond to the allegation. In this case, the Respondent did not provide the three legal practitioners any opportunity to respond to the allegations before making them in his submissions. As such, the DT finds that the serious nature of the allegations made by the Respondent is an aggravating factor when determining the appropriate penalty. 29. Finally, the DT notes that in determining the sanctions to be imposed, the DT should be guided by considerations such as deterrence against similar defaults by the same solicitor and other solicitors in the future and the punishment of the solicitor guilty of the misconduct.31 Accordingly, the DT accepts the AG’s submission that taking into account the “disturbing trend” of accused persons having their newly appointed lawyers make allegations against their previous lawyers in their submissions to the Court, there is a need to deter against similar conduct by the same solicitor and other solicitors in the future who make allegations against their clients’ previous lawyers without proper observance of the relevant professional conduct rules. 30. Having weighed the various mitigating and aggravating factors and taking matters in the round, the DT is of the view that, pursuant to section 93(1)(b)(i) of the LPA, a penalty of $10,000 would be sufficient and appropriate to the Respondent’s misconduct. Further, pursuant to section 93(2) of the LPA, costs in the sum of $4,000 (all in) are to be paid by the Respondent to the AG. 31. For completeness, the DT does not accept the Respondent’s submission that the circumstances surrounding the Respondent’s breaches of Rule 29 of the PCR ought to be a mitigating factor when determining the sufficient and appropriate penalty in the present case.32 While the DT acknowledges the Respondent’s good intention to speak with Mr Selvaraj to give him advance notice of the incoming letter on 17 March 2021, the Respondent must have realised that sending the letter to Mr Selvaraj on the morning of 19 March 2021 – on the same day of the deadline to file the reply submissions – would not have given Mr Selvaraj (and the other two legal practitioners) sufficient time to respond to the allegations made. As the Respondent candidly admitted in the Respondent’s Reply, the time available to ET LLP in conduct of this matter should have been managed better.33 The Respondent’s poor time management of this matter does not justify a lower penalty. 30 Ibid. 31 See Law Society of Singapore v Ravi s/o Madasamy [2016] SGHC 242 at [31]. 32 Respondent’s Reply to the AG’s Submissions, at [9] – [26]. 33 Respondent’s Reply to the AG’s Submissions, at [26]. V. CONCLUSION 32. In summary, for the reasons given above, the DT finds that, while no cause of sufficient gravity for disciplinary action exists under section 83, pursuant to section 93(1)(b)(i) of the LPA, the Respondent should be ordered to pay a penalty that is sufficient and appropriate to the misconduct committed, which in the DT’s view would be an amount of $10,000. 33. Pursuant to section 93(2) of the LPA, the DT also orders that the Respondent pay costs in the sum of $4,000 (all in) to the AG. Dated this 18th ____________________ Koh Swee Yen, S.C. President day of September 2023 _____________________ Mr Harish Kumar Advocate & Solicitor ",2025-02-11T04:00:43+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2025/,"In the Matter of Eugene Singarajah Thuraisingam (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2025/",1189 52,86bf4f443a15aaea68d6c85fb8c1eb61394437d9,"In the Matter of Christopher James De Souza (Respondent), Advocate & Solicitor","In the Matter of Christopher James De Souza (Respondent), Advocate & Solicitor The Disciplinary Tribunal (DT) had determined pursuant to section 93(1)(c) of the Legal Profession Act (the Act) that cause of sufficient gravity existed for disciplinary action under section 83 of the Act in relation to the five primary charges preferred against the Respondent. The present disciplinary proceedings against the Respondent arose from information touching upon the conduct of the Respondent, referred by the Court of Appeal in Civil Appeals No. 226 and 228 of 2019 (the Appeals) to the Law Society of Singapore (the Law Society). The Respondent had been the solicitor having conduct for the Plaintiffs (the Plaintiffs) in a High Court suit (the Suit). In the course of proceedings, the Appeals had been filed and heard before the Court of Appeal. In deciding the Appeals, the Court of Appeal made certain remarks about the Respondent’s conduct during the Suit, giving rise to the information referred to the Law Society. The following main charges, referencing section 83(2)(b) of the Act for grossly improper conduct in the discharge of professional duty as an advocate and solicitor, were preferred against the Respondent: First Charge The Respondent had knowingly misled or attempted to mislead the Court: By failing to inform the Court of the Plaintiffs’ prior breaches of undertakings not to disclose certain documents; By concealing the Plaintiffs’ intended ex parte leave application to remedy said breaches; and By requesting for an extension of time to comply with court timelines to review the documents for the extraneous purpose of making further reports to the authorities. in breach of rule 9(2)(a)(i) and 9(a)(iii) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge The Respondent failed to disclose to the Court the Plaintiffs’ breaches and intended ex parte leave application at the Pre-Trial Conference (the PTC), thereby breaching rule 9(3)(b)(i) of the PCR. Third Charge The Respondent failed to disclose the Plaintiffs’ breaches and intended ex parte leave application to his opposing counsel, thereby breaching rule 9(3)(b)(i) of the PCR. Fourth Charge The Respondent, being a party to and assisting the Plaintiffs in suppressing evidence by way of the preparation and filing of an affidavit, which did not exhibit certain reports and supporting documents which would have revealed the Plaintiffs’ breaches of undertakings, breaching rule 10(3)(a) of the PCR. Fifth Charge The Respondent had breached his paramount duty to the Court by allowing his duty to the Plaintiffs to take precedence over his duty to the Court by failing to inform the Court at the PTC of the Plaintiffs’ breaches and intended ex parte leave. Findings of the DT and the Council’s Decision The DT determined that the Fifth Charge could not constitute a distinct offence, as the factual averments were the same as the Second Charge, and directed that the Statement of Case be amended such that the Fifth Charge and Alternative Fifth Charge would be the Second and Third Alternative Charges to the Second Charge respectively. The DT found that the First, Second, and Third Charges and their Alternatives were not made out, whilst the Fourth Charge was made out. The Council adopted the DT’s findings. Court of Three Judges The Court of Three Judges determined that the Fourth Charge was not made out, and ordered that the Law Society refund the Respondent the sum of $32,394 (being the costs paid by the Respondent to the Law Society at the conclusion of the DT proceedings), and for parties to bear their own costs in respect of the proceedings before the Court of Three Judges. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/02/Feb_25_Christopher_De_Souza_full_DT_report_compressed.pdf,"DT 26 OF 2021 IN THE MATTER OF CHRISTOPHER JAMES DE SOUZA AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal: Mr N Sreenivasan, S.C. – President Mr Pradeep Pillai – Advocate Counsel for the Law Society of Singapore Counsel for the Respondent Mr Madan Assomull Assomull & Partners Mr Tan Chee Meng, SC WongPartnership LLP Dated this 19th day of October 2022. Introduction 1. These proceedings (“DT 26”) arise from a letter dated 9 September 2020 (“Complaint”) issued by the Deputy Registrar of the Supreme Court to the Law Society of Singapore (the “Law Society”), on behalf of the Court of Appeal. 2. The Complaint relates to, inter alia, the conduct of the Respondent, Mr Christopher James de Souza (the “Respondent”) whilst acting for Amber Compounding Pharmacy Pte. Ltd and Amber Laboratories Pte. Ltd (collectively referred to as “Amber”) in High Court Suit No. 164 of 2018 (“HC Suit”). At all material times, the Respondent was a partner of Lee & Lee. 3. In particular, the Complaint highlights observations made by the Court of Appeal in the written judgment in Civil Appeals Nos. 226 and 228 of 2019 (the “Appeals”), which were reported as Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (""CA Judgment""). While the Complaint stated that the Inquiry Panel should have regard to the Judgment as a whole, [4] to [29], [84] to [91] and [93] to [101] were referred to in particular. 4. Pursuant to Section 85(3)(a) of the Legal Profession Act 1966 (“LPA”), the Complaint was referred to an Inquiry Committee which was convened on 13 January 2021. 5. On or around 13 July 2021, the Inquiry Committee found that the Respondent had breached his paramount duty to the Court, which breach may be deemed misconduct under Section 83(2)(h) of the LPA, and recommended that the Respondent be fined a sum of S$2,000.00. The Inquiry Committee could have but did not form the view that a formal investigation by a Disciplinary Tribunal was necessary. 1|Page Introduction 1. These proceedings (“DT 26”) arise from a letter dated 9 September 2020 (“Complaint”) issued by the Deputy Registrar of the Supreme Court to the Law Society of Singapore (the “Law Society”), on behalf of the Court of Appeal. 2. The Complaint relates to, inter alia, the conduct of the Respondent, Mr Christopher James de Souza (the “Respondent”) whilst acting for Amber Compounding Pharmacy Pte. Ltd and Amber Laboratories Pte. Ltd (collectively referred to as “Amber”) in High Court Suit No. 164 of 2018 (“HC Suit”). At all material times, the Respondent was a partner of Lee & Lee. 3. In particular, the Complaint highlights observations made by the Court of Appeal in the written judgment in Civil Appeals Nos. 226 and 228 of 2019 (the “Appeals”), which were reported as Lim Suk Ling Priscilla and another v Amber Compounding Pharmacy Pte Ltd and another and another appeal and another matter [2020] 2 SLR 912 (""CA Judgment""). While the Complaint stated that the Inquiry Panel should have regard to the Judgment as a whole, [4] to [29], [84] to [91] and [93] to [101] were referred to in particular. 4. Pursuant to Section 85(3)(a) of the Legal Profession Act 1966 (“LPA”), the Complaint was referred to an Inquiry Committee which was convened on 13 January 2021. 5. On or around 13 July 2021, the Inquiry Committee found that the Respondent had breached his paramount duty to the Court, which breach may be deemed misconduct under Section 83(2)(h) of the LPA, and recommended that the Respondent be fined a sum of S$2,000.00. The Inquiry Committee could have but did not form the view that a formal investigation by a Disciplinary Tribunal was necessary. 1|Page 6. The Council of the Law Society disagreed with the findings of the Inquiry Committee and pursuant to Section 87(2)(b) of the LPA, applied on 5 November 2021 to the Chief Justice for the appointment of a Disciplinary Tribunal. This Tribunal was appointed by the Chief Justice to hear and investigate the matter on 19 November 2021. 7. This Disciplinary Tribunal was constituted as DT 26 of 2021, and the oral hearing of testimony place over the course of four (4) days, on 6 April 2022, 7 April 2022, 8 April 2022, and 11 April 2022. Subsequently parties exchanged Closing Submissions, and an additional day was fixed, on 29 August 2022, for closing oral submissions. 8. The Law Society originally preferred 5 charges, each with alternative charges (“Alternatives”), collectively, the “Charges”, against the Respondent for breaches of Rules 9(2)(a)(i) and 9(2)(a)(iii), 9(3)(b)(i), 10(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”) and the paramount duty a legal practitioner owes to the Court. It was the Law Society’s position that in respect of each of the principal charges the Respondent’s conduct amounted to improper conduct within the meaning of section 83(2)(b) of the LPA; alternatively that in respect of each of the charges the Respondent’s conduct amounted to conduct unbefitting an advocate and solicitor within the meaning of section 83(2)(h) of the LPA. Brief background to the charges and the charges 9. The Respondent’s client, Amber, had obtained various documents and information pursuant to an Anton Pillar or Search Order. This Order was obtained on 3 April 2018, by Amber’s previous solicitors. It eventually came to light that Amber had used some of the documents and information seized in making reports to various investigative and regulatory authorities. This use of documents and information by Amber occurred before the Respondent and his firm, Lee & Lee, took over conduct of the matter. This is common 2|Page ground and undisputed. It is also common ground that the disclosure of the documents and information by Amber breached the implied undertaking imposed by application of the Riddick principle. Further, Amber had, as was required in such cases, given an express undertaking not to use the documents or information until further order. This undertaking was clearly breached by Amber. The breaches occurred at the time Amber was represented by its previous solicitors. 10. After the Search Order was made and executed, the Court ordered parties to carry out a listing of the documents seized. This exercise dragged on significantly and was highly contentious. 11. The Respondent’s firm was first approached on or about 28 November 2018 to act for Amber in relation to reports made to the police and various authorities, and the signed Letter of Engagement was returned to the firm on 30 November 2018. At this time Amber’s previous solicitors were still solicitors on record and continued carriage of the HC Suit. The listing exercise was still proceeding. The internal correspondence of the Respondent’s firm makes it clear that the Respondent and his colleagues knew on or about 3 December 2018, that the Riddick principle had been breached by Amber. Amber was advised by e-mail on 5 December 2018 from Lee & Lee that “immediate steps should be taken to remedy it. Hence an application to the Court by your lawyers in the civil proceedings would be required before any evidence obtained through the search order can be used in subsequent reports.” On 14 December 2018, the Respondent and his firm took over conduct of the HC Suit. By this time, they were aware that Amber was in breach of several timelines in relation to the listing exercise. 12. The events that happened between 3 December 2018 and 28 January 2019 have led to the present proceedings. The two key problems facing the Respondent and his team were the listing exercise and the prior breaches of undertaking by Amber. The two key 3|Page events were the Respondent’s request for extension of time for the listing exercise and Amber’s intended application for leave to use the documents and information, eventually filed on 29 January 2019. The crux of the matter is what the Respondent should have done upon discovery of the use of the documents and information by Amber, and specifically whether he should have informed the Court and opposing counsel of the breach of the undertakings and the intended application to obtain leave to use the documents and the information. 13. A summary of the Charges is set out: a. The first charge (and first alternative charge) relates to the Respondent allegedly having knowingly misled or attempting to mislead the Court and opposing counsel at a Pre-Trial Conference on 23 January 2019 (the “PTC”) in the HC Suit (i) by failing to inform the Court of Amber’s prior breaches of undertakings not to disclose certain documents, (ii) by concealing Amber’s intended ex parte leave application to remedy said breaches, and (iii) by requesting for an extension of time to comply with Court timelines on the basis of voluminous documents when the actual reason was to review the documents for the extraneous purpose of making further reports to the authorities (the “First Charge” and “Alternative First Charge”). The rules breached by the Respondent’s failure was stated to be Rule 9(2)(a)(i) and 9(a)(iii) of the PCR. The rule makes it clear that a legal practitioner must not knowingly mislead or attempt to mislead the Court in anyway. b. The second charge (and second alternative charge) relates to the Respondent’s failure at the PTC to disclose to the Court Amber’s breaches and intended ex parte leave application (the “Second Charge” and “Alternative Second Charge”). The rule breached by the Respondent’s failure was stated to be Rule 9(3)(b)(i) of the 4|Page PCR. This rule makes it clear that a legal practitioner must disclose to the Court every fact or item of information required by law to be disclosed. c. The third charge (and third alternative charge) relates to the Respondent’s failure to disclose Amber’s breaches and intended ex parte leave application to his opposing counsel in the HC Suit (the “Third Charge” and “Alternative Third Charge”) when requesting for consent for an extension of time for the listing exercise. The rule breached by the Respondent’s failure was stated to be Rule 9(3)(b)(i) of the PCR. This rule makes it clear that a legal practitioner must disclose to every other person involved in the proceedings every fact or item of information required by law to be disclosed. d. The fourth charge (and fourth alternative charge) relates to the Respondent allegedly being a party to and assisting Amber in suppressing evidence by way of the preparation and filing of an affidavit of one Samuel Sudesh Thaddaeus (“Samuel”) affirmed on 28 January 2019 which did not exhibit certain reports and supporting documents which would have revealed Amber’s breaches of its undertakings (the “Fourth Charge” and “Alternative Fourth Charge”). The rule breached by the Respondent’s failure was stated to be Rule 10(3)(a) of the PCR. This rule makes it clear that a legal practitioner must prevent his client from suppressing evidence and must not be a party to any such suppression of evidence. e. The fifth charge (and fifth alternative charge) relates to the Respondent allegedly breaching his paramount duty to the Court by allowing his duty to Amber to take precedence over his duty to the Court by failing to inform the Court at the PTC of Amber’s breaches and intended ex parte leave application (the “Fifth Charge” and “Alternative Fifth Charge”). No specific PCR provision was included in the charge as the source and extent of the paramount duty. 5|Page Facts Relating to the Charges 14. A summary of the facts is set out below. 15. Amber commenced the HC Suit on 14 February 2018. The Respondent and Lee & Lee were not the original counsel for Amber – they were represented by Dodwell & Co LLC until 14 December 2018. The Defendants in the HC Suit were represented throughout by Pereira & Tan LLC (“Pereira & Tan”). 16. On 15 March 2018, Amber applied ex parte for search orders against the Defendants, which was granted on 3 April 2018 (“Search Orders”). 17. The search orders granted were subject to an express undertaking by Amber not to use any of the information or documents obtained except for the purposes of the proceedings in the HC Suit, or to inform anyone else of the proceedings in the HC Suit until the trial or further order. As a matter of law, Amber was also bound by the Riddick principle. 18. On 17 April 2018, a total of 116,298 documents were seized pursuant to the Search Orders. 19. Shortly after, on 10 May 2018, the Defendants filed an application to set aside the Search Orders and for inter alia Amber to return all items seized and destroy any items seized that remained in its possession. 20. At a Judge pre-trial conference on 23 May 2018 before Judicial Commissioner Audrey Lim (as she then was) (“JC Lim”), it was directed, inter alia, that Amber and the Defendants differentiate ownership of the documents as those belonging to Amber or belonging to the Defendants using certain search terms. 6|Page 21. On 31 May 2018, counsel for the parties in the HC Suit provided signed undertakings not to hand over the documents to their respective clients and/or any other 3rd party. These undertakings were in addition to the express undertakings given by Amber as a condition for obtaining the Search Orders. 22. On 18 July 2018, JC Lim decided against setting aside the Search Orders, and instead directed that a listing exercise to be carried out whereby Amber’s solicitors were directed to review, itemize and categorize each of the seized documents based on 32 search terms by 8 August 2018, and to provide the Defendants with a list of the seized documents arranged and/or separated by ownership by 22 August 2018 (the “Listing Exercise”). 23. However, the Listing Exercise remained incomplete even at the time the Respondent took over conduct of the Suit on 13 December 2018. Members of the Respondent’s team gave evidence of the sheer scale and magnitude of the Listing Exercise. 24. While reviewing the documents seized pursuant to the Search Orders, Amber formed the view that certain documents were probative of serious criminal offences on the part of the Defendants. Amber’s representative, Samuel, made 3 reports on 31 July 2018, 20 October 2018 and 22 October 2018 to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force disclosing ten (10) such documents, in breach of Amber’s undertakings in the HC Suit (“Reports”). It should be noted that these reports were made after the 31 May 2018 further undertakings. As the previous solicitors did not give evidence and as Samuel did not address this in his evidence, and was not cross-examined on this, we have not considered the breach of the 31 May 2018 further undertakings. 25. Shortly after being appointed, on 5 December 2018, Amber was advised by the Respondent and Lee & Lee to file an urgent application for leave for Amber to preserve 7|Page and use the documents seized pursuant to the Search Orders for the purposes of making criminal reports. This application was ultimately filed by way of High Court Summons No. 484 of 2019 on 29 January 2019 (“SUM 484”). 26. A PTC was held on 23 January 2019 in relation to extension of time for the listing exercise. It is not disputed that the Respondent did not disclose to the Court and opposing counsel that: (a) Amber had by that point, breached its undertakings in the HC Suit by submitting the Reports; and (b) 27. Amber intended to the application that was eventually filed as SUM 484. It is also not disputed that the Respondent had requested for an extension of time for Amber to comply with the timelines of the Listing Exercise on the basis of the sheer number of documents. 28. After the PTC, the Respondent wrote on 25 January 2019 to Pereira & Tan requesting for their consent for an extension of time to 5 April 2019 to complete the Listing Exercise. The Respondent did not disclose Amber’s breach of its undertakings or the intention to file SUM 484. Submissions on no case to answer 29. At the close of the Law Society’s case, the Respondent made a submission of no case to answer vis-à-vis all charges. 30. In relation to the First Charge and Alternative First Charge, the Respondent argued that the findings in the CA Judgment were not binding on this Tribunal, but instead, that this Tribunal is bound to investigate and determine if the charges of misconduct are independently proven on the evidence before us. In this regard, the Respondent 8|Page contended that no evidence was adduced by the Law Society that would make out a prima facie case for the First Charge. 31. In relation to the Second and Third Charges (and their Alternatives), the Respondent submitted that these charges failed from the outset as the Respondent did not fail to disclose any information which he was required by law to disclose. In this regard, it was emphasized that the Law Society failed to identify the precise legal basis which required disclosure and which was allegedly breached by the Respondent. 32. In relation to the Fourth Charge and Alternative Fourth Charge, the Respondent submitted that there was clearly no intention on the part of the Respondent to mislead or to suppress evidence having regard to his conduct and what was disclosed. 33. Finally, in relation to the Fifth Charge and Alternative Fifth Charge, the Respondent submitted that upon the discovery of Amber’s breaches, the Respondent immediately did all that he could to remedy the same, and therefore was not in breach of any duty to the Court. Test for submission of no case to answer 34. The legal test for a submission of no case to answer in Disciplinary Tribunal proceedings has been summarised in Re Nalpon Zero Geraldo Mario [2012] 3 SLR 440 (“Re Nalpon”), and restated in The Law Society of Singapore v Tan Siew Bin, Ronnie and Masagoes Abdul Karim [2018] SGDT 11 (“Tan Siew Bin”) at [49]: a. Where a submission of no case to answer is made at the close of the Law Society’s, case, the tribunal has to evaluate the evidence as it stood at that point in time. The issue was whether the evidence, if accepted by the tribunal, would be sufficient to 9|Page prove every element of the offence in question either directly as a primary fact, or inferentially as a secondary fact; b. Where evidence of primary facts was clearly discredited or manifestly unreliable, it should not be accepted by the tribunal; c. Where primary facts were accepted by the tribunal, the tribunal could not presume that an inference drawn from those primary facts was true unless that inference could reasonably be drawn; d. The meaning of “prima facie case” in disciplinary tribunal cases should be given the same meaning as in criminal proceedings as the standard of proof in both proceedings was proof beyond reasonable doubt. The Tribunal’s decision on the Respondent’s submission of no case to answer 35. This Tribunal agreed with the Respondent that the evidence led could not sustain the First Charge (and the Alternative First Charge). The First Charge is made up of two essential ingredients. The first is knowingly misleading or attempting to mislead the Court and opposing counsel by way of certain omissions on the part of the Respondent at the PTC. The second and crucial gravamen of the charge, is that such conduct by the Respondent “thereby [enabled] Amber to identify documents which purportedly disclose the commission of potential offences by the defendants”. 36. There was no evidence that Amber was, by way of the Respondent’s non-disclosure at the PTC, enabled to identify documents for use as of that date (i.e., 23 January 2019). There was also no reasonable basis to infer that the intention of the non-disclosure was to buy time for Amber to review the documents in question. On the contrary, the internal emails of the Respondent’s firm show that the Respondent gave express instructions to 10 | P a g e stop work on the reports to the authorities on 3 December 2018 and communicated this to Amber on 5 December 2018. Accordingly, this Tribunal agrees that the Respondent has no case to answer vis-à-vis the First Charge and the Alternative First Charge. 37. For completeness, we note that the Law Society had submitted, very vigorously, that the First Charge was founded upon the written judgment of the Court of Appeal and therefore we were bound to convict, or at least call for the defence. We did not accept this submission for the following reasons: (a) As an inferior tribunal, the DT is undoubtedly bound by findings of the High Court and the Court of Appeal in relation to matters before the DT that had been specifically addressed and determined by the High Court or Court of Appeal. (b) However, in the present instance, the finding of the Court of Appeal related to the overall conduct of Amber after the Search Order was granted, including the period after the Search Orders were granted and before Amber made the reports using the documents and information obtained through the Search Orders. This was a period prior to the Respondent and his firm taking over, and therefore was not pertinent to the First Charge or the Respondent’s conduct or his defence. (b) The DT is required to consider issues in the context of the charges before it, the specific evidence presented to it, and the specific breaches alleged. (c) The internal correspondence of the Respondent’s firm and the communications with Amber was not available to the Court of Appeal; in particular the internal e-mail of 3 December 2018 and the e-mail to Amber of 5 December 2018. By the time of the Court of Appeal hearing, Amber had changed solicitors and the Respondent and his firm did not appear at the Court of Appeal hearing. As the DT is tasked to conduct a formal investigation and consider all evidence placed 11 | P a g e before it, subject to sub-paragraph (a) above, the DT must consider such matters de novo. 38. In relation to the remaining four Charges, this Tribunal found that a prima facie case had been made out such that the defence was to be called. 39. In relation to the Second Charge and the Third Charge (and their Alternatives), this Tribunal was unable to accept the Respondent’s submission that no legal duty of disclosure arises or has been shown, such that there can be no prima facie case that the charges may be made out. Whether such legal duties arise are a mixed question of law and fact. This Tribunal took the view that it had prima facie been shown that such a duty existed in the present circumstances. There was also sufficient basis to reasonably conclude that the duty had been breached. 40. In relation to the Fourth Charge (and Alternative Fourth Charge), this Tribunal found that this charge was premised on the duty of full and frank disclosure, which was uncontroversial. For this reason, we were unable to accept the Respondent’s contention that there was no prima facie case to be made out under the Fourth Charge as such a duty was clearly engaged on the facts of this case. A perusal of the affidavit filed in support of summons clearly showed sufficient basis to reasonably conclude that the duty had been breached. 41. In relation to the Fifth Charge (and Alternative Fifth Charge), this Tribunal took the view that it could not constitute a distinct offence, as the factual averments were the same as the Second Charge. The omission that was asserted as the misconduct was the same. The difference was the duty that was averred to have been breached. Proceeding on both the Second Charge and the Fifth Charge clearly falls foul of the rule against duplicity of charges. Accordingly, we directed that the Statement of Case be amended such that 12 | P a g e the Fifth Charge and Alternative Fifth Charge would be the 2nd and 3rd Alternative Charges to the Second Charge respectively. General Considerations 42. We now consider the evidence that was adduced vis-à-vis the Second, Third and Fourth Charges and their respective alternative charges. 43. The Charges upon which the defence was called are set out below:Second Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 9(3)(b)(i) of the Legal Profession (Professional Conduct) Rules 2015, in that on 23 January 2019 at a Pre-Trial Conference in the Supreme Court of Singapore in HC/S 164/2018 before a Senior Assistant Registrar, whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber Laboratories Pte. Ltd. (collectively called ""Amber""), you failed to disclose to the Honourable Court in those proceedings which by law you are required to:1. Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 2. Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018. 1st Alternative to the Second Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 9(3)(b)(i) of the Legal Profession (Professional Conduct) Rules 2015, in that on 23 January 2019 at a Pre-Trial Conference in the Supreme Court of Singapore in HC/S 164/2018 before a Senior Assistant Registrar, whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber 13 | P a g e Laboratories Pte. Ltd. (collectively called ""Amber""), you failed to disclose to the Honourable Court in those proceedings which by law you are required to:1. Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 2. Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018. 2nd Alternative Charge to the Second Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of grossly improper conduct in the discharge of your professional duty or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 4(a) of the Legal Profession (Professional Conduct) Rules 2015, in that on 23 January 2019 at a Pre-Trial Conference in the Supreme Court of Singapore in HC/S 164/2018 before a Senior Assistant Registrar, whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber Laboratories Pte. Ltd. (collectively called ""Amber""), you breached your paramount duty to the Honourable Court by allowing your duty to Amber to take precedence over your duty to the Court in not informing the Court of:1. Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 2. Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018. 3rd Alternative Charge to the Second Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 4(a) of the Legal Profession (Professional Conduct) Rules 2015, in that on 23 January 2019 at a Pre-Trial Conference in the Supreme Court of Singapore in HC/S 164/2018 before a Senior Assistant Registrar, whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber Laboratories 14 | P a g e Pte. Ltd. (collectively called ""Amber""), you breached your paramount duty to the Honourable Court by allowing your duty to Amber to take precedence over your duty to the Court in not informing the Court of:1. Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 2. Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018. Third Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 9(3)(b)(i) of the Legal Profession (Professional Conduct) Rules 2015, in that:1. 2. on 23 January 2019 at a Pre-Trial Conference in the Supreme Court of Singapore in HC/S 164/2018 before a Senior Assistant Registrar, whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber Laboratories Pte. Ltd. (collectively called ""Amber""), you failed to disclose to the other person involved in those proceedings, namely the solicitor for the Defendants, which by law you are required to:1.1 Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 1.2 Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018; on 25 January 2019 when you sought consent for an extension of time for the Listing Exercise, you failed to disclose to the other person involved in those proceedings, namely the solicitor for the Defendants, which by law you are required to:2.1 15 | P a g e Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 2.2 Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018. Alternative Third Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 9(3)(b)(i) of the Legal Profession (Professional Conduct) Rules 2015, in that:1. 2. 16 | P a g e on 23 January 2019 at a Pre-Trial Conference in the Supreme Court of Singapore in HC/S 164/2018 before a Senior Assistant Registrar, whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber Laboratories Pte. Ltd. (collectively called ""Amber""), you failed to disclose to the other person involved in those proceedings, namely the solicitor for the Defendants, which by law you are required to:1.1 Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 1.2 Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018; on 25 January 2019 when you sought consent for an extension of time for the Listing Exercise, you failed to disclose to the other person involved in those proceedings, namely the solicitor for the Defendants, which by law you are required to:2.1 Amber's breach of its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 when Amber had disclosed ten of the documents or its excerpts which were the subject of the undertakings to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively; 2.2 Amber's intended ex parte leave application in HC/SUM 484/2019 filed on 29 January 2019 which you had advised on 20 December 2018. Fourth Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 10(3)(a) of the Legal Profession (Professional Conduct) Rules 2015, in that in HC/S 164/2018 whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber Laboratories Pte. Ltd. (collectively called ""Amber""), upon your advice on 20 December 2018 to Amber to file an ex parte leave application in HC/SUM 484/2019 dated 29 January 2019 to enable Amber to use the documents obtained by them pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 for the purpose of making reports to law enforcement agencies, you were a party to and assisted Amber in suppressing evidence which you were able to prevent in that you prepared and filed an Affidavit of Samuel Sudesh Thaddaeus affirmed on 28 January 2019 which did not exhibit reports nor its supporting documents made to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively which reports and supporting documents if exhibited would have revealed that Amber had breached its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018. Alternative Fourth Charge You, CHRISTOPHER JAMES DE SOUZA, an Advocate and Solicitor of the Supreme Court are charged that you are guilty of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161), to wit, by your breach of Rule 10(3)(a) of the Legal Profession (Professional Conduct) Rules 2015, in that in HC/S 164/2018 whilst acting as solicitor for the Plaintiffs namely Amber Compounding Pharmacy Pte. Ltd. and Amber Laboratories Pte. Ltd. (collectively called ""Amber""), upon your advice on 20 December 2018 to Amber to file an ex parte leave application in HC/SUM 484/2019 dated 29 January 2019 to enable Amber to use the documents obtained by them pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018 for the purpose of making reports to law enforcement agencies, you were a party to and assisted Amber in suppressing evidence which you were able to prevent in that you prepared and filed an Affidavit of Samuel Sudesh Thaddaeus affirmed on 28 January 2019 which did not exhibit reports nor its supporting documents made to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force on 31 July 2018, 20 October 2018 and 22 October 2018 respectively which reports and supporting documents if exhibited would have revealed that Amber had breached its undertakings given pursuant to HC/ORC 2446/2018 and HC/ORC 2447/2018 both dated 13 April 2018. 17 | P a g e 44. There are three distinct but intertwined set of issues that we need to consider. The first set of issues relates to the scope and extent of the duties that an advocate and solicitor owes in relation matters required to be disclosed to the Court and the opposing party. (a) In relation to the 2nd Charge, the 1st Alternative to the Second Charge, the Third Charge and the Alternative to the Third Charge, the Law Society has framed this as a duty as arising from Rule 9(3)(b)(i) of the PCR. This rule imposes a duty to disclose matters which the practitioner is required by law to disclose in the proceedings. (b) In terms of the 2nd and 3rd Alternative charges to the Second Charge, the Law Society has framed this duty as arising from the paramount duty that an advocate and solicitor owes to the Court. (c) In terms of the Fourth Charge and the Alternative Charge to the Fourth Charge, the Law Society has framed the duty as a duty to prevent the client from, or to avoid being a party to and not to assist the client in, suppressing evidence. 45. The second set of issues relates to whether there were breaches of any of the duties set out above. We will address these issues on a charge-by-charge basis. We are of the view that the question of breach of duty is fact sensitive, both in terms of whether the duty arises (and in relation to its extent and application), as well as whether it was breached. We will have to consider the state of knowledge of the Respondent, his actions and omissions and the concomitant obligations that the Respondent’s state of knowledge would give rise to, applying the general duties of disclosure and nonsuppression to the facts of this matter. We then have to determine whether the failure to disclose the various matters, as set out in the Charges, amount to a breach of the duty specified in the charge, or of any other duty. In this regard, we have to consider the contemporaneous documentary evidence, the usual course of litigation practice, the evidence adduced by the Law Society and the evidence of and adduced on behalf of the Respondent. 18 | P a g e 46. The third set of issues will arise from our findings on the first two set of issues. If we find that there is a breach of the PCR or the paramount duty to the Court, we will have to determine if such breach falls within section 83 (2) of the LPA, in particular paragraphs (b) or (h). 47. Given the manner in which the Law Society has drafted the Charges, there is significant overlap in the matters to be considered in relation to each of the Charges. We observe that the facts relating to the various Charges are quite intertwined. This is pertinent as the events leading up to and occurring on 23 January 2019 and the letter to opposing counsel on 25 January 2019, while forming the subject matter of separate and distinct charges, also form the circumstances leading up to the subject matter of the Fourth Charge. In this regard, we are mindful to bear in mind two opposing considerations. The first is that a single series of events can result in multiple offences. The second is that there should not be duplicity of charges, that is, two charges should not allege the same offence. The Duty Issues 48. The Law Society submitted that, when construing Rule 9(3)(b)(i) 1, the principles that guide the interpretation of the Rule are: (a) the duty to assist in the administration of justice; Rule 9(3)(b)(i) reads : When conducting proceedings before a court or tribunal, a legal practitioner — … b) must disclose to the court or tribunal, and to every other person involved in or associated with those proceedings — (i) every fact, item of evidence, item of information and other matter which the legal practitioner is required by law to disclose in those proceedings to the court or tribunal and to that other person, respectively; 1 19 | P a g e (b) the duty to act honourably: (c) an obligation to ensure that any work done by the practitioner, whether preparatory or otherwise relating to the Court proceedings, will uphold the integrity of the Court and will contribute to the attainment of justice. (d) to be truthful and accurate to the Court; (e) to maintain fairness and integrity in the proceedings which is consistent with due process. 49. We agree with the above general principles. We observe that Rule 9(3)(b)(i) of the PCR has the specific requirement that the disclosure is that which the legal practitioner “is required by law to disclose”. In the context of the present case, the question in relation to the breach of undertaking and the Riddick principle by Amber is whether disclosure by the Respondent to the Court and the opposing party of the breaches was required by law in the proceedings concerned. We note that there are two aspects of the proceedings that are pertinent in the present case. The first is the PTC itself and the extension of time, and the second is the application for leave to use the documents and information. The Law Society has submitted that the duty to disclose a breach of the undertaking and the Riddick principle arose as soon as the Respondent became aware of the breaches. However, we note that the charges do not allege that failure to disclose as a breach that took place on or about 5 December 2018, but have been framed on the basis that the failure to disclose was a breach of duty to disclose on 23 January 2019, 25 January 2019 and 29 January 2019. The Law Society submitted that the duty to disclose to the Court, arose at least by the PTC, in relation to the Second Charge, and the duty to disclose to the opposing party arose in relation to the Third Charge when extension of time was sought. 20 | P a g e 50. While the duty under Rule 9(3)(b)(i) is engaged only when there is a requirement of law to make disclosure, the paramount duty to the Court does not have any such requirement. In assessing how the paramount duty is engaged, we have considered and are guided by the exposition on the duties of an advocate and solicitor as contained in the cases of: (a) Law Society of Singapore v No’rain bte Abu Bakar 2 (b) The connected case of Public Trustee and another v By Products Traders Pte Ltd and Others 3 (c) 51. Andrew Loh Der Ming v Koh Tien Hua 4 We have not set out the relevant portions of the above cases, as these have been set out in the Law Society’s submissions. In any event, these decisions are clear, explicit and uncontroversial. The application of the paramount duty to the facts of the present case can be expressed as “Whether the Respondent had an obligation to inform the Court of the breach of the undertaking and the Riddick principle before or at least at the PTC on 23 January 2019”. 52. The Fourth Charge arises in relation to the application filed as SUM 484 5, on 29 January 2019, for leave to use the documents and information obtained in the Search Order. SUM 484 was supported by the affidavit of Samuel, affirmed on 28 January 2019 and filed on 29 January 2019 6. The basis of the charge is again that disclosure of the prior breach should have been made. The failure to make disclosure is stated by the Law [2009] SLR (R) 753[2022] SGHC [2005] 3 SLR )R) 449 4 [2022} SGHC 84 5 Law Society Bundle of Documents, Vol I, pg 238 to 239 6 Law Society Bundle of Documents, Vol I, pg 240 to Vol III pg 2311 2 3 21 | P a g e Society to be a breach of Rule 10(3)(a) 7 of the PCR; which states that a legal practitioner must prevent his client from suppressing evidence, and must not be a party to or assist in suppression of evidence. The Fourth Charge arises from the lack of disclosure in an application without notice. Such applications require full and frank disclosure. The broad issue to be addressed under what circumstances does a failure to make full and frank disclosure amount to suppression of evidence. We note that the Fourth Charge could also have been framed in the alternative as a breach of Rule 9(3)(b)(i) of the PCR or as breach of the paramount duty to the Court. 53. In considering the parameters and application of duty of disclosure arising from Rule 9(3) (b) of the PCR and Rule 10(3)(b) of the PCR, we are of the view the principles set out in the three cases referenced in [50] above should be applied. However, given that the charges (except for the 2nd and 3rd Alternative Charges to the Second Charge) aver breaches of specific PCR Rules the starting point in any application of the Rules should be the wording of the Rules themselves, and the guiding principles set out in Rule 9(1) and Rule 10(1), as the case may be. 54. The Law Society submitted that the Respondent was under an obligation to disclose to the Court Amber’s breach of the undertakings given pursuant to the Search Order as soon as he was aware of the same. We do not need to consider this proposition as the Charges are based on breaches in relation to the duty to disclose in specific instances of time, namely, at the PTC on 23 January 2019, in the letter to opposing counsel on 25 January 2019 and in the affidavit supporting SUM 484 without notice filed on 29 January 2019. Rule 10(3)(a) reads: To the extent that a legal practitioner is able, the legal practitioner must prevent his or her client from, must not be a party to, and must not assist the client in, doing either or both of the following: (a) suppressing evidence; 7 22 | P a g e The Question of Breaches 55. A review of the facts of this matter will be helpful before the question of breach is addressed. (a) By 5 December 2018, the Respondent was aware that the documents and information had been used by Amber in breach of the undertaking. On 14 December 2018, the Respondent and his firm took over conduct of the HC Suit. (b) On 20 December 2018, the Respondent advised Amber that an urgent application had to be made to preserve and use the documents and information. (c) It is not clear when the prayers for SUM 484 were finalised. It is apposite to note that amongst the orders sought, there was no specific prayer for retrospective approval for the prior use of the documents and information despite such use being a breach of undertaking. Prayer 2 reads “The Plaintiffs be entitled to use the Documents for the purpose of making reports to law enforcement agencies”. The general nature of this prayer is pertinent in the consideration of what full and frank disclosure would entail. (d) There was a large amount of to-ing and fro-ing between the Respondent and his team and Samuel in terms of the contents of the affidavit to be filed. The paragraph in question was originally [36], which morphed into the final [24] of the affidavit that was eventually filed. Various drafts were exchanged. We are of the view that the various drafts, and the manner in which the drafts evolved in relation to the disclosure of breach of the Search Order undertakings by the use of the documents and information, is crucial in the analysis of the Respondent’s conduct and in the assessment of his defence. Drafts emanating from the Respondent and his team, in particular the earlier iterations of the affidavit, will show what the Respondent knew ought to be disclosed to the Court. Samuel’s responses show the pushback by Samuel on the question of disclosure. 23 | P a g e 56. We considered the evidence showing the facts leading up to the filing of SUM 484. In this regard, there is contemporaneous documentary evidence that is clear and unequivocal. These are set out in detail in the section below in which the Respondent’s defence is considered in detail. 57. The final version of [24] of the affidavit, read in the context of the affidavit as a whole and in the context of the application that it was filed in support of, is critical any finding on the Fourth Charge and its Alternative Charges. The events leading to it are critical to the Second Charge and the Third Charge and their respective Alternative Charges. 58. At the DT hearing, the Respondent took the position that while he was aware that the Riddick principle had been breached by Amber by its the use of the documents and information, he was not mindful of the fact that the usual undertakings given to the Court in obtaining the Search Order had also been breached. We do not accept this position for three reasons. First, it is basic knowledge that a Search Order is granted with restrictions, set out in the usual undertakings. Second, the Respondent and his team had taken over the matters and would have gone through the court papers, particularly as they were seeking to use the documents seized under the Search Order. Third, the Respondent expressly stated in [13] of his Defence (Amendment No. 1) that: ""By email dated 20 December 2018, it was made clear to Amber’s representative Samuel that an urgent application to the court was required to allow Amber to preserve and use the documents seized pursuant to the search orders. The Team had earlier advised Samuel that Amber had to come clean with the court in relation to its breaches of its undertakings and the Riddick principle, and to make the application for prospective leave to use the search order documents for further reports. He was further advised that an affidavit was required to support the application."" Findings of Fact 24 | P a g e 59. After considering the documentary evidence, the affidavits of evidence, the oral testimony at the DT hearing and the submissions of parties, we make the following factual findings which underpin our eventual determination on the Charges for which the Respondent was called upon to give his defence : (a) The Respondent was aware of the breach of the Riddick principle as early as 5 December 2018. (b) The Respondent must have known of the breach of the undertakings given to the Court, pursuant to the issuance of the Search Order, at or about that point in time. (c) The Respondent and his team did not use the documents and information nor permit Amber to use the documents and information from that point in time. (d) The Respondent and his team faced significant pushback from the Samuel in terms of the disclosure required to be made in the supporting affidavit to SUM 484. (e) The final version of the affidavit that was filed was some sort of compromise. (f) On 23 January 2019, at the PTC, the Respondent was fully cognisant that the application for leave was likely to be filed. However, the contents of the supporting affidavit, in particular, whether and how the prior breaches would be disclosed, had not been finalised. (g) On 25 January 2019, when the letter requesting extension of time was sent to opposing counsel, the Respondent was fully cognisant that the application for leave was likely to be filed. However, the contents of the supporting affidavit, in particular, whether and how the prior breaches would be disclosed, had not been finalised. The Defence 60. We now consider the case for the Defence. We note that the Respondent took the position that he had acted correctly at all times. In summarising the Respondent’s case, 25 | P a g e we consciously retain much of the actual wording used by the Respondent in his submissions, so that the flavour of the defence is maintained: (a) The Respondent was first alerted by his team of potential breaches of Amber’s undertakings to the Court (whether implied or express) on 3 December 2018; (b) Within minutes, the Respondent instructed his team to halt work. This was reiterated on 4 December 2018; (c) On 5 December 2018, Amber was advised that if indeed any evidence obtained through search orders had been disclosed to the authorities, that would be a breach of Amber’s undertaking to Court and immediate steps had to be taken to remedy this through an application taken out by Amber’s lawyers in the Suit; (d) On the same day, Amber denied having used any such evidence in its reports to Authorities. The Respondent had no means of ascertaining whether this was true as he and Lee & Lee were not the solicitors for the Suit at that time, and therefore had no access to CaseRoom, which contained the search order documents; (e) On 10 December 2018, the Respondent and his team were informed of the status of the Listing Exercise. They responded by highlighting that JC Lim’s 28 September 2018 orders (i.e. the Listing Exercise) appeared to have been breached and that it was imperative that they be complied with; (f) On 14 December 2018, Lee & Lee took over conduct of the Suit. They then took immediate steps to obtain access to CaseRoom in order to carry out the Listing Exercise. It transpired that there were over 116,000 documents on CaseRoom, which the team had to sort through from scratch in order to comply with the Listing Exercise. The team commenced work immediately on the Listing Exercise; (g) On 20 December 2018 (i.e. after obtaining access to CaseRoom), the Respondent reiterated the advice that Amber had to take out an application to seek leave to use the search order documents for the purposes of criminal reports. This led to a long-running dispute between the Respondent and his team and Amber on whether such an application ought to be taken out and what precisely ought to go 26 | P a g e into the supporting affidavit for such an application. The dispute was only resolved on 28 January 2018, when Samuel signed the supporting affidavit; (h) Even as late as 22 January 2019, Amber circulated a draft of the supporting affidavit which contained the untrue statement that criminal reports had been lodged without using any search order documents. The Respondent noted the untruth and was not agreeable to Amber’s draft; (i) The 23 January 2019 PTC had been convened to address the issue of whether penal notices ought to be endorsed on JC Lim’s 28 September 2018 orders. At the time of the PTC, there remained a serious question as to whether Amber would eventually agree to filing the application with an accurate supporting affidavit. The Respondent’s position was that the intended application for leave to use the documents and information was not relevant to the PTC. The Respondent also took the position that the PTC was not the appropriate forum to inform the Court of Amber’s breaches of its undertakings as the Court should be informed (and leave sought) through a formal application; (j) On 24 January 2019, despite consistent hard work from the team, only 9,012 of around 44,508 original search order documents had been reviewed. It was evident that an extension of time was required due to the arduous and monumental nature of the Listing Exercise; (k) On 25 January 2019, the team wrote to counsel for the opposing party, Pereira & Tan LLC (“P&T”) to ask for an extension of time for the Listing Exercise. This was pursuant to the directions of the PTC judge. P&T agreed to the proposal; (l) On 28 January 2019, Samuel signed the supporting affidavit, with the untruth removed at the Respondent’s insistence. The Respondent takes the position that it would have been illogical for him to have deliberately made the supporting affidavit unclear as to whether there had been breaches of undertakings (as the Law Society alleges) when he had taken great pains to procure Amber coming clean on its breaches; 27 | P a g e (m) On 29 January 2019, just one day after the supporting affidavit was signed, SUM 484 was filed. 61. The Respondent led evidence that Amber, through Samuel, was insistent that no breach of undertaking had taken place. It is also clear that Samuel was not prepared to disclose the use of the documents and information in the supporting affidavit, in a clear and unequivocal manner. In this regard, we quote verbatim the Respondent’s Submissions “The first version of the supporting affidavit for what would become SUM 484 was transmitted to [Samuel] on 11 January 2019. From the first iteration up till the signed copy on 28 January 2019, a total of 7 versions of the supporting affidavit were produced. The multiple revisions were necessitated because of the fierce resistance put up by Mr Sudesh, who insisted that he had never used the documents obtained from the search orders.” 62. The Respondent relied heavily on the exchanges accompanying the various drafts of the affidavit to show that he and his team took great pains to get Samuel to make full disclosure. We accept that the Respondent did resist Samuel’s efforts not to make full disclosure (or any disclosure at all) but observe that these efforts beg the question in relation to the Fourth Charge; whether the duty to disclose (framed as a duty not to suppress) was actually discharged on 29 January 2019, when SUM 484 was filed. Role of the DT 63. Before considering the specific charges, it is apposite to consider our role. Although we have specific charges placed before us and evidence is led as if this were a criminal trial, the statutory language is clear. Our role is to act as a filter to determine whether there is a “cause of sufficient gravity” that could, on a finding by a Court of Three 28 | P a g e Judges (“C3J”), constitute “due cause” that merited the requisite sanction, from the range of sanctions prescribed under s 83(1): Law Society of Singapore v Jasmine Gowrimani d/o Daniel at [37]. 8 64. In short, it is not for us to consider whether the Respondent should be sanctioned by a suspension or striking out rather than by a fine or reprimand, but rather whether this case was the type of case where the Respondent should be asked to show cause before the C3J to a “cause of sufficient gravity”. In making our finding, as the body carrying out the formal investigation, we are obliged to make findings of facts upon the evidence and testimony, and assess whether the essential elements of the charges have been made out. Once the threshold of cause of sufficient gravity is crossed, the matter must go forward to the C3J, whatever our views are on whether the more serious sanctions of suspension or striking off the Roll are apt. 65. We now consider the charges upon which the defence was called. The Second Charge and its 1st Alternative Charge 66. The Second Charge is premised on the bases that the Respondent had a duty to inform the Court at the PTC (a) that Amber had breached its undertakings not to use the documents and information and (b) that the application for leave was intended. There is no dispute that the Respondent did not inform the Court of either of these matters. The question therefore is whether the Respondent was duty bound to disclose these two matters. 67. We observe that the Law Society’s case on the duty to disclose the intended application is predicated on SUM 484 being an application for retrospective leave for 8 29 | P a g e prior breaches. The Respondent has taken the same position. We highlight this as the prayers in SUM 484, on their face, do not ask for retrospective leave. We find that the Second Charge, in essence, concerns a breach of a duty to disclose the prior breaches by Amber at the PTC on 23 January 2019, and consider it on that basis. 68. The Second Charge and the 1st Alternative to the Second Charge are anchored on the proposition that the prior breaches by Amber were matters that the Respondent was “required by law to disclose in those proceedings”. 69. We have considered very carefully the meaning of the phrase “in those proceedings”. In the context of the present matter, are the proceedings the entire suit or the specific PTC on 23 January 2019. We are of the view that “in those proceedings” refers to the entire suit and a duty to disclose matters required by law is an ongoing duty. However, what disclosure the law requires, at any one point of time or one set of circumstances, must be considered in the light of stage of proceedings and ongoing applications or hearings. 70. We find as follows: (a) Neither the express undertakings nor the Riddick undertaking expressly required immediate disclosure of any breach of the undertakings. (b) While there is a duty to disclose new circumstances that affect an undertaking and its performance, such an obligation does not extend to disclosure of prior breaches by the client, in which the legal practitioner did not acquiesce or assist, whether actively or passively. (c) The legal practitioner owes a duty of confidentiality to the client and is not entitled to make disclosures without consent unless there is a legal requirement to do so, that overrides his or her duty of confidentiality to the client. 30 | P a g e 71. On the facts, we note that the exchange of emails between the Respondent and his team and Samuel was ongoing and that there was no landing yet as to what Samuel was prepared to admit to in terms of the use of the documents and information. It can be argued that notwithstanding this, the Respondent was aware of the breaches and could still have disclosed the fact of the breaches, even though he had no instructions as to how the breaches should be presented. In this regard, context is important. We find that the request for extension of time for the Listing Exercise did not trigger any requirement in law for the breach by Amber to be disclosed, particularly as Samuel was not, as yet, prepared to admit to any breach. For these reasons, we are of the view that “cause of sufficient gravity” is not made out on the Second Charge and the 1st Alternative to the Second Charge 72. For the reasons set out in [67] above, we do not consider the non-disclosure of the intended application separately. The 2nd and 3rd Alternative Charges to the Second Charge 73. These charges are not predicated on disclosure being a duty required by law; rather it is the Law Society’s submission that the paramount duty to the Court required disclosure, at the PTC on 23 January 2019, of Amber’s prior breaches and of the intended application. 74. We find that the paramount duty, inter alia, includes a specific duty requiring legal practitioners to make full disclosure of all material facts and circumstances to the Court. This is clear from the cases set out in [50] above. The specific question in this case is whether this paramount duty required the disclosure of the prior breach and the 31 | P a g e intended application to the Court at the PTC of 23 January 2019; put another way, whether these facts were material in relation to the PTC subject matter. The question of materiality is a fact sensitive exercise. In the present matter, we note that the extension of time for the Listing Exercise was not used to engineer or facilitate further breaches of the undertakings given in relation to the Search Order, and that the PTC was mainly focussed on the inclusion of the Penal Notice. We find that the intended leave application meant that the Respondent was cognisant of the need for disclosure, was working on the disclosure and anticipated making the disclosure in the very near future. Given this fact situation, we find that, on 23 January 2019 and for the purposes of the PTC, the prior breach and the intending application were not material facts and circumstances. Accordingly, we find that there was no breach of the paramount duty, on 23 January 2019. Conclusion on the Second Charge and the Alternative Charges to the Second Charge 75. Having considered all matters, we find that the Second Charge and the 1st, 2nd and 3rd Alternative Charges to the Second Charge are not made out for the following reasons: (a) No specific requirement in law for the disclosure of Amber’s prior breach or intended application has been shown. (b) The prior breaches and the intended application were not material to the matters being addressed at the PTC. (c) The paramount duty to the Court was not breached by the non-disclosure on 23 January 2019, given that the terms of admission of the prior breach of undertaking by Amber was still being finalised, and that the breaches were to be disclosed in the intended application to be filed in the very near future. The Third Charge and the Alternative Charge 32 | P a g e 76. The Third Charge and its Alternative Charge relate to the same non-disclosure as the Second Charge and its 1st Alternative Charge, except that it is averred that disclosure ought to have been made to opposing counsel on 25 January 2019, when consent for the extension of time for the Listing Exercise was sought. 77. We have no doubt that opposing counsel would not have consented to the extension of time if he had been made aware of the prior breaches by Amber. This conclusion is founded upon the contentious nature of the dispute between parties, the opposing party’s reaction to the eventual disclosure of the breach and Mr George Pereira’s evidence at the hearing. Indeed, The Respondent’s action, in seeking consent while keeping opposing counsel in the dark on a matter that would have affected the giving of consent, disturbed us. However, we find that the Law Society has not established any requirement at law to make such disclosure. The Third Charge is premised on Rule 9(3)(b)(i) of the PCR and it is a crucial element that there be such a requirement. 78. For the above reason and on the basis of the reasoning set out in [66] to [72] and [75] above we find that the Third Charge and the Alternative Charge are not made out. Fourth Charge and Alternative to the Fourth Charge 79. We consider this to be the most serious charge, for the following reasons: (a) There is a clear legal requirement to make full and frank disclosure of all material facts and circumstances in any application without notice. (b) It is the Respondent’s own case that retrospective leave for use of the documents and information was being sought, in relation to the prior breaches of undertaking by Amber. The reasons for and the extent of such breaches are highly material to the Court in an application to grant leave for the use of the documents and information, and significantly more so in the case of 33 | P a g e retrospective leave. The Court was being asked to approve and even condone the prior breaches and must therefore be given all the facts and circumstances. (c) Amber’s final position had been crystallised and the Respondent had complete and final instructions on what he and his firm could disclose in the supporting affidavit, without any breach of confidentiality. 80. The Fourth Charge is premised on the breach of duty not to suppress evidence, set out in Rule 10(3)(a) of the PCR. We note that the requirement of full and frank disclosure is a requirement of law and Rule 9(3)(b)(i) would also be engaged, if nondisclosure is made out. Given the materiality of the nature and extent of the prior breaches in an application for retrospective leave, we are of the view that a breach of the paramount duty to the Court will also be engaged, if non-disclosure is made out. We are acutely conscious that the Respondent is answering to specific charges and that we should not stray beyond the four corners of the Fourth Charge. However, we are of the view that the various rules in the PCR and common law rules elucidated by the courts from time to time in relation to the duty of disclosure are different but overlapping expressions of the same core duty. In this case, the averment in the Fourth Charge and its alternative falls with the overlapping area of all three duties. The duty not to suppress evidence is the other side of the coin of the duty to disclose matters required by law as well as a facet of the paramount duty to disclose material facts and not to mislead the Court. 81. The Respondent has set out in detail the full events leading up to the filing of the affidavit in support of the leave application starting at [91] of his Reply Submissions (filed in reply to the Law Society’s Closing Submissions). We extract and set this out in full for two reasons. First, it accurately sets out how the contents of the supporting affidavit came about. Second, it sets out the Respondent’s defence in relation to his conduct, leading up to the final version. 34 | P a g e 82. The relevant portions of the Respondent’s Reply submissions are at [95] to [111] and are extracted and set out in full below. (ii) Drafting SUM 484: 7 cuts, 0 changes in position from Lee & Lee 95. In total, there were 7 rounds of exchanges between the Lee & Lee team and Amber, resulting in 7 cuts of the supporting affidavit for SUM 484. As will be seen, each iteration of the supporting affidavit by the Lee & Lee team was accompanied by the unwavering position that the past breach by Amber ought to be disclosed. 96. First, the initial draft of the supporting affidavit was transmitted to Amber on 11 January 2019. In it, the Lee & Lee team had included the following paragraph containing an express admission of the past breach: 97. Second, Mr Sudesh responded on 12 January 2019 with his comments included on the draft affidavit. Of note is the material amendment to paragraph 36 of the earlier draft: 35 | P a g e 98. The change to paragraph 36 is material: whilst Mr Sudesh’s amendment was made in accordance to his own understanding of what ‘use’ was, it gave the impression that no previous reports had been filed based on the documents obtained from the search orders. 99. Third, Lee & Lee responded on 17 January 2019, attaching the revised draft of the supporting affidavit. The team re-inserted the contents of paragraph 36 (now as paragraph 24), and included a comment stating that it was “important that we disclose the fact that some documents have already been disclosed to MoM and CPIB, as there is a duty to make full and frank disclosure to the court. As such, we strongly advise that the original wording be retained.” 100. Fourth, Mr Sudesh responded on 18 January 2019, challenging the need for an apology to the court. Mr Sudesh wanted paragraph 24 removed in its entirety: 36 | P a g e (Screenshot of metadata showing deletion of paragraph 24 by Mr Sudesh found in the word version of the draft supporting affidavit in 5 LSBOD 3766 to 3813, albeit the soft copy of the word version is not disclosed in evidence) 101. It bears emphasis that Mr Sudesh has persistently held on to his view that he had done no wrong even up to the hearing before this learned Tribunal. Surely, Mr de Souza cannot be faulted if Amber persistently refused to apologise and was of the view that it had done nothing wrong. (XX of Mr Sudesh: 8 April 2022; pg. 11 lines 2 to 4) page 38 lines 15 to 27) 37 | P a g e (XX of Mr Sudesh: 8 April 2022; pg. 38 lines 15 to 27) 102. Fifth, the Lee & Lee team replied on 22 January 2019. The team recognised the “discomfort” that Mr Sudesh had with paragraph 24, and reworded the same paragraph to “make the same point but in different tone”: 103. 38 | P a g e Paragraph 24 was re-drafted to read as follows: 104. It bears reiterating at this juncture that the alternate phrasing to paragraph 24 was, in the minds of the Team, merely a change in the phraseology without substantially amending the factual contents of the paragraph. It is for this reason that the Team stated in its 22 January 2019 email to Amber that the reworded paragraph 24 “makes the same point but in a different tone.” 105. Sixth, Mr Sudesh responded on 22 January 2019 with “further amendments to the wording” of the supporting affidavit. However, the amendments saw material changes to paragraph 24: 39 | P a g e (Mr Sudesh’s amendments in brown) 106. The amendments made by Mr Sudesh were caught out by Mr de Souza. In an email dated 22 January 2019, Mr de Souza clearly stated that he was not in favour of Mr Sudesh’s amendments. The very next morning, in an email dated 23 January 2019, Mr de Souza questioned the accuracy of Mr Sudesh’s amendments. In particular, he noted that documents had already been disclosed to the various authorities; this meant that the amendment put forward by Mr Sudesh was inaccurate: (Mr de Souza’s email: 4 RLOD 2525) 40 | P a g e (Mr de Souza’s email: 4 RLOD 2526) 107. Indeed, Mr de Souza’s observation was echoed by Mr Lee, who was of the view that Mr Sudesh was playing around with semantics. (Mr Lee’s email: 4 RLOD 2528) 108. This position was also taken by Mr de Souza during his cross- examination: 41 | P a g e (XX of Mr de Souza: 11 April 2022; pg. 68 lines 16 to 28) 109. Seventh, and pursuant to Mr de Souza’s observation, the Lee & Lee team redrafted the relevant paragraph of the supporting affidavit. The final iteration of the supporting affidavit was transmitted to Mr Sudesh on 25 January 2019, and the same was commissioned on the following Monday: 42 | P a g e 110. What is abundantly clear from the aforementioned chronology detailing the amendments to the SUM 484 supporting affidavit is the position adopted by the Lee & Lee team. Such an unflinching attitude was maintained by Mr de Souza even though he was of the knowledge that the defendants had not yet been contacted by the authorities. At no point in time did the team, including Mr de Souza, waver in their position that the fact of Amber’s previous breach must be disclosed to the court. Even when Mr Sudesh raised a ruckus, the team acquiesced to the extent of re-wording the paragraph but without losing the essence of its content. Subsequently, when Mr Sudesh sought to make further amendments, Mr de Souza immediately flagged them out as being inappropriate as they portrayed a false impression. 43 | P a g e 111. Was the intent of suppressing the fact that Amber had breached its undertakings ever in the mind of Mr de Souza? As the contemporaneous evidence shows, certainly not. 83. We accept that the Respondent’s submissions set out above accurately reflect what transpired between the Respondent and his Team and Samuel, insofar as the emails and the various drafts exchanged are concerned. However, we do not accept the Respondent’s characterisation of his responses. 84. We find that the exchanges with Samuel show that the Respondent was clearly aware documents and information had already been used and that Samuel was determined not to be honest with the Court. The key point is that the Respondent was aware that there had been a breach of the undertakings (express or Riddick) given to the Court. 85. The key question in relation to the Fourth Charge is whether the eventual version of paragraph [24] of the supporting affidavit satisfied the requirement of full and frank disclosure. Put another way, were material facts that should have been the subject of full and frank disclosure suppressed? 86. We were very much concerned with this issue that we ensured that the Respondent be given every opportunity to answer the above key question. In this regard, we specifically and extensively addressed this question with the Respondent. The full exchange is set out below 9: “President: I tell you what concerns me. If you take that position very strongly. Witness: Yes, Sir. 9 XXM of Respondent, 11 April 2022 pg 150 line 30 to pg 154 line 7 44 | P a g e President: And very fervently, that the effect of what you say you wanted to do, comes out in paragraph 24. Witness: Yes, Sir. President: And the later paragraphs. And Mr Assomull had put to you that did you go far enough? If truly, the whole idea was to make sure the Court had all the facts, whether paragraph 24 went far enough. And you don’t need to answer unless you choose to. But that is the issue that Mr Pillai and I will be looking at in some degree of scrutiny. So while I did tell Mr Assomull, you didn’t have to put your case based on Browne v Dunn and Mr Assomull has been quite fair in the way he puts his case, I am just going to ask you, in terms of the sentiments that’s expressed, whether paragraph 24 went far enough? Witness: Yes, Sir. In my view, paragraph 24 was full and frank disclosure, because it showed that reports had been given, which was a major point that up to date, nobody knew and the preamble to that paragraph 24 talks about documents, which I will explain below, and paragraphs 15 to 22 all talk about documents. So I would say, Sir, that in my mind, I did fulfil or in my mind, the client did fulfil all that he needed to say in an ex parte application. And I can give references where the seized documents were actually listed in that affidavit itself, paragraph 40 of that affidavit corresponds with Annex C of the MOM report. Paragraph 53 of that affidavit corresponds with Annex B of the MOM report. Paragraph 34 of that affidavit corresponds with Annex A of the MOM report. The CPIB report refers to the MOM report. And therefore, paragraph 53 is relevant for the purposes of the CPIB report. And lastly, if I am not mistaken, paragraph 47 of that affidavit corresponds with documents that were used to support the SPF report. … President: I got one question arising from this. In terms of the affidavit filed in--affirmed on 28th January, the point that Mr Assomull has made, is that it does not refer to retrospective permission. We don’t have certain words in this affidavit. We don’t have the word “retrospective”, we don’t have the word “prior”, we don’t have the word “antecedent”. All these that would describe previous events. Is there any reason that the---I think Mr Assomull put it quite poetically, in terms of why you didn’t come very clear on that, that you were talking about reports that were made prior to the filing of the affidavit. Witness: But we did, Sir. At paragraph 24, we actually talk about in support of documents for reports already given. Can I --- 45 | P a g e President: Can you please take me to that? Witness: Yes. Paragraph ---does Your Honour have the--President: Affidavit. Witness: Affidavit, reference. President: Volume 1, page 248 Tan: 240. President: Yes, but paragraph 24 is at page 248. Witness: Volume 1 of the Law Society’s? President: Law Society’s bundle, page 248. Witness: Yes. Page 248. President: 248. Mr de Souza, don’t get me wrong, I am not trying to corner you. I just want to have your position clearly stated, but in your own words in a free form. Witness: Okay. Yes, in---for me to seek---so I am reading from 249. President: Yes. Witness: Okay. Yes, in---for me to seek---so I am reading from 249. 24 President: Yes. 25 Witness: [Reads] “…for me to seek leave of the Honourable Court to use some of the Documents in support of the reports given” --- That means the reports have already been made. President: Okay. Witness: That’s clear: 46 | P a g e [Reads] “…or further reports to be made.” That’s if of course she grants or Her Honour grants prospective leave. President: But this doesn’t refer to the antecedent use of the documents. It says use of the documents in support of reports given. Is there any reference here that looks at the antecedent use of the documents? Witness: Yes, I would say that if one reads paragraph 15 to 22 and 23, because 23 says: [Reads] “I am advised, and verily believe”--Sorry, this is at page 248. President: Yes. Witness: [Reads] “I am advised, and verily believe, that the Documents”---which are the search order documents---“disclosed that the Defendants have potentially committed criminal offences under the”---three acts. “I explain below.” So this 24 must be read in the context of documents. And--President: Okay. Witness: ---it’s very clear, Your Honour. At least in my mind, in my honest mind, at far as I can go, it is clear: [Reads] “Aware that the Defendants had likely committed serious offences, I regarded it as a matter of duty to report…” So definitely, the fact that reports had been made is clear, you know, past reports, “to report possible criminal conduct to the authorities”, i.e. these three authorities. “My motivation for doing so was”--That means reports had been made already, “to deter any further wrongdoing from being committed and reduce the change (chance) that other innocent parties would suffer detriment. Now, having recently instructed”---our firm, “I was informed and advised that it would be best - indeed, necessary - for me to seek leave of the Honourable Court to use some of the Documents in support of the reports given”--So definitely, we are asking for leave for the documents that were already given in the reports. President: Okay. Witness: “…or further reports to be made. I make this application, which was taken out promptly upon instructing and receiving advice from Messrs Lee & Lee.” So I, 47 | P a g e genuinely, in my state of mind, Sir, I don’t know what more I could have done, to make it any clearer. I don’t.” (emphasis added by Respondent in the Respondent’s Reply submissions) 87. After full consideration of (i) the various drafts of the supporting affidavit, (ii) the final version of the supporting affidavit, (iii) the Respondent’s explanation set out in [86] above, and (iv) the Respondent’s Reply Submissions, we are of the unequivocal view that full and frank disclosure of the prior breaches of the implied Riddick undertaking and the express undertaking to the Court was not made in the supporting affidavit. The words “to use some of the Documents in support of the reports given” cannot by any stretch of imagination be taken to mean that there has been full and frank disclosure of the fact that documents and information had already been used and/or disclosed. Full and frank disclosure would have required that the specific documents and information used be identified, and the occasion at which and the authorities to whom such documents and information was given to be specifically stated. 88. The Respondent knew that there was a duty to disclose the prior use of the documents and information. This is clear from the comment in the draft sent under cover of the Respondent’s firm’s email of 17 January 2019, referred to in paragraph [99] of the Respondent’s submissions, that it was “important that we disclose the fact that some documents have already been disclosed to MoM and CPIB, as there is a duty to make full and frank disclosure to the court …”. 89. We have looked at Samuel’s affidavit (as eventually filed) very carefully and objectively and we are unable to accept the Respondent’s explanation as to how and why the duty to make full and frank disclosure has been fulfilled. 48 | P a g e 90. We are of the view that the failure to make such full and frank disclosure amounted to suppression of evidence by Amber, and by filing the supporting affidavit, the Respondent was a party to and assisted in such suppression, contrary to Rule 10(3)(a) of the PCR. We are further of the view that the duty to make full and frank disclosure was a requirement of law, and that the Respondent’s failure to do so was in breach of Rule 9(3)(b)(i). We are further of the view that, in the circumstances of this case, in particular the Respondent’s clear awareness of the importance of disclosure of the prior breaches by Amber, that the failure to make disclosure is a breach of the Respondent’s paramount duty to the Court to ensure that all material facts were placed before the Court. 91. At this juncture, we state our views on the Respondent’s submission as expressed at paragraphs 114 to 129 of the Respondent’s Reply Submissions. The Respondent refers to (i) the oral submissions and the queries of the JC as evidenced by the notes of evidence of the hearing on 8 April 2019, (ii) written submissions in support of SUM 484, and (iii) the subjective knowledge of Mr Pereira when he read paragraph 24. The Respondent submits all these matters point to the fact that the issue of retrospective leave and that the fact that documents and information had already been used was at the forefront of everyone’s mind; somehow suggesting that disclosure had been effectively made of the fact that Amber had already breached the undertakings, notwithstanding what paragraph 24 did or did not convey. The Respondent relies on this to argue that there was no failure on his part to give full and frank disclosure. We are unable to accept this line of defence. The evidence of Mr Pereira was ambiguous. In any event, his perception, based on his knowledge of the case and instructions from his clients, cannot be attributed to the Court. We are considering the Fourth Charge. This Charge expressly refers to the suppression of evidence in relation to Samuel’s affidavit filed on 29 January 2019. The communications and state of knowledge of the relevant persons after the filing and service of the affidavit is irrelevant. The point in 49 | P a g e time which is relevant is the time the affidavit was finally prepared and filed. The breach took place at that point of time. The Respondent’s reliance on what transpired at the hearing of 8 April 2019 is misplaced and therefore does not assist his defence. By this time, the Court had already ordered SUM 484 to proceed inter partes and Mr Pereira’s clients were already aware of the reports made to the various authorities. The issue is whether material evidence was suppressed on 29 January 2019; and it is not a defence that the suppressed evidence came to light subsequently. 92. In the course of submissions, we requested parties to address the question of whether a subjective intention to breach the duty of disclosure had to be proven; put differently, whether it was a defence if the Respondent genuinely thought that he had discharged his duty, even though objectively he has not. After considering the submissions, we find that once actual knowledge of material facts to be disclosed is proven, the question of whether there was breach of duty to disclose should be considered objectively, and not based on the subjective view of the legal practitioner. In the present case, from the Respondent’s own narrative, it is clear that he was fully aware that the undertakings had been breached and that he had a duty to disclose the breaches. 93. We are of the view that the ingredients of the Fourth Charge are made out, and it only remains to determine whether the Respondent’s conduct falls within either or both of section 83(2)(b) or section 83(2)(h) of the LPA. 94. We are mindful that a finding of suppression of evidence may connote more serious misconduct than a breach of duty to disclose a matter required by law to be disclosed. We would observe that this is not necessarily so and that the extent of culpability would have to be determined in the context of the factual matrix and not just on the formulation of the charge. 50 | P a g e Section 83(2)(b) or Section 83(2)(h) 95. We now consider whether the Respondent’s breach of duty, as specified in the Fourth Charge, discloses cause of sufficient gravity for him to show cause why he should not be dealt with by the C3J. Section 83(2)(b) and (h) state as follows:(2) Subject to subsection (7), such due cause may be shown by proof that an advocate and solicitor — …… (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any of the following as amounts to improper conduct or practice as an advocate and solicitor: (i) any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of this Act; (ii) Part VA or any rules made under section 70H; (iii) any rules made under section 36M(2)(r); ….. (h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; 96. The question of improper conduct for the purposes of Section 83(2)(b) of the LPA focuses on whether the conduct of the lawyer is ‘dishonourable to [him] as a man or dishonourable in his profession’ (Re Han Ngiap Juan [1993] 1 SLR(R) 135 at [25]). Conduct may be grossly improper notwithstanding that there is no dishonesty, fraud or deceit (Re Han Ngiap Juan at [27]). 51 | P a g e 97. Section 83(2)(h) of the LPA is broader than s 83(2)(b). It has been described as a ‘catch-all provision’ operating when a solicitor’s conduct does not fall within any of the other subsections of s 83(2) but is nonetheless considered unacceptable (Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 (‘Ng Chee Sing’) at [40]). For ‘unbefitting conduct’ to be made out, a solicitor needs to be shown to have been guilty of such conduct as would render him unfit to remain as a member of an honourable profession. While seeming stricter than the test of whether the conduct is dishonourable, the practical application of the test has been described as whether reasonable people, on hearing what the solicitor had done, would have said without hesitation that as a solicitor he should not have done it (Ng Chee Sing at [41], citing Wong Kok Chin v Singapore Society of Accountants [1989] 2 SLR(R) 633 at [17]). It is sufficient if his conduct brings him discredit as a lawyer or brings discredit to the legal profession as a whole. 98. The Law Society has framed the Fourth Charge in terms of the Respondent’s breach of the PCR. Such a breach is expressly provided as a basis for Section 83(2)(b) to be engaged if the breach amounts to improper conduct or practice. It is apposite to note that the qualifier “grossly” is not required to be shown for breaches of the PCR that constitute improper conduct or practice. 99. We find that the Respondent’s breach of the PCR in relation to the Fourth Charge, in terms of filing SUM 484 with Samuel’s supporting affidavit amounts to improper conduct and practice. In reaching the above conclusion, we have considered very carefully the sequence of events. We accept that the Respondent did not initiate or encourage the non-disclosure, and indeed, right up to 22 January 2019 was insistent 52 | P a g e that Amber and Samuel make full disclosure. However, given the Respondent’s admitted cognisance of the importance of full and frank disclosure, his failure to ensure that such disclosure was made is not exculpated by the conduct of the client. We appreciate that it is hardest for a legal practitioner to do his duty when the client is difficult; but it is in such circumstances that the legal practitioner must cleave to his or her duties to the Court. 100. We find that pursuant to Section 93(1)(c) of the LPA there is cause of sufficient gravity for disciplinary action under section 83 of the LPA in relation to the Fourth Charge. The Respondent was aware that leave for the prior wrongful use of the documents and information by Amber had to be obtained. While we have found that his actions, or rather inactions, on 23 January 2019 and 25 January 2019 are not causes of sufficient gravity for the Respondent to be referred to the C3J, SUM 484 was the occasion at which time all earlier omissions and non-disclosures had to be clearly, completely and unequivocally put right. Costs 101. We now deal with the question of costs. Although we have found sufficient cause in relation to only one charge out of five, the issues significantly overlapped. The three overlapping duties were relevant to the fourth charge. Considering the length of the hearing and the submissions, we order that the Respondent pay the costs of the Law Society, fixed in the sum of $18,000. The Respondent is also to pay the Law Society’s reasonable disbursements. Dated this 19th day of October 2022 Mr N Sreenivasan, SC President 53 | P a g e Pradeep Pillai Member ",2025-02-11T04:00:43+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2025/,"In the Matter of Christopher James De Souza (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2025/",1189 47,62bc9c0d944164869e2ef01e4f0f68edf757a51a,"In the Matter of Seah Choon Huat Johnny (Respondent), Advocate & Solicitor","In the Matter of Seah Choon Huat Johnny (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from a complaint lodged against the Respondent by his client (the Complainant) in respect of his conduct as an Advocate and Solicitor, and in relation to his representation of the Complainant in her divorce proceedings. Following the dissolution of the Complainant’s marriage, the Respondent filed a summons to vary the divorce order (the Variation Summons). The Respondent failed to attend the scheduled Case Conference for the Variation Summons. As a result, the Variation Summons never proceeded to any further hearing, and the divorce order was never varied. Thereafter, the Complainant appointed a new set of solicitors (the new solicitors) to take over conduct of the matter from the Respondent’s firm. The new solicitors wrote to the Respondent’s firm seeking an urgent handover of documents in the Respondent’s possession. Despite repeated reminders, the Respondent’s firm failed to handover any documents to the new solicitors, leading to the new solicitors filing an Originating Summons seeking orders for the Respondent to deliver up to the Complainant all information and documents. The following were the main charges held against the Respondent, referenced from section 83(2)(b) of the Act for grossly improper conduct in the discharge of professional duty as an advocate and solicitor: First Charge The Respondent failed to act timeously on the Complainant’s instruction to vary the divorce order and had failed to keep the Complainant reasonably informed of the progress of the Variation Summons, breaching Rules 5(2)(c), 5(2)(e), 5(2)(f) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge The Respondent failed to attend the Case Conference in the Variation Summons without reasonable justification or notice to the Complainant, thereby breaching Rules 5(2)(c) and 5 (2)(e) of the PCR. Third Charge The Respondent failed to respond and/or comply with the new solicitors’ repeated requests to take over conduct of the matter, thereby breaching Rules 5(2)(e), 5(2)(f) and/or 7(2) of the PCR. Findings of the DT The DT found that the First Charge was made out in that the Respondent’s conduct was in breach of Rules 5(2)(c), 5(2)(e), 5(2)(f) and/or 5(2)(h) of the PCR, and amounted to improper conduct under section 83(2)(b) of the Act, and there was cause for sufficient gravity. The DT found that the Second Charge had been made out in that the Respondent’s conduct was in breach of Rules 5(2)(c) and 5(2)(e) of the PCR, and amounted to improper conduct under s 83(2)(b) of the Act, and there was cause for sufficient gravity. The DT was satisfied that the Third Charge was made out, and that the Respondent’s conduct was in breach of Rules 5(2)(e), 5(2)(f) and/or 7(2) of the PCR amounting to improper conduct under section 83(2)(b) of the Act, and there was cause for sufficient gravity for disciplinary action under section 83 of the Act. The DT also ordered the Respondent to pay costs to the Law Society fixed at $8,000 plus reasonable disbursements. Court of Three Judges The Court of Three Judges ordered that the Respondent be suspended from practice for a period of four years commencing immediately after the conclusion of the Respondent’s six-month suspension ordered in C3J/OA 1/2023, and for the Respondent to pay costs and disbursements to the Law Society in the sum of S$20,500. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/01/Jan_25_Johnny_Seah_DT_report_compressed.pdf,"DT 16 OF 2022 IN THE MATTER OF SEAH CHOON HUAT JOHNNY, AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) DECISION OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal Mr Jimmy Yim Wing Kuen, SC – President Mr G Radakrishnan – Member Counsel for the Law Society Counsel for the Respondent Ms Jill Ann Koh WongPartnership LLP 12 Marina Boulevard Level 28 Marina Bay Financial Centre Tower 3 Singapore 018982 Respondent acting in person Dated this27thday of April 2023 DT 16/2022 Between THE LAW SOCIETY OF SINGAPORE (No ID Exists) … Applicant And SEAH CHOON HUAT JOHNNY … Respondent THE DISCIPLINARY TRIBUNAL’S DECISION Introduction 1. On 25 March 2021, Mdm Tan Hong Kiang (“Mdm Tan”) lodged a complaint under Section 85(1) of the Legal Profession Act 1996 (“LPA”) with the Applicant, The Law Society of Singapore. Mdm Tan’s complaint (“Complaint”) was against her former solicitor, the Respondent, Mr Seah Choon Huat Johnny, who acted for Mdm Tan in her divorce proceedings. At all material times, the Respondent practiced as a sole proprietor under the law firm Seah & Co. The Respondent, an Advocate and Solicitor of the Supreme Court of Singapore, was called to the Singapore Bar on 14 January 1981. 2. On 22 July 2022, the present Disciplinary Tribunal was appointed. Based on the Complaint, the Applicant brought 3 main charges against the Respondent. The 3 main charges are reproduced below: 2 a) The First Charge: “You, Seah Choon Huat Johnny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c), Rule 5(2)(e), Rule 5(2)(f) and/or Rule 5(2)(h) of the Legal Profession (Professional Conduct) Rules 2015, in that you had failed to act timeously on the instructions of your client, one Mdm Tan Hong Kiang (the “Complainant”) to vary the Order of Court in FC/ORC 13/2015 (“ORC 13”), and to keep the Complainant reasonably informed of the progress of her application to vary ORC 13, and you are thereby guilty of grossly improper conduct or improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act 1966.” b) The Second Charge: “You, Seah Choon Huat Johnny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c) and/or Rule 5(2)(e) of the Legal Profession (Professional Conduct) Rules 2015, in that you had failed to attend the Case Conference for FC/SUM 4075/2016 in D 1079/2013 on 22 December 2016 10 January 2017 without reasonable justification or notice to the Complainant, and you are thereby guilty of grossly improper conduct or improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act 1966.” [as amended] c) The Third Charge: “You, Seah Choon Huat Johnny, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c), Rule 3 5(2)(e), Rule 5(2)(f) and/or Rule 7(2) of the Legal Profession (Professional Conduct) Rules 2015, in that you had failed to respond to and/or comply with Tan, Oei & Oei LLC’s repeated requests to take over conduct of D 1079/2013, and you are thereby guilty of grossly improper conduct or improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act 1966.” 3. For each of the above 3 main charges, the Applicant brought 3 respective alternative charges reflecting the substance of the misconduct alleged in the main charges, save that the alternative charges were framed for the same alleged misconduct under another subsection, Section 83(2)(h) of the LPA. Section 83(2)(h) concerns conduct that is “unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession”. 4. On 3 November 2022, by consent, the Tribunal allowed the Applicant’s amendment of the Second Charge (and the second alternative charge), to change the date of the Case Conference the Respondent allegedly failed to attend, from 22 December 2016 to 10 January 2017. To that end, the Applicant filed its Statement of Claim (Amendment No. 1) dated 3 November 2022 containing the amended second main and alternative charge. 5. On 30 November 2022, a full day evidentiary hearing (“Hearing”) was conducted. The Applicant’s sole witness was the complainant Mdm Tan, while the Respondent’s sole witness was himself. 6. At the time of the Hearing, Mdm Tan was an Associate in Mizuho Bank’s treasury department. Her highest qualification was GCE “O” Levels. Background facts 4 7. The solicitor-client relationship between the Respondent and Mdm Tan began in 2013. In that year, Mdm Tan appointed the Respondent, through his law firm Seah & Co., to act for her in her divorce proceedings in D 1079/2013 (“Divorce Suit”) against her ex-husband, Mr Sng Leong Chye (“Mr Sng”).1 8. On 23 August 2013, Mdm Tan obtained interim judgment (“Interim Judgment”) against Mr Sng in the Divorce Suit under which, the Subordinate Courts dissolved the marriage between Mdm Tan and Mr Sng. This paved the way for Mdm Tan and Mr Sng to deal with the ancillary matters relating to their divorce, which included, among other matters, the issue of the division of their matrimonial Housing Development Board (“HDB”) flat at Block 97 Geylang Bahru, #08-3178, Singapore 330097 (“Flat”). 9. The proceeds from the sale of the Flat forms the foundation of Mdm Tan’s Complaint against the Respondent. 10. By an Order of Court No. FC/ORC 13/2015 (“ORC 13”) dated 28 November 2014,2 the Family Justice Courts (“FJC”) made the following orders for division of the Flat. First, under paragraph 3(e) of the order, within 9 months of the date of the Certificate of Final Judgment, Mr Sng was to transfer all his rights, title and interest in the Flat to Mdm Tan upon payment by Mdm Tan to Mr Sng of a sum equivalent to 7% of the net value of the Flat. Second, under paragraph 3(f) of the order, in the event the said transfer was not made within 9 months of the date of the Certificate of Final Judgment, the Flat should be sold in the open market to the highest bidder within the next 9 months. In which event, the FJC also ordered that (at paragraph 3(f)): a) “The net sale proceeds… shall be divided in the proportion of 93% (ninety-three per cent) to [Mdm Tan] and 7% (seven per cent) to [Mr Sng]”; 5 b) “From their share of the net sale proceeds, the parties shall refund to his [sic] CPF account all the monies utilized for the purchase of the flat together with accrued interest”; and c) 11. “The Plaintiff shall have sole conduct of sale of the matrimonial flat”. On 13 January 2015, the FJC issued the Certificate of Final Judgment making the Interim Judgment granted on 23 July 2013 final.3 12. The Respondent, through Seah & Co., acted for Mdm Tan in the sale of the Flat. The Flat was eventually sold on the open market for S$448,000. The net proceeds from the sale amounted to S$436,162.80, after deduction of the agent’s fee and legal costs. 13. In accordance with ORC 13, both Mdm Tan and Mr Sng were required, from their share of the sale proceeds, to refund to their respective Central Provident Fund (“CPF”) accounts all monies utilised for the purchase of Flat plus accrued interest on those monies. 14. In terms of entitlement to the sale proceeds based on the proportion ordered in ORC 13, Mr Sng was to receive only the sum of S$30,531.40, being 7% of the net sale proceeds of S$436,162.80. Mdm Tan was to receive the remaining amount. 15. However, in the process of the sale of the Flat, an issue arose in respect of the amount Mr Sng had to refund to his CPF account for the CPF monies he had used for the purchase of the Flat plus accrued interest. HDB informed the parties that the amount Mr Sng had to refund to his CPF account was significantly more than his entitlement to the net sale proceeds according to ORC 13. 16. In the period between August 2015 to December 2015, numerous letters were 6 exchanged between Seah & Co. and HDB, and Seah & Co. and the CPF Board (“CPFB”), regarding the sale of the Flat. We highlight the salient letters which touch on the issue of Mr Sng’s entitled proceeds (according to ORC 13) being far less than the amount he had to return to his CPF account: a) By a letter dated 3 November 2015,4 Seah & Co. wrote to HDB with copy to CPFB stating, among other things, that Mr Sng’s entire share of S$30,531.40 would be refunded to his CPF account, as it was “less than his CPF monies used” to purchase the Flat; b) By a letter dated 13 November 2015,5 HDB wrote to Seah & Co. stating that without CPFB’s written agreement for a partial refund to Mr Sng’s CPF account, a full refund to Mr Sng’s CPF account would be required to lift CPFB’s charge on the Flat; c) By a letter dated 17 November 2015,6 Seah & Co. wrote to CPFB requesting, in effect, their agreement to a partial refund; d) By a letter dated 20 November 2015,7 HDB wrote to Seah & Co. providing a completion account which provided, among other things, that there was a full refund required to Mr Sng’s CPF account in the sum of S$116,732.32 (“Full Refund”); e) By a letter dated 23 November 2015,8 Seah & Co. again wrote to CPFB pointing out that Mdm Tan and Mr Sng had agreed to sell their Flat and were required by law to complete the sale by 4 December 2015. Seah & Co. again sought CPFB’s agreement to a partial refund to Mr Sng’s CPF account. To that end, Seah & Co. proposed that instead of paying the balance sum of S$85,372.32 7 (being the Full Refund amount minus the proposed partial refund amount of S$30,531.40) to Mdm Tan in cash, Mdm Tan was agreeable for that sum to be credited to her CPF account instead. Seah & Co. also stated that Mdm Tan would apply to Court to “award” ORC 13 accordingly. The use of the word “award” was a typographical error, and the Respondent confirmed during the Hearing that he meant “amend”.9 While the letter referred to an enclosure containing Seah & Co.’s proposed amended ORC 13, it was not clear whether there was in fact such an enclosure; and f) By a letter dated 1 December 2015,10 CPFB responded to Seah & Co. stating in effect that a Full Refund to Mr Sng’s CPF account was required for the sale of the Flat to proceed. However, CPFB would have no objection to the transfer the sum of approximately S$85,372.32 of Mr Sng’s CPF monies to Mdm Tan’s CPF account, if the Court made an order to that effect. In that letter, CPFB even referred Seah & Co. to the suggested clauses on the FJC’s website for such transfers of monies between CPF accounts, and also sought from Seah & Co. the draft order for variation before parties filed it in court, so as to provide comments, if any. 17. However, the completion of the sale of the Flat proceeded on 4 December 2015, without any variation of ORC 13. The completion account for the sale was prepared by Seah & Co. (“Completion Account”),11 which recorded a Full Refund to Mr Sng’s CPF account, in the sum of S$116,732.32. In other words, the sum of S$85,372.32 which Mdm Tan was beneficially entitled to vis-à-vis Mr Sng, based on the terms of ORC 13, was also refunded to Mr Sng’s CPF account to enable Mr Sng to fulfil his duty of a Full Refund to his CPF account. 18. Almost 1 year later, on 25 November 2016, Seah & Co. filed on behalf of Mdm Tan a summons No. FC/SUM 4075/2016 (“SUM 4075”) in the Divorce Suit to vary ORC 13. SUM 8 4075 enclosed the draft amended ORC 13 which provided that CPFB shall transfer “the ordered amount from the monies standing to the credit of [Mr Sng’s] CPF account into [Mdm Tan’s] CPF account pursuant to s. 112 of the Women's Charter (Cap. 353) and subject to the provisions of the CPF Act”.12 19. In support of SUM 4075, Seah & Co. filed Mdm Tan’s affidavit on 25 November 2016 (“Mdm Tan’s Affidavit”)13, which was strangely affirmed earlier on 18 August 2016. It is not disputed that this affidavit was drafted by the Respondent.14 Mdm Tan’s Affidavit briefly recounted the facts surrounding the sale of the Flat and that vis-à-vis Mr Sng, she was beneficially entitled to the sum of S$86,200 (instead of the sum of S$85,372.32 as appearing in the Completion Account narrated at paragraph 17 above). 20. The first Case Conference for SUM 4075 was fixed before the FJC on 22 December 2016. The Respondent attended this Case Conference on behalf of Mdm Tan. SUM 4075 was not yet served on Mr Sng, who did not attend. This Case Conference was adjourned to 10 January 2017 at 10:30 am. 21. At the scheduled Case Conference on 10 January 2017 at 10:30 am, no one attended that Case Conference. The FJC’s Registry then wrote a letter on the same day to Seah & Co. and Mr Sng seeking an explanation in writing from the said parties for failing to attend the Case Conference on that same date. The FJC directed that no court date would be fixed for SUM 4075 failing an explanation in writing within 7 days.15 22. The Respondent readily admitted during the Hearing that he did not attend the Case Conference on 10 January 2017. The Respondent also did not provide any explanation to the FJC for his failure to attend. SUM 4075 therefore never proceeded to any further hearing, and by that token, ORC 13 was never varied. 9 23. The picture after 10 January 2017 was far less clear. The Tribunal was left to rely on the testimony of Mdm Tan and the Respondent, which at times contradicted each other. The Tribunal will elaborate on its findings on this when discussing the Respondent’s liability below. 24. On 16 April 2019, Mr Sng passed away. Apart from the 2 sons Mr Sng had with Mdm Tan during their marriage, Mr Sng had another child from a subsequent marriage.16 25. On or around 12 October 2020, Mdm Tan’s 2 sons received letters from the Public Trustee stating that they would be receiving monies from Mr Sng’s CPF account. 26. On or around 19 January 2021, Mdm Tan’s 2 sons received their share of the monies from Mr Sng’s CPF account. They told their mother Mdm Tan about this. It appeared that Mr Sng had other beneficiaries who received their respective shares of Mr Sng’s CPF monies, namely his wife and child from his subsequent marriage. Thus, by this time, all monies in Mr Sng’s CPF account had been distributed. 27. In the period between 15 to 25 January 2021, there were a series of WhatsApp messages between Mdm Tan and the Respondent. Mdm Tan appeared genuinely concerned about the balance sum of S$86,200 due to her from Mr Sng’s CPF account and sought that the Respondent take urgent action. The Respondent promised to take some action, but none was taken. 28. Sometime in presumably late January 2021, Mdm Tan appointed the law firm Tan, Oei & Oei LLC (“TOO LLC”) to take over conduct from Seah & Co. for the recovery of monies from Mr Sng’s CPF account. In that regard, on 28 January 2021, TOO LLC wrote to Seah & Co. and sought an urgent handover of the documents in Seah & Co.’s possession.17 29. By a 2nd letter dated 8 February 2021,18 TOO LLC reminded Seah & Co. to comply with 10 the request for the handover of documents. This letter referred to a telephone conversation between the Respondent and TOO LLC’s lawyer Ms Anna Oei (“Ms Oei”) in which the Respondent said to her that he would respond to TOO LLC in 2 days, but did not do so. 30. By a 3rd letter dated 3 March 2021,19 TOO LLC again reminded Seah & Co. to comply with the request for the handover of documents. As more than a month had passed by this time, TOO LLC intimated that it would “take further action to ensure handover of the matter” if the documents were not received by 4:00 pm on 8 March 2021. 31. By a 4th letter dated 12 March 2021,20 TOO LLC once again reminded Seah & Co. to comply with the request for the handover of documents. 32. On 25 March 2021, Mdm Tan filed the Complaint to the Applicant.21 By this time, Seah & Co. had still not handed over any documents to TOO LLC. 33. On 9 December 2021, TOO LLC filed on behalf of Mdm Tan a Writ of Summons No. DC/DC 2582/2021 (“Suit 2582”) against the Respondent in the State Courts of Singapore.22 Suit 2582 contained an Endorsement of Claim, which particularised a claim for the Respondent’s alleged breach of duty and negligence, in respect of, among other things, the transfer of the Flat, the Divorce Suit including the variation application in SUM 4075, and the intended transfer of monies from Mr Sng’s CPF account to Mdm Tan’s. Mdm Tan sought damages, costs and interest against the Respondent. 34. On the same day on 9 December 2021, TOO LLC also filed on behalf of Mdm Tan an Originating Summons No. HC/OS 1258/2021 (“OS 1258”), seeking orders for the Respondent to deliver up to Mdm Tan all information and documents relating to, among other things, the transfer of the Flat and the Divorce Suit including the variation application in SUM 4075.23 In support of OS 1258, TOO LLC filed Mdm Tan’s affidavit dated 1 December 2021.24 11 35. On 15 February 2022, the Respondent filed a reply affidavit in OS 1258.25 In this reply affidavit, the Respondent provided several reasons why he had not handed over the documents requested by Mdm Tan. In gist, the Respondent’s position was that OS 1258 was frivolous, vexatious and otherwise an abuse of the process of the court as Mdm Tan had all the documents in her possession. 36. On or around 15 March 2022, the Respondent handed over some documents in its possession to TOO LLC. The documents handed over, which are contained in the Applicant’s Supplementary Bundle of Documents (marked LSBOD II), comprised of around 53 documents spanning 113 pages. 37. On 21 April 2022, the Respondent filed a further affidavit in OS 1258.26 He claimed that he had on 15 March 2022 handed over all the documents in his possession relating to the sale of the Flat and the variation application in SUM 4075 to TOO LLC. However, as for the Divorce Suit, the Respondent claimed that most documents had been destroyed as the matter concluded following the extraction of the Certificate of Final Judgment in January 2015. 38. By a letter dated 29 April 2022, TOO LLC disputed the Respondent’s claims in his further affidavit dated 21 April 2022.27 39. However, it appears that no order was made in OS 1258. It is not clear whether parties settled the matter without a hearing or that OS 1258 was heard and that no orders were deemed necessary. 40. On 15 August 2022, Mdm Tan filed her Statement of Claim in Suit 2582 against the Respondent.28 12 41. On 12 September 2022, interlocutory default judgment for liability was entered in Suit 2582 against the Respondent, with damages to be assessed, as the Respondent did not serve his defence.29 42. At the Hearing of these proceedings, we were updated by the Respondent that he reached a settlement with Mdm Tan on the judgment in respect of Suit 2582. To be clear, the Tribunal did not inquire into the terms of the settlement. The Respondent however offered information on this, without any objection by the Applicant’s counsel or Mdm Tan. The Respondent informed the Tribunal that he had agreed to pay Mdm Tan the sum of S$86,00030 and he was seeking this fact to be considered for the purpose of mitigation in case the Tribunal found against him.31 The charges 43. The first main charge against the Respondent, which in the Tribunal’s view is the most serious, is that he failed to act timeously on his client, Mdm Tan’s instruction to vary ORC 13, and keep Mdm Tan reasonably informed of the progress of her application to vary ORC 13. It is most serious because it concerns the Respondent’s alleged actions which ultimately led to Mdm Tan’s loss of the S$86,000 due from Mr Sng’s CPF account, and that it allegedly took Mdm Tan 4 years to discover her loss. The Respondent is alleged to be in breach of Rules 5(2)(c), 5(2)(e), 5(2)(f) and/or 5(2)(h) of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”). Those rules are reproduced below: 5.-“(2) A legal practitioner must — … (c) act with reasonable diligence and competence in the provision of services to the client; … 13 (e) keep the client reasonably informed of the progress of the client’s matter; … (f) where practicable, promptly respond to the client’s communications; … (h) provide timely advice to the client;” 44. The second main charge against the Respondent is that he failed to attend the Case Conference in SUM 4075 on 10 January 2017 without reasonable justification or notice to Mdm Tan. This is alleged to be in breach of Rules 5(2)(c) and 5(2)(e) of the PCR, which have been reproduced in paragraph 43 above. 45. The third main charge against the Respondent is that he failed to respond and/or comply with TOO LLC’s repeated requests to take over conduct of the Divorce Suit. This is alleged to be in breach of Rules 5(2)(e), 5(2)(f) and/or 7(2) of the PCR. The former 2 rules have been reproduced in paragraph 43 above. Rule 7(2) of the PCR is reproduced below: 7.-“(2) A legal practitioner must treat other legal practitioners with courtesy and fairness.” 46. As mentioned, each of the 3 main charges have a corresponding alternative charge for the same alleged misconduct under Section 83(2)(h) of the LPA. The Respondent’s defence 47. The Respondent filed his Defence on 6 September 2022 (“Defence”). 48. The Tribunal had difficulty piecing together the Respondent’s defences from the Defence alone. In the usual course, a party should be confined to its pleaded position, as it 14 appears in his defence. In seeking to understand his defence in full, the Tribunal extended some latitude to the Respondent by considering his defences in his Affidavit of Evidence-inChief dated 22 November 2022 (“Respondent’s AEIC”) and the evidence at the Hearing. However, the Tribunal did exercise caution in accepting matters not appearing in the Respondent’s pleaded Defence. (a) First Main Charge 49. In respect of the first main charge on failing to act timeously to vary ORC 13, the Respondent’s main defence was that he was not acting for Mdm Tan to vary ORC 13 to obtain an order for the transfer of CPF monies from Mr Sng’s to Mdm Tan’s CPF account. While he did file SUM 4075 for Mdm Tan on 25 November 2016 to vary ORC 13, which was almost 1 year after the Completion of the sale of Flat, this was purely to help Mdm Tan gratuitously. He had not charged Mdm Tan any fees or disbursements for filing SUM 4075, or for that matter any work related to varying ORC 13. However, he claimed that SUM 4075 “got stuck” because first, Mr Sng’s then solicitors refused to accept service of SUM 4075 and second, Mr Sng was out of jurisdiction and could not be served. Further, Mdm Tan “was not prepared to give formal instructions to pursue the matter and incur the costs of substituted service”. As such, the Respondent “left the matter as it is”. We elaborate on how we arrived at the Respondent’s defences. 50. In his Defence, the Respondent pleaded that the Divorce Suit was concluded in or around January 2015. Thereafter, there were no further instructions from Mdm Tan on the Divorce Suit matter and/or any instructions to “appeal” against ORC 13 (i.e. the ancillary order for division and distribution of the proceeds of sale of the Flat).32 The Respondent pleaded that he indeed acted for Mdm Tan in the sale of the Flat, in the course of which, the issue of the Full Refund of CPF monies arose. The Respondent further pleaded that “[Mdm Tan] requested us to assist her to amend the said Order”, but the “issue of our costs was therefore 15 [sic] not discussed”. To the Tribunal, “request” must mean instructions. It is clear that “us” refers to Seah & Co. and the Respondent, and the “Order” refers to ORC 13. The Defence went on to state that Mdm Tan “was not prepared to incur the costs of the substituted service on him”, and the word “him” we understand referred to Mr Sng. 51. In the Respondent’s AEIC, flesh was added to the Respondent’s defences. He stated that there were no instructions to act for Mdm Tan to vary ORC 13. He nevertheless “tried to help” Mdm Tan by filing SUM 4075 to vary ORC 13. However, SUM 4075 “got stuck” because it could not be served on Mr Sng. For clarity, we reproduce paragraphs 6 and 7 of the Respondent’s AEIC: “6. There was no instructions to act for the Complainant to apply for variation of the Ancillary Order of Court save that it was made known that the CPF Board required the Complainant’s Husband’s CPF monies used to be refunded to his CPF account, I tried to help the Complainant by taking out an application for the variation of the Order of Court of 28 November 2014 and got the Complainant to affirm an Affidavit. No costs or any disbursements were collected from the Complainant for the said application. 7. The application got stuck as the Defendant could not be served as the Complainant’s Husband’s solicitors refused to accept service and the Defendant is out of jurisdiction. Madam Tan was not prepared to give formal instructions to pursue the matter and incur the costs of substituted service. As such, I therefore did not follow up on 10 January 2017 and left the matter as it is.” 52. In the course of being cross-examined at the Hearing, the Respondent led more evidence on his defence. He claimed that: a) Because 1 year had passed (unclear from when), an application to vary ORC 16 13 had to be personally served on Mr Sng, who was resident in Hong Kong; b) In 2016, the Respondent did not have Mr Sng’s address. and neither did Mdm Tan. Thus, Mr Sng could not be personally served. Mr Sng’s then lawyers Tan Kim Seng & Partners had no instructions to accept service of the variation application on behalf of Mr Sng. As such, the variation application could not be filed;33 c) In 2016, the Respondent had advised Mdm Tan on the above issues relating to service and had informed her that she required Mr Sng’s address.34 He also advised Mdm Tan that it was possible to file an application for substituted service to advertise the variation application in a newspaper in Hong Kong, but Mdm Tan did not wish to incur the costs for advertising;35 d) Nonetheless, without the address of Mr Sng or instructions on substituted service, due to Mdm Tan’s pressure to file the application to vary ORC 13, the Respondent proceeded to file the variation application SUM 4075 on 25 November 2016 hoping that Mdm Tan would find Mr Sng’s address in time;36 and e) As Mdm Tan was unable to provide the Respondent with any address for Mr Sng, he left the matter as it is. The Respondent was all along waiting for Mdm Tan to respond to him on the address of Mr Sng.37 (b) Second Main Charge 53. In respect of the second main charge which concerns the Respondent’s failure to attend the Case Conference in SUM 4075 on 10 January 2017, the Respondent’s Defence 17 was silent. 54. The Respondent’s AEIC did not directly raise any defence as to why he failed to attend the said Case Conference. The AEIC simply stated that because Mr Sng could not be served with SUM 4075, the application stalled, and “[a]s such, [he] therefore did not follow up on 10 January 2017 and left the matter as it is”. 55. The Respondent’s Closing Submissions dated 31 January 2023 (“Respondent’s Closing Submissions”) brought some belated clarity. The Respondent explained at paragraph 5 that as Mdm Tan did not wish to incur the costs of substituted service of SUM 4075 by way of an advertisement, and there was no address for service on Mr Sng, the Respondent did not attend the Case Conference on 10 January 2017. (c) Third Main Charge 56. In respect of the third main charge which concerns the Respondent’s failure to respond to and/or comply with TOO LLC’s repeated requests to take over conduct of the Divorce Suit, the Respondent’s defence was that copies of the Interim Judgment, Ancillary Order of Court (i.e. ORC 13) and Certificate of Final Judgment in the Divorce Suit were given to Mdm Tan in January 2015 before the file was closed. The rest of the documents relating to the Divorce Suit were subsequently disposed of by the Respondent. 57. In his Defence, the Respondent referred to the 2 affidavits he filed in OS 1258 (i.e. Mdm Tan’s application against the Respondent to compel the handover of documents) – see paragraphs 35 and 37 above. In those 2 affidavits, the Respondent’s evidence (which he appeared to adopt as his defence by incorporation), was that: Respondent’s Affidavit dated 15 February 2022 at [4] 18 a) On an unspecified date, the Respondent received a telephone call from Ms Oei of TOO LLC for copies of Mdm Tan’s divorce documents. As the Respondent was unwell, he requested for time. He also needed time because the matter was completed in November 2014, and the file was either in storage or not around; b) In any event, during the course of the Divorce Suit, Mdm Tan was given “documents/copy letters from time to time when she attended at [the Respondent’s] office to give instructions and to sign Affidavits/documents”; Respondent’s Affidavit dated 21 April 2022 at [3]-[4] c) All documents relating to the Divorce Suit in Seah & Co.’s records (except the Interim Judgment, Ancillary Order of Court (i.e. ORC 13) and Certificate of Final Judgment in the Divorce Suit) had been destroyed as the matter concluded in January 2015 upon the extraction of the Certificate of Final Judgment; and d) A new file was opened in Seah & Co.’s records in or around November 2015 for the sale of the Flat and this file included documents relating to SUM 4075. Documents in this new file were given to TOO LLC on or around 15 March 2022. Issues for Tribunal’s determination 58. Reading the charges framed by the Applicant against the defences raised by the Respondent, the following issues arise for the Tribunal’s determination: 19 First Charge a) Whether and when the Respondent was acting for Mdm Tan to vary ORC 13 for the transfer of monies from Mr Sng’s CPF account to Mdm Tan’s; b) If so, whether the Respondent failed to act timeously on Mdm Tan’s instructions to vary ORC 13; c) Whether the Respondent failed to keep Mdm Tan reasonably informed of the progress of her application in SUM 4075 filed on 25 November 2016 to vary ORC 13; d) Whether there were issues of service and substituted service of SUM 4075 on Mr Sng, and if so, whether the Respondent had reasonably advised and/or updated Mdm Tan on those issues; Second Charge e) Whether the Respondent advised and/or updated Mdm Tan on his failure to attend the Case Conference in SUM 4075 on 10 January 2017, and whether the Respondent had any justification for not attending that Case Conference; and Third Charge f) Whether the Respondent failed to respond to and/or comply with TOO LLC’s requests between January and March 2021 to take over conduct of the Divorce Suit by handing over documents related to it in Seah & Co.’s possession to 20 TOO LLC which led to OS 1258 dated 9 December 2021, and whether there was any justification for this failure. Tribunal’s findings on the issues and determination on the charges 59. The Tribunal’s findings on the 3 main charges are presented sequentially. First Charge a) Whether and when the Respondent was acting for Mdm Tan to vary ORC 13 for the transfer of monies from Mr Sng’s CPF account to Mdm Tan’s 60. In our view, there is compelling evidence that the Respondent was for all intents and purposes acting for Mdm Tan to vary ORC 13 to secure the transfer of the sum of S$86,200 from Mr Sng’s CPF account to Mdm Tan’s, such that there was an implied retainer between the Respondent and Mdm Tan for this purpose. The Respondent’s defence arguing otherwise is without merit and was disingenuously raised. 61. It was common ground that there was no express contractual retainer, given the absence of a written agreement between the Respondent/Seah & Co. and Mdm Tan in relation specifically to this task. The key question was therefore whether there was nevertheless an implied retainer. 62. Whether an implied retainer exists between a lawyer and a client depends on the factual matrix concerned: ([64] of Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR(R) 308 (“Ahmad Khalis”).38 The perspective to take is an objective one, as to how a reasonable person in the shoes of the lawyer and client would characterise the relationship, such that “a contractual relationship ought fairly and properly to be imputed to all 21 the parties” ([66] of Ahmad Khalis citing Cordery on Solicitors (Anthony Holland gen ed) (LexisNexis UK, 9th Ed, 1995, 2004 release)39. 63. In Ahmad Khalis, the Court of Three Judges (“C3J”) had no difficulty in finding that the lawyer concerned was in fact acting for the beneficiaries. The most relevant indicia which pointed to this retainer relationship, included, among other things, that the lawyer had provided express advice to the beneficiaries to the extent of informing them on the additional costs and delay in having a co-administrator, and sought to allay their fears about appointing the putative administrator. 64. In Anwar Patrick and another v Ng Chong & Hue LLC and another [2014] 3 SLR 761 (“Anwar Patrick”), the Court of Appeal (“CA”), even in the absence of any advice given by the lawyer concerned to the putative client, readily found an implied retainer. This was on the basis that the lawyer signed off on security documents for a mortgage as “solicitor for the mortgagors” and signed off on the Certificate of Correctness which was (and is) a highly important document for registration of a mortgage given its statutory implications. The CA reasoned that from the lawyer’s perspective, he must have thought that he had authority to act for the client. The CA’s reasoning why the absence of advice alone did not mean there was no implied retainer was particularly instructive (at [52]):40 “…However, the fact that the solicitor did not give advice cannot give rise to the converse inference. The absence of any proof of advice given could equally be evidence of a breach of an implied retainer if the other objective evidence points towards the existence of an implied retainer. Therefore, in circumstances such as these where the allegation is that the solicitor ought to have given advice directly to the Appellants because there was an implied retainer, it would be putting the cart before the horse to rely solely on the fact that no advice was provided.” 22 65. The recent decision of the CA in Law Society of Singapore v Lee Suet Fern [2020] 5 SLR 1151 (“Lee Suet Fern”), at [64] and [68],41 reiterated the point made at [64] of Ahmad Khalis that contractual legal formalities are not required for a retainer to exist. Lee Suet Fern also laid down a list of non-exhaustive factors to consider in determining whether a retainer relationship should be attributed to the putative lawyer and putative client. Amongst which, the most relevant for the purposes of the present case include: (a) “who is providing instructions”; (b) “whether a contractual relationship existed between the putative solicitor and the putative client in the past”; (c) “whether express advice was given by the putative solicitor, and if so, whether such advice was relied upon by the putative client”; (d) “the nature of such advice”; (e) “whether the putative solicitor asked the putative client to seek independent advice”; and (f) “whether any advice by the putative solicitor was rendered without qualification”. 66. In the present case, we also consider the following factor to be especially relevant in our analysis, namely, how the putative solicitor represented or characterised the relationship with the putative client as it concerned third parties. This finds support in the case of Anwar Patrick (at [54]-[55]), where the fact the solicitor signed off on a formal legal record as a solicitor acting for the client, was key in the CA’s finding of an implied retainer. In application to the facts, Anwar Patrick at [58] held that:42 “…From any objective standpoint, he must have thought that he had the authority to act for the Appellants, and that he was their agent. In fact, he was their solicitor for the mortgage; there is no other way of characterising it. …” 67. On application to the facts, we begin by considering the prior retainer relationship between the Respondent and Mdm Tan. The Respondent acted for Mdm Tan in her Divorce Suit in 2014, in which ORC 13 was made for the sale of the Flat and distribution of the proceeds. While the issue of a Full Refund to Mr Sng’s CPF account was not live at that time 23 when ORC 13 was made in November 2014, it soon became a live issue when Mdm Tan was selling the Flat in or around November 2015. This issue was directly connected to both the Divorce Suit and the sale of the Flat. In both matters, the Respondent acted for Mdm Tan. 68. It is also relevant to understand how the Respondent came to act for Mdm Tan in the sale of the Flat. In early November 2015, HDB had declined to act for the sellers Mdm Tan and Mr Sng, for the very reason that the refund required to Mr Sng’s CPF account exceeded the amount he was entitled to under ORC 13. By an email dated 5 November 2015 from HDB’s Ms Cindy Low Szu Szu’s to Seah & Co., she informed Seah & Co. that HDB was unable to act in the CPF refund for the sellers. After HDB refused to act for Mdm Tan and Mr Sng, the Respondent accepted the retainer to act for Mdm Tan in the sale of the Flat. 69. In the course of the sale of the Flat while acting for Mdm Tan, the Respondent sent a letter to CPFB dated 23 November 2015, requesting CPFB’s approval for a partial refund to Mr Sng’s CPF account, as according to ORC 13, Mdm Tan was entitled to the balance sum. The Respondent confirmed during the Hearing that he wrote this letter as Mdm Tan’s lawyer and had her authority to do so.43 The contents of this letter are telling. Seah & Co. proposed that instead of paying the balance sum of S$85,372.32 (being the Full Refund amount minus the proposed partial refund amount) to Mdm Tan in cash, Mdm Tan was agreeable for the sum to be credited to her CPF account instead. Seah & Co. also stated that Mdm Tan would apply to court to amend ORC 13 accordingly. 70. During cross-examination, the Respondent initially tried to explain away this letter by saying that he had no instructions and the proposed variation of ORC 13 was his own initiative to try to “help” Mdm Tan as he was acting for her in the sale of the Flat.44 Subsequently, he admitted that he did have instructions from Mdm Tan in relation to the contents of this letter to the CPFB.45 24 71. We accept Mdm Tan’s evidence that it was around this time on 23 November 2015 that she had instructed the Respondent to vary ORC 13 if need be.46 This was supported by Seah & Co.’s letter to CPFB dated 23 November 2015 informing them that Mdm Tan intended to apply to Court to amend ORC 13 for the CPF monies from Mr Sng’s CPF account to be transferred to Mdm Tan’s, in the event CPFB did not agree to a transfer of cash to Mdm Tan. The fact that Mdm Tan had instructed the Respondent to vary ORC 13 was also consistent with the Respondent’s admission in his Defence, at [4], where he stated that “[Mdm Tan] requested us to assist her to amend the said [Order]”. In the course of cross-examination regarding the sale of the flat in November 2015, the Respondent also confirmed that he did receive instructions from Mdm Tan to vary ORC 13 to enable the transfer of monies from Mr Sng’s CPF account to Mdm Tan’s.47 72. By a letter dated 1 December 2015, CPFB responded to Seah & Co. stating that they would have no objection to the transfer of Mr Sng’s CPF monies to Mdm Tan’s CPF account, if the Court made an order to that effect. The Respondent accepted during cross-examination that this was also his understanding of the CPFB’s letter of 1 December 2015.48 At that point, the Respondent and Mdm Tan’s focus was to ensure the completion of the sale of the Flat on the scheduled completion date of 4 December 2015, as time was of the essence.49 73. We also accept Mdm Tan’s evidence that the Respondent’s advice to her was to proceed to complete the sale on 4 December 2015, and he would thereafter apply to vary ORC 13.50 This was consistent with the said correspondence between Seah & Co. and CPFB, as well as the Respondent’s own evidence that time was of the essence for the sale to be completed by 4 December 2015. 74. We find on the evidence as set out above that Mdm Tan had first instructed the Respondent to communicate to CPFB that she was prepared to vary ORC 13 sometime around 23 November 2015, and that she subsequently instructed him to proceed with the 25 application to vary ORC 13 at or around the time of the completion of the sale of the Flat on 4 December 2015. 75. The fact which puts the question of an implied retainer beyond doubt is that Seah & Co. did eventually file an application in SUM 4075 in the Divorce Suit on 25 November 2016, almost a year later. The Respondent admitted that he had personally drafted Mdm Tan’s Affidavit, affirmed and dated on 18 August 2016, filed in support of SUM 4075. In that affidavit, Mdm Tan recounted the facts surrounding the sale of the Flat and how she was beneficially entitled to the sum of S$86,200 vis-à-vis Mr Sng that remained in Mr Sng’s CPF account. It is difficult to understand how the Respondent can maintain his defence that he had not acted for Mdm Tan to vary ORC 13, when SUM 4075 was filed by his law firm Seah & Co. as solicitors for Mdm Tan, and significantly, that the solicitor in charge was stated as “SEAH CHOON HUAT JOHNNY”. 76. This bears some similarity to the situation in Anwar Patrick, with the evidence in the present case being even clearer. In Anwar Patrick, the lawyer signed off as solicitor on highly important documents for registration of a mortgage. The CA reasoned that from the lawyer’s perspective, he must have thought that he had authority to act for the client. Likewise, by the Respondent filing an important Court document such as SUM 4075 with the specific representation that his firm Seah & Co. acts for Mdm Tan and that he is the solicitor in charge, it raises the implication that he had authority and instructions to do so. There must be an implied retainer. When confronted with this fact during cross-examination, the Respondent accepted not only that he was acting for Mdm Tan but also that she was following his advice. We reproduce the Respondent’s testimony on this:51 3 Advocate: And so you did inform her that you’re going to file this 4 application. 5 Witness: Yes, yes. We did, we did. We did file the application. 26 77. 6 Advocate: And she said, “Okay, go ahead with it.” 7 Witness: Yes, that’s why she signed an affidavit, yes. 8 Advocate: Yes, so in that sense, she’s giving you instructions, right, your 9 taking your advice and agreeing to it? 10 Witness: Okay, okay. Yes, maybe then I shouldn’t---I shouldn’t 11 differentiate. 12 Advocate: Yes. So yes, thank you. The Respondent claimed that he did not charge Mdm Tan any fees or disbursements for filing SUM 4075, or for that matter any work related to varying ORC 13. In our view, this per se does not negate an implied retainer. We can do no better than to cite the CA’s prescient observation at [68] of Lee Suet Fern that “a lawyer who acts pro bono with no expectation of receiving any fee is nonetheless plainly in a solicitor-client relationship even though there is no consideration moving from the client”. 78. If the Respondent genuinely believed that he was not acting for Mdm Tan to vary ORC 13, he would have informed her as such in writing, informed her to seek independent legal advice, and would certainly not have agreed to take any steps to helping her achieve that end by corresponding with CPFB or filing SUM 4075 without qualification. 79. In sum, there is compelling evidence of an implied retainer between the Respondent and Mdm Tan, the scope of which was to secure the transfer of S$86,200 from Mr Sng’s CPF account to Mdm Tan’s, which required a variation of ORC 13. A reasonable person in the shoes of the Respondent and Mdm Tan would without doubt characterise their relationship as solicitor and client. In any case, implied retainer was pleaded by Mdm Tan in Suit 2582, in the Endorsed Claim52 and in the Statement of Claim at [16]-[18].53. No defence or denial of an implied retainer was put in response by the Respondent. No defence to Suit 2582 was filed resulting in default judgment. 27 b) Whether the Respondent failed to act timeously on Mdm Tan’s instructions to vary ORC 13 80. While the Respondent had agreed to vary ORC 13 shortly after the Completion on 4 December 2015, the application to vary in SUM 4075 was only filed almost 1 year later, on 25 November 2016. 81. This was a significant delay for an application that was clearly uncomplicated, and when the merits for a transfer of CPF monies from Mr Sng’s CPF account to Mdm Tan’s were in Mdm Tan’s favour. There was a clear order in ORC 13 for Mdm Tan to receive 93% of the net proceeds from the sale of the Flat. 82. It was even more troubling that Mdm Tan’s supporting affidavit in SUM 4075 was in fact affirmed on 18 August 2016, more than 3 months before SUM 4075 was eventually filed on 25 November 2016. The Respondent could not provide any explanation for the delay.54 83. There is thus a prima facie case against the Respondent for failing to act timeously on Mdm Tan’s instructions, considering the almost 1-year delay in filing the application to vary ORC 13. There was no evidence whatsoever, in the form of correspondence, which one would expect between a solicitor and client, to show that the Respondent took any steps in this period to further Mdm Tan’s cause in obtaining a transfer of the CPF monies from Mr Sng’s CPF account to Mdm Tan’s. 84. The Respondent admitted that in this 1-year period, Mdm Tan did in fact send various chasers and reminders to follow up with him.55 She also tried contacting him on WhatsApp, through phone calls to his office, and even occasionally appeared at the Respondent’s office to chase him to further her matter.56 28 85. This is an apposite juncture to consider the Respondent’s defence. He claimed that because 1 year had passed from the cessation of the Divorce Suit, he had to personally serve any application to vary on Mr Sng who was based in Hong Kong. However, he did not have Mr Sng’s address for service and neither did Mdm Tan. 86. While the Respondent was unable to explain the legal basis for the 1-year timeline he mentioned,57 the Tribunal did find that the law indeed provided for this. Rule 91 of the Family Justice Rules 2014 (version in force as at 1 April 2015) (“FJR 2014”) provides that an application to vary an order made in proceedings for ancillary relief (which is what ORC 13 is), if made 1 year from the date of the final order on ancillary relief, must be served personally on every other party in accordance with Rules 48 or 49 of FJR 2014. It was common ground that Mr Sng was out of jurisdiction. Under Rule 49, which applied to service out of jurisdiction, Mr Sng was to be served personally, or by registered post with the added requirement of an acknowledgment of service signed by the party served. Rule 50 of the FJR 2014 applies to substituted service, for an application that needed to be served out of jurisdiction to be instead served by another effective mode of service or a notice by advertisement on the Court’s leave (“Substituted Service”). 87. The possibility of obtaining Substituted Service was something which the Respondent could easily have advised Mdm Tan on and carried out. The Respondent claimed that he was all along alive to the possibility of Substituted Service, in particular notice by advertisement in Hong Kong. He also claimed that he had advised Mdm Tan on it but Mdm Tan was not willing to bear the costs of an advertisement. As such, he had to wait for her to obtain an address for Mr Sng, thereby explaining the delay. The Tribunal’s difficulty with accepting the Respondent’s defence was that apart from his mere assertions, there was simply no evidence put before the Tribunal to substantiate the assertions. We believe Mdm Tan’s evidence that she was never advised about the possibility of Substituted Service or its associated costs. 29 88. If there was indeed any advice from the Respondent to Mdm Tan on this issue, there would have been some correspondence between them to this effect or at least an attendance note taken by the Respondent. The Respondent claimed that he always communicated with Mdm Tan through WhatsApp but no messages were produced by him.58 The Respondent claimed that the phone which stored those messages was spoilt and he was therefore unable to retrieve them.59 During the Hearing, the Tribunal offered the Respondent the opportunity to engage a forensic expert to try and retrieve the messages on the basis of the Respondent’s claim that there was advice on substituted service recorded on his phone.60 The Respondent was directed to write to the Secretariat by 7 December 2022 to inform whether he was going to engage a forensic expert to retrieve the messages, and to provide those messages to the Applicant for consideration by 14 December 2022. It was telling that the Respondent did neither, and only raised in his Closing Submissions on 31 January 2023 that he could not successfully do so. 89. Further, the Respondent’s evidence was that the cost for an advertisement in an overseas newspaper was around US$2,000 and he had experience doing this before.61 This did not seem prohibitively expense for a person like Mdm Tan, especially when juxtaposed against the sum of S$86,200 in CPF monies she would benefit from if ORC 13 was varied. Mdm Tan’s evidence, which was more believable, was that the Respondent did not advise her of the possibility or need for Substituted Service nor the potential costs involved.62 The complete absence of any reference to Substituted Service or its costs in the WhatsApp exchanges or correspondence over the years between 2015 to 2021 seems to bear this out. We also accept Mdm Tan’s evidence that if properly advised, she would certainly have been willing to incur the costs for Substituted Service given the significantly larger sum at stake.63 90. In the Applicant’s Closing Submissions, it submits that an adverse inference should be drawn against the Respondent’s defence for his failure to keep and produce any 30 contemporaneous records of his communications with Mdm Tan. We recognise that the C3J has on a number of occasions emphasised the importance for lawyers to maintain attendance notes and correspondence with their clients, failing which, an adverse inference may be drawn against them on assertions they make in support of their defence (see [82] of In Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 47764 and [70] of Law Society of Singapore v Udeh Kumar s/o Sethuraju [2013] 3 SLR 875)65. We would characterise this more as a presumption of fact, built on a lawyer’s duty and standard practice to reasonably maintain attendance notes and correspondence with his client recording his advice and the client’s instructions. In any event, we do not have to go so far as to rely on this presumption of fact. It is the Respondent’s burden of proof to produce evidence to support his assertion that he advised Mdm Tan on Substituted Service and that Mdm Tan had not agreed to it. He failed to discharge that burden. Moreover, having heard the parties, we rather believe Mdm Tan that she did not receive any advice from the Respondent on Substituted Service nor its associated costs. (c) Whether the Respondent failed to keep Mdm Tan reasonably informed of the progress of her application in SUM 4075 filed on 25 November 2016 to vary ORC 13 91. After SUM 4075 was filed on 25 November 2016, a Case Conference was fixed before the FJC on 22 December 2016. The Respondent’s evidence, which we had no reason to doubt, was that he attended the Case Conference and the Court informed him that it could not make any order on SUM 4075 unless it was served on Mr Sng.66 The Case Conference was adjourned to 10 January 2017. 92. The Respondent admitted that he indeed did not attend the Case Conference on 10 January 2017. This precipitated the letter dated 10 January 2017 from the FJC’s Registry to Seah & Co. and Mr Sng seeking an explanation in writing within 7 days from the said parties for failing to attend the Case Conference. The FJC directed that no Court date would be fixed 31 for SUM 4075 failing an explanation in writing within 7 days. The Respondent also admitted that he did not respond to the FJC’s Registry’s letter of 10 January 2017. 93. We will consider the Respondent’s failure to attend the Case Conference on 10 January 2017 in more detail when we state our findings on the second charge. Unlike the second charge, the first charge is concerned only with whether he kept Mdm Tan updated. 94. The Respondent’s candid evidence was that he never gave Mdm Tan a copy of the FJC’s letter of 10 January 2017, and he did not inform her that he was required to respond to the FJC to explain his non-attendance, failing which SUM 4075 would lapse.67 95. It was more appalling to hear the Respondent’s evidence that he never at any point informed Mdm Tan that SUM 4075 had lapsed and that a new application would be required.68 All along until early 2021, as we explain at paragraph 98 below, Mdm Tan was under the misconceived notion that SUM 4075 was still alive. 96. The Respondent’s evidence was that after the first Case Conference on 22 December 2016, he did inform Mdm Tan that the Court would not grant the variation in SUM 4075 unless it was served on Mr Sng. As Mdm Tan was unable to provide him with any address for Mr Sng, the Respondent told Mdm Tan that there was no point for him to attend Court for SUM 4075 until such time she could provide him with a lead.69 We do not believe the Respondent’s evidence on this point. We rather believe Mdm Tan that she was not aware of what was happening to SUM 4075. 97. There appeared no justification for the Respondent’s failure to update Mdm Tan on the developments in SUM 4075 and the FJC’s letter on 10 January 2017, nor his failure to respond to the FJC to explain his absence on 10 January 2017. 32 98. Following the events in January 2017, the next 2 periods of relevance was in March 2018 and January 2021 where there was evidence from emails and WhatsApp correspondence produced by Mdm Tan of her exchanges with the Respondent. In those correspondence, it documented her requests to the Respondent to do something about her CPF monies and his response to those requests: a) In March 2018, there was an email exchange between the Respondent and Mdm Tan.70 We also note that this was the only evidence of correspondence between the Respondent and Mdm Tan that was produced for the period 2018 and before. It showed that the Respondent was working on trying to find Mr Sng’s company details in Hong Kong. The Respondent admitted that at this point, he had still not told Mdm Tan that SUM 4075 had lapsed.71 His feeble excuses, which the Tribunal did not accept, was that (a) he had already told Mdm Tan on 22 December 2016 that he would not be following up on the matter;72 and (b) he did not need to tell her because he could always file a new application.73 b) In January 2021, there was a WhatsApp exchange between Mdm Tan and the Respondent.74 Mdm Tan’s messages showed that she was still harbouring under the misconception that the Respondent was assisting her to secure the transfer of monies from Mr Sng’s CPF account to hers. On 15 January 2021, she said “Hi hi..Mr Seah , is there any news about the CPF?” to which the Respondent replied that he would call her next week. Mdm Tan’s response was that: “Tot u hv good news for me [sad emoji]”. On 20 January 2021, Mdm Tan chased the Respondent asking him to reply to her on whether he had attended to her matter, whether any action was taken, and what the status of her case was. To which, the Respondent replied saying that “Send you letter tonight as I’m working on it still ok”. The next day, the Respondent said he was sending 33 out letters at around 10:00 am. There were no letters sent out by the Respondent. Mdm Tan continued to chase the Respondent and the tone of her messages showed her serious concern about losing the CPF funds if they were distributed to Mr Sng’s beneficiaries. 99. The Respondent’s conduct in January 2021 showed his patent disregard for his client, Mdm Tan’s interest and plight. His evidence, which the Tribunal was shocked to receive, was that he simply grew tired of the matter and did not want to do anything on it: Pg. 196, ln 24-26 of Transcript 24 Witness: So I got tired of it. I just didn’t want to do anything, because it 25 should have been done earlier, but she keep on not providing me 26 with any lead. Pg. 197, ln 13-23 of Transcript 100. 13 Witness: You see, because between 2016 or so until now, she keep on 14 telling me she will give me answers, I mean, provide me some 15 lead. And I’ve informed Your Honour, after a while, I just get 16 tired. I don’t know really what to do with her. So then she came 17 back in 2019. So sometimes, when I see it, and then I’ll tell 18 her---I’ll just send her, “Okay. I will do, let you back---know 19 tomorrow.” So that was my problem, because I got too tired after 20 2 years not giving any lead. And then I don’t know whether she 21 understands or not. She keep on telling me, “I’ll try to give you 22 some address.” And then after that, she comes back again and 23 ask me, “How about my CPF?” It was also disappointing that on 20 January 2021, the Respondent had represented 34 to Mdm Tan that he would be writing to CPFB and that he was in the midst of working on the letter. However, we now know this was in fact untrue. His response to her gave her the wrongful impression that he was taking some action to obtain the transfer of CPF monies. 101. The Applicant’s Closing Submissions dated 10 January 2023 alleged at [36], in the context of the WhatsApp messages, that the Respondent “continued to mislead [Mdm Tan] into thinking that he was taking steps to help her”. Given the seriousness of this allegation, we scrutinised the evidence on this point more closely. On 20 January 2021 (at 1:34 am), the Respondent messaged Mdm Tan that “I’ll write to CPF tomorrow”. On 20 January 2021 (at 8.02 pm), he messaged Mdm Tan that “Send you letter tonight as I’m working on it still ok.” On 21 January 2021 (8:52 am), the Respondent messaged Mdm Tan that he was “Sending out the letters around 10am”. These messages showed that the Respondent was leading Mdm Tan to believe that he was doing something about her case, in particular writing to CPFB, when in truth, he was not doing anything about it because he “got too tired”.75 It was clear to us that the Respondent was misleading Mdm Tan, and that the Applicant’s Closing Submissions on this point were justified. Misleading a client per se will constitute an aggravating factor to the first charge. However, as misleading Mdm Tan was not part of the charge, we need not say more. 102. Returning to the issue of an implied retainer, we also find that those WhatsApp messages in January 2021 support our earlier findings that there was in fact a retainer between the Respondent and Mdm Tan to vary ORC 13. These messages also presented a coherent picture that Mdm Tan was not earlier advised on Substituted Service or that having been advised of it, she did not agree to pay for the costs of Substituted Service. We formed these inferences against the Respondent because if what the Respondent said were true, one would have reasonably expected that statements on Substituted Service and related costs would have appeared in one of these messages. 35 103. Based on all the evidence, we came to the conclusion that Mdm Tan was indeed kept in the dark that SUM 4075 had lapsed for a significant period of 4 years between January 2017 to around March 2021. TOO LLC took over conduct of the matter on behalf of Mdm Tan in late January 2021 and they filed a Notice of Change of Solicitors in the Divorce Suit on 12 March 2021. Upon getting access to the case file, they realised from the FJC’s Registry’s letter dated 10 January 2017 that the Respondent had failed to attend the Case Conference on that date nor respond to the said letter to explain his absence.76 The matter was dormant following the said letter. 104. To conclude with our determination on the first charge, despite clear instructions from his client, the Respondent sat on his hands for close to 1 year before filing SUM 4075 on 25 November 2016. This delay was egregious and showed a patent lack of diligence and competence on the part of the Respondent. There was no basis for this delay. The Respondent instead put Mdm Tan in the invidious position of having to continuously chase him through 2016 to take action to have the CPF monies transferred. Moreover, the Respondent failed to advise Mdm Tan of the possibility of Substituted Service of SUM 4075 on Mr Sng and its costs. This fell short of the level of competence expected of a solicitor. When SUM 4075 was eventually filed on 25 November 2016, the Respondent was comfortable leaving Mdm Tan in the dark about the fact that he had intentionally failed to attend the Case Conference on 10 January 2017, ignored the FJC’s Registry’s letter on 10 January 2017 to explain his absence, and worst of all, allowed SUM 4075 to lapse. This pattern of keeping Mdm Tan in the dark over the progress of SUM 4075 continued for a pronounced period of some four years. 105. We find that the first charge is made out in that the Respondent’s conduct was in breach of Rules 5(2)(c), 5(2)(e), 5(2)(f) and/or 5(2)(h) of the PCR amounting to grossly improper conduct or improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the LPA. 36 Second Charge 106. We have found that the Respondent indeed failed to attend the Case Conference for SUM 4075 causing it to lapse, and he failed to advise or update Mdm Tan on his failure to attend. We will not repeat those findings. Thus, a prima facie case is established against the Respondent on the second charge. 107. In his Defence, the Respondent did not plead any defence to this charge nor explain why he failed to attend the Case Conference. 108. During the Hearing, the Respondent gave his excuses as to why he failed to attend. He repeated this in his Closing Submissions at paragraph 5, where he stated that as Mdm Tan did not wish to incur the costs of Substituted Service of SUM 4075 by way of an advertisement, and as there was no proper address for Mr Sng, the Respondent did not see the purpose of attending the Case Conference on 10 January 2017. This was effectively the same excuse the Respondent raised to explain his delay in filing SUM 4075 for Mdm Tan, and why he failed to keep her reasonably informed of the progress of the application. As we have already found, the Respondent did not in fact provide any advice to Mdm Tan on Substituted Service of SUM 4075 or its costs. 109. The Respondent’s conduct raised a separate point on the degree of his respect for the administration of justice. It was alarming that the Respondent, being an officer of the court, showed an utter disregard for the court and its processes. The Respondent absented himself from the Case Conference on 10 January 2017, and failed to respond to the FJC’s Registry’s letter dated 10 January 2017 despite being directed to do so. Even if the Respondent could not obtain the order he sought because SUM 4075 could not be served, this did not excuse the Respondent to absent himself from a Case Conference he was to attend. The 37 Respondent’s lack of respect for the court and its processes came across clearly in his evidence: 110. 3 Witness: Yes, my apologies, Your Honour. The---the reason why I didn’t 4 attend Court---actually, it’s not that I didn’t attend Court, I was 5 late. But actually I didn’t want to attend. Then I decided to 6 attend. I didn’t just inform---to me, it’s---I informed client on the 7 22nd after I came back, say it’s adjourned to this date and the 8 Court wants us to serve on him, you’ve got to give me an address, 9 otherwise no purpose for me to attend Court. I---I---I said all 10 these, it’s correct. Of course, I---I did try to attend Court. I was 11 reluctant to attend because I thought I didn’t go and get the order 12 and the Judge will scold me “You don’t have an address, what 13 do you want me to do”---withdraw the order. So I thought 14 maybe, if I don’t attend, if she can comes back with it, I can write 15 to the Court to respond. It is---maybe, it’s a bad working by me 16 but that was the reason. There was an obvious risk to his client that SUM 4075 would lapse by reason of the Respondent’s non-attendance, but the Respondent appeared ready to take this risk to the prejudice of Mdm Tan. 111. To conclude with our determination on the second charge, it was troubling that the Respondent as a senior advocate and solicitor failed to attend the Case Conference on 10 January 2017 without good reason. Apart from doing a disservice to his client, this fell short of the conduct expected of an officer of the court. He also chose not to inform Mdm Tan of his non-attendance, nor of the FJC’s Registry’s letter seeking an explanation from the parties, and the possibility that SUM 4075 would lapse. This fell far short of the standards of diligence and 38 competence expected of a solicitor, whose very role is to look after his client’s interest. 112. In our view, the second charge is also made out in that the Respondent’s conduct was in breach of Rules 5(2)(c) and 5(2)(e) of the PCR amounting to grossly improper conduct or improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the LPA. Third Charge 113. Sometime in January 2021, Mdm Tan appointed the law firm TOO LLC to take over conduct from Seah & Co. for the recovery of monies from Mr Sng’s CPF account.77 114. In the space of 3 months, TOO LLC sent Seah & Co. four letters, on 28 January 2021, 8 February 2021, 3 March 2021 and 12 March 2021 seeking an urgent handover of the documents related to the Divorce Suit, among other documents. TOO LLC’s 2nd letter dated 8 February 2021 reminding Seah & Co. to comply with the request referred to a telephone conversation between the Respondent and TOO LLC’s lawyer Ms Anna Oei in which the Respondent mentioned that he will respond to TOO LLC in 2 days. 115. The evidence shows that the Respondent ignored the 4 letters requesting for a handover. The Respondent did not dispute this. 116. Instead, the Respondent sought to justify his conduct on the basis that he was undergoing chemotherapy at that point and could not attend to the request.78 While anyone would instinctively sympathise with the Respondent’s medical issues and wish him a speedy recovery, his explanation of the medical issues unfortunately did not sit well with the chronology of dates when they were closely scrutinised. 117. The Respondent’s oral evidence was that he had an emergency operation in October 39 2021,79 and thereafter, he had been undergoing chemotherapy from November 2021 to June 2022.80 But these medical procedures took place long after TOO LLC’s requests made between January to March 2021. When confronted with this difference in time periods, the Respondent accepted that at the time of TOO LLC’s requests, he did not know he had cancer but was simply trying to “cut down [his] practice” and “wanted to shift office”. These new excuses do not in any way justify the Respondent’s failure of handing over the documents relating to the Divorce Suit and responding to TOO LLC. 118. The Respondent also suggested that Mdm Tan already had copies of the Interim Judgment, Ancillary Order of Court (i.e., ORC 13) and Certificate of Final Judgment in the Divorce Suit, which was given to Mdm Tan in January 2015 before the file in Seah & Co.’s records were closed. The rest of the documents were subsequently disposed by the Respondent. As the charge brought by the Applicant does not allege that there was any wrong committed by the Respondent in disposing the Divorce Suit file, we make no finding in relation to it. We however hold that even if a client was in possession of documents, it does not excuse a solicitor from handing over the client’s documents in his possession to the solicitors taking over the file. The basis for this is clear. A solicitor is expected to maintain a proper, complete, and secure record of the client’s documents and would be in a better position than his client to provide a handover of all documents to allow the new solicitors to effectively take over conduct. The law and practice does not expect a lay client to keep a complete set of papers in order to instruct the new solicitors. 119. It was only after Mdm Tan filed OS 1258 on 9 December 2021 to compel the Respondent to deliver up documents to effectively take over conduct of the Divorce Suit that on or around 15 March 2022, the Respondent finally gave a handover of documents in Seah & Co.’s possession. The documents handed over, which are contained in the Applicant’s Supplementary Bundle of Documents, comprised of around 53 documents spanning 113 pages. The handover was more than 1 full year after TOO LLC’s initial request in January 40 2021, which was totally unacceptable. 120. The Respondent’s initial approach to OS 1258 raises a separate cause for concern. He filed a reply affidavit on 15 February 2022 contesting the application on the basis that Mdm Tan had already been given copies of all documents, and the application in OS 1258 was therefore “frivolous, vexatious and otherwise an abuse of process”. If anything, it was the Respondent’s own conduct in not timeously responding to TOO LLC that was reprehensible. 121. In the course of cross-examination, the Respondent gave an excuse that when he received TOO LLC’s letters, he instructed his secretary Ms Chan Cheng Yee (“Ms Yee”) to look for the files for handover but she had failed to do so, and the Respondent did not then follow up with Ms Yee.81 This defence of passing the buck, so to speak, to his secretary was neither pleaded in the Respondent’s Defence nor stated in the Respondent’s AEIC. In any event, the Respondent orally accepted during the Hearing that it was his personal responsibility to carry out the handover and it was unfair to shift the blame to his secretary Ms Yee who was under his supervision.82 Further, Ms Yee was not called as a witness to corroborate the Respondent’s bare assertion. We therefore cannot and do not accept this excuse. 122. The Applicant’s Closing Submissions made a more serious insinuation that the Respondent deliberately failed to handover critical documents, suggesting an attempt to conceal evidence, conduct which would be dishonest and fraudulent. The Tribunal therefore paid closer attention to the evidence. 123. The missing documents allegedly included: (a) those relating to SUM 4075 to vary ORC 13 (including SUM 4075, Mdm Tan’s Affidavit, and the FJC’s Registry’s letter dated 10 January 2017) (referred to in this decision as “Category A”); and (b) Seah & Co.’s letter to CPFB dated 23 November 2015 and CPFB’s reply letter dated 1 December 2015 (referred to 41 in this decision as “Category B”). Apart from the fact that these documents were important for a proper handover as they were the most relevant to the issue of transfer of CPF monies from Mr Sng’s CPF account to Mdm Tan’s, these documents also formed critical evidence which the Tribunal has relied on to establish the Respondent’s liability in respect of the first and most serious charge. 124. In respect of the Category A documents, TOO LLC’s letter to Seah & Co. dated 29 April 2022, after the handover, recorded that “[i]nsofar as Paragraph 4 suggests that file (Ref.: 141/15C) contains documents relating to FC/SUM 4075/2016 and Affidavits relating to the amendment of the Order of Court of 28 November 2014, please that we have perused the documents in the file handed to our firm and have found NO DOCUMENTS relating to FC/SUM 4075/2016 in the file”. There was no evidence that Seah & Co. responded to this letter. 125. In respect of the Category B documents, the 2 letters which related to the sale of the Flat bore the exact same file reference no. “141/15C” as the office file maintained by Seah & Co. in respect of the sale of the Flat. It was this office file bearing file reference no. “141/15C” that was handed over by Seah & Co. to TOO LLC. We should add that the office file appeared to contain all documents, even the most ordinary, in respect of the sale of the Flat. 126. The Respondent’s case, which was not contradicted by the Applicant, was that he was not involved in the preparation of the file for handover. This was done by his secretary Ms Yee based on his instructions to hand the entire file over to TOO LLC. 83 He did not know why the Category A and Category B documents were missing from the file handed over, assuming they were missing, but maintained that he was not involved in preparing the file.84 127. While there appears some basis for the Applicant to suspect that the Category A and Category B documents were deliberately omitted in the course of the handover, or worse still that the Respondent had concealed or destroyed those documents, given the seriousness of 42 the allegation, a high degree of proof is required. On scrutiny of the evidence, we are not prepared to conclude that the Applicant has discharged its burden of proof on this point. Our reasons are as follows: a) First and most importantly, the third charge does not expressly allege that the Respondent was in any way dishonest in the handover, but rather that he simply failed to respond and/or comply with TOO LLC’s request for a handover. For such a serious allegation that the Respondent had deliberately withheld documents at the handover, the charge should be appropriately framed so that the Respondent has fair notice of a more serious case to answer; b) Second, the Respondent’s secretary Ms Yee who prepared the file for the handover was also not called as a witness to give evidence on the instructions she received from the Respondent, and how she prepared the file for the handover. In fairness to the Applicant, the fact of Ms Yee’s involvement was only brought up in the course of the cross-examination of the Respondent at the Hearing. The Applicant could have sought a further hearing date to call Ms Yee as a witness to give evidence, but did not make such a request; and c) Lastly, while TOO LLC’s letter to Seah & Co. dated 29 April 2022 did indeed record that the Category A documents were missing from the file, this was not sufficient to prove the contents of the letter. Ms Oei was not called as a witness to give evidence on the process of the handover and how the documents were dealt with upon receipt. More importantly, the Respondent was not given an opportunity to cross-examine Ms Oei on the handover. 43 128. To conclude with our determination on the third charge, the Respondent’s conduct in failing to respond to and comply with TOO LLC’s request for a handover of documents relating to the Divorce Suit was egregious. Despite various requests between January to March 2021, the Respondent simply ignored them to the prejudice of his client. The Respondent finally took more than 1 full year to handover a file of some documents to TOO LLC in March 2022. All lawyers have an ethical duty to assist their client’s new solicitors to take over the matter promptly and effectively. But in this case, rather than assisting, the Respondent took the opposite course by becoming an obstacle, challenging the request for documents as being frivolous and vexatious. The Respondent by his conduct has displayed a lack of courtesy and fairness to TOO LLC who were trying to help Mdm Tan urgently, in a problem that the Respondent could have averted had he acted properly for his client in the first place. 129. In our view, the third charge is made out in that the Respondent’s conduct was in breach of Rules 5(2)(e), 5(2)(f) and/or 7(2) of the PCR amounting to grossly improper conduct or improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the LPA. Ancillary issue on solicitor interference during cross-examination 130. Before the Hearing commenced, the Applicant sought the Tribunal’s leave for Ms Oei of TOO LLC, Mdm Tan’s present solicitor, to sit in and observe the proceedings. The Respondent informed the Tribunal that he had no objection to this and thus, the Tribunal allowed Ms Oei to sit in.85 131. In the course of the Respondent’s cross-examination of Mdm Tan in the morning of the Hearing, the Tribunal had difficulties following Mdm Tan’s evidence because she was at times not listening to the questions, not answering questions directly, or at times taking too long to answer. To be clear, this did not affect the credibility of her evidence. However, it was 44 disruptive to the proceedings. Before adjourning for lunch, the Tribunal directed the Applicant’s counsel, Ms Jill Ann Koh (“Ms Koh”) to advise Mdm Tan to answer the questions directly and promptly, so that the proceedings could move along efficiently.86 Mdm Tan was still under oath as her cross-examination and re-examination had not been completed. 132. When the Hearing resumed after lunch, the Respondent raised an ancillary issue that Ms Oei (instead of Ms Koh) had spoken to Mdm Tan. He recounted that this conversation happened in his presence.87 He then raised an objection to Ms Oei’s continued presence in the proceedings. 133. There might have been a misunderstanding on whether it was to be Ms Koh or Ms Oei to advise Mdm Tan to listen to the questions and answer directly. We did not think there was any prejudice to the Respondent by this apparent misunderstanding. Ms Oei only spoke to Mdm Tan in the Respondent and Ms Koh’s presence.88 There was no suggestion that Ms Oei discussed the substance of Mdm Tan’s evidence with her.89 Ms Koh, who was also part of the conversation, confirmed that the contents of Mdm Tan’s evidence was not discussed.90 The Respondent did not dispute this. However, given that the proceedings are confidential in nature and that the Respondent was objecting to Ms Oei’s continued presence in the proceedings, the Tribunal invited Ms Oei to leave the proceedings. Tribunal’s determination on cause of sufficient gravity 134. Under Section 93(1) of the LPA, the Tribunal shall record its findings in relation to the facts of the case and according to those facts shall determine whether: a) No cause of sufficient gravity for disciplinary action exists under Section 83 of the LPA; 45 b) While no cause of sufficient gravity for disciplinary action exists under Section 83 of the LPA, the lawyer should be sanctioned with a (i) penalty; (ii) reprimand; (iii) order to comply with one or more remedial measures; or (iii) subjected to the measure in (iii) in addition to the measures in either (i) or (ii); or c) Cause of sufficient gravity for disciplinary action exists under Section 83 of the LPA. 135. On the question of whether due cause has been shown, the Tribunal is guided by the Applicant’s submissions based on the following authorities, which are most relevant to the present case: a) In Law Society of Singapore v Ezekiel Peter Latimer [2020] 4 SLR 1171,91 the solicitor concerned was found to have failed to attend a hearing on 11 April 2017 or make any arrangements to obtain an adjournment. By such conduct, the C3J found that he “held little regard for his client’s interests, illustrated by his total inaction over a period of 14 months”. Further, the solicitor ignored his respondent’s persistent attempts to contact him. On the totality of the facts, these were circumstances the C3J found to be due cause for disciplinary action; and b) In the recent case of Law Society of Singapore v Ooi Oon Tat [2022] SGHC 185,92 despite an interlocutory judgment on liability in his client’s favour, the solicitor concerned inexplicably failed to take steps to comply with or advise his client on the requests and an unless order for production of documents pertaining to assessment of damages. This was even though the solicitor had possession of those documents and had been reminded by his client to expedite the matter. This ultimately resulted in the client’s suit being struck off, 46 and it could not be recommenced because it was time-barred. Such misconduct was over a prolonged period of around 5 months, from August 2016 to January 2017. Further, the solicitor neglected to keep his client informed of these significant developments in his case. These were circumstances the C3J found to be due cause for disciplinary action. 136. In the Tribunal’s view, all 3 main charges of misconduct against the Respondent amounting to (a) grossly improper conduct; or (b) improper conduct or practice as an advocate and solicitor, within the meaning of Section 83(2)(b) of the LPA, have been proven. The Tribunal also finds that the alternative 3 charges of amounting to misconduct unbefitting an advocate and solicitor in the discharge of his professional duty as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the LPA, have also been made out. Due cause has therefore been shown under Section 83(2) of the LPA, and in respect of all 3 main charges, the Tribunal finds that pursuant to Section 93(1) of the LPA that there is cause of sufficient gravity for disciplinary action under Section 83 of the LPA. 137. Having found that the charges against the Respondent are established and there is due cause, we proceed to consider the aggravating and mitigating factors present in this case which would be relevant to the question of the sanction to be eventually imposed on the Respondent. 138. There were several aggravating factors present in this case which deserve highlighting: a) The Respondent is a very senior lawyer. At the time he first began acting for Mdm Tan in 2013, he was a lawyer of 32 years’ standing and in 2021, he was of 40 years’ standing; 47 b) Despite there being compelling evidence of a retainer relationship between the Respondent and Mdm Tan, the Respondent raised the patently unmeritorious defence that there was no retainer. While the Respondent is free to raise any defence, the fact that he challenged the retainer relationship without basis was reflective of his lack of contrition for the plight he had put Mdm Tan in; c) The period of delay of close to 1 year the Respondent took to file SUM 4075 was unacceptably long; d) Mdm Tan was kept in the dark about SUM 4075 lapsing for a pronounced period of 4 years, until Mdm Tan finally sought a change of solicitors. Even then, in January 2021, the Respondent misled Mdm Tan into thinking that he was in fact taking some action when he was in fact doing nothing about it; e) The Respondent was alive to the risk that SUM 4075 would lapse by his conduct in failing to attend the Case Conference on 10 January 2017 but he did not mind putting his client in such an invidious position; and f) The Respondent acted antithetical to his client’s interest for an urgent handover of documents to her new solicitors, knowing that the CPF monies from Mr Sng’s account was in the process of or had already been disbursed to his beneficiaries, to the detriment of Mdm Tan. 139. At the close of the Hearing, without prejudging the matter, we directed the Respondent to include in his Closing Submissions any mitigating factors he wished to rely on in the event he was found guilty.93 Alternatively, we gave the Respondent the right to request for a further hearing to mitigate, if necessary, in the event he was found guilty. The Respondent informed 48 the Tribunal that he did not require a further hearing.94 140. In the Respondent’s 2-page Closing Submissions, he stated at [7] and [8] that: 7. Having gone through the hearing, the observations made by the Honourable Members of the Disciplinary Tribunal, your Respondent has reflected on the matter and accept his short-comings. 8. Your Respondent has settled the Complainant's claim out of his own pocket prior to the hearing and await the decision and punishment for his shortcomings. 141. First, the Tribunal is of the view that the Respondent’s acceptance of his shortcomings has come a bit too late. 142. Second, the evidence led in the Hearing showed that the Respondent entered into a settlement with Mdm Tan to compensate her the sum of around S$86,000. This is positive in terms of vindication for Mdm Tan. However, there is no evidence as to whether the Respondent has actually made payment of the agreed compensation sum to Mdm Tan other than his statement at paragraph 8 of his Closing Submission (see [140] above). The Applicant has not rebutted this. Assuming that he has made full payment, the mitigatory effect of this fact is of little value because the Respondent had only agreed to settle the claim by Mdm Tan in Suit 2582 on the day of the Hearing of this matter after default judgment had already been obtained on 12 September 202295. The Respondent forced Mdm Tan to jump through several hoops, by filing a claim in Suit 2582 on 9 December 2021 to claim damages for negligence and breach of duty, by filing OS 1258 on 9 December 2021 to compel the Respondent’s handover of documents, and by filing the Complaint on 25 March 2021 with the Applicant in respect of the Respondent’s conduct. The Respondent’s compensation was hardly timely and 49 voluntary in nature (see [62] of Gan Chai Bee Anne v Public Prosecutor [2019] 4 SLR 838)96. He had after all a judgment against him in Suit 2582 to make good the damages suffered by Mdm Tan. Costs 143. Under Section 93(2) of the LPA, the Tribunal has the power to make an order for the payment of costs where it finds cause of sufficient gravity for disciplinary action: Where a Disciplinary Tribunal makes a determination under subsection (1)(b)(i), (ii) or (iv) or (c), the Disciplinary Tribunal may make an order for payment by any party of costs, and may, in such order, specify the amount of those costs or direct that the amount be taxed by the Registrar. 144. The Applicant sought a sum of S$8,000 plus reasonable disbursements. The sum of S$8,000 included an uplift component of $2,000 for the Respondent’s dilatory conduct in the proceedings. The Respondent did not make any submissions on costs. 145. In consideration of the work done by the Applicant, the Tribunal is of the view that the amount sought by the Applicant is fair and reasonable, and accordingly orders pursuant to Section 93(2) of the LPA that the Respondent pay the Applicant costs of the proceedings fixed at $8,000 plus reasonable disbursements. 146. Further, the Tribunal agrees with the Applicant’s submission of an uplift of S$2,000 in costs (which is included in the S$8,000 amount submitted). The Respondent was indeed dilatory in his conduct in these proceedings, and displayed a sense of disregard for the disciplinary process: 50 a) He twice failed to comply with the Tribunal’s directions to file his Defence (first by 11 August 2022 and second by 31 August 2022), eventually filing it on 6 September 2022; b) He failed to comply with the Tribunal’s directions to file his AEIC, Bundle of Documents and Bundle of Authorities (by 7 October 2022), eventually filing only his AEIC on 22 November 2022; c) He did not file any Opening Statement, despite being directed by the Tribunal to do so by 25 November 2022; and d) He failed to comply with the Tribunal’s direction to file his Closing Submissions by 2 January 2023, which was subsequently extended to 10 January 2023 on the Applicant’s request for an extension of time. The Respondent sought a further extension of time to 31 January 2023, on which he finally filed his Closing Submissions. Dated this 27th day of April 2023 Mr Jimmy Yim Wing Kuen, SC Mr G Radakrishnan (President) (Member) 51 1 [4] of Mdm Tan’s AEIC; and LSBOD II-6 2 LSBOD-4 3 LSBOD II-11 4 LSBOD II-63 5 LSBOD II-71 6 LSBOD II-73 7 LSBOD II-46 8 LSBOD-9 9 Pg. 133, ln 18-21 of Transcript of Hearing (“Transcript”) 10 LSBOD-12 11 LSBOD-17 12 LSBOD-19 13 LSBOD-24 14 Pg. 68, ln 9 of Transcript 15 LSBOD-37 16 [23] of Mdm Tan’s AEIC; and Pg. 34, ln 28-33 and Pg. 35, ln 1-13 of Transcript 17 LSBOD 54 18 LSBOD-57 19 LSBOD-59 20 LSBOD-61 21 LSBOD-64 22 LSBOD-120 23 LSBOD-72 24 LSBOD-75 25 LSBOD-123 26 LSBOD- 127 27 LSBOD-130 28 LSBOD II-121 29 LSBOD II-129 30 Pg. 116, ln 1-18 of Transcript 31 Pg. 116, ln 6-7 of Transcript 32 [2] of Respondent’s Defence 33 Pg. 167, ln 29-31 and pg. 168, ln 1-12 of Transcript 34 Pg. 168, ln 1-12 of Transcript 35 Pg. 169, ln 14-16 and pg. 170, ln 3-22 of Transcript 36 Pg. 172, ln 16-27 of Transcript 37 Pg. 172, ln 24 to 31 and pg. 173, ln 1-3 of Transcript 38 LSBOA III-109 39 LSBOA III-110 40 LSBOA III-20 52 41 LSBOA III-192 & 193 42 LSBOA III-21 43 Pg. 131, ln 8-31, Pg. 132, ln 1, and Pg. 136, ln 20-26 of Transcript 44 Pg. 135, ln 13-32 and Pg. 136, ln 1-4 of Transcript 45 Pg. 137, ln 1-16 of Transcript 46 [11] of Mdm Tan’s AEIC 47 Pg. 151, ln 18-20 of Transcript 48 Pg. 143, ln 9-18 of Transcript 49 Pg. 131, ln 22-29 of Transcript 50 Pg. 36, ln 24-30 of Transcript 51 Pg. 148, ln 3-12 of Transcript 52 LSBOD-121 53 LSBOD II-125 54 Pg. 150, ln 10-18 of Transcript 55 Pg. 174, ln 30-31, and Pg. 175, ln 1-5 of Transcript 56 Pg. 175, ln 20-30 and Pg. 176, ln 1-9 of Transcript 57 Pg. 161, ln 2-18 of Transcript 58 Pg. 106, ln 20 of Transcript 59 Pg. 202, ln 6-11 of Transcript 60 Pg. 204, ln 30-32 and Pg. 205, ln 1-7 of Transcript 61 Pg. 95, ln 14-21 of Transcript 62 Pg. 83, ln 26-32, Pg. 90, ln 19-27 and Pg. 93, ln 1-8 of Transcript 63 [46] of Mdm Tan’s AEIC 64 LSBOA III-260 65 LSBOA-178 66 Pg. 106, ln 2-7 of Transcript 67 Pg. 181, ln 19-26 of Transcript 68 Pg. 187, ln 2-13 and pg. 192, ln 26-32 of Transcript 69 Pg. 193, ln 4-10 of Transcript 70 LSBOD-39 71 Pg. 188, ln 8-18, pg. 190, ln 7-28 of Transcript 72 Pg. 188, ln 12-18 of Transcript 73 Pg. 193, ln 1-3 of Transcript 74 LSBOD-43 75 Pg. 197, ln 13-23 of Transcript 76 [30] of Mdm Tan’s AEIC 77 LSBOD I-54 78 Pg. 208, ln 13-15 of Transcript 79 Pg. 209, ln 16-18 of Transcript 80 Pg. 210, ln 12-17 of Transcript 53 81 Pg. 218, ln 20-27 of Transcript 82 Pg. 25, ln 25-31 of Transcript 83 Pg. 215, ln 4-31 of Transcript 84 Pg. 216, ln 1-12 of Transcript 85 Pg. 1, ln 13-26 of Transcript 86 Pg. 84, ln 6-10 of Transcript 87 Pg. 85, ln 18-26 of Transcript 88 Pg. 85, ln 2-5 of Transcript 89 Pg. 85, ln 7-11 of Transcript 90 Pg. 86, ln 12-15 of Transcript 91 LSBOA-29 92 LSBOA-111 93 Pg. 229, ln 1-16 of Transcript 94 Pg. 231, ln 25-26 of Transcript 95 LSBOD II-129 96 LSBOA III- 81 54 ",2025-01-11T01:00:46+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2025/,"In the Matter of Seah Choon Huat Johnny (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2025/",1190 48,7c574954ae5d7027d653370e60db09947a330d9e,"In the Matter of Andrew John Hanam (Respondent), Advocate & Solicitor","In the Matter of Andrew John Hanam (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from a complaint lodged by a director (the Complainant) of a company (the Company). The Respondent had been engaged to represent the Company in three lawsuits (the three lawsuits). The following main charges, referencing section 83(2)(b) of the Legal Profession Act 1966 (the Act) for improper conduct in the discharge of his professional duty as an advocate and solicitor, were preferred against the Respondent: First Charge – For charging the Complainant fees which were in excess and disproportionate to what he was fairly entitled to charge for the services rendered, thereby breaching Rule 17(7) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge – For failing to properly and periodically advise the Complainant of the anticipated legal fee that might be incurred in representing the Company in the three lawsuits, failing to properly and periodically evaluate with the Complainant whether any consequence of the matters involving the Complainant and/or the Company justified the expense of, or the risk involved in, pursuing the matters in litigation throughout the Material Time, and failed to properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes throughout the Material Time, and despite such failures, proceeded to bill the Company a total of $423,880.96 (including GST and disbursements), thereby breaching Rule 17(2)(e) of the PCR. Third Charge – For failing to properly and periodically advise the Complainant of the relevant legal issues in the three lawsuits throughout the Material Time, such that the Complainant was able to make an informed decision about how to act in those matters at the Material Time, thereby breaching Rule 17(2)(f) of the PCR. Fourth Charge – For failing to inform the Complainant in writing in or around February 2017 of the Complainant’s right to apply to court to have all of the Respondent’s invoices taxed, when the Complainant raised questions and/or dispute on the Respondent’s invoices, thereby breaching Rule 17(5) of the PCR. Fifth Charge – For failing to inform the Complainant in writing in or around January 2019 of the Complainant’s right to apply to court to have all of the Respondent’s invoices taxed, when the Complainant raised questions and/or dispute on the Respondent’s invoices, thereby breaching Rule 17(5) of the PCR. Sixth Charge – for failing to properly advise the Complainant of the anticipated legal fee that might be incurred in representing the Company in the three lawsuits throughout the Material Time, and/or properly and periodically advise the Complainant of the relevant legal issues in the three lawsuits throughout the Material Time such that the Complainant was able to make an informed decision about how to act in those matters at the Material Time, and/or (iii) to evaluate properly and periodically with the Complainant throughout the Material Time whether any consequence of the matters involving the Complainant and/or the Company justified the expense of, or the risk involved in, pursuing the matters in litigation, and/or (iv) properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes throughout the Material Time, and/or failed to keep accurate timesheets for the work done in the three lawsuits, such that the said total bill can be justified, and despite such failures, proceeded to bill the Company a total of $423,880.96 (including GST and disbursements), thereby breaching Rule 5(2)(c) of the PCR. Findings of the Disciplinary Tribunal (DT) The DT directed that the hearing of the First Charge would be stayed until the disputed fees were taxed and the Law Society applies to proceed with the First Charge. The DT found that the Second and Third Charges were made out and there was cause for sufficient gravity. The DT found that the Fourth and Fifth Charges were not made out. As the Law Society had taken the position that it would not proceed with the Sixth Charge if the Second and Third Charges were found to be made out, the Sixth Charge was deemed to be withdrawn by the Law Society. Court of Three Judges The Court of Three Judges found that due cause for disciplinary action was established for the Second and the Third Charges, and ordered that the Respondent be suspended from practice for a period of nine months. The Respondent was also ordered to pay costs and disbursements to the Law Society in the sum of S$32,000.00. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/01/Jan_25_Andrew_Hanam_DT_Report_compressed.pdf,"DT/03/2021 IN THE MATTER OF ANDREW JOHN HANAM AND IN THE MATTER OF THE LEGAL PROCESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal Mr Lee Eng Beng, SC – President Mr Wong Siew Hong – Advocate & Solicitor Counsel for the Law Society Ms Shobna Chandran, Mr Muhammad Taufiq bin Suraidi and Ms Phoebe Tan (Tan Rajah & Cheah) Dated this Respondent in Person 27th day of May 2022 1 A. Introduction 1. The Charges against the Respondent arise out of his conduct of 3 sets of legal proceedings for P&P Engineering & Construction Pte Ltd (“P&P”), namely, High Court Suit 1255 of 2016 (“Suit 1255”); District Court Suit 1043 of 2018 (“DC 1043”) and High Court Suit 1167 of 2017 (“Suit 1167”). The Complaint is Mr Krisnamoorthy Pugazendhi, the director of P&P. 2. The Charges are set out in full in the Appendix. The 1st Charge (and Alternative 1st Charge) have been stayed (for reasons set out in our Interim Report dated 24 May 2021), and the hearing proceeded for the 2nd to 6th Charges (and their respective Alternative Charges). The 2nd to 6th Charges relate to the Respondent’s conduct in the legal proceedings between 25 November 2016 and 24 August 2019. Appendix A also includes a proposed 7th Charge and a proposed Alternative 7th Charge which were unsuccessfully sought to be introduced by the Law Society after the filing of closing and reply submissions. 3. In substance, the complaints against the Respondent are as follows: (a) The Respondent breached rule 17(2)(e) of the Legal Profession (Professional Conduct) Rules 2015 in failing to properly and periodically evaluate with the Complaint whether the steps taken in the legal proceedings justified the expense of, or the risk in pursuing the litigation, and whether alternative dispute resolution processes should be used. (b) The Respondent breached rule 17(2)(f) of the Legal Profession (Professional Conduct) Rules 2015 in failing to advise P&P on the relevant legal issues in the legal proceedings, to enable P&P to make an informed decision about how to act in the legal proceedings. (c) The Respondent breached rule 17(5) of the Legal Profession (Professional Conduct) Rules 2015 in or around February 2017, and in or around January 2019, in failing to inform the Complainant in writing of his right to apply to court to have all of the Respondent’s invoices taxed, when the Complainant raised questions and/or disputes on the Respondent’s invoices. B. Background Facts 4. To understand the parties’ respective cases in context, it is necessary to first set out a chronological narrative of the material key events leading to and during the Respondent’s conduct of Suit 1255, DC 1043 and Suit 1167 on behalf of P&P. It should be noted that, apart from what is set out below, there was a significant number of other court applications which were made in the course of the 3 sets of legal proceedings. 5. P&P had disputes with a company called Kori Construction (S) Pte Ltd (“Kori”) arising out of 2 sub-contracts for the construction of the Marina Bay MRT Station. The first contract was for the provision of manpower (the “Manpower Sub-Contract”) and 2 the second was for the supply of steel fabrication works (the “Steel Fabrication SubContract”). 6. In mid-November 2016, the Complainant approached the Respondent for advice as Kori owed P&P close to $1.5 million under the Sub-Contracts. On 25 November 2016, the Complainant signed a Warrant to Act to appoint the Respondent to represent P&P in the recovery of the sums due from Kori under the Sub-Contracts. 7. On 25 November 2016, Suit 1255 was commenced by P&P against Kori for payment of $376,344.93 under the Manpower Sub-Contract and $893,273.66 under the Steel Fabrication Sub-Contract. The claim was based only on invoices that had fallen due in November 2016. Further invoices which fell due in December 2016 were not included in Suit 1255. 8. On 30 January 2017, Kori filed Summons 431 of 2017 (“SUM 431”) in Suit 1255 to compel P&P to produce certain documents referred to in its Reply and Defence to Counterclaim. P&P was unable to produce these documents. P&P accordingly failed to resist SUM 431 before the Assistant Registrar and was ordered to pay costs of $3,200. On 17 February 2017, P&P filed Registrar’s Appeal 44 of 2017 (“RA 44”) against the decision of the Assistant Registrar. At the hearing of RA 44, P&P was ordered to amend its pleadings and pay costs of $2,000. 9. On 17 October 2017, the first day of the trial of Suit 1255, P&P and Kori agreed on a settlement for the claim under the Manpower Sub-Contract (the “Suit 1255 Settlement”). Under the Suit 1255 Settlement, Kori agreed to pay P&P the sum of $236,731.48, subject to a reduction of $543.73 on account of Kori’s counterclaim against P&P. However, Kori did not pay P&P the agreed sum under the Suit 1255 Settlement. Kori took the position that the sum was not immediately payable, but would become payable only at the conclusion of Suit 1255. 10. Meanwhile, the trial of Suit 1255 continued on P&P’s claim under the Steel Fabrication Sub-Contract. The first tranche of trial ended on 20 October 2017. On 15 November 2017, P&P filed Summons 5237 of 2021 (“SUM 5237”) for third-party discovery against Taisei Corporation (“Taisei”), specifically, for the production of eyescan records of P&P workers entering the project site. Taisei then asked for significant costs to review its records and identify the relevant documents. As a result, P&P withdrew SUM 5237 on 1 December 2017 and was ordered to pay costs of $500 to Kori and $2,300 to Taisei. 11. On 7 December 2017, P&P further filed Summons 5616 of 2017 (“SUM 5616”) for leave to call 4 additional witnesses at the trial of Suit 1255. SUM 5616 was dismissed with costs of $6,000 ordered against P&P. 12. On 11 December 2017, P&P filed Suit 1167 against Kori for the payment of the sum of $342,821.05 under invoices which had fallen due in December 2016. 3 13. The last day of trial for Suit 1255 was 18 March 2018. At this time, Kori still had not made payment of the agreed sum under the Suit 1255 Settlement. On 23 March 2018, P&P filed Summons 1394 of 2018 (“SUM 1394”) in Suit 1255 to apply for judgment on the Suit 1255 Settlement based on an admission of fact. On 9 April 2018, SUM 1394 was dismissed and costs of $3,700 were ordered against P&P. 14. On the same day, 9 April 2018, P&P filed DC 1043 against Kori for the payment of the agreed sum under the Suit 1255 Settlement. Kori issued an Offer To Settle in DC 1043 on 27 July 2018. P&P did not respond. 15. On 31 December 2018, the High Court found largely in favour of P&P in Suit 1255. On 21 January 2019, the High Court also decided Suit 1167 in favour of P&P and ordered Kori to pay P&P a total sum of $416,434.69. 16. By the end of January 2019, the agreed sum under the Suit 1255 Settlement had been paid by Kori to P&P and the only outstanding issue in DC 1043 was interest of $9,588.19 and costs. 17. On 30 January 2019, Kori issued a second Offer To Settle in DC 1043 offering to pay half of the interest, with each party bearing its own costs. P&P did not accept and proceeded with the trial of DC 1043 on the basis that it was entitled to interest of $9,588.19. 18. On 16 August 2019, the District Court rejected P&P’s claim in DC 1043 and awarded costs of about $20,000 to Kori, including indemnity costs for the costs incurred after the issue of Kori’s second Offer To Settle. 19. In or around August 2019, P&P discharged the Respondent. 20. The Respondent billed P&P a total of $423,880.96 (including GST and disbursements) for the work done on the 3 sets of legal proceedings. The net amount recovered by P&P from Kori in Suit 1255 and Suit 1167 was $185,757.26, after deductions on account of the Respondent’s bills and the payment of costs ordered by the Court. C. The 2nd And 3rd Charges 21. The 2nd and 3rd Charges (and their respective Alternative Charges) asserted breaches by the Respondent of, respectively, Rules 17(2)(e) and 17(2)(f) of the Legal Profession (Professional Conduct) Rules 2015 (“PCR 2015”). 22. The 2nd Charge alleged that the Respondent had failed to: (a) properly and periodically advise the Complainant of the anticipated legal fee that might be incurred in representing P&P in the 3 sets of legal proceedings; 4 (b) properly and periodically evaluate with the Complainant whether any consequence of the matters involving the Complainant and/or P&P justified the expense of, or the risk involved in, pursuing the matters in litigation; and (c) failed to properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes. 23. The 2nd Charge added that, despite these failures, the Respondent proceeded to bill P&P a total of $423,880.96 (including GST and disbursements). 24. We are of the view that the drafting of the 2nd Charge is unsatisfactory. Rule 17(2)(e) of the PCR 2015 is not a provision that directly deals with the legal fees that a solicitor charges or might charge a client, or imposes a duty on a solicitor to advise the client of anticipated legal fees. These are matters which are more properly covered by rules 17(3), 17(7) and 17(8) of the PCR 2015. It should further be noted that the 1st Charge in these proceedings, which alleged overcharging and a breach of rule 17(7) of the PCR 2015, has been stayed. 25. Accordingly, we do not think that the allegation set out in paragraph 22(a) above and the fact that the Respondent billed P&P the sum of $423,880.96 are relevant to the inquiry of whether there was a breach of rule 17(2)(e) of the PCR 2015. We confine our consideration of the facts and evidence to the allegations set out in paragraph 22(b) and 22(c) above, which materially track the language of rule 17(2)(e) of the PCR 2015. 26. The drafting of the 3rd Charge does not suffer from a similar defect. It simply alleged that the Respondent failed to properly and periodically advise the Complainant of the relevant legal issues in the 3 sets of legal proceedings, such that the Complainant was able to make an informed decision about how to act in those matters. This materially tracks the language of rule 17(2)(f) of the PCR 2015. 27. In his closing and reply submissions, the Respondent objected to the 2nd and 3rd Charges on the basis that they were vague and did not contain sufficient particulars of the alleged failures on his part. The Respondent argued that the specific allegations pursued by the Law Society became apparent only when the Complainant’s AEIC was served. The Respondent further argued that the specific allegations took advantage of the absence of attendance notes of meetings during which he gave verbal advice to the Complainant. 28. We have some sympathy with this submission in that it does appear to us that the 2nd and 3rd Charges were lacking in the particulars of the alleged failures of the Respondent to give the required advice. They referred to the 3 sets of legal proceedings generally but did not set out the specific matters arising in those legal proceedings on which the Respondent was required to advise under rules 17(2)(e) and 17(2)(f) of the PCR 2015 but failed to do so. Neither did the Law Society’s Statement of Case offer any additional significant particulars. Ideally, the 2nd and 3rd Charges should have specified the instances in the 3 sets of proceedings in which the relevant rules were breached. 5 29. However, we reject the Respondent’s submission. 30. It was too late for the Respondent to raise the objection in his closing and reply submissions. The Law Society applied to introduce the 2nd and 3rd Charges on 29 April 2021. On 3 May 2021, the Respondent informed the Tribunal that he accepted that the Law Society could proffer new charges under s 89(4) of the Legal Profession Act (Cap 161) (“Legal Profession Act”). He did not raise any objections to the wording of the 2nd and 3rd Charges. 31. The Complainant’s AEIC, which gave evidence of the various instances in which the Respondent allegedly failed to advise in accordance with rules 17(2)(e) and 17(2)(f) of the PCR 2015, was served on the Respondent on 2 August 2021, and the evidential hearing was conducted on 4 days from 17 – 20 August 2021. The Respondent cross-examined the Complainant on his AEIC for almost 2 days. 32. On 20 August 2021, the final day of the evidential hearing, the Law Society applied to make a further amendment to the 2nd Charge so that it explicitly stated that the Respondent “failed to properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes”. The Respondent stated that he had no objections to this amendment. 33. The Respondent did not at any time before the completion of the evidential hearing challenge the lack of particularity in the 2nd and 3rd Charges, apply for leave to file a further AEIC, or provide additional documentary evidence. He objected to the lack of particulars only in his closing and reply submissions filed on 22 September 2021 and 8 October 2021 respectively. In our view, the Respondent should have raised his challenge before the start of the evidential hearing or, at the latest, before crossexamining the Complainant. The Respondent did not give any reason why he did not raise the objections earlier. In the circumstances, it would be unfairly prejudicial to the Law Society if the Tribunal were to consider a challenge of this nature only after the evidential hearing was completed and the closing and reply submissions were being exchanged. 34. The Tribunal is also of the view that no prejudice was caused to the Respondent. The Respondent was given adequate notice of the specific allegations made by the Complainant in his AEIC and, indeed, he accepted in his reply submissions that the real allegations made by the Law Society surfaced in the Complainant’s AEIC. The Respondent is an experienced advocate and solicitor and must be taken to know what rules 17(2)(e) and 17(2)(f) of the PCR 2015 required of him in the conduct of the 3 sets of legal proceedings. As pointed out above, he had the opportunity to seek leave to produce further documentary evidence and to file an additional AEIC, but did not do so. 35. Under cross-examination, the Respondent testified that he had not breached rules 17(2)(e) and 17(2)(f) of the PCR 2015 and, in so far as the relevant advice was not recorded in documentary evidence, it was given during physical meetings with the 6 Complainant. It is not apparent to the Tribunal what he would have done differently if the 2nd and 3rd Charges had contained more particulars. In his closing and reply submissions, the Respondent did not explain how he had been prejudiced and what other courses of action he might have taken if the 2nd and 3rd Charges had been more comprehensive. His submission, which we reject, was that the 2nd and 3rd Charges were introduced after the discovery process showed that he did not keep attendance notes of his physical meetings with the Complainant, and were based on evidence manufactured by the Complainant. 36. In the Tribunal’s view, the Law Society’s case was ultimately not unduly vague, overly wide nor unfocussed. There was no attempt by the Law Society to deliberately take advantage of the generality of the 2nd and 3rd Charges. In its closing and reply submissions, the Law Society relied on breaches of rules 17(2) and 17(2)(f) of the PCR 2015 in what it termed “significant stages” in the 3 sets of legal proceedings. The evidence as to what transpired at these stages was also largely undisputed. It appears to the Tribunal that there was no real risk that the Respondent could have been caught off-guard by an allegation. 37. We further bear in mind the remarks of the Court of Three Judges in Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 477 at [50]-[58]. It is incontrovertible that a solicitor must be given proper notice of all allegations against him such that he has a reasonable opportunity to deal with any complaint levelled against him. However, this requirement of notice should not be assessed rigidly or mechanically, and a lack of notice should not vitiate the proceedings where it is more technical than real. D. The Absence Of Attendance Notes Of Meetings 38. At the most rudimentary level, Charges 2 and 3 were directed at the alleged failures of the Respondent to give proper advice to the Complainant on the benefits and risks of pursuing the 3 sets of legal proceedings, the use of alternative dispute resolution processes, and the relevant legal issues in the proceedings. It was clear from the documentary evidence before the Tribunal that the advice given by the Respondent to the Complainant in writing fell significantly short of the advice that was required by rules 17(2)(e) and 17(2)(f) of the PCR 2015. Therefore, one of the central questions was whether, apart from advice in writing, the Respondent also gave advice to the Complainant verbally. 39. The Complainant testified that, apart from the meeting on 25 November 2016, he received little verbal advice from the Respondent. The Complainant gave evidence that the primary mode of communication between P&P and the Respondent was by way of email. The Respondent did not communicate with the Complainant by telephone or text messages. Physical meetings were few and far between, and were short and brief. The Complainant also testified that from December 2016 to February 2017, the Respondent met the Complainant 2 to 3 times per month, but the Respondent met the Complainant only about 10 times after February 2017. As for the numerous visits made 7 by the Complainant to the Respondent’s office to affirm affidavits, he did not meet the Respondent personally except on 2 or 3 occasions. 40. This was disputed by the Respondent. The Respondent’s evidence under crossexamination was that he had numerous meetings with the Complainant during which advice on various issues was given to the Complainant. He testified that he met the Complainant 3 to 4 times per month in 2017 and 2018 and a few times in 2019, and that overall, he had close to 100 meetings with the Complainant. Depending on the matters that were discussed, some meetings were short while others were long. He also testified that he updated the Complainant by telephone. 41. However, the Respondent admitted that he did not keep any timesheets nor attendance notes of any of the meetings and discussions he had with the Complainant. Neither did his Affidavit of Evidence-in-Chief (“AEIC”) deal specifically with any meetings or discussions he had with the Complainant, apart from the meeting on 25 November 2016 when the Complainant signed the Warrant To Act. 42. This raised an important issue in these proceedings as the Respondent relied substantially on his meetings with the Complainant and the advice given in such meetings. He asserted that he had advised the Complainant on the relevant legal issues and evaluated with the Complainant the risks and benefits of pursuing certain courses of action at such meetings. In many instances, where advice or communications on a particular issue in the legal proceedings was not documented, the Respondent testified that the issue must have been discussed at a meeting with the Complainant. 43. The Law Society submitted that, in the circumstances, an adverse inference should be drawn against the Respondent due to his failure to keep attendance notes or contemporaneous written records of his meetings with the Respondent. Reference was made to the decisions of the Court of Three Judges in Law Society v Udeh Kumar s/o Sethuraju [2013] 3 SLR 875 at [70] and Law Society of Singapore v Lau See Jin Jeffrey [2017] 4 SLR 148 at [21]. Both cases endorse the reasoning in the earlier decision of the Court of Three Judges in Law Society of Singapore v Tan Puay Khiang [2007] 3 SLR(R) 477, which settled the law in this regard. It should be noted that all these cases were considering the position prior to the PCR 2015 coming into force. The proposition accepted in these cases that a legal practitioner’s failure to maintain attendance notes of dealings with clients did not per se render him in breach of his professional duties has to be qualified. This is because rule 5(2)(k) of the PCR 2015 now requires a legal practitioner to keep proper contemporaneous records of all instructions received from, and all advice rendered to, the client (emphasis ours). 44. The other relevant principles laid down by these decisions remain authoritative, and the parties did not raise any serious challenge in this regard. A legal practitioner’s failure to maintain attendance notes does not per se deprive the solicitor’s testimony of all credibility, but such failure may in appropriate circumstances provide the context in which the court may draw an adverse inference against the solicitor. The failure to maintain attendance notes may also make it more difficult for the legal practitioner to convincingly persuade the court that his recollection of events is accurate and relates to 8 the case at hand, and not a convenient reconstruction of events or testimony of the legal practitioner’s general practice. 45. The disagreement between the parties was over whether the circumstances of this case, when considered together with the failure of the Respondent to maintain attendance notes of his meetings with the Complainant, warranted the drawing of an adverse inference against the Respondent. Having reviewed all the facts and evidence, we are of the view that this question should be answered in the affirmative. 46. First, based on the number of physical meetings the Respondent asserted that he had with the Complainant and the nature of the alleged discussions at these meetings, it is difficult to understand why the Respondent did not maintain attendance notes or other contemporaneous records. The Respondent alleged that he must have had close to 100 physical meetings with the Complainant, all of which were not accompanied by attendance notes. It was during these alleged meetings that the Respondent gave advice to the Complainant and evaluated with the Complainant the courses of action which could be taken in the 3 sets of legal proceedings. However, the Respondent did not give any reason why he did not keep any attendance notes of so many meetings during which substantive and important discussions were conducted with the Complainant. Neither were there any follow-up emails recording the discussions that had taken place at the meetings. 47. We are of the view that the importance and prudence of keeping attendance notes of these physical meetings could not have been lost on the Respondent. There have been more than enough exhortations both by the courts and the Law Society that solicitors should maintain attendance notes of their meetings and communications with clients. The rationale has been repeatedly explained and applies with the most force in relation to meetings and communications where advice is given to the client. In Law Society of Singapore v Leong Pek Gan [2016] 5 SLR 1091 at [48], in response to a solicitor’s explanation that it was not her practice to record what she explained to her clients, the Court of Three Judges remarked that this was particularly troubling in light of repeated judicial pronouncements that a solicitor has a duty to keep contemporaneous notes and diligently document each stage of the transaction which the solicitor is handling, especially any significant advice rendered to the client. 48. Second, the Respondent gave evidence of his physical meetings with the Complainant belatedly. The Law Society’s Statement of Case and the 2nd, 3rd and 6th Charges (as well as their respective Alternative Charges) made clear allegations that the Respondent had failed to advise on and evaluate with the Complainant various issues in relation to the conduct of the 3 sets of legal proceedings. However, in his Defence, the Respondent did not refer to the numerous physical meetings he allegedly had with the Complainant. The Respondent’s AEIC also did not refer to the alleged numerous physical meetings or what transpired at them (apart from the meeting on 25 November 2016). It was only under cross-examination that the Respondent gave evidence that he must have had close to 100 meetings with the Complainant, during which he advised and evaluated with the Complainant the issues arising in the course of the 3 sets of legal proceedings. 9 49. Third, there was no objective evidence supporting the Respondent’s evidence of the physical meetings with the Complainant. On the contrary, the objective evidence pointed to the absence of such meetings. In the course of his engagement for the 3 sets of legal proceedings, the Respondent did send a number of emails to update the Complainant, advise him, or seek or confirm his instructions. In none of these emails were there specific references to the alleged physical meetings between the Respondent and the Complainant nor did these emails state what the advice had been given. 50. As such, we draw an adverse inference against the Respondent. In the instances where the only evidence proffered by the Respondent is his own testimony, we are not persuaded that the alleged numerous physical meetings between the Respondent and the Complainant took place, or that the communications described by the Respondent took place at such meetings. We emphasise, however, that this adverse inference does not extend to physical meetings and communications which are not disputed by the Complainant, or which are corroborated by other evidence. E. Suit 1255 51. In relation to Suit 1255, the Law Society contended that the Respondent failed to advise the Complainant as required by rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the following issues: (a) the commencement of Suit 1255; (b) a Notice to Produce issued by Kori against P&P on 30 December 2016 and Kori’s subsequent application in HC/SUM 431/2017; (c) a settlement agreement between Kori and P&P for part of the sum in dispute in Suit 1255 and P&P’s application in HC/SUM 1394/2018 to enforce the settlement agreement; and (d) P&P’s applications for discovery of eye-scan records against a third party, Taisei Corporation, and for leave to call 4 additional witnesses in HC/SUM 5237/2017 and HC/SUM 5616/2017 respectively. 52. The Law Society further contended that the Respondent failed to evaluate with the Complainant the use of alternative dispute resolution processes, as required by rule 17(2)(e)(ii) of the PCR 2015 in an appropriate case, at the outset of the Respondent’s engagement as well as in the course of Suit 1255. The commencement of Suit 1255 53. The undisputed facts were that the Complainant met the Respondent on 21 or 25 November 2016 about P&P’s claim against Kori. A letter of demand earlier issued by the Respondent against Kori had not elicited any payment from Kori and the 10 Respondent drew a flowchart and explained to him that the next step would be for P&P to commence legal proceedings in the High Court. 54. On 25 November 2016, the Complainant executed a Warrant to Act to appoint the Respondent’s firm to act for him. On the same day, the Respondent emailed a draft Statement of Claim to the Complainant, and the Complainant instructed the Respondent to proceed. The Respondent separately emailed a letter to the Complainant confirming that the Complainant had instructed the filing of a claim against Kori. Also on the same day, Suit 1255 was filed. 55. What is disputed is whether the Respondent properly advised the Complainant in 4 respects before the commencement of Suit 1255. 56. First, the Law Society submitted that the Respondent failed to advise the Complainant in relation to the Warrant to Act executed by the Complainant. It was pointed out that the Respondent did not discuss or explain the terms of the Warrant to Act with the Complainant, and that the Complainant had a limited ability to read and understand English. This was a breach of rule 17(2)(f) of the PCR 2015. 57. We reject this submission as we do not see the basis for applying rule 17(2)(f) of the PCR 2015 on the facts. The rule generally requires a legal practitioner to advise a client on the relevant legal issues in a matter to enable the client to make an informed decision about how to act in the matter. The evidence does not suggest that the Complainant was not agreeable to any of the terms of the Warrant to Act or was not making an informed decision in executing the Warrant to Act. We do not see any relevant legal issues on which rule 17(2)(f) of the PCR 2015 would have required the Respondent to advise the Complainant. 58. The Law Society next contended that the Respondent did not explain to the Complainant the steps and timelines involved in the commencement of the suit or the possibility of parties commencing numerous interlocutory applications. The Respondent also did not tell him that P&P might have to pay costs to Kori if it was unsuccessful in the suit or any interlocutory applications. Neither did the Respondent advise the Complainant of the anticipated legal costs that could be incurred up to the conclusion of the suit. 59. The Tribunal does not think that these allegations are made out. The flowchart drawn by the Respondent at the meeting on 21 or 25 November 2016 was not given to the Complainant and was not adduced in evidence before the Tribunal. Under crossexamination, the Complainant stated that the flowchart was very short and simple and did not cover detailed steps in the litigation process. However, we found his evidence unclear and lacking in specificity. 60. In his letter of complaint to the Law Society, the Complainant described the situation somewhat differently. He stated that after the Respondent had gone through the documents and his explanation on the claim against Kori, the Respondent explained “with a sketch drawing the overall steps to be taken to recover the payment”. The 11 Respondent’s letter to the Complainant dated 25 November 2016 alluded to the timelines for the filing of the Memorandum of Appearance and the Defence and Counterclaim, and that an application for summary judgment could be filed if the Defence had no merit. It also set out the legal fees at $700 per hour. The Warrant to Act signed by the Complainant further stated that P&P might be ordered to pay its opponent’s legal fees, in addition to the legal fees due to the Respondent’s firm. 61. In the circumstances, the Tribunal finds that the Law Society’s allegations are not made out on the evidence. The evidence of the Complainant on the allegations was unsatisfactory. The other evidence suggests that at least some advice was given on the issues of litigation steps and timelines, the risk of being subject to adverse cost orders, and anticipated legal costs. 62. In addition, we do not think that a solicitor’s duty to advise the client of the risk of being subject to adverse cost orders and of anticipated legal costs comes within the purview of rules 17(2)(e) and 17(2)(f) of the PCR 2015. These issues are specifically governed by rules 17(3) and 17(4) of the PCR 2015. 63. The Law Society’s third contention was that the Respondent failed to advise the Complainant of the option of commencing an adjudication under the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed)(“SOPA Adjudication”). There was no documentary evidence indicating that advice on the possibility of a SOPA Adjudication was given by the Respondent. The Respondent’s AEIC also did not mention that such advice was given. 64. The Tribunal finds that this contention of the Law Society has been made out. The option of a SOPA Adjudication would have been a very material consideration for the Complainant when deciding whether to commence Suit 1255. Legal advice on this option would have been important and perhaps even determinative of the Complainant’s decision as to whether Suit 1255 should be commenced. Proper advice on the point would also have required a description of the nature of a SOPA Adjudication and a comparison of its advantages and disadvantages with the normal litigation process. It was not advice that a prudent and diligent solicitor would make orally without some documentary follow-up or record. But there is a complete absence of documentary evidence in the present case setting out the advice given or even indicating that advice on a SOPA Adjudication had been given. There is a similar absence of any mention of a SOPA Adjudication in the Respondent’s AEIC. 65. The Tribunal also finds the Complainant’s evidence that he was not advised of a SOPA Adjudication more probable. Given P&P’s financial constraints at that time, it is likely that the Complainant would at least have seriously considered the option of a SOPA Adjudication before commencing Suit 1255. But there is nothing to explain why the Complainant decided to commence Suit 1255 instead. Upon questioning by the Tribunal, the Respondent stated that he did advise the Complainant of the possibility of a SOPA Adjudication but also told him that Kori could delay it by challenging it in court. The Respondent also gave evidence that the Complainant wanted to proceed, and to proceed fast. The Tribunal is unable to give weight to this as the Respondent’s 12 purported advice is inconsistent with the nature and raison d'être of a SOPA Adjudication. A SOPA Adjudication seeks to facilitate payments for goods or services providers in the building and construction industry, and to provide quick and lowercost resolution of payment disputes through adjudication. It is difficult to understand why the Respondent would not have availed himself of a SOPA Adjudication if the Respondent had advised him of its availability. 66. The Law Society’s final contention related to the fact that Suit 1255 was commenced only in respect of P&P’s invoices which had fallen due as of 25 November 2016, specifically, it sought payment of the sum of $1,132,384.28 plus interest and costs. There were other invoices which fell due within a month after that date. In fact, on 23 December 2016, the Respondent sent a letter of demand to Kori’s solicitors for the payment of the sum of $371,720.14 for further invoices which had fallen due. These invoices ultimately became the subject of a separate suit, Suit 1167, which was commenced almost a year later on 11 December 2017. 67. The Law Society contended that the Respondent did not advise the Complainant of the option of commencing Suit 1255 only after all invoices had fallen due. The Respondent had not evaluated with the Complainant the risks and benefits of commencing Suit 1255 on 25 November 2016 as compared to the option of waiting until all invoices had become due, and had not given advice to enable the Complainant to make an informed decision on the commencement of Suit 1255. The Respondent had therefore breached rules 17(2)(e) and 17(2)(f) of the PCR 2015. 68. The Complainant’s evidence supported this. The Complainant testified that at his meeting with the Respondent on 21 or 25 November 2016, the Respondent advised him that P&P should first file a claim on the invoices due in November 2016, and then pursue the invoices which fell due later. The Respondent did not advise him of the option of filing a claim only after all invoices had become due. 69. There was no documentary evidence showing that the Respondent had given the relevant advice to the Complainant. On 25 November 2016 at 4:24pm, the Respondent emailed the Complainant with a draft Statement of Claim covering the invoices which had fallen due on that date. At 5:38pm, Suit 1255 was filed. At 5:41pm, the Complainant emailed the Respondent with his instructions to proceed with the filing. At 5:43pm, the Respondent emailed a letter to the Complainant. The material part of this letter stated: We had earlier sent you in draft the Statement of Claim for you to peruse and to inform us of any errors that need to be corrected. For both your Fabrication Claim and the Manpower Claim, we have not included the November 2016 invoices as these are not due and payable yet by Kori. We will file these claims separately in December 2016. We will file your claim today as discussed. 70. The Respondent gave evidence that he told the Complainant on 25 November 2016 of the options of waiting until December 2016 to file a single suit, or to file 2 suits in November 2016 and December 2016 respectively. According to the Respondent, the 13 Complainant opted for 2 suits. The Respondent also testified that the Complainant wanted to proceed immediately, and did not want to wait even 1 month even though he knew that Suit 1255 might take months or even more than a year to be resolved. However, the Respondent did not provide his own view of what the Complainant should do, and he told the Complainant that the decision was his. The Respondent further gave evidence that, as Kori had indicated that it might sue P&P, the Complainant wanted to sue first instead of making a counterclaim against Kori. 71. The Tribunal prefers the Complainant’s evidence to that of the Respondent. We find that the Complainant decided to commence 2 suits because he had not been advised by the Respondent of the more sensible and practical option of filing a single suit a month later covering all outstanding invoices. We are unable to accept the Respondent’s explanation that the Complainant decided to commence 2 suits because he wanted to be the plaintiff instead of having to make a counterclaim against Kori. It is not apparent at all why the Complainant would take such a position. The Respondent did not offer any explanation. In fact, his own evidence was that he did not provide his own view of what the Complainant should do, and did not find out why the Complainant was insistent on starting a claim immediately instead of making a counterclaim. 72. The Tribunal also relies on the lack of attendance notes or documentary evidence showing that the relevant advice had been given by the Respondent. The advice was important and substantive advice and, if it had been given, it would more likely than not have been recorded or alluded to in the Respondent’s letter of 25 November 2016 to the Complainant. Instead, the letter merely stated that there would be 2 suits. Further, the Tribunal notes that the Respondent did not state in his AEIC that the relevant advice had been given to the Complainant, or the reasons why the Complainant commenced 2 suits instead a single suit in December 2016. Kori’s application for production of documents 73. On 30 December 2016, Kori issued a Notice to Produce for P&P to disclose documents referred to in paragraph 8(iv) of its Reply and Defence to Counterclaim. Paragraph 8(iv) pleaded that all the workers supplied by P&P to Kori “had the necessary regulatory approval to work in Singapore and had the relevant qualifications for the claimed category of work”. It further pleaded that P&P had provided all necessary documentation to Kori. 74. P&P did not respond to Kori’s Notice to Produce and, on 31 January 2017, Kori filed an application in HC/SUM 431/2017 (“SUM 431”) seeking a court order against P&P for production of the documents. On 3 February 2021, the Respondent forwarded to the Complainant a copy of SUM 431 and stated that the Respondent would be objecting to the application based on the lack of relevance of the documents. The Respondent also forwarded a copy of his draft opposing submissions. 75. The Assistant Registrar allowed SUM 431 on 15 February 2017 and ordered P&P to pay costs of $3,200 to Kori. The Respondent informed the Complainant of this 14 on the same day. The Respondent further stated that he was of the opinion that the Assistant Registrar was wrong, and that P&P should appeal. 76. On 16 February 2017, the Respondent sent to the Complainant a draft of the Notice of Appeal to Judge in Chambers and asked him to come to his office to sign the supporting affidavit. An appeal by way of HC/RA 44 of 2017 (“RA 44”) was filed on the same day. RA 44 was heard by the Judge on 6 March 2017. The Judge varied the terms of the order granted by the Assistant Registrar, and gave leave to P&P to amend paragraph 8(iv) of the Reply and Defence to Counterclaim. P&P was ordered to pay costs of $2,000 to Kori. 77. The Law Society submitted that the Respondent failed to comply with rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 as he did not conduct a risk-benefit evaluation with the Complainant, or advise the Complainant on the relevant legal issues, in relation to dealing with Kori’s application for production of documents. The Law Society relied on the evidence of the Complainant that he had not been advised by the Respondent on the merits and risks in resisting SUM 431 and filing RA 44. The Complainant testified that, if he had been properly advised by the Defendant, he would have asked for time to produce the relevant documents rather than challenge the application for production of documents. There was also nothing on the face of the documentary evidence that showed that the Respondent had conducted the necessary evaluation or rendered the relevant advice. The Respondent simply informed the Complainant of the Respondent’s proposed courses of action and did not advise the Complainant of his options. 78. The Respondent’s evidence was that, at a discussion, he was told by the Complainant that he did not have the documents which were the subject of the Notice to Produce. The Respondent felt that, in any event, the documents were not material to P&P’s claim. He was not in favour of amending the Reply and Defence to Counterclaim, as costs would have been payable for the amendment. He felt that, instead, P&P should resist any application by Kori for the production of the documents. If P&P was successful in this regard, Kori would have to pay costs to P&P. The Respondent also disagreed with the Law Society that he did not conduct the required evaluation with, or render the relevant advice to, the Complainant. The Respondent also gave evidence that the Complainant agreed to resist SUM 431 on grounds of irrelevance. 79. The Tribunal finds against the Respondent on this issue. The lack of attendance notes and documentary evidence as to the advice given by the Respondent to the Complainant when faced with Kori’s request for the production of documents is one key consideration. The fact that the Respondent did not deal with his advice on this issue in his AEIC is another. 80. What also weighs significantly with the Tribunal is that the Respondent’s course of action was controversial if indeed, as the Respondent testified, he felt that the documents were not relevant. A sensible and practical course would have been to amend the Reply and Defence to Counterclaim so as to remove references to the 15 irrelevant documents. Otherwise, the documents were prima facie relevant as P&P had referred to them in its pleadings, and it would be an uphill task to successfully resist Kori’s application. The costs payable to Kori for such an amendment would likely be modest, in contrast to the financial exposure of P&P to legal fees and adverse cost orders in contesting Kori’s application. 81. It is not necessary for the Tribunal to rule on whether the Respondent’s course of action in responding to Kori’s request for production of documents was justifiable. What is clear is that the decision as to how to respond to Kori’s request for the production of documents involved the weighing of several factors. The costs payable to Kori for such an amendment in all likelihood would not have exceeded the fees that P&P would have to pay for resisting Kori 82. It is not clear on the evidence before the Tribunal whether the Complainant in fact did have the documents the production of which was sought by Kori (whether on the basis of the court order made by the Assistant Registrar or as varied by the Judge). However, this is not relevant as the issue is whether the Respondent evaluated with and advised the Complainant as to the options of how to deal with Kori’s application and the comparative risks and benefits. 83. In this instance, an exercise of judgment was required to be made by the Complainant with the assistance of substantive evaluation and advice from the Respondent. In the absence of any attendance notes or documentary evidence which showed that the Respondent rendered such evaluation and advice to the Complainant, the Tribunal has to draw and place weight on the necessary adverse inference against the Respondent. 84. In the circumstances, the Tribunal holds that the Respondent breached rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to Kori’s Notice to Produce dated 31 December 2016 and the conduct of SUM 431 and RA 44. The Suit 1255 Settlement 85. In the afternoon of 17 October 2017, the first day of the trial of Suit 1255, P&P and Kori entered into the Suit 1255 Settlement. There was no formal agreement signed between the parties, and Suit 1255 Settlement was recorded only in the transcript of the trial of Suit 1255. The transcript recorded Kori’s counsel stating to the Court that a settlement had been reached on the Manpower Sub-Contract and that Kori had agreed to pay P&P the sum of $236,731.48 subject to P&P conceding a sum of $543.73 on Kori’s counterclaim against P&P. The Respondent was recorded as confirming the settlement. 86. The problem was that there was no express agreement on the timeframe for paying of the settlement sum under the Suit 1255 Settlement. That issue would have been avoided simply by the inclusion of the word “forthwith” in the settlement but that was not done. The Respondent gave evidence that he was “naïve” in assuming that Kori would pay the settlement sum immediately. Kori refused to pay and apparently took 16 the position that the settlement sum would be payable only upon the conclusion of Suit 1255 as it was subject to set-off by the counterclaim of Kori against P&P in Suit 1255. 87. The Complainant gave evidence that, from November 2017 onwards, he repeatedly asked the Respondent about Kori’s payment of the settlement sum. However, there are no attendance notes or documentary evidence as to any exchanges between the Complainant and the Respondent on this issue. 88. On 23 March 2018, P&P filed HC/SUM/1394/2018 (“SUM 1394”) under Order 27 rule 3 of the Rules of Court, seeking to enter judgment on the Suit 1255 Settlement based on an admission of fact. The supporting affidavit for SUM 1394 was affirmed by the Respondent personally, and there are no attendance notes, emails or other documentary evidence showing that the Complainant had given instructions for the filing of SUM 1394. 89. On 9 April 2018, the Respondent wrote to inform the Complainant that SUM 1394 had been dismissed by an Assistant Registrar with costs of $3,700 ordered against P&P. The Respondent told the Complainant that the Assistant Registrar had decided that judgment could not be entered on the settlement agreement and that P&P had to sue for breach of the settlement agreement in a fresh suit. The Respondent further told the Complainant that he did not agree with the Assistant Registrar’s decision but that an appeal would take time and might not be successful. He then advised the Complainant to file a fresh suit against Kori. A draft Statement of Claim for the proposed fresh suit in the State Courts was annexed to the Respondent’s letter. 90. The Complainant testified that he did not give any instructions for the filing of SUM 1394. He further gave evidence that, before he received the Respondent’s letter of 9 April 2018, he did not even know that SUM 1394 had been filed. 91. On the other hand, the Respondent testified under cross-examination that he discussed the filing of SUM 1394 with the Complainant on 18 March 2018, which was the last day of the trial of Suit 1255. According to the Respondent, he told the Complainant that it might take 6 to 9 months before judgment would be given in Suit 1255, and the Complainant asked the Respondent to file an application. After discussion, the Respondent told the Complainant that P&P could try to get judgment based on an admission and the Complainant told him to go ahead. 92. The Tribunal accepts the Complainant’s evidence and finds that the Respondent filed SUM 1394 without the instructions of the Complainant. There were no attendance notes or documentary evidence showing that instructions had been obtained from the Complainant for the filing of SUM 1394, or that there was a discussion between the Respondent and the Complainant on 18 March 2018. There was also no evidence that the Respondent had forwarded to the Complainant a copy of SUM 1394 and the supporting affidavit (which had been affirmed by the Respondent personally) after they had been filed. The Tribunal further notes that, in the other instances where the Respondent had filed applications for P&P, the Respondent would write to the Complainant in advance to seek instructions for the filing as well as send a draft of any 17 affidavit or submissions that were proposed to be filed. The supporting affidavits would also usually be affirmed by the Complainant. 93. It follows that the Respondent could not have complied with rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the filing of SUM 1394. There was no evaluation or advice to speak of. P&P’s applications for additional evidence 94. The first tranche of the trial of Suit 1255 was from 17 October 2017 to 20 October 2017. On 23 October 2017, the Respondent sent a letter to the Complainant recording that the Complainant had informed him on 20 October 2017 that the Complainant wanted to call additional witnesses and produce further documents showing that P&P’s workers performed steel fabrication work at the project site for a certain period. The letter also informed the Complainant that a further 2 days of trial might be required and that $25,000 would be payable to the court for hearing and filing fees, a transcript fee, and an application fee. 95. Also on 23 October 2017, the Respondent wrote to Taisei (a third party) on the instructions of the Complainant, requesting for the eye-scan records for P&P’s workers entering the project site for the relevant period. Taisei did not reply. 96. On 6 November 2017, the Respondent sent a letter to the Complainant enclosing a draft application to compel Taisei to disclose the eye-scan records and a draft affidavit for the Complainant’s execution. On 15 November 2017, P&P filed SUM 5237 for third-party discovery against Taisei, and the hearing of the application was fixed for 1 December 2017. 97. On 20 November 2017, Taisei wrote to the Respondent stating that it had not received the Respondent’s letter of 23 October 2017 and wanted to know more about SUM 5237. The Respondent replied to Taisei on 22 November 2017, attaching his earlier letter of 23 October 2017 and asking Taisei for a response. There is no evidence before the Tribunal of Taisei’s response. 98. On 29 November 2017, Taisei filed an affidavit stating that it was willing to produce the eye-scan records but that the search would take 66-88 days and would cost $66,000 to $264,000. On the same day, the Respondent wrote to advise the Complainant that this sum was ridiculous, and that P&P should withdraw SUM 5237 and pay costs to Taisei. On 1 December 2017, P&P withdrew SUM 5237 and was ordered to pay costs of $500 to Kori and $2,300 to Taisei. 99. On 6 December 2017, the Respondent sent to the Complainant a draft summons to adduce further evidence and a draft of the supporting affidavit for him to sign. On 7 December 2017, P&P filed SUM 5616 for leave to call 4 further witnesses and recall 3 witnesses at the trial of Suit 1255. 18 100. On 12 January 2018, the Respondent sent to the Complainant 3 reply affidavits filed by Kori in SUM 5616. On the same day, the Respondent sent a draft reply affidavit to the Complainant for him to sign. At the hearing of SUM 5616 on 17 January 2018, the Court dismissed P&P’s application with costs fixed at $6,000. 101. The Law Society submitted that P&P’s efforts to adduce further evidence after the first tranche of trial was the result of the Respondent’s failure to properly advise and discuss with the Complainant the evidential issues in relation to P&P’s claims. According to the Law Society, the Respondent was aware or should have been aware that P&P’s evidence on the work done under the Fabrication Sub-Contract was inadequate and was being challenged. The Respondent should have explored and discussed the state of the evidence with the Complainant, but failed to do so. The Law Society argued that there was a breach of rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 by the Respondent in this respect. 102. The Tribunal is of the view that this allegation is too wide and not sufficiently particularised in the Charges to be fairly raised against the Respondent. It was not disputed that the Respondent assisted in preparing the Complainant’s AEIC for Suit 1255 after taking his instructions, and tendered in the trial the documentary evidence provided by the Complainant. Beyond this, there is insufficient evidence before the Tribunal of P&P’s evidential difficulties in Suit 1255 and the reasons why the evidence is said to be deficient. It is therefore not clear to the Tribunal what exactly the Respondent is alleged to have failed to evaluate with the Complainant or what relevant legal issues the Respondent had allegedly failed to advise the Complainant on so as to enable the Complainant to make an informed decision about how to act in the matter. 103. Further, rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 deal with a legal practitioner’s specific duties to conduct a risk-benefit evaluation with the client on whether a particular course of action should be taken in a matter, and to advise the client on relevant legal issues so that the client is able to make an informed decision about how to act in the matter. They are not relevant for general complaints that a legal practitioner’s acts or conduct has fallen below the requisite standards of care, skill, competence or diligence, which more rightly fall within the rubric of rule 5 of the PCR 2015. As such, a general allegation that a legal practitioner has failed to properly assess or discuss the state of a client’s evidence for trial does not, in the absence of circumstances showing a breach of the specific duties in rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015, fall within the scope of those two provisions. 104. Accordingly, the Tribunal is of the view that the Respondent did not breach rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the allegedly deficient state of P&P’s evidence for the first tranche of the trial of Suit 1255. For the avoidance of doubt, the Tribunal does not express any view on whether the Respondent breached any duties of care, skill, competence or diligence. 105. The Law Society also contended that the Respondent breached rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to P&P’s applications to adduce further evidence, namely, the applications in SUM 5237 and SUM 5616 seeking, respectively, 19 third-party discovery against Taisei and leave to call further witnesses for trial. The Law Society argued that, as confirmed by the Complainant in his evidence, the Respondent did not evaluate with or give legal advice to the Complainant on whether P&P should file these applications. 106. The Tribunal accepts this contention. The Complainant clearly needed to have an evaluation with and legal advice from the Respondent on the importance of the eyescan records and the evidence of the further witnesses, as well as the risks and benefits of filing SUM 5237 and SUM 5616. These were applications which, if pursued, would have caused P&P to incur fees and expenses and potentially exposed P&P to adverse cost orders. Further, one of the specific issues that clearly ought to have been explored was whether another approach should be made to Taisei by phone or an actual visit before the filing of SUM 5237, to ascertain Taisei’s costs of reviewing and identifying the relevant records which would normally have to be borne by P&P even if SUM 5237 was successful. The filing of SUM 5237 without checking on this issue with Taisei appears to be imprudent. 107. There are no attendance notes or documentary evidence showing that any evaluation was conducted or legal advice dispensed in relation to the filing of SUM 5237 and SUM 5616. Neither is there any evidence that militates against the drawing of an adverse inference against the Respondent in this regard. 108. The documentary evidence is also consistent with the Law Society’s case. The Respondent’s initial letter dated 23 October 2017 to the Complainant on the issue of calling further evidence simply recorded that the Complainant had informed the Respondent on 20 October 2017 that the Complainant wanted to call additional witnesses and adduce further documents in evidence. On SUM 5237, the Respondent emailed a letter to the Complainant on 26 November 2017 attaching a draft summons and a draft supporting affidavit to be filed against Taisei. Similarly for SUM 5616, on 6 December 2017, the Respondent sent to the Complainant a draft summons to adduce further evidence and a draft of the supporting affidavit for him to sign. None of these 3 letters by the Respondent referred to or contained any evaluation or legal advice required to be conducted or given under rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015. 109. In the circumstances, the Tribunal finds that the Respondent has breached rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to P&P’s filing of SUM 5237 and SUM 5616. Respondent acted without the Complainant’s knowledge or instructions 110. The Law Society contended that the Respondent breached rule 17(2)(f) when he acted on two occasions on behalf of P&P in Suit 1255 without the knowledge or instructions of the Complainant. 111. First, the Respondent did not inform the Complainant that Taisei had commenced garnishee proceedings against P&P for the costs of $2,300 ordered against P&P for the withdrawal of SUM 5237. Further, without the Complainant’s knowledge 20 or instructions, the Respondent wrote to inform Taisei’s solicitors that P&P was agreeable to pay $1,513.70 for the costs of the garnishee proceedings. The Respondent admitted that he had acted without the Complainant’s instructions, but gave evidence that he felt that the Complainant could not provide any instructions on the correct amount of costs. 112. Second, the Respondent sent proposals to Kori’s solicitors for the party-party costs of the trial of Suit 1255 that had been ordered against Kori, without seeking the Complainant’s instructions. The Respondent admitted to this but testified under crossexamination that he spoke with and advised the Complainant prior to the filing of his bills of costs and received the Complainant’s agreement in this regard. However, there is no documentary evidence or attendance notes of such a discussion, and the Tribunal does not accept this evidence. 113. The Law Society submitted that these instances constituted breaches of rule 17(2)(f) of the PCR 2015. We agree. As the Respondent admitted that he issued the proposals without the Complainant’s instructions, the Respondent could not have complied with rule 17(2)(f) of the PCR 2015. 114. In addition, we note that the Respondent might also have breached rules 5(2)(e) and 5(2)(i) of the PCR 2015. These rules require a legal practitioner to keep the client reasonably informed of the progress of the client’s matter, and follow all lawful, proper and reasonable instructions that the client is competent to give. Given that the Charges against the Respondent do not rely on these rules, we do not need to consider them further. Evaluation of the use of alternative dispute resolution processes in Suit 1255 115. The Law Society submitted that the Respondent failed to evaluate with the Complainant the viability of the alternative dispute resolution (“ADR”) processes prior to the commencement as well as in the course of Suit 1255. This constituted a breach of rule 17(2)(e)(ii) of the PCR 2015 by the Respondent. 116. We note that rule 17(2)(e)(ii) does not specify a particular point in time or a particular stage in legal proceedings at which the solicitor has to evaluate the use of ADR process with the client. It requires the solicitor to do so “in an appropriate case”. In other words, the solicitor may exercise some measure of discretion in deciding whether to conduct such evaluation with the client. Of course, if the solicitor does not exercise such discretion reasonably or in the best interests of the client, this can result in a breach of rule 17(2)(e)(ii). 117. The Complainant signed an ADR Offer on 22 February 2017, stating that P&P was available for mediation from 20 March 2017 onwards. On 23 February 2017, the Respondent wrote to inform the Complainant that the Court at a pre-trial conference on 21 February 2017 had directed that the parties consider ADR such as mediation. This letter attached a copy of Appendix I of the Supreme Court Practice Directions titled 21 Guidelines for Advocates and Solicitors Advising clients about ADR. The Respondent further stated as follows: As explained to you, we would advise you to attempt mediation as this might cut short the claim process and lead to savings of legal fees. 118. On 15 March 2017, the Respondent wrote to inform the Complainant that Kori was agreeable to mediation between April and June 2017. From 20 March 2017 to 3 June 2017, there were various letters between the Respondent, Kori’s solicitors and the Singapore Mediation Centre (“SMC”) on the proposed mediation, principally relating to scheduling, fees and the agreement to mediate. Some of these letters were copied or forwarded to the Complainant but some were not. 119. On 5 July 2017, the Respondent wrote to the SMC, copying the Complainant. This letter stated that the Respondent had not obtained instructions from the Complainant and would be applying to be discharged, and would not be proceeding with the mediation. On 10 July 2017, there was an exchange of emails between the SMC and the Respondent. The SMC requested for the contact details of the Complainant so that it could contact him directly on the mediation, but the Respondent declined to provide the contact details on the ground of confidentiality. These emails were not forwarded or copied to the Complainant. 120. On 4 August 2017, the Respondent wrote to update the Complainant that he had informed the Court at a Pre-Trial Conference on 1 August 2017 that P&P did not wish to go for mediation due to a lack of funds and the unlikelihood of a settlement, and that it preferred to go for trial. This letter attached a fresh ADR offer filed by Kori and a draft ADR response rejecting the offer. The Respondent then stated: We would advise you to proceed with the filing of the ADR response due to your lack of funds and the unlikelihood of a settlement being reached at the mediation. You have a strong case that is likely to succeed. The implication that arises from you not accepting the ADR offer for mediation is that if you do not succeed in your claim, the court can award higher costs to the Defendant. However, as you will likely succeed in your claim, there will be no adverse consequence if you were to reject mediation. 121. The ADR response rejecting Kori’s ADR offer was filed on 10 August 2017. 122. The Law Society contended that the Respondent did not properly update or advise the Complainant on the progress of the preparations for the mediation. In particular, the Respondent did not keep the Complainant informed of letters from the SMC, the fact that Kori had signed the agreement to mediate, and that SMC wanted to contact him directly in July 2017. The Complainant’s evidence was that the Respondent informed him about ADR in February 2017 but without much explanation. Shortly before 4 August 2017, the Complainant met the Respondent who advised him 22 not to proceed with mediation. The Respondent assured him that he had a strong case and that given the fees involved in pursuing the mediation route, the Complainant would be better off proceeding to trial. 123. We do not think the evidence establishes any breach of rule 17(2)(e)(ii) of the PCR 2015 by the Respondent. It cannot be said that the Respondent did not evaluate with the Complainant the use of ADR processes where appropriate. The Respondent did advise the Complainant in February 2017 of ADR processes, as shown in the Respondent’s letter of 23 February 2017 to the Complainant. The Complainant himself signed an ADR offer inviting Kori to mediate. It is also not disputed that the Respondent did take steps to arrange for a mediation, before calling it off in his email of 5 July 2017 to the SMC. 124. It is not entirely clear why the Complainant did not proceed with the mediation. It could be because, as alleged by the Respondent, the Complainant decided not to proceed because he thought it was likely that Kori would be unreasonable, or because, as alleged by the Law Society, the Respondent had advised the Complainant that he had a strong case and would be better off proceeding to trial. It is also not clear why the Respondent did not forward or copy to the Complainant all correspondence on the mediation. But these questions are really peripheral to the central issue; in our view, the evidence does not warrant a finding that the Respondent breached rule 17(2)(e)(ii) of the PCR 215. F. DC 1043 125. In relation to DC 1043, the Law Society contended that the Respondent failed to advise the Complainant as required by rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the following issues: (a) the commencement of DC 1043; (b) an Offer To Settle issued by Kori in DC 1043 on 27 July 2018; and (c) a second Offer To Settle issued by Kori in DC 1043 on 29 January 2019. 126. The Law Society also argued that the Respondent failed to evaluate with the Complainant the use of alternative dispute resolution processes, as required by rule 17(2)(e)(ii) of the PCR 2015. The commencement of DC 1043 127. As mentioned above, on 9 April 2018, P&P’s application in SUM 1394 in Suit 1255 for judgment to be entered on the Suit 1255 Settlement based on an admission of fact was dismissed with costs of $3,700. 128. At 3:06pm on the same day, the Respondent emailed a letter to inform the Complainant of the dismissal of SUM 1394, and stated that he did not agree with the 23 decision and that P&P had the right of appeal. However, the Respondent added that an appeal would take time and might not be successful, and advised as follows: “It seems that the easier route would be for you to file a fresh suit against Kori Construction (S) Pte Ltd for the Manpower Claim under the settlement agreement. We enclose, in draft, the Statement of Claim for this Suit.” 129. At 5:31pm on the same day, P&P filed DC 1043 against Kori for the recovery of the settlement sum of $236,187.75 due under the Suit 1255 Settlement plus interest. 130. The Law Society argued that, after the dismissal of SUM 1394 on 9 April 2018, the Respondent did not conduct an evaluation with or give legal advice to the Complainant on P&P’s options in relation to the recovery of the settlement sum. The Respondent simply advised the Complainant on 9 April 2018 itself to commence a fresh suit. This was borne out by the evidence of the Complainant. The Respondent had therefore breached rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015. 131. Having reviewed the evidence and the submissions of the parties, the Tribunal finds that the Law Society has established its case. The Tribunal is unable to accept the Respondent’s evidence that he had complied with rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015. 132. In his AEIC, the Respondent testified that he had advised the Complainant that DC 1043 hinged on an issue of law on which arguments could be made by both sides and the decision could go either way. He gave evidence that the Complainant chose to proceed in the hope of getting Kori to make payment without having to wait for judgment in Suit 1255. However, there were no attendance notes or other documentary evidence of such advice being given by the Respondent or the instructions of the Complainant to proceed with a fresh suit. Further, if such a discussion between the Respondent and the Complainant had taken place, it would have taken place between the Respondent’s letter to the Complainant sent at 3:06pm on 9 April 2018, and the filing of DC 1043 less than 3 hours later on the same day. The Respondent’s AEIC was noticeably silent on the date and time of his discussion with the Complainant on the filing of DC 1043. 133. In any event, even based on the Respondent’s evidence of his discussion with the Complainant on the filing of DC 1043, the Respondent did not conduct any riskbenefit evaluation or give any legal advice on important issues concerning the filing of DC 1043. 134. There was no dispute on the liability of Kori to pay the settlement sum to P&P. The sole issue in DC 1043 was whether payment should be made immediately or only upon the issue of the judgment in Suit 1255. The Respondent himself gave evidence that the merits of DC 1043 were evenly balanced, and the decision could go either way. In other words, by filing DC 1043, P&P would be incurring legal fees and expenses and assuming the risk of being subject to adverse cost orders on an uncertain quest to obtain judgment on the Suit 1255 Settlement. If successful, P&P could be entitled to payment of the settlement sum even before the issue of the judgment in Suit 1255. The 24 alternative option was to simply wait for the issue of the judgment in Suit 1255 and then assert the entitlement to be paid the settlement sum. 135. The last day of the trial of Suit 1255 was 18 March 2018. This meant that the judgment for Suit 1255 would be issued within a matter of months from 18 March 2018. The Respondent himself gave evidence that he had advised the Complainant on 18 March 2018 that the issue of the judgment might take 6-9 months from that date (that is, during the period from September to December 2018). 136. If so, apart from the merits of DC 1043, it was crucial to balance the prospect of DC 1043 being concluded significantly before December 2018, against the fees and expenses incurred in the conduct of DC 1043 and the risk of being subject to adverse cost orders in the event that DC 1043 was unsuccessful. It was not certain at all, or even unlikely, that DC 1043 would be concluded significantly earlier than 6-9 months of its filing. DC 1043 might of course conclude expeditiously if there was a successful application for summary judgment. However, given the nature of the dispute and the fact that the Suit 1255 Settlement was an oral contract, it must have at least been uncertain that an application for summary judgment would succeed. As it turned out, P&P did file an application for summary judgment in DC 1043, which was dismissed by the court. 137. There is no evidence that the Respondent conducted any risk-benefit evaluation with or gave any legal advice to the Complainant on all these issues. The Respondent did not discuss with the Complainant on the time frame within which DC 1043 would be expected to conclude, the quantum of fees and expenses that would be incurred by P&P in the conduct of DC 1043, or the risk of P&P being subject to adverse cost orders if DC 1043 was dismissed. 138. In the circumstances, the Tribunal finds that the Respondent breached rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the commencement of DC 1043. Kori’s 1st Offer To Settle 139. On 27 July 2018, Kori issued an Offer To Settle (“OTS”) in DC 1043. Kori offered to pay the settlement sum of $236,187.75 within 14 days of the delivery of judgment in Suit 1255 and for this sum to be added to the sums ordered to be paid by Kori to P&P or set off against the sums ordered to be paid by P&P to Kori, as the case might be. 140. It is not disputed that this OTS was never forwarded by the Respondent to the Complainant. What is in dispute is whether the Respondent discussed with the Complainant the effect of the OTS and the options open to the Complainant. 141. The Complainant gave evidence that the Respondent never brought the OTS to his attention or discussed it with him. However, the Respondent’s evidence under cross-examination was that he did discuss the OTS with the Complainant, but that the Complainant did not want to accept the offer as there was nothing new in it. The 25 Respondent also gave evidence that the Complainant knew the implications of not accepting the OTS. However, the Respondent did not give evidence as to when exactly his discussion with the Complainant took place. 142. The Tribunal prefers the Complainant’s evidence to the Respondent’s evidence. That there are no attendance notes or other documentary evidence of the Respondent’s discussions with the Complainant or the Complainant’s instructions on the OTS, coupled with the undisputed fact that the OTS itself was not even forwarded to the Complainant, warrant the drawing of an adverse inference against the Respondent. 143. Further, the Respondent’s evidence on his discussion with the Complainant, even if accepted, does not show that the Respondent had complied with his duties under rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015. 144. The OTS was made on 27 July 2018, more than 4 months after the commencement of DC 1043. At that time, the timelines for discovery and exchange of AEICs, and the trial dates for DC 1043, had not been fixed. Meanwhile, in Suit 1255, the parties’ closing submissions were exchanged on 14 May 2018, and the parties were subsequently just waiting to receive judgment. It was only on 19 December 2018 that DC 1043 was fixed by the State Courts for a 1-day trial on 7 February 2019. However, less than 2 weeks later, on 31 December 2018, judgment was issued by the High Court for Suit 1255. 145. In these circumstances, there was a continuing duty on the Respondent to evaluate with, and legally advise, the Complainant with respect to the OTS as the prospect grew stronger over time that the decision in Suit 1255 would be issued before the trial of DC 1043. The Respondent himself advised the Complainant on 18 March 2018 (the last day of trial of Suit 1255) that the judgment in Suit 1255 might be issued during the period from September to December 2018. 146. As December 2018 drew nearer without the trial dates for DC 1043 being fixed, the Respondent was under a duty to assess with the Complainant the risks and benefits of accepting the OTS. This duty became all the more relevant and pressing when the High Court’s decision in Suit 1255 was issued on 31 December 2018. However, there is no evidence that the Respondent evaluated with and advised the Complainant on the risks and benefits of accepting the OTS in view of the impending issue or upon the actual issue of the decision in Suit 1255. The Respondent’s brief evidence that, on an unspecified date, he discussed the OTS with the Complainant but that the Complainant did not want to accept the offer is insufficient. 147. This conduct also has to be viewed against the legal fees that were being incurred by P&P in DC 1043. The Respondent issued 2 bills for fees and disbursements incurred for DC 1043. The first was issued on 15 January 2019 for the sum of $37,694.15 and the second was issued on 29 March 2019 for the sum of $6,687.95. 26 Kori’s 2nd Offer To Settle 148. Kori issued a 2nd OTS on 29 January 2019, which appears to have been received by the Respondent on 30 January 2019. By this time, Kori had paid the settlement sum of $236,187.75 and the only outstanding issue in DC 1043 was whether interest of $9,558.19 was payable by Kori. Kori’s 2nd OTS proposed that Kori would pay half the interest and parties would bear their own costs. 149. The Respondent sent a letter to the Complainant on 30 January 2019. The Respondent informed the Complainant that, at a hearing for DC 1043 that day, the trial Judge had indicated that the issue of interest could go either way and that it might be better for parties to settle. The Respondent advised the Complainant to make an offer for Kori to pay the interest of $9,588.19 and for parties to bear their own costs. The Respondent further updated the Complainant on Kori’s 2nd OTS and stated as follows: Please let us know whether you wish to: a) Accept half the interest; b) Push for the full interest; or c) Go for trial for the full interest and costs. We would advise you to push for the full interest as the Defendant is likely to pay if you don’t give up so easily. 150. The Complainant gave evidence that he met the Respondent on 30 January 2019 and the Respondent asked him which of the 3 options he wanted. The Complainant told the Respondent that he wanted option 3 because he thought that it was only right that Kori paid what was fully due to P&P. The Complainant testified, however, that the Respondent did not advise him that on the anticipated costs of DC 1043 proceeding all the way to trial only on the issue of the interest of $9,558.19. Neither did the Respondent advise him on the costs implications if P&P rejected Kori’s 2nd OTS but was ultimately unsuccessful in DC 1043. 151. The Respondent’s evidence was that the Complainant wanted to go for trial as he wanted costs. As such, no counter-offer was made by P&P to Kori’s 2nd OTS and DC 1043 went to trial. 152. On 16 August 2019, the Court dismissed DC 1043 and awarded costs, including indemnity costs from the date of Kori’s 2nd OTS, to Kori. In a letter dated 27 August 2019 from the Respondent to the Complainant, the Respondent stated that the Court in Suit 1255 had estimated the costs for DC 1043 to be $20,000, and that this amount had been deducted from an interim payment under Suit 1255. There is no evidence before this Tribunal as to the actual amount of costs paid by P&P to Kori in respect of DC 1043, or the date when the interim payment under Suit 1255 was made with a deduction of $20,000. 153. In our view, it is clear that the Respondent failed to comply with rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015. The Respondent did not perform the necessary 27 evaluation or give the required advice in relation to Kori’s 2nd OTS. The Respondent’s own letter acknowledged that the trial Judge had observed that the trial could go either way, and did not express any disagreement with this view. This meant that there was a possible, even significant, chance that P&P might not prevail at the trial of DC 1043. Yet, there was no discussion with the Complainant on balancing the benefits of recovering half the sum of $9,558.19 from Kori against the exposure of P&P to the legal costs and possible adverse costs orders of proceeding with the trial. Even if P&P prevailed at the trial, there was no certainty at all that the amounts and costs recovered from Kori would cover P&P’s actual legal costs payable to the Respondent. 154. Further, as highlighted earlier, legal fees and disbursements were being incurred by P&P for DC 1043. The Respondent issued a first bill on 15 January 2019 for legal fees and disbursements of $37,694.15 and a second bill on 29 March 2019 for legal fees and disbursements of $6,687.95. Evaluation of the use of alternative dispute resolution processes in DC 1043 155. On 27 July 2018, the Respondent sent a letter to the Complainant attaching a court-issued ADR form the particulars of which had already been filled in by the Respondent. This form stated that the Complainant wished to opt out of ADR. The letter asked the Complainant to sign the form and return it to the Respondent. It appears that the Complainant did as he was asked. 156. The Complainant’s evidence was that the Respondent did not advise him on ADR options in DC 1043 or that opting out of ADR would expose him to adverse costs orders. He also testified that he did not recall instructing the Respondent that he wished to opt out from ADR in DC 1043. On the other hand, the Respondent gave evidence under cross-examination that he had 2 discussions with the Complainant on ADR, respectively, before the filing of DC 1043 and before the letter of 27 July 2018 was sent to the Complainant. 157. The Law Society argued that the Respondent did not properly evaluate with the Complainant the use of ADR processes in DC 1043. On balance, even if we disregard the Respondent’s evidence which is not supported by attendance notes or documentary evidence, we decline to hold the Respondent in breach of rule 17(2)(e)(ii) of the PCR 2015. 158. It is not disputed that the Complainant signed the ADR form. It was not a complicated document, and the Complainant did not suggest that he did not understand what he was signing. His evidence was that, in February 2017, the Respondent had already explained ADR processes to him in relation to Suit 1255. It should also be borne in mind that DC 1043 was filed as a result of a dispute arising in relation to the Suit 1255 Settlement. In August 2017, before the Suit 1255 Settlement had been entered into, the Complainant had opted for mediation for Suit 1255 but ultimately did not pursue it. Further, the dispute in DC 1043 was simply whether the agreed settlement sum of $236,187.75 was payable to P&P immediately or only upon the delivery of the 28 judgment in Suit 1255. It was not the type of situation where ADR would have been considered a top priority. 159. Taking into account all the circumstances, we do not think there was a duty on the Respondent to take additional steps to evaluate with the Complainant the use of ADR processes in relation to DC 1043. We wish to make clear, however, that this conclusion does not detract from the breaches by the Respondent of rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the commencement of DC 1043 and Kori’s 1st OTS and 2nd OTS. G. SUIT 1167 160. The Law Society contended that the Respondent failed to advise the Complainant as required by rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the commencement of Suit 1167 as well as an OTS issued by P&P on 22 May 2018. The Law Society also argued that the Respondent failed to comply with rule 17(2)(e)(ii) of the PCR 2015, as he failed to evaluate with the Complainant the use of alternative dispute resolution processes. The commencement of Suit 1167 161. It will be recalled that P&P commenced Suit 1255 against Kori on 25 November 2016 in respect of invoices that had fallen due by that date. There were further invoices that fell due after that date. On 23 December 2016, the Respondent sent a letter of demand to Kori’s solicitors for the payment of these further invoices. However, it was only a year later on 11 December 2017 that P&P commenced Suit 1167 against Kori for the payment of these further invoices, that is, the sum of $342,821.05 plus interest. 162. The Law Society made 3 contentions in relation to the commencement of Suit 1167. 163. First, the Law Society submitted that the Respondent failed to advise the Complainant on the anticipated legal costs that would be incurred in commencing and prosecuting Suit 1167. While this appears to be supported by the evidence before this Tribunal, we do not think that there was a breach of rules 17(2)(e) and 17(2)(f) of the PCR 2015. As mentioned above, a solicitor’s duty to advise the client of anticipated legal costs is specifically governed by rule 17(3) of the PCR 2015. 164. Second, the Law Society submitted that the Respondent failed to evaluate with and advise the Complainant in relation to the timing of the filing of Suit 1167 with a view to preserve the option of consolidating it with Suit 1255. Consequently, Suit 1167 was filed so long after the commencement of Suit 1255 that consolidation of the 2 suits was no longer possible. 165. The Respondent’s evidence is that he had advised the Complainant on 25 November 2016 of the options of waiting until December 2016 to file a single suit, or to file 2 suits in November 2016 and December 2016 respectively and then seek 29 consolidation. According to the Respondent, the Complainant opted for 2 suits. This evidence has already been rejected as we have found that P&P commenced both Suit 1255 and Suit 1167 against Kori because the Complainant had not been advised by the Respondent of the option of filing a single suit in December 2016 covering all outstanding invoices. 166. Even assuming that the Respondent’s evidence is accepted, it does not explain why it took one year after the filing of Suit 1255 for P&P to commence Suit 1167. 167. The Respondent testified that the Complainant did not want to commence Suit 1167 in light of Kori’s issue of the Notice to Produce and other complications in Suit 1255. He also testified that Suit 1167 was not ready for filing until December 2017 because the Complainant did not have the necessary supporting documents. However, these general assertions are lacking in detail, and are not supported by attendance notes or other documentary evidence. There is also no evidence that the Respondent specifically advised or otherwise reminded the Complainant of the importance of filing Suit 1167 expeditiously in order to preserve the option of consolidation. 168. The Tribunal is therefore of the view that the Law Society’s contention is established. 169. Third, the Law Society submitted that the Respondent should have advised the Complainant of the option of waiting for the issue of the judgment in Suit 1255 instead of commencing Suit 1167 on 11 December 2017. The basis for this submission is as follows. 170. Prior to the commencement of Suit 1167, on 26 October 2017, Kori’s solicitors wrote to the Respondent. This letter stated that Kori had certified P&P’s outstanding invoices for an amount of $342,821.05, and requested that P&P issue invoices for this certified amount. However, Kori took the position that it would not pay the certified amount pending the resolution of their counterclaim in Suit 1255. On 27 October 2017, the Respondent forwarded and explained the letter to the Complainant and then stated as follows: We would advise you to check if you are agreeable to the new certification and if so to issue new invoices… These should be sent directly to Kori Construction (S) Pte Ltd with a copy to us. We would give Kori Construction (S) Pte Ltd 30 days to make payment and proceed to sue them after that. 171. On 15 November 2017, the Respondent forwarded to the Complainant a letter dated 9 November 2017 from Kori’s solicitors, which stated that Kori would not make payment of the sum of $342,821.05 until after Suit 1255 had been decided. The Respondent further stated to the Complainant: 30 We advise you to file a suit in the High Court on 6 December 2017 for this sum of $342,821.05. We will then proceed with summary judgment. 172. On 11 December 2017, P&P filed Suit 1167 against Kori for the payment of the sum of $342,821.05 plus interest. P&P’s application for summary judgment against Kori failed, and Suit 1167 proceeded to trial on 31 October 2018 and 1 November 2018. On 21 January 2019, the Court delivered judgment in favour of P&P for the sum claimed plus interest and costs. It should be noted that, by then, the judgment in Suit 1255 had already been issued. 173. This Tribunal is of the view that the Respondent clearly failed to fulfil his duties under rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015. The Respondent did not evaluate with the Complainant the risks and benefits of filing Suit 1167 as opposed to simply waiting for the issue of the judgment in Suit 1255. Based on the letter dated 26 October 2017 from Kori’s solicitors, Kori appeared to have agreed that it was liable to pay P&P the sum of $342,821.05, subject to any set-off against its counterclaim in Suit 1255. The first tranche of the trial of Suit 1255 had been completed on 20 October 2017 and would very likely, and did in fact, conclude sooner than a fresh suit like Suit 1167. Further, the conduct of Suit 1167 would cause P&P to incur significant costs but would offer no certainty that P&P would be able to recover the sum of $342,821.05 from Kori. 174. All these considerations would no doubt have prompted a responsible solicitor to advise the Complainant to seriously consider holding back the filing of a fresh suit and wait for the issue of the judgment in Suit 1255, and explain the reasons supporting and detracting from such a course. The Tribunal is unable to find that the Respondent discharged such a responsibility. 175. Under cross-examination, the Respondent stated that he discussed with the Complainant that Suit 1167 might overtake Suit 1255, since Suit 1167 involved only the Manpower Sub-contract and P&P could file for summary judgment. The Respondent testified that he thought that the summary judgment application would succeed, and that Suit 1167 would conclude quite quickly. One would have expected such important advice to be in writing, or evidenced by attendance notes. However, there is no documentary evidence indicating that such advice was given, or that there was any discussion between the Respondent and the Complainant on the various considerations pointing to one course of action or another. Moreover, the only documentary evidence containing relevant advice, namely, the Respondent’s letters to the Complainant dated 27 October 2017 and 15 November 2017, simply stated that P&P should file Suit 1167. There was no explanation of the risks and costs of doing so and no mention of the alternative of waiting for the issue of the judgment in Suit 1255. P&P’s Offer To Settle 176. On 22 May 2018, P&P issued an OTS in Suit 1167. In essence, the offer was for Kori to pay the sum of $350,000 in full and final settlement, plus interest and costs, within 14 days of acceptance. 31 177. The Law Society contended that this OTS was issued without any instructions from the Complainant. The Complainant’s evidence was that he found out about this OTS only when the Respondent forwarded the OTS to him on 22 May 2018. There is no documentary evidence that the draft OTS was sent to the Complainant, or of any discussions that the Respondent had with the Complainant on the OTS. 178. The Tribunal finds that the OTS was issued by the Respondent on behalf of P&P without the knowledge or instructions of the Complainant. It follows that the Respondent breached rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in this regard. Evaluation of the use of alternative dispute resolution processes in Suit 1167 179. The Respondent received a letter from the SMC dated 18 April 2018 providing information on mediation, but did not forward it to the Complainant. He also did not evaluate mediation or ADR with the Complainant. Under cross-examination, he explained that he had many discussions with the Complainant before the filing of Suit 1167 and the Complainant knew very well all about ADR. He testified that there was a discussion with the Complainant on ADR after the defence was filed. However, there were no documentary records or attendance notes of such a discussion. 180. The Tribunal rejects this evidence and finds that the Respondent did not discuss with the Complainant the use of ADR in relation to Suit 1167. To establish a breach of rule 17(2)(e)(ii) of the PCR 2015, it must also be shown that this was an appropriate case in which the Respondent should have evaluated the use of ADR processes with the Complainant. 181. The Tribunal is of the view that this was indeed an appropriate case. Suit 1167 was commenced on 11 December 2017 and involved the Steel Fabrication SubContract which was being litigated in Suit 1255. Much had transpired since the filing of Suit 1255 in November 2016 and the Respondent should have discussed the various developments with the Complainant and evaluated with him the use of ADR processes in Suit 1167. 182. For instance, in August 2017, the Complainant rejected ADR for Suit 1255. On 17 October 2017, the Suit 1255 Settlement was entered into between P&P and Kori on the Man-Power Contract, pursuant to which Kori agreed to pay $236,731.48 subject to P&P conceding a sum of $543.73 on Kori’s counterclaim. The first tranche of the trial of Suit 1255 was completed on 20 October 2017. By 11 December 2017, the settlement sum had not been made by Kori under the Suit 1255 Settlement. 183. In our view, it is not sufficient for the Respondent to say that the Complainant knew the ADR options for Suit 1167. Rule 17(2)(e)(ii) of the PCR 2015 is not fulfilled simply because a client is advised of or knows about ADR options. It requires the legal practitioner to evaluate the use of ADR processes with the client in an appropriate case. In an appropriate case, the legal practitioner has to discuss with and advise the client on the competing considerations, whether legal, financial or practical, in relation to the 32 use of ADR processes in the client’s matter. We find that the Respondent failed to do this in relation to Suit 1167. H. 4TH AND 5TH CHARGES - RULE 17(5) OF THE PCR 2015 184. Rule 17(5) of the PCR 2015 provides that if a client disputes or raises a query about a bill of a legal practitioner, the legal practitioner must inform the client in writing of the client’s right to apply to the court to have the bill taxed or review any fee agreement, unless the legal practitioner believes that the client knows, or reasonably ought to know, of that right. 185. The 4th and 5th Charges allege that the Respondent breached rule 17(5) of the PCR 2015 in or around February 2017 and January 2019 respectively. It is not disputed that the Respondent did not at any material time inform the Complainant in writing of his right to taxation. The Respondent’s response was that the Complainant did not dispute or raise any query about the Respondent’s bills in February 2017 or January 2019. 186. The Complainant’s AEIC stated that he approached the Respondent in February 2017 to question the quantum of the Respondent’s bills as P&P had financial constraints. Under cross-examination, the Complainant’s evidence was different. He recounted that he had a disagreement with the Respondent in February 2017 in the Respondent’s office. However, this was because the Respondent wanted the Complainant to pay the outstanding invoices and told him to “get out”. The Complainant responded that he would pay the invoices. 187. In the circumstances, the Tribunal is unable to find that the Complainant disputed or raised a query about the Respondent’s bills in February 2017. 188. With respect to January 2019, the Law Society relied on 3 instances of the Complainant allegedly disputing or raising queries on the Respondent’s invoices. 189. First, the Complainant gave evidence that, on 22 or 23 January 2019, he expressed unhappiness with the Respondent’s invoice of $99,841.60 for Suit 1167. The Respondent then gave a reduction of $23,500 by issuing a fresh invoice. However, there is no evidence that the Complainant remained unhappy, or continued to dispute or raise query, after this discount of $23,500. As such, the Tribunal is unable to find that the Respondent’s duty to inform the Complainant in writing of the right to taxation had arisen. 190. Second, on 28 January 2019, the Respondent wrote to inform the Complainant that he was not agreeable to the Complainant’s request that the payment received from Kori in Suit 1167 be used to pay the invoices for Suit 1167 and not other invoices. The Law Society submitted that this showed that the Complainant had earlier approached the Respondent and questioned him about the invoices, and that there was therefore a dispute on the invoices. The Tribunal is unable to accept this submission. Such an inference cannot be drawn from the Respondent’s letter dated 28 January 2019. Further, 33 the Complainant himself did not in his AEIC allege that the Respondent’s letter dated 28 January 2019 was issued as a result of the Complainant raising a dispute on the Respondent’s invoices. 191. Third, the Law Society referred to an email received by the Complainant on 10 January 2019 from Jurong Town Corporation, the landlord of P&P’s office premises, stating that it would proceed with legal action unless there was full settlement of rental arrears. The Complainant’s evidence was that he met the Respondent and asked for a portion of the payment received as a result of the Suit 1255 Settlement and the judgment in Suit 1167 to be paid to P&P so that it could pay the rental arrears. The Respondent refused. The Complainant also testified that he took the opportunity to question the basis of the Respondent’s invoices as he believed them to be too high. 192. The Respondent’s evidence was that the Complainant never raised the rental arrears with him, or asked for a portion of the money received as a result of the Suit 1255 Settlement and the judgment in Suit 1167 to be used to pay the rental arrears. 193. The email from Jurong Town Corporation no doubt would have put pressure on the Complainant to pay the rental arrears. It would not be surprising if this prompted the Complainant to approach the Respondent for money to pay the rental arrears. However, this by itself does not make it probable that the Complainant would also have questioned the Respondent’s invoices. 194. The Law Society pointed out that the Respondent did not have documentary records or attendance notes of his meeting with the Complainant on or around 10 January 2019. However, this does not assist the Law Society in this instance as the Respondent’s position was that no such meeting took place. Further, the Tribunal notes that, when the Complainant subsequently made a request that the moneys recovered in Suit 1167 be used to pay only the invoices for that Suit, the Respondent declined this request by way of a letter dated 28 January 2019. This letter did not refer to any earlier request by the Complainant for the release of a greater sum of money for the payment of P&P’s rental arrears, or any dispute raised by the Complainant on the Respondent’s invoices. 195. On balance, therefore, the Tribunal is not persuaded that the Complainant questioned the basis of the Respondent’s invoices on or around 10 January 2019. As such, we find that the 4th and 5th Charges are not made out. I. 6TH CHARGE – RULE 5(2)(C) OF THE PCR 2015 196. The 6th Charge and Alternative 6th Charge state that the Respondent breached rule 5(2)(c) of the PCR 2015 in relation to his representation of P&P in Suit 1255, DC 1043 and Suit 1167, that is, he failed to act with reasonable diligence and competence in the provision of services to P&P in those legal proceedings. The particulars of the breach stated in the Charges overlapped substantially with the allegations in the 2nd and 3rd Charges and their Alternative Charges, but included new particulars such as a failure to keep accurate timesheets. 34 197. However, the Law Society’s position was that it would not proceed with the 6th Charge and Alternative 6th Charge if both the 2nd and 3rd Charges (or their respective Alternative Charges) are established. Given the Tribunal’s findings on these latter Charges, therefore, it is not necessary to consider the 6th Charge or Alternative 6th Charge. We consider the 6th Charge to be deemed withdrawn by the Law Society in view of our findings on the 2nd and 3rd Charges and the Law Society’s position as aforesaid. J. PROPOSED 7TH CHARGE – RULE 17(2)(A) OF THE PCR 2015 198. After the filing of closing and reply submissions by the parties, the Tribunal queried the parties as to whether rule 17(2)(a) of the PCR 2015 was relevant to this case. This rule provides that a legal practitioner must not undertake work in a manner that unnecessarily or improperly increases the costs that are payable to the legal practitioner. 199. A further hearing was convened to consider this issue. The Law Society was of the view that rule 17(2)(a) of the PCR 2015 is indeed relevant, and sought leave to prefer a proposed 7th Charge and Alternative 7th Charge (set out in full in the Appendix) against the Respondent for breach of the rule. Although the allegations in these Charges still relate to the Respondent’s conduct of Suit 1255, DC 1043 and Suit 1167, they specifically refer to the following: (a) the commencement of Suit 1255 and Suit 1167 when an adjudication under SOPA would be the appropriate course of action to take; (b) the resisting of SUM 431 and RA 44 in Suit 1255; (c) the filing of SUM 5237 and SUM 5616 in Suit 1255; (d) the entry into the Suit 1255 Settlement without reducing it in writing or getting an agreement on the material terms as to the payment of the settlement sum, and the consequent filing of SUM 1394 and commencement of DC 1043; and (e) The commencement of Suit 1167 one year after the commencement of Suit 1255, such that it had to be prosecuted as a separate and independent suit. 200. The Charges also recount that, despite such conduct, the Respondent proceeded to bill P&P a total of $423,880.96 (including GST and disbursements). 201. The Law Society took the position that the proposed Charges would be proceeded with irrespective of whether the 2nd and 3rd Charges (or their respective Alternative Charges) are established. In other words, even though the conduct alleged in the proposed 7th Charge and Alternative 7th Charge overlapped very substantially with the facts relied upon for the 2nd and 3rd Charges (or their respective Alternative 35 Charges), the Respondent was to be additionally charged with the contravention of rule 17(2)(a) of the PCR 2015. 202. It is clear that this Tribunal has the power to prefer the additional Charges against the Respondent under section 89(4) of the Legal Profession Act, provided that proper notice of the allegations is given to him and he has a reasonable opportunity to deal with any complaint levelled against him (Law Society of Singapore v Tan Puay Khiang [2007] 3 SLR(R) 477 at [50]-[51]). It is similarly clear that the contravention of rule 17(2)(a) of the PCR 2015 is a different disciplinary offence from the contravention of rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 which is the subject of the 2nd and 3rd Charges (and their respective Alternative Charges). There is no risk of the Respondent being punished twice for the same offence. 203. The critical issue is whether this Tribunal should exercise its statutory jurisdiction to allow the additional Charges in all the circumstances of this case. As will be explained below, we will not allow the Law Society to prefer a proposed 7th Charge and Alternative 7th Charge. 204. The Law Society’s application to introduce the additional Charges was made only after the trial had been completed and closing submissions had been exchanged, in response to a query raised by the Tribunal as to the relevance of rule 17(2)(a) of the PCR 2015 to the case. There was no suggestion by the Law Society that additional AEICs or the recalling of witnesses would be necessary. In fact, the Law Society took the position that the additional Charges would be based on the facts already before this Tribunal. The Law Society also submitted that the Respondent had already been afforded a reasonable opportunity to deal with the complaint in the additional Charges as he had been cross-examined on the necessity and propriety of his actions and had addressed the reasons for his actions in his Defence and submissions. 205. In our opinion, given the course of the proceedings, the introduction of the additional Charges at such a late stage in the proceedings would be unfair and prejudicial to the Respondent. The focus of the additional Charges is whether the Respondent undertook work in a manner that unnecessarily or improperly increased the costs that were payable to him. This is fundamentally different from the issues in the 2nd and 3rd Charges (and their respective Alternative Charges) as to whether the Respondent had conducted the evaluation and dispensed the advice required by rules 17(2)(e) and 17(2)(f) of the PCR 2015. 206. The AEICs and cross-examination of the Complainant and the Respondent did not deal specifically with the issue of whether there had been breaches of rule 17(2)(a) of the PCR 2015. No case on a breach of rule 17(2)(a) of the PCR 2015 was put to the Respondent under cross-examination. The primary inquiry was whether the Respondent, in each of the relevant instances in the conduct of Suit 1255, DC 1043 and Suit 1167, had evaluated with the Complainant the expense or risk involved in a particular course of action or the use of ADR processes, or had advised the Complainant on the relevant legal issues to enable him to make an informed decision about how to act. We do not think it can safely be said that, based solely on the proceedings before 36 this Tribunal, the Respondent has had a reasonable opportunity of meeting a case based on a breach of rule 17(2)(a) of the PCR 2015. 207. Further, if the additional Charges are introduced, the question of whether the sum of $423,880.96 (including GST and disbursements) billed by the Respondent to P&P is reasonable may become relevant. The Respondent may conceivably take the position that his fees would have been the same even if he had conducted the legal proceedings in a manner regarded by the Law Society as necessary and proper. The Law Society may also dispute this position. There is little evidence in these proceedings, if any, that assists the Tribunal on this question. 208. Finally, we place some weight on the lateness of the Law Society’s application to introduce the additional Charges. It is not clear why Charges based on a breach of rule 17(2)(a) of the PCR 2015 were not introduced much earlier, since the other Charges were already relying on breaches of other limbs of rule 17(2) of the PCR 2015. We acknowledge the constraints under which the Law Society has to operate when conducting a prosecution based on the evidence of a layman complainant, and we do not suggest any lack of diligence on the part of the Law Society. However, save in exceptional circumstances, it is generally undesirable that a respondent should be faced with new charges near what he reasonably assumed was the conclusion of the disciplinary proceedings. K. SUMMARY OF FINDINGS AND CONCLUSIONS 209. This Tribunal finds that the Respondent breached rules 17(2)(e)(i) and 17(2)(f) of the PCR 2015 in relation to the following: (a) the commencement of Suit 1255; (b) resisting Kori’s application for production of documents in SUM 413 and filing RA 44 against the Assistant Registrar’s decision in SUM 413; (c) the filing of SUM 1394 in relation to the Suit 1255 Settlement without the instructions of the Complainant; (d) the filing of SUM 5237 and SUM 5616 in Suit 1255 seeking third-party discovery against Taisei and leave to call further witnesses for trial; (e) the commencement of DC 1043; (f) Kori’s 1st OTS in DC 1043; (g) Kori’s 2nd OTS in DC 1043; and (h) the commencement of Suit 1167. 37 210. This Tribunal also finds that the Respondent breached rule 17(2)(f) of the PCR 2015 by making proposals for costs on behalf of P&P to Taisei and Kori in Suit 1255 without the instructions of the Complainant. This Tribunal further finds that the Respondent breached rule 17(2)(e)(ii) of the PCR 2015 in that he failed to evaluate with the Complainant the use of ADR processes in Suit 1167. 211. The above breaches of the PCR 2015 amount to improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Legal Profession Act. 212. We would also like to record that, in our view, the findings are established beyond a reasonable doubt, which is the applicable standard of proof in these proceedings (Law Society of Singapore v Dhanwant Singh [2020] 4 SLR 736 at [116]). Consequently, we find the Respondent guilty of the 2nd and 3rd Charges. 213. We further determine, pursuant to section 93(1)(c) of the Legal Profession Act, that cause of sufficient gravity for disciplinary action exists under section 83 of the Legal Profession Act. We note the observations in Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 and Law Society of Singapore v Constance Margreat Paglar [2021] 4 SLR 382 that only the most serious cases should be heard by the Court of Three Judges. We are satisfied that this is a serious case that warrants the attention of the Court of Three Judges for the following principal reasons: (a) The breaches of rules 17(2)(e) and 17(2)(f) of the PCR 2015 were not one-off breaches but form a pattern of irresponsible and unprofessional conduct by the Respondent over a period of almost 3 years. (b) It is clear that the Respondent knew of his duties under the relevant rules at the material times and he did not assert to the contrary. The breaches were not committed merely as a result of the Respondent's lack of care or awareness of his professional duties. (c) The breaches relate to the same client and essentially the same dispute with Kori. The breaches caused or contributed to the lamentable situation where 3 separate suits were commenced by P&P against Kori, and various applications were filed in the suits by P&P and rejected by the courts with costs. The resulting inefficiency and waste of resources, as well as the significant prejudice visited upon P&P and the Complainant, are apparent. Although P&P substantially prevailed in its dispute with Kori, it received only a sum of $185,757.26, after deductions on account of the Respondent’s bills and the payment of costs ordered by the Court. In contrast, the Respondent billed P&P a total of $423,880.96 (including GST and disbursements) for Suit 1255, DC 1043 and Suit 1167. (d) It would have been clear to the Respondent that the Complainant, although a businessman, was not familiar with legal proceedings and procedures and was suffering financial stress as a result of the dispute with Kori. However, the 38 Respondent completely failed to give the Complainant the professional advice and guidance that was sorely needed to navigate through P&P’s legal troubles. 214. For completeness, and with respect to the other Charges: (a) The 1st Charge (and Alternative 1st Charge) have been stayed (for reasons set out in our Interim Report dated 24 May 2021); (b) We find that the 4th and 5th Charges are not made out for the reasons stated at paragraphs 184 to 195; (c) We consider the 6th Charge to be deemed withdrawn by the Law Society in view of our findings on the 2nd and 3rd Charges and the Law Society’s stated position; and (d) We will not allow the Law Society to prefer a proposed 7th Charge and Alternative 7th Charge for the reasons stated at paragraphs 198 to 208. 215. Finally, pursuant to Section 93(2) of the Legal Profession Act, the Tribunal orders the Respondent to pay the Law Society’s costs, the amount of such costs to be agreed or taxed by the Registrar. Dated this 27th day of May 2022 LEE ENG BENG, SC PRESIDENT WONG SIEW HONG ADVOCATE & SOLICITOR 39 APPENDIX 1st Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 at Blk 726 Ang Mo Kio Avenue 6, #01-4152, Ang Mo Kio Town Centre, Singapore 560726, did charge Krishnamoorthy Pugazendhi, director of P&P Engineering & Construction Pte Ltd fees of $423,880.96 for work done by you as their solicitor for the period 25 November 2016 to 24 August 2019, as evidenced by your invoices for HC/S 1255/2016; DC/DC 1043/2018 and HC/S 1167/2017, which fees were in excess of and disproportionate to what you were fairly entitled to charge for the services you rendered to the said Krishnamoorthy Pugazendhi, director of P&P Engineering & Construction Pte Ltd, and such overcharging by you amounts to a breach of Rule 17(7) of the Legal Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) as amounting to improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161). Alternative 1st Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 at Blk 726 Ang Mo Kio Avenue 6, #01-4152, Ang Mo Kio Town Centre, Singapore 560726, did charge one Krishnamoorthy Pugazendhi, director P&P Engineering & Construction Pte Ltd, fees of $423,880.96 for work done by you as their solicitor for the period 25 November 2016 to 24 August 2019, as evidenced by your invoices for HC/S 1255/2016; DC/DC 1043/2018 and HC/S 1167/2017, which fees were in excess of and disproportionate to what you were fairly entitled to charge for the services you rendered to the said Krishnamoorthy Pugazendhi, director P&P Engineering & Construction Pte Ltd, and such overcharging by you amounts to a breach of Rule 17(7) of the Legal 40 Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) and such conduct by you amounts to misconduct unbefitting of an Advocate and Solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. 2nd Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, failed to properly and periodically advise one Krishnamoorthy Pugazendhi (the “Complainant”), director of P&P Engineering & Construction Pte Ltd (“P&P”) of the anticipated legal fee that might be incurred in representing P&P in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 throughout the Material Time, failed to properly and periodically evaluate with the Complainant whether any consequence of the matters involving the Complainant and/or P&P justified the expense of, or the risk involved in, pursuing the matters in litigation throughout the Material Time, and failed to properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes throughout the Material Time, and despite such failures, proceeded to bill P&P a total of $423,880.96 (including GST and disbursements), and such failure by you amounts to a breach of Rule 17(2)(e) of the Legal Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) as amounting to improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161). 41 Alternative 2nd Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, failed to properly and periodically advise one Krishnamoorthy Pugazendhi (the “Complainant”), director of P&P Engineering & Construction Pte Ltd (“P&P”) of the anticipated legal fee that might be incurred in representing P&P in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 throughout the Material Time, failed to properly and periodically evaluate with the Complainant whether any consequence of the matters involving the Complainant and/or P&P justified the expense of, or the risk involved in, pursuing the matter in litigation throughout the Material Time, and failed to properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes throughout the Material Time, and despite such failures, proceeded to bill P&P a total of $423,880.96 (including GST and disbursements), and such failure by you amounts to a breach of Rule 17(2)(e) of the Legal Profession (Professional Conduct) Rules 2015, and such conduct by you amounts to misconduct unbefitting of an Advocate and Solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. 3rd Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, failed to properly and periodically advise one Krishnamoorthy Pugazendhi (the “Complainant”) of the relevant legal issues in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 throughout the Material Time, such that the Complainant was able to make an informed decision about how to act in those matters at the Material Time, and such failure by you amounts to a breach of Rule 17(2)(f) of the Legal 42 Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) as amounting to improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161). Alternative 3rd Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, failed to properly and periodically advise one Krishnamoorthy Pugazendhi (the “Complainant”) of the relevant legal issues in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 throughout the Material Time such that the Complainant was able to make an informed decision about how to act in those matters at the Material Time, and such failure by you amounts to a breach of Rule 17(2)(f) of the Legal Profession (Professional Conduct) Rules 2015, and such conduct by you amounts to misconduct unbefitting of an Advocate and Solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. 4th Charge You, Andrew John Hanam, are charged that between in or around February 2017 at Blk 726 Ang Mo Kio Avenue 6, #01-4152, Ang Mo Kio Town Centre, Singapore 560726, when one Krishnamoorthy Pugazendhi (the “Complainant”) raised questions and/or dispute on the Respondent’s invoices, failed to inform the Complainant in writing of the Complainant’s right to apply to court to have all of the Respondent’s invoices taxed, and such failure by you amounts to a breach of Rule 17(5) of the Legal Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) as amounting to improper 43 conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161). Alternative 4th Charge You, Andrew John Hanam, are charged that between in or around February 2017 at Blk 726 Ang Mo Kio Avenue 6, #01-4152, Ang Mo Kio Town Centre, Singapore 560726, when one Krishnamoorthy Pugazendhi (the “Complainant”) raised questions and/or dispute on the Respondent’s invoices, failed to inform the Complainant in writing of the Complainant’s right to apply to court to have all of the Respondent’s invoices taxed, and such failure by you amounts to a breach of Rule 17(5) of the Legal Profession (Professional Conduct) Rules 2015, and such conduct by you amounts to misconduct unbefitting of an Advocate and Solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. 5th Charge You, Andrew John Hanam, are charged that between in or around January 2019 at Blk 726 Ang Mo Kio Avenue 6, #01-4152, Ang Mo Kio Town Centre, Singapore 560726, when one Krishnamoorthy Pugazendhi (the “Complainant”) raised questions and/or dispute on the Respondent’s invoices, failed to inform the Complainant in writing of the Complainant’s right to apply to court to have all of the Respondent’s invoices taxed, and such failure by you amounts to a breach of Rule 17(5) of the Legal Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) as amounting to improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161). 44 Alternative 5th Charge You, Andrew John Hanam, are charged that between in or around January 2019 at Blk 726 Ang Mo Kio Avenue 6, #01-4152, Ang Mo Kio Town Centre, Singapore 560726, when one Krishnamoorthy Pugazendhi (the “Complainant”) raised questions and/or dispute on the Respondent’s invoices, failed to inform the Complainant in writing of the Complainant’s right to apply to court to have all of the Respondent’s invoices taxed, and such failure by you amounts to a breach of Rule 17(5) of the Legal Profession (Professional Conduct) Rules 2015, and such conduct by you amounts to misconduct unbefitting of an Advocate and Solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. 6th Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, failed to (i) properly advise one Krishnamoorthy Pugazendhi (the “Complainant”), director of P&P Engineering & Construction Pte Ltd (“P&P”), of the anticipated legal fee that might be incurred in representing P&P in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 throughout the Material Time, and/or (ii) properly and periodically advise the Complainant of the relevant legal issues in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 throughout the Material Time such that the Complainant was able to make an informed decision about how to act in those matters at the Material Time, and/or (iii) to evaluate properly and periodically with the Complainant throughout the Material Time whether any consequence of the matters involving the Complainant and/or P&P justified the expense of, or the risk involved in, pursuing the matters in litigation, and/or (iv) properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes throughout the Material Time , and/or (v) failed to keep accurate timesheets for the work done in HC/S 1255/2016, 45 DC/DC 1043/2018 and HC/S 1167/2017 such that the said total bill can be justified, and despite such failures, proceeded to bill P&P a total of $423,880.96 (including GST and disbursements), and such failure by you amounts to a breach of Rule 5(2)(c) of the Legal Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) as amounting to improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161). Alternative 6th Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, failed to (i) properly advise one Krishnamoorthy Pugazendhi (the “Complainant”), director of P&P Engineering & Construction Pte Ltd (“P&P”), throughout the Material Time of the anticipated legal fee that might be incurred in representing P&P in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017, and/or (ii) properly and periodically advise the Complainant throughout the Material Time of the relevant legal issues in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 such that the Complainant was able to make an informed decision about how to act in those matters, and/or (iii) to evaluate with the Complainant throughout the Material Time whether any consequence of the matters involving the Complainant and/or P&P justified the expense of, or the risk involved in, pursuing the matters in litigation, and/or (iv) properly and periodically evaluate with the Complainant the use of alternative dispute resolution processes throughout the Material Time , and/or (v) failed to keep accurate timesheets for the work done in HC/S 1255/2016, DC/DC 1043/2018 and HC/S 1167/2017 such that the said total bill can be justified, and despite such failures, proceeded to bill P&P Engineering & Construction Pte Ltd (“P&P”) a total of $423,880.96 (including GST and disbursements), and such failure by you amounts to a breach of Rule 5(2)(c) of the Legal Profession 46 (Professional Conduct) Rules 2015, and such conduct by you amounts to misconduct unbefitting of an Advocate and Solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. Proposed 7th Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, did undertake work in a manner that unnecessarily or improperly increased the costs charged for your services to P&P Engineering & Construction Pte Ltd (“P&P”), to wit by (a) commencing HC/S 1255/2016 (“Suit 1255”) and HC/S 1167/2017 (“Suit 1167”) on behalf of P&P to pursue P&P’s claims against Kori Construction (S) Pte Ltd (“Kori”) when an adjudication commenced under the Building and Construction (Security of Payment) Act would be the appropriate course of action to take, (b) in Suit 1255, causing P&P to: (i) resist HC/SUM 431/2017 and file HC/RA 44/2017, (ii) file HC/SUM 5237/2017 and HC/SUM 5616/2017, and (iii) entering a settlement agreement with Kori on or about 27 October 2017 without reducing it in writing or getting an agreement on the material terms as to the payment of the sums under the said settlement agreement, and therefore causing P&P to file HC/SUM 1394/2018 on a wrong legal basis, and subsequently DC/DC 1043/2020, and (c) in Suit 1167, causing P&P commence Suit 1167 one year after the commencement of Suit 1255 and therefore caused Suit 1167 to be prosecuted as a separate and independent suit, and despite your aforementioned conduct at (a) to (c), you proceeded to bill P&P a total of $423,880.96 (including GST and disbursements), and such conduct by you amounts to a breach of Rule 17(2)(a) of the Legal Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) as amounting to improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161). 47 Proposed Alternative 7th Charge You, Andrew John Hanam, are charged that between 25 November 2016 and 24 August 2019 (the “Material Time”) at Blk 726 Ang Mo Kio Avenue 6, #014152, Ang Mo Kio Town Centre, Singapore 560726, did undertake work in a manner that unnecessarily or improperly increased the costs charged for your services to P&P Engineering & Construction Pte Ltd (“P&P”), to wit by (a) commencing HC/S 1255/2016 (“Suit 1255”) and HC/S 1167/2017 (“Suit 1167”) on behalf of P&P to pursue P&P’s claims against Kori Construction (S) Pte Ltd (“Kori”) when an adjudication commenced under the Building and Construction (Security of Payment) Act would be the appropriate course of action to take, (b) in Suit 1255, causing P&P to: (i) resist HC/SUM 431/2017 and file HC/RA 44/2017, (ii) file HC/SUM 5237/2017 and HC/SUM 5616/2017, and (iii) entering a settlement agreement with Kori on or about 27 October 2017 without reducing it in writing or getting an agreement on the material terms as to the payment of the sums under the said settlement agreement, and therefore causing P&P to file HC/SUM 1394/2018 on a wrong legal basis, and subsequently DC/DC 1043/2020, and (c) in Suit 1167, causing P&P commence Suit 1167 one year after the commencement of Suit 1255 and therefore caused Suit 1167 to be prosecuted as a separate and independent suit, and despite your aforementioned conduct at (a) to (c), you proceeded to bill P&P a total of $423,880.96 (including GST and disbursements), and despite your aforementioned conduct at (a) to (c), you proceeded to bill P&P a total of $423,880.96 (including GST and disbursements), and such conduct by you amounts to a breach of Rule 17(2)(a) of the Legal Profession (Professional Conduct) Rules 2015, and you have thereby breached a rule of conduct made by the Council under the provisions of the Legal Profession Act (Cap. 161) and such conduct by you amounts to misconduct unbefitting of an Advocate and Solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. 48 ",2025-01-11T01:00:46+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2025/,"In the Matter of Andrew John Hanam (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2025/",1149 49,39a02c7912e0100a11422e30640abce60f1314ca,"In the Matter of Ezekiel Peter Latimer (Respondent), Advocate & Solicitor","In the Matter of Ezekiel Peter Latimer (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from a complaint lodged by three Complainants, Chung Fook Keong Melvin (Mr Chung), Doan Thi Thanh Thuy (Ms Thuy) and Pang Kia Phoo (Mr Pang), in respect of his conduct as an advocate and solicitor and in relation to events that took place between 2016 and 2019. The complaint is grouped into two categories: (a) Ms Thuy’s appointment as a director of a Company (the Company); and (b) the Respondent’s conduct of a lawsuit (the Lawsuit), which was commenced by Ms Thuy and Mr Chung. The Respondent had previously been engaged by Ms Thuy and Mr Chung in a separate matter. Later, the Respondent approached Ms Thuy to be a director of the Company, to which Ms Thuy agreed. The Respondent had been engaged to act for the Company. Before agreeing she asked if it was safe for her to be a director of the Company. She was unaware that the Company had an ongoing legal case with another company (the Creditor), in which the Creditor subsequently obtained final judgment against the Company, and filed an application against the Company for the examination of judgement debtor (EJD). The Court made several orders for Ms Thuy to attend Court to be orally examined on the debts of the Company, which she failed to attend. The Creditor commenced committal proceedings against Ms Thuy for breach of EJD orders. The Respondent filed another Notice of Appointment to represent Ms Thuy as a non-party, but neither Ms Thuy nor the Respondent attended the hearing on 2 April 2018. As a result, a warrant of arrest was issued against Ms Thuy, which was discharged by the Court subject to conditions which included the requirement that Ms Thuy must provide security and surrender her passport to the Sheriff. Ms Thuy’s application seeking a release of her passport was granted on condition that a surety be provided to secure the return of her passport after 30 days. Pursuant to this, the Respondent gave a personal undertaking to the Court (Personal Undertaking). Facts in Relation to the Respondent’s Conduct of the Lawsuit In or around 2017, Mr Chung and Ms Thuy engaged the Respondent to commence the Lawsuit. In the course of proceedings, the Defendants’ solicitors requested a copy of the documents in the Plaintiffs’ list of documents. Subsequently, the Defendants obtained an order for specific discovery against Ms Thuy and Mr Chung, which also ordered that unless Ms Thuy and Mr Chung filed and served the affidavit and exhibits they were directed to disclose by a specified date, their claims against the Defendants would be dismissed without further order (Unless Order). Instead of arranging for Ms Thuy and Mr Chung to depose to the affidavit as directed in the Unless order, the Respondent filed a solicitor’s affidavit in purported compliance with the Unless Order. However, the Court found that this was not in compliance with the Unless Order and consequently that Ms Thuy and Mr Chung were in breach of the Unless Order. The claim in the Lawsuit was therefore dismissed and Ms Thuy and Mr Chung were ordered to pay the Defendants the costs of the proceedings fixed at S$5,500. Following these orders, the Respondent filed summonses to: (1) appeal the striking out of the claim in the Lawsuit; and (2) seek leave to file the Notice of Appeal out of time. However, the Respondent withdrew both summonses. As a result, multiple costs orders were made against Ms Thuy and Mr Chung, totaling to a sum of S$7,800 (Costs Orders). This led to the Defendants filing a Writ of Seizure and Sale (WSS) to enforce the Costs Orders, which was duly executed when various assets belonging to Ms Thuy were seized on 17 October 2018, with such assets having been pledged to Mr Pang previously. The following main charges, referencing section 83(2)(b) of the Act for grossly improper conduct in the discharge of professional duty as an advocate and solicitor, were preferred against the Respondent: First Charge Failing to disclose to Ms Thuy information that would reasonably affect her interests, thereby breaching rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 161) (PCR). Second Charge Failing to withdraw from representing Ms Thuy in Court Proceedings despite the fact that there was a reasonable expectation of a conflict between his duty to serve the best interests of Ms Thuy as his client and his own personal interest, thereby breaching rule 22(2) of the PCR. Third Charge Failing to act with reasonable diligence and competence in the provision of services to Ms Thuy and Mr Chung in respect of the Suit, thereby breaching rule 5(2)(c) of the PCR. Fourth Charge Failing to keep Ms Thuy reasonably informed of the progress of the Suit, thereby breaching rule 5(2)(e) of the PCR. Findings of the Disciplinary Tribunal (DT) The DT found that the First Charge had been made out, and that the Respondent’s conduct was in breach of Rule 5(2)(b) of the PCR and amounted to improper conduct under section 83(2)(b) of the Legal Profession Act (the Act). The DT found that the Second Charge was made out, and that the Respondent’s conduct was in breach of Rule 22 of the PCR and amounted to improper conduct under section 83(2)(b) of the Act. The DT found that the Third Charge was made out, and that the Respondent’s conduct was in breach of Rule 5(2)(c) of the PCR and amounted to improper conduct under section 83(2)(b) of the Act. The DT found that the Fourth Charge had been proven, and constituted a breach of Rule 5(2)(e) of the PCR and amounted to improper conduct under section 83(2)(i) of the Act. The DT ordered costs against the Respondent in the sum of S$9,000. Court of Three Judges The Court ordered that the Respondent be struck off the Roll. The Court further ordered that the Respondent pay costs of S$25,000. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2025/01/Jan_25_Peter_Ezekial_DT_Report_compressed.pdf,"DT/SEC/O312022 In the Matter of Ezekiel Peter Latimer an Advocate & Solicitor And In the Matter of the Legal Profession Act 1966 REPORT OF THE DISCPLINARY TRIBUNAL DISCPLINARY TRIBUNAL President: Ms Kuah Boon Theng' SC Advocate & Solicitor: Mr Sanjiv Rajan Solicitors for the Law Societv of The Resnondent ( Singapore Ezekiel Peter Latimer Thing Ms Angelia Thng Ms Tang Kai Qing Ms Nicole Lee Braddell Brothers LLP 11 Beach Road, #04-01 Singapore 189675 Ref: ATYT/TKQ/20220008 Dated this pc. 0 4th day of May 2023 in oerson) I L Introduction I On 3 June 2020, the complainants, Chung Fook Keong Melvin (""Mr Chung""), Doan Thi Thanh Thuy (""Ms Thuy"") and Pang Kia Phoo (""Mr Pang"") lodged a complaint against the Respondent in respect of his conduct as an advocate and solicitor and in relation to events that took place between 2016 and 2019 (""Complaint""). 2 The Respondent was admitted to the Bar in 1996. He does not currently hold a valid practising certificate, having been suspended from practice since I April2019 as a result of two prior disciplinary proceedings. His current suspension will continue until3l March 2024. J In the present proceedings, the Respondent faces 4 charges and 4 alternative charges pursuant to sections 83(2)(b) and 83(2)(h) of the Legal Profession Act 1966 (""LPA"") respectively. II. Background facts 4. The background facts can be grouped into two categories: (1) those relating to Ms Thuy's appointment as a director of a Singapore registered company called Hang Huo Energy Pte Ltd (""Company""); and (2) those involving the Respondent's conduct of MC/MC 1656212017 (""MC 16562""), which was a suit commenced by Ms Thuy and Mr Chung in the State Courts. 2 Facts in relation to Ms Thuy's appointment as a Director of the Company 5. The Respondent first became Ms Thuy and Mr Chung's lawyer in 2015 when he was appointed to act for them in an adoption matter. Sometime in or around2016, the Respondent asked Ms Thuy if she was keen to be a director of the Company' He informed her that the role was a temporary one, and that the director she was supposed to replace was undergoing medical treatment and would retum once he had completed his treatment.l Ms Thuy agreed and was appointed a director on 8 October 2016. There was no dispute that Ms Thuy took up the appointment only after she had asked the Respondent if it was safe for her to be a director of the Company. However, what the Respondent said in response to her 9uerY, and the capacity in which the Respondent provided that advice, is a point of contention between the parties. 6. The Respondent claimed that he told Ms Thuy that the Company had been involved in a lawsuit with a Malaysian-registered company known as Horizon Petroleum Limited (Malaysia Registration No. LL04373) (""[IPL"") (namely, HC/S 124812014 (""S 1248"")) but that the case oohad been settled between the parties"" and""she would not have any personal liabitity in respect of this Suit 1248/2014'.2 Unbeknownst to Ms Thuy, S 1248 was still an ongoinq legal case and concerned a debt owed under ITranscript (10 Aug) atpp4l-42,1nes27-2;Affidavitof Evidence-in-Chief (""AEIC"") of DoanThi Thanh Thuy at [0] and AEIC of Chung Fook Cheong Melvin at [0]. Contrary to what the Respondent stated, the ""Mr Lim"" he referred to as a director was not actually a director of the Company. 2 Respondent's Affidavit at [7] J a settlement agreement which the Company had entered into with HPL, for which the Company had failed to make any of the agreed payments.3 7 HPL subsequently obtained final judgment against the Company on 20 February 2017J On 5 June 2017, HPL filed an application against the Company for the examination ofjudgment debtor (""EJI)""). In the EJD proceedings, the Court made six orders (dated 26 July 2017s,22 September 20176,20 October 20171 ,l0 November 20178, 1 December 2017e and 22 December 20171\ for Ms Thuy to attend Court and be orally examined on the debts of the Company.ll However, in breach of the EJD orders, she failed to attend these proceedings.l2 At some point during these events, the Respondent would have been aware of the EJD proceedings as he was engaged to act for the Company and proceeded to file a Notice of Appointment on behalf of the Company on 20 October 2017 (the same date as the 3rd EJD order).13 8 On23 January 2018, HPL filed an application for leave to commence committal proceedings against Ms Thuy for breach of the EJD orders.ra Shortly thereafter on 3 Prosecution's Bundle of Documents (""PBD"") Tab 1, in particular paragraphs 3 to 12 of the Statement of Claim (AmendmentNo. l) 4 PBD Tab 9 5 pgo tab to 6PBDTab ll 7 8 e PBD Tab 12 PBD Tabt4 PBI tab 15 ro PBD Tab lj rr Siatement of Case at [9] 12 Siatement of Case at[20] 13 PBD Tab 13 PBD Tab l8 14 4 I February 20l8,the Respondent filed another Notice of Appointment, this time to represent Ms Thuy in S 1248 as a non-patty.tt HPL's application for leave to commenco committal proceedings was subsequently granted on 13 February 201816, and committal proceedings were cofirmenced on 19 February 201817 and scheduled to be heard on 2 April2018. 9 Neither Ms Thuy nor the Respondent as her lawyer attended the hearing on 2 April 2018. As a result , a warrant of arrest issued against Ms Thuy on that date.l8 The wa:rant of arrest was only discharged by the Court on 19 July 2018 subject to conditions which included the requirement that Ms Thuy must provide security and surrender her passport to the Sheriff by 23 July 2018 until further order.re 10. On behalf of Ms Thuy, the Respondent prepared and submitted a ooPlea in Mitigation"", seeking to explain the circumstances that led to Ms Thuy's noncompliance with the EJD orders.2OIn the Plea of Mitigation, he urged the Court to impose the ""lightest possible sentence"" on Ms Thuy. On 12 September 2018, a Committal Order was made against Ms Thuy and she was ordered inter alia to pay a fine of 5$25,000.00 for acting in contempt of Court, failing which she would be committed to prison for 14 days (""Committal Order"").2l Pursuant to the 15 PBD Tab 19 PBD Tab 2o r7 PBD Tab 2l 18 Order of Court at PBD Tab 22, Warrant of Arrest at PBD Tab 24 re PBD Tab25 20 Exhibit L3 16 2rPBD Tab26 5 Committal Order, Ms Thuy's passport was handed over to the Sheriff of the Supreme Court on25 September 2018. 11. Between September 2018 and December 2018, the Respondent filed several applications in relation to the Committal Order: (1) On or about 26 September 2018, the Respondent filed a Notice of Appeal on behalf of Ms Thuy to appeal the quantum of the fine. (2) On 5 December 2018, the Respondent filed an application seeking permission for Ms Thuy's passport to be retumed to her temporarily to allow her to travel to Vietnam for a period of no more than 30 days.zz (3) On 14 December 2018, the Respondent filed an application on behalf of Ms Thuy seeking a stay of the Committal Order, pending the outcome of the appeal.23 12. Ms Thuy's application seeking a release of her passport was granted on condition that a surety be provided to secure the return of her passport after 30 days. On 16 January 2019, the Respondent gave a personal undertaking to the Court, wherein he agreed to ""provide security to the Court for the sum of 5$25,000 for the following pu{poses, namely: (a) the release of the passport of [Ms Thuy] pending 22 23 PBD Tab29 PBD Tab 3l 6 the outcome of the appeal in CA/CA 17712018; and (b) security to the Court pending the stay of execution that was granted by [the Court] on the 4th of January l20lgl'(""Personal Undertaking').24 Had Ms Thuy breached the conditions of the release of her passport, the Respondent would have been liable to pay up on the sum of 5$25,000.00. Facts in relation to the Respondent's conduct of MC 16562 13. In or around2}l7, Mr Chung and Ms Thuy engaged the Respondent to commence MC 16562 against one Tran Thi Vinh and one Chong Kim Miaw (""Defendants""). Between 30 June 2017 and 14 March 2018, the Defendants' solicitors requested a copy of the documents in the Plaintiffs' list of documents. 14. On26 April2018, the Defendants applied for specific discovery against Ms Thuy and Mr Chung.2s On 30 April 2018, the Court issued an order in terms of the application and further directed that unless Ms Thuy and Mr Chung filed and served the affidavit and exhibits they were directed to disclose by 3 May 2018, their claims against the Defendants would be dismissed without further order (""Unless Order"").26 Instead of arranging for Ms Thuy and Mr Chung to depose to the affidavit as directed in the Unless Order, on 3 May 2018, the Respondent filed a solicitor's affidavit in purported compliance with the Unless Order.z1 However, 24 PBD Tab32 PBD Tab 36 26 PBD Tab 37 27 PBD Tab 38 25 7 the Court found that this was not in compliance with the Unless Order and consequently thatMs Thuy and Mr Chung were in breach of the Unless Order. The claim in MC 16562 was therefore dismissed and Ms Thuy and Mr Chung were ordered to pay the Defendants the costs of the proceedings fixed at 5$5,500.00.28 15. Following these orders, the Respondent filed summonses to: (1) appeal the striking out of the Plaintiffs' claim in MC 16562; and (2) seek leave to file the Notice of Appeal out of time. However, these summonses were later withdrawn. As a result of these events, the following costs orders were made against Ms Thuy and Mr Chung for MC 16562 and for the various other applications which the Respondent had filed but later withdrew (""Costs Orders""): (l) ForMC/JUD 5008/2018: To pay the Defendants the cost of theproceedings in MC 16562 in the sum of 5$5,500.00. (2) To pay the Defendants costs fixed at 5$800.00, in respect of the application filed on 17 May 2018 to withdraw MC/RA 1612018, i.e., the summons to appeal the striking out of the claim in MC 16562.2e (3) To pay the Defendants costs fixed at 5$1,500.00 in respect of the application to withdraw MC/SUM 599812018, i.e., a summons filed on 17 September 2018 for leave to file the Notice of Appeal out of time.30 28 PBD Tab 39 PBD Tab 42 30 PBD Tab 48 2e 8 16. On 30 August 20I8,the Defendants filed a Writ of Seizure and Sale to enforce the Costs Orders.3l On 17 October 2018, various assets belonging to Ms Thuy were seized by the Bailiff at 256C Sumang Walk #06-647 Singapore 823256 (""Property""). On 17 October 20l8,the Respondent filed an interpleader sufilmons on behalf of Mr Pang.32 In his affidavit in support of the interpleader surlmons, executed only on 26 November 2018, Mr Pang asserted that the various assets seized under the Writ of Seizure and Sale were pledged to him, pursuant to a document marked ool,oan Agreement and Pledge"" (the o'loan agreement"";.33 The loan agreement was exhibited to Mr Pang's affidavit. Ms Thuy subsequently repurchased the aforesaid seized assets at the Bailiff s sale by public action, in the total sum of 5$4,500.00. Nevertheless, on 22 March 2019, a Gamishee Order to Show Cause was filed against Ms Thuy and Mr Chung to enforce the amounts that remained due and outstanding to the Defendants pursuant to the Costs Orders.3a On l8 April 2019, a Final Garnishee Order was granted.3s Eventually, a'ol-etter of agreement"" dated 15 May 2019 was executed by the Respondent and the 3 complainants in this case, in which the Respondent agreed to""ensure that the case no. MC/MC 16562/2017, sub case no.: MC/SUM 1680/2019 for the Garnishee Order will be settledfrom [his] end'and that "" [dJue to ftisJ negligence towards handling the case which resulted in the loss of the suit, [he] will bear all clqims (monetary or assets) towards the 3 [complainantsJ"". The Respondent also stated 31 PBD Tab 45 32Exhibit Ll 33Exhibit L2 34 35 PBD Tab 49 PBD Tab 5l 9 that if he failed to fulfil the agreement, he'owill have not any defensefor [himselfl if any of the 3 parties decides to sue fhimJ"" due to his negligence as an ex-solicitor for Ms Thuy and Mr Chung.36 17. In sum, the Respondent's handling of MC 16562 ended up with the claim being dismissed, and Ms Thuy and Mr Chung being ordered to pay the Defendants' costs as well as being subjected to enforcement action. III. The Charges 18. Following the Complaint, the Law Society preferred the following charges against the Respondent: 1sr That you, EZEKIEL PETER LATIMER, are charged that, in or around 2016 (prior to 8 October 2016), whilst acting for [Ms Thuy], you failed to disclose to [Ms Thuy] information that would reasonably affect her interests to wit:- (a) In or around2015, [Ms Thuy] engaged you to act as her lawyer in an adoption matter; (b) In or around2016, you approached [Ms Thuy] to ask if she would agree to be a director of a then Singapore-registered company. 36 PBD Tab 52 10 Hang Huo Energy Pte. Ltd. (UEN No: 200805 882H) (the ooCompany""); (c) Prior to [Ms Thuy's] appointment as a director of the Company, the Company had been sued in the High Court (""Court"") on 27 March 2015 by a Malaysian-registered company, Horizon Petroleum Limited (Malaysia Registration No. LL04373) (""HPL"") vide. HCIS 1248 of 2014 (""S 1248"") for inter alia the sum of US$1,600,000, which HPL alleged was due and outstanding from the Company pursuant to a Settlement Agreement between the Company and HPL dated 3 January 2014 (""Company Debt""); (d) As at the time that [Ms Thuy] was appointed as a director of the Company, the proceedings in S 1248 were still ongoing; (e) At all material times prior to [Ms Thuy's] appointment as a director of the Company: (D You and [Ms Thuy] were already in a solicitor-client relationship; (ii) You were aware of the Company Debt owed by the Company to HPL, and that the Company was involved in ongoing litigation commenced by HPL against the Company in S 1248; (iiD The fact that the Company owed the Company Debt to HPL and was involved in ongoing litigation commenced by HPL against the Company in S 1248 constituted information that would reasonably affect [Ms Thuy's] interests as a director of the Company; 1l (iv) You failed to inform [Ms Thuy] that the Company owed the Company Debt to HPL and was involved in ongoing litigation commenced by HPL against the Company in S 1248, when you asked [Ms Thuy] to be a director of the Company; and (v) You were not ""precluded, by any oveniding duty of confidentiality, from disclosing to [Ms Thuy]"" that the Company owed the Company Debt to HPL and was involved in ongoing litigation commenced by HPL against the Company in S 1248, within the meaning of Rule 5(2)(bxi) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 161) (""PCR""). [Ms Thuy] also had not ""agreed in writing fthat S 1248 andlor the Company Debt] need not be disclosed to lherf"", within the meaning of Rule s(2xbxii) of the PCR. And your aforesaid conduct constituted a breach of a rule of conduct amounting to improper conduct and practice as an advocate and solicitor under Section 83(2Xb) of the Legal Profession Act (Cap 161) read with Rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 161). ALTFRNATIVE l't CHARGE The Alternative I't Charge repeats the particulars in the I't Charge, but states that in the alternative the charge is brought under Section S3(2Xh) of the Legal Profession Act (as opposed to Section S3(2)(b)), i.e., the aforesaid t2 conduct constituted misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 2'dCIIARGE That you, EZEKIEL PETER LATIMER, are charged that, whilst acting for [Ms Thuy] in respect of proceedings in the High court vide. s 124812014 (""Court Proceedings""), you failed to withdraw from representing [Ms Thuy] in the Court Proceedings despite the fact that there was a reasonable expectation of a conflict between your duty to serve the best interests of [Ms Thuy] as your client and your own personal interest to wit:- (a) On 1 February 2018, you filed a Notice of Appointment to act for [Ms Thuy] in the Court Proceedings; (b) On 16 January 2019, you gave a written personal undertaking to the Court dated 16 January 2019 (""Personal Undertaking"") under which you agreed to'oprovide security to the Court for sum of S$2 5 ,000 for the following purposes, namely: (a) the release of the passport of [Ms ThuyJ pending the outcome of the appeal in CA/CA 177/2018. (b) security to the Court pending the stay of execution that was granted 6y [Justice Audrey Limf on the 4th of January 2018 in [HC/SUM 589612018] of [S 1248/2014f"". (c) Upon giving the Personal Undertaking, there was a reasonable expectation of a conflict of interest between your duty to serve [Ms Thuy's] best interests in the Court Proceedings, and your own personal interest, in that: 13 (i) At all material times, you had a duty as [Ms Thuy's] lawyer to serye [Ms Thuy's] best interests in the Court Proceedings. (iD By giving the Personal Undertaking, you agreed to be held personally liable as surety if [Ms Thuy] breached the terms / conditions upon which her passport had been released to her pending the outcome of CA/CA 17712018. (iii) Therefore, upon giving the Personal Undertaking, there arose a reasonable expectation of a conflict of interest between your duty to serve [Ms Thuy's] best interest in the Court Proceedings, and your own personal interest to ensure that [Ms Thuy] complied with the terms / conditions upon which her passport had been released to her pending the outcome of CA/CA 17712018. (d) At all material times, despite there being a reasonable expectation of a conflict of interest between your duty to serve [Ms Thuy's] best interests in the Court Proceedings and your own personal interest, you failed to take any of the following steps as required under Rule 22(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 161):- (D make ""afull andfrank disclosure of the adverse interest to [Ms Thuy]""; (ii) ""advise [Ms Thuy] to obtain independent legal advice""; l4 (iii) o'ensure that lMs Thuy] is not under an impression that [you are] protecting [Ms Thuy's] interests""; and (iv) obtain [Ms Thuy's] ""informed consent in writing /o [you] acting, or continuing to act, on [Ms Thuy's] behalf'. And your aforesaid conduct constituted a breach of a rule of conduct amounting to improper conduct and practice as an advocate and solicitor under Section S3(2Xb) of the Legal Profession Act (Cap 161) read with Fiule 22(2) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 161). ALTERNATIVE 2'd CHARGE The Altemative2""d Charge repeats the particulars in the2""d Charge but states that in the alternative the charge is brought under Section 83(2Xh) of the Legal Profession Act (as opposed to Section 83(2Xb)), i.e., the aforesaid conduct constituted misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 3'd CHARGE That you, EZE,ICIF,L PETER LATIMER, are charged that, in or around 2017, whilst acting for [Ms Thuy] and [Mr Chung] in respect of their action commenced in the State Court vide.MC|MC 1656212017 (the ""Suif') against o'Defendants""), one Tran Thi Vinh and one Chong Kim Miaw (collectively, the you failed to act with reasonable diligence and competence in the provision of services to [Ms Thuy] and [Mr Chung] in respect of the Suit, to wit:- 15 (a) At all material times, you acted on behalf of [Ms Thuy] and [Mr Chungl in the Suit; (b) On26 April 2018, the Defendants filed an application for specific discovery against [Ms Thuy] and [Mr Chung] vide. MCISUM 282412018; (c) The Defendants'application in MC/SUM 282412018 was allowed, with order in terms granted on 30 April 2018 vide. MCIOFIC 300912018 (""Unless Order""). Paragraph 5 ofthe Unless Order states as follows:- *5. Unless [Ms Thuy and Mr ChungJ file and serve the ffidavit under paragraphs I and 2 herein by 3 May 2018 and the ffidavit under paragraph 4 herein by 7 May 2018 [(""ORC 3009 Affidavits"")J, [Ms Thuy's and Mr Chung'sJ claims against the Defendants will be dismissed without further order and with costs of the proceedings fixed at SS 5,500 payable by [Ms Thuy and Mr ChungJ to the Defendants.""; (d) Despite being aware of the Unless Order, you failed to inform [Ms Thuyl and [Mr Chung] that the Unless Order had been granted against them. You also failed to ensure that [Ms Thuy] and [Mr Chungl filed the ORC 3009 Affidavits by 3 May 2018 in compliance with the Unless Order; (e) As a result of your conduct in part (d) above, the Court found that [Mr Thuy] and [Mr Chung] were in breach of the Unless Order, and dismissed their claims in the Suit pursuant to paragraph 5 of the Unless Order. The Defendants consequently obtained judgment t6 against [Ms Thuy] and [Mr Chung] vide.MClJUD 5008/2018 on 14 May 2018. And your aforesaid conduct constituted a breach of a rule of conduct amounting to improper conduct and practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act (Cap 16l) read with Rule 5(2Xc) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 16l). ALTERNATIVE 3""d CHARGE The Alternative 3'd Charge repeats the particulars in the 3'd Charge but states that in the altemative the charge is brought under Section 83(2Xh) of the Legal Profession Act (as opposed to Section 83(2Xb)), i.e., the aforesaid conduct constituted misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 4th CHARGE That you, EZEKIEL PETER LATIMER, are charged that, in or around 2017,whilst acting for [Ms Thuy] and [Mr Chung] in respect of proceedings in the State Court vide. MCIMC 1656212017 (the ""Suit"") against one Tran Thi Vinh and one Chong Kim Miaw (collectively, the ""Defendants""), you failed to keep [Ms Thuy] and [Mr Chung] reasonably informed of the progress of the Suit, to wit:- (a) At all material times, you acted on behalf of [Ms Thuy] and [Mr Chungl in the Suit. (b) On26 April 2018, the Defendants filed an application for specific discovery against [Ms Thuy] and [Mr Chung] vide. MCISUM 282412018. I7 (c) The Defendants'application in MC/SUM 282412018 was allowed, with order in terms granted on 30 April 2018 vide. }I4CIOPIC 300912018 (""Unless Order""). Paragraph 5 ofthe Unless Order states as follows: *5. Unless [Ms Thuy and Mr ChungJ file and serve the ffidavit under paragraphs I and 2 herein by 3 May 2018 and the ffidavit under paragraph 4 herein by 7 May 2018 [(""ORC 3009 ffidavits"")J, [Ms Thuy's and Mr Chung'sJ claims against the Defendants will be dismissed without further order and with costs of the proceedings fixed at 5$5,500 payable by [Ms Thuy and Mr ChungJ to the Defendants.""; (d) Despite being aware of the Unless Order, you failed to inform [Ms Thuyl and [Mr Chung] that the Unless Order had been granted against them. You also failed to ensure that [Ms Thuy] and [Mr Chungl filed the ORC 3 009 Affidavits by 3 May 201 8 in compliance with the Unless Order. (e) As a result of your conduct in part (d) above, the Court found that [Ms Thuy] and [Mr Chung] were in breach of the Unless Order, and dismissed their claims in the Suit pursuant to paragraph 5 of the Unless Order. The Defendants consequently obtained judgment against [Ms Thuy] and [MrChung] vide.MClIUD 5008/2018 on 14 May 2018. (D Thereafter, the following costs orders weremade against [Ms Thuy] and [Mr Chung] (collectively, the ""Costs Orders""): 18 (i) In respect of MC/JUD 5008/2018: [Ms Thuy] and [Mr Chungl were ordered to pay the Defendants costs of the proceedings in the Suit, fixed at 5$5,500. (ii) In respect of MC/RA 1612018 (i.e. a summons filed by you on behalf of [Ms Thuy and Mr Chung] on 17 May 2018 appealing against the striking out of [Ms Thuy's and Mr Chung'sl claim in the Suit): The State Court granted leave for [Ms Thuy and Mr Chung] to withdraw this appeal, with costs fixed at 5$800 to be paid by [Ms Thuy and Mr Chung] to the Defendants, pursuant to an Order of Court dated 4 July 201 8 vide. }l{CI OPIC 4927 12018. (iiD In respect of MC/SUM 599812018 (i.e. a summons filed by you on behalf of [Ms Thuy and Mr Chung] on 17 September 2018 for leave to file the Notice of Appeal out of time): The State Court granted leave for [Ms Thuy and Mr Chung] to withdraw this summons, with costs fixed at 5$1,500 to be paid by [Ms Thuy and Mr Chung] to the Defendants, pursuant to an Order of Court dated 2 November 2018 vi de. MC/ORC7 I 49 I 201 8; (e) Subsequently, on 30 August 2018, the Defendants filed a Writ of Seizure and Sale against [Ms Thuy] and [Mr Chung) vide. MCAMSS 170812018 to enforce the Costs Orders. Thereafter, the Defendants appointed a Bailiff to seize [Ms Thuy's] and [Mr Chung's] assets. (h) On 17 October 2018, various assets belonging to [Ms Thuy] and [Mr Chung] were seized by the Bailiff at their property at 256C Sumang Walk #06-647 Singapore 823256 (""Property""). Shortly t9 thereafter, [Ms Thuy] re-purchased the aforesaid seized assets at the Bailiffs' sale by public action, in the total sum of 5$4,500. (i) At all material times throughout the course of the Suit, you failed to keep [Ms Thuy] and [Mr Chung] ""reasonably informed of the progress of lthe Suitl"", within the meaning of Rule 5(2)(e) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 16l), in that: (D You did not provide [Ms Thuy] and [Mr Chung] with any timeous updates and/or details about the progress/status of the Suit whilst it was ongoing, including inter alia that the Unless Order had been made against them, that they were found to be in breach of the Unless Order and that the Defendants had obtained judgment against them pursuant to the Unless Order. (ii) Subsequently, [Ms Thuy] and [Mr Chung] only found out about the Costs Orders and that the Defendants had commenced enforcement proceedings against them, when the Bailiff arrived at their Property on l7 October 2018 to seize their assets. And your aforesaid conduct constituted a breach of a rule of conduct amounting to improper conduct and practice as an advocate and solicitor under Section 83(2Xb) of the Legal Profession Act (Cap 161) read with Rule 5(2)(e) of the Legal Profession (Professional Conduct) Rules 2015 (Cap 161). AI,TERNA 4th CHARGE 20 The Alternative 4th Charge repeats the particulars in the 4th Charge but states that in the alternative the charge is brought under Section 83(2)(h) of the Legal Profession Act (as opposed to Section S3(2Xb)), i.e., the aforesaid conduct constituted misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. IV. Proceedings of the Disciplinary Tribunal (""DT"") 19. In these proceedings, the Law Society is represented by Ms Angelia Thng, Ms Tang Kai Qing and Ms Nicole Lee from Braddell Brothers LLP. The Respondent appears in person. The hearing before the DT coflrmenced on 10 August 2022 and continued onl2 August 2022 and 12 October 2022. Submissions made bv the parties in relation to the l't Charge/Alternative I't Charee 20. The Law Society submits that there was an implied retainer entered into between the Respondent and Ms Thuy, because:37 (l) there was a pre-existing solicitor-client relationship between them; (2) the Respondent had approached Ms Thuy specifically to ask if she would be willing to accept an appointment as director of the Company; (3) Ms Thuy expressly asked the Respondent for advice; (a) the Respondent voluntarily advised Ms Thuy as to what directorship would entail; and (5) the Respondent never highlighted to Ms Thuy that she should seek legal advice. 37 Law Society Closing Submissions t95l-tl0ll 2t 2I. By virtue of this implied retainer, the Law Society contends that under Rule 5(2)(b) of the PCR, the Respondent ought to have informed Ms Thuy that there was a debt owed by the Company to HPL, and that the Company was in the midst of ongoing court proceedings. In failing to do so, the Law Society contends that the Respondent had acted in breach of the PCR.38 22. In his Defence, the Respondent did not dispute that there was already a solicitor-client relationship between Ms Thuy and himself at the time when he approached her about being a director of the Company. The Defence instead focused on making the following assertions: (1) The Respondent claimed that at the time, heo'was informed and was qware that the Company had entered into a settlement with HPL in respect of HC/Suit 1248/2014 and there were no ongoing proceedings against the Company"".3eAccordingly, the Respondent maintained that he had ""informed [Ms Thuy| that the Company had been involved in litigationwith HPL in Suit 1248 of 2014, but that the Suit had been settled', and that that was indeed ""the state of affiirs at the time when [Ms ThuyJ became a Director of the Company'';ao and (2) The Respondent acknowledged that Ms Thuy did ask him if she would face any liability as a Director and in response, he""informed her that as long as 38 3e Law Society Closing Submissions t95l-tl01l Defence at [1] ao Defence at [4] 22 she did not execute any personal guarantee(s) on behalf of the Company she would not face any personal liability"". The Respondent also acknowledged that he had ""informed [Ms ThuyJ that she would notface any personal liabilities and her only responsibility would be to carry out the minimal, tawful duties of the Director with no financial cost to herself'.ar 23. Accordingly, it would appear from the Respondent's Defence that he denies that he was under an obligation to disclose the information referred to by the Law Society in the I't Charge (i.e. the existence of the Company Debt and the ongoing court proceedings) because he asserts that there was in fact no active litigation, and although he knew about the debt that the Company owed to HPL, he believed that there had already been a settlement and the ""Company owners were paying payment to HPLpursuant to the settlement at the time [Ms ThuyJ had joined as a Director and there was no foreseeable reason that the owners of the Company would not continue to honor the settlement agreement"". 2 ln other words, he was not outright disputing that he had a duty to answer Ms Thuy's queries diligently and truthfully without misleading her, but was simply maintaining that he did not in fact mislead Ms Thuy because the Company's situation was not what the Law Society claimed it was at the material time. 24. It was only during the proceedings and also in his written submissions that the Respondent took the position that there should be no implied retainer on the facts.a3 4r Defence at a2 [3] Defence at [5] a3 Transcript (12 Aug) page ll4lines 14-16 and Respondent's Written Submissions at [1] 23 He submitted that he had offered Ms Thuy the opportunity to be a director in the Company purely as a friend whom he knew was looking for an opportunity to eam some money. Consequently, he disputed that he was under any duty to advise Ms Thuy as her lawyer. He went on to reiterate that he did not know and could not have reasonably anticipated that the ongoing court proceedings would continue, and enforcement proceedings would be taken out against Ms Thuy.aa He also claimed that Ms Thuy was not as uninformed as she was made out to be, since she is (allegedly) proficient in English (i.e. able to read, speak and understand English), has been gainfully employed and has also been involved in business. a""L*;.^;^-- *^,1^ L,, +L^ -^-+:^^ in relation to }1.o 2""d rr1h^-^^l Al+^*^+:,,^ ond nl^-^^ 25. The Law Society submits that the Respondent's conduct amounts to abreach of Rule 22(2) of the PCR. They argue that by giving the Personal Undertaking, the Respondent had placed himself in a position of potential conflict between his own interest and that of Ms Thuy's. In the circumstances, the Respondent had an obligation under Rule 22(3) of the PCR to: (l) make full and frank disclosure of the adverse interest; (2) advise Ms Thuy to seek legal advice; (3) in the event Ms Thuy did not seek legal advice, to ensure that Ms Thuy was not under the impression that he was protecting her interests; and (a) to obtain Ms Thuy's informed consent in writing for the Respondent to continue acting for her. The Law Society submits that aa For example, at Transcript (12 Aug) page l26lines 5-10 where the Respondent asserted that the advice he gave to Ms Thuy was fair and accurate and'onobody anticipated that ... unfortunate thingwould happen"". 24 the Respondent failed to take any ofthe steps required ofhim under Rule 22(3) ofthe PCR.45 26. The Respondent's Defence against the 2nd Charge/Alternative 2""d Charge is fairly straightforward. He does not dispute the allegation that he failed to highlight a potential conflict of interest and also failed to advise Ms Thuy to seek independent legal advice. To the Respondent's mind, there simply was no conflict of interest. The Respondent's arguments are threefold.46 First, he did not see a conflict of interest in giving the Personal Undertaking. Second, no one else was prepared to act as surety for Ms Thuy, and third, Ms Thuy had confirmed to him, prior to issuing the Personal Undertaking, that she would attend Court for all the requisite hearings and had no intention of fleeing jurisdiction. Submissions made bv the parties in relation to the 3'd Charge/Altemative 3d Charge 21. In relation to the 3d Charge, the Law Society submits that in line with the Respondent's duty to act with reasonable diligence and competence under Rule 5(2Xc) of the PCR, the Respondent should have: (1) informed Ms Thuy and Mr Chung that the Unless Order had been issued against them; and (2) made reasonable efforts to ensure that the Unless Order was complied with.aT The Law Society argues Law Society Closing Submissions p45l-[148] Defence at [7]-[8]; Respondent's Written Submissions atl2l-l3l a7 Law Society's Closing Submissions at [57] a5 a6 25 that the Respondent failed in his duties because he did neither of these things and had offered bare assertions to justifr his non-compliance.as 28. The Respondent admits that he did not comply with the Unless Order. Indeed, the Respondent had initially indicated that he was prepared to plead gurlty to the 3d Charge ae , until it was pointed out to him that the particulars in the 3d Charge/Altemative 3d Charge also included the allegation that he had failed to inform Ms Thuy and Mr Chung that the Unless Order had been issued against them.50 On this issue, the Respondent contends that he did inform Ms Thuy of the Unless Order, and that Ms Thuy had asked him to file an application to ooset aside the (Jnless Order"".Sr He further referred to the affidavit of Mr Chung and Ms Thuy dated 28 May 2018 filed in an attempt to appeal the striking out in MC 16562 (""Affidavif') as support for his contention that Ms Thuy and Mr Chung were aware of the Unless Order being issued and were involved in the process of attempting to set aside the Unless Order. Submissions made by the parties in relation to the 4ft Charge/Altemative 4ft Chargg 29. While the 3'd Charge focuses on the Respondent's alleged breach of Rule 5(2)(c) of the PCR (namely, that he had failed to act with reasonable diligence and competence in the conduct ofMC I6562),the 4th Charge asserts that the Respondent also breached a8 ae 50 Law Society's Closing Submissions at [163] Transcript (10 Aug) page l8 lnes22-25 Transcript (10 Aug) page26line 3 to page 28 line 9 5r Defence at [9]; Respondent's Written Submissions at [4] 26 Rule 5(2)(e) of the PCR, which requires a legal practitioner to keep the client reasonably informed of the progress of the client's matter. The 4ft Charge also includes the following additional particulars which refer to the adverse consequences that arose from the Respondent's alleged mishandling of MC 16562: (1) the Costs Orders made against Ms Thuy and Mr Chung which imposed a liability to pay atotal of $7,800 towards the Defendants' costs; (2)that the Defendants filed a Writ of Seizure and Sale on 30 August 2018 to appoint a Bailiff and enforce the Cost Orders; (3) thatthe assetsbelongingto Ms Thuy and Mr Chung werethen seizedbytheBailiff on 17 October 2018; and (a) that Ms Thuy had to repurchase the seized assets at a public auction by paying a sum of S$4,500.00.s2 30. The Law Society submits that the Respondent's conduct constituted a breach of Rule 5(2Xe) of the PCR, because he failed to keep Ms Thuy and Mr Chung reasonably informed ofthe progress of MC 16562.s3 While acknowledging that he was negligent in the conduct of MC 16562 and also not disputing the adverse consequences faced by Ms Thuy and Mr Chung as particularised in the 4th Charge/Altemative 4th Charge, the Respondentnevertheless denies thathehad failedto keep Ms Thuy and Mr Chung reasonably informed of the proceedings in MC 16562.s4In support of his argument, he refers to: (1) the fact that Ms Thuy and Mr Chung had jointly executed the Affidavit on 28 May 2018 to appeal the striking out of their claim, which meant that they must have known about the Unless Order and the fact that their claim had been 52 s3 Statement of Case, pages32 to 36 Law Society's Closing Submission at1225l-12281 5a Defence at [ 1]-[12]; Respondent's Written Submissions at [5] 27 dismissed; (2) the factthatan Interpleader Summons was filed on 17 October 201855 with a supporting affidavit deposed by one ofthe complainants (Mr Pang) in response to the seizure of the property by the Bailiff, which showed that Ms Thuy and Mr Chung must have been made aware of the enforcement procedures taken out against them; and (3) the fact that the Complainant waited for a period of approximately 2 years before filing a Complaint against the Respondent.s6 3t During the Inquiry, the Respondent explained that while he had emailed Ms Thuy and Mr Chung in relation to MC 16562, he has since lost access to his Hotmail account because ooHotmail ... changed the security passcode"".sT He also stated that while there was a physical file, he had lost it after keeping it in some boxes.ss V. DT's Findings The I't Charge/Alternative l't Charee 32. In respect of the l't Charge/Altemative l't Charge, there are two issues to consider: (1) whether there was an implied retainer such that the Respondent owed Ms Thuy a duty under Rule 5(2)(b) of the PCR; and (2) if such a duty was owed, whether the Respondent had breached that duty. 5s s6 Exhibit Ll Defence at [14]; Respondent's Written Submissions at t6l-t7l Transcript (12 Oct), page 60, lines 5-7 58 Transcript (12 Oct), page 60 lines 21-30 5? 28 33. We answer the first issue in the affirmative. The case of Law Societ.v of Singapore v Ahmad Khalis bin Abdul Ghani t20061 4 SLR(R) 208se (MW) at [65]- [69] is instructive. In Ahmad Khalis, based on an objective analysis of the facts, the Court held that there was an implied retainer between the respondent and the beneficiaries ofan estate because: (1) the respondent had given express advice to the beneficiaries; (2) they had taken it; (3) the advice given was not perfunctory or non- committal; (4) the respondent had sought to allay the beneficiaries' fears; and (5) no other solicitor was acting for the beneficiaries.6o 34. In the present case: (1) the Respondent gave express advice to Ms Thuy on the possible liabilities she would face as a director of the Company. While the content of this advice is disputed (with Ms Thuy stating that the Respondent told her there were no risks, while the Respondent claimed that he informed Ms Thuy that there would be no liability unless she executed a personal guarantee), the fact remains that advice was given. (2) There can be no doubt that Ms Thuy relied on the Respondent's advice6l and agreed to proceed with her appointment as a director of the Company after receiving the Respondent's assurancas.62 5e Law Society's l't Bundle of Authorities (""LSBOAl"") TAB 3 at pp38-39 60 LSBOAI TAB 3 at pp38-39 6rTranscript (12 Aug) pages 115-116, lines 29-15 62 Transcript (10 Aug) pages4l-42,lines 27-3 29 (3) The advice that the Respondent gave Ms Thuy was not perfunctory as the Respondent himself acknowledged that he understood the legal obligations and responsibility of a director under Singapore law.63 (a) The Respondent had sought to allay Ms Thuy's concems, as he explicitly recalled her asking ""is it safe for me to come on as a director"",64 and proceeded to answer / reassure her; and (5) There was no other solicitor acting for Ms Thuy at the time. 35. We were not persuaded by the Respondent's insistence that he had only approached Ms Thuy about the directorship purely as her friend. The Respondent had been engaged as Ms Thuy's and Mr Chung's lawyer to handle an adoption matter in 2015. Hence, there was already a lawyer and client relationship between the Respondent and Ms Thuy when the latter sought his advice about the implications of being a director of the Company. The Respondent should have realised that Ms Thuy viewed him as her lawyer when she asked him if she would incur any personal liability if she took up the appointment. As someone who had been Ms Thuy's lawyer, he should have recognised the significance of the legal question she posed to him65 and the fact that she was placing reliance on his advice as a lawyer. In fact, the Respondent 63 Transcript (12 Aug) page 101, lines 16-23 Transcript (12 Aug) page 105, lines 10-12 65 Transcript (12 Aug) page I16, lines 23-28 6a 30 eventually acknowledged that Ms Thuy had viewed him as her lawyer and there was a possibility that he had effectively misled her.66 36. We also find that the Respondent's refusal to acknowledge Ms Thuy's poor command of English and his attempts to cast her as someone who was experienced in business was not convincing and crucially, was incongruent with the Plea in Mitigation he had prepared for Ms Thuy in response to the Committal Order, in which he had stated the following: (l) That Ms Thuy wasoounfamiliar with the history of the company, and to make matters worse for her, her poor command of English mqde it dfficult for her to understand the nature of the orders made against her"".67 We find that if Ms Thuy was unfamiliar with the history of the Company, this was because the information that the Respondent provided to her was inaccurate and misleading. (2) TItatMs Thuy o'cannot be described as a corporqte sdwy person, who is familiar with the rules, regulations of corporate compliance"".6s W'e note that the Respondent had nevertheless tried to persuade the Tribunal that Ms Thuy had been involved in business and was therefore not unfamiliar with how companies worked. 66 Transcript (12 Oct) page 7 ,lines 7-31 67 Exhibit L3 page 3 Exhibit L3 page 4 68 31 37. In the circumstances, we are satisfied that there was an implied retainer between the Respondent and Ms Thuy. 38. As to the second issue, we find that the Respondent breached his duty under Rule s(2xb) of the PCR. (1) Rule 5(2)(b) requires a legal practitioner to inform the client of all information known to the legal practitioner that may reasonably affect the legal interest of the client in the matter. In interpreting this rule we are further guided by the General Principles in Rule 5(1)(c) which provides that a legal practitioner has a duty to be diligent in the advice and information given to his client. (2) We agree with the Law Society's submissions that the fact that the Company owed a debt and there were ongoing proceedings were information that would reasonably affect Ms Thuy's interest as a director of the Company. In fact, the Respondent admitted that had he known that there was active litigation he would not have gtven the same information to Ms Thuy, and also agreed that the risk to Ms Thuy was actually higher than what he represented.6e As the director of a defendant facing a sizeable legal claim in ongoing legal proceedings, Ms Thuy unknowingly took on additional obligations and was further exposed to liabilities if she failed to comply with 6e Transcript (12 Aug) page 133, lines 7-21 32 those duties, including but not limited to the possibility of facing committal proceedings if she failed to respond to any court orders in S 1 248. (3) As for the Respondent's contention that he was not aware that the court proceedings would have continued, or that enforcement proceedings would have been taken out against Ms Thuy, these statements do not assist him. The Respondent owed a duty not only to provide Ms Thuy with information that would affect her legal interests, but also to confirm/check the accuracy of the information he chose to share with her. In the course of the Inquiry, it became apparent that the Respondent was still pointing to what he had purportedly been told about the CompanyT0, when a simple perusal of the Court papers in S 1248 would have revealed that he had been misled. ln fact, he appeared not to understand the basis of the legal claim made by HPL against the Company.Tl As the Respondent himself eventually admitted during the Inquiry, ooin hindsight, maybe I could have checked the records"".12 We disagree that this should only have occurred to him ""in hindsighf'. 39. Consequently, we are satisfied that the Respondent failed to exercise diligence when he provided Ms Thuy with inaccurate information about the Company and falsely reassured her that she would not face any liability so long as she did not sign any personal guarantee. We also find that Ms Thuy relied on the Respondent's 70 For e.g., Transcript (12 Oct) pages2l-24 7r Transcript (12 Aug) pages 129 to 132 72 Transcript (12 Aug) pages 132-133, lines l9 to 10 33 advice, to her own detriment. We therefore find that the l't Charge has been made out, and that the Respondent's conduct is in breach of Rule 5(2)(b) of the PCR and amounts to improper conduct under Section 83(2)(b) of the LPA. The 2nd Charge/Altemative 2od Charge 40. In relation to the 2nd Charge, we find that the Law Society has made out its case. We agree with the Law Society's submissions that there was a reasonable expectation of a conflict of interest between the Respondent's duty to serve Ms Thuy's interest, and his own personal interest. 41. By gtving the Personal Undertaking, the Respondent had agreed to be held personally liable if his client Ms Thuy breached the terms/conditions upon which her passport had been released to her. He had a vested interest in ensuring that Ms Thuy complied with the terms/conditions imposed by the Court. This interest was in potential conflict with Ms Thuy's own interest, for example, if she had a legitimate reason to stay longer in Vietnam and needed the Respondent to apply to the Court on her behalf to defer the date upon which her passport was to be surrendered, such an application would have entailed a degree ofpersonal risk to the Respondent, because if the Court rejected the request and Ms Thuy did not retum to Singapore in time, he would have to make good on the Personal Undertaking. 42. As for the Respondent's reliance on Ms Thuy's confirmation that she would attend in Court and had no intention to flee the jurisdiction, this statement does not assist 34 the Respondent. Rule 22 of the PCR is designed to cover potential conflicts of interest. Even with Ms Thuy's confirmation, there was always a possibility that she might have to breach the terms/conditions imposed by the Court for the release of her passport. As for the Respondent's contention that Ms Thuy had no one else to help her, the Respondent's good intentions do not cure the potential conflict of interest. He needed to take the steps listed in Rule 22(3) of the PCR (i.e. make full and frank disclosure, advise Ms Thuy to seek independent legal advice, and get her informed consent in writing for him to continue acting for her). None of these steps were taken. 43. By the Respondent's own admission, he struggled to understand that there was a potential conflict of interest.T3 During the lnquiry, after it was explained to him by the Tribunal, the Respondent conceded that there was a potential conflict of interest.Ta It was clear that he had hitherto not recognised that there was one.75 Accordingly, we are satisfied that the 2nd Charge is made out, and that the Respondent's conduct is in breach of Rule 22 of the PCR and amounts to improper conduct under Section 83(2Xb) of the LPA. The 3'd Charge/Alternative 3d Charge 44. The gravamen of the 3d ChargeiAlternative 3d Charge centres around the Respondent's conduct of MC 16562. Pursuant to Rule 5(2)(c) of the PCR, the Respondent was expected to ""act with reasonable diligence and competence in the 73 Transcript (12 Oct) page 43,lines 8-20 Transcript (12 Oct) pages 42-43,lines 24-l I 75 Transcript (12 Oct) page45,lines 14-25 7a 35 provision of services to the client"" and exercise all reasonable eflorts to achieve the client's objectives (i.e. to comply with the terms of the Unless Order).76 This, the Respondent failed to do. Although much has been made of the Respondent's alleged failure to inform Ms Thuy and Mr Chung that an Unless Order had been issued, we find that the problems arising from the Respondent's handling of MC 16562 extend far beyond that. 45. In the first place, the Respondent admitted that ""when the (Jnless Order was given... most of the documents sought afier were in [hisJ possession"".TT These were the very documents he proceeded to disclose after the Unless Order was issued. It is not clear to us why discovery was not given earlier, which might have avoided the Unless Order. 46. Once the Unless Order was issued, there is no satisfactory evidence to show that Ms Thuy and Mr Chung were promptly notified before the 3 May 2018 deadline. The Respondent claimed that he had tried to contact his clients about the affidavit that needed to be filed but""had dfficulty locating [themJ to ffirm their ffidavif'.78 He thought that he had time to prepare and file the affidavit disclosing the documents, but only realised on 3 May 2018 (the last day for compliance) that he had not been able to reach his clients and he had also fallen ill. T6tsgoAt TAB 15 atp344 77 PBD Tab 41 paragraph [4]. Also, Transcript (12 Aug) pageT3,lines 6-7 where the Respondent agreed that he already had the documents. 78 PBD Tab 4t at [5] 36 47. When he filed a solicitor's affidavit in purported compliance with the Unless Order, he stated atparagraph 1 of the affidavitTethat he was authorised by his clients to depose the affidavit on their behalf. In reality, he had no such authority, since he was never able to reach his clients to tell them about the Unless Order and what needed to be done by way of compliance. He also failed to explain to the Court why he had not been able to procure an affidavit from his clients. He gave no assurances to the Court that he would file his clients' affidavit as soon as possible. It seemed that the Respondent had simply filed his own affidavit, hoping that it would be accepted by the Court. 48. On 7 May 2018, the Court rejected his affidavit and found his clients to be in noncompliance of the Unless Order and dismissed the claim. At that point, the Respondent should have urgently updated his clients and obtained their instructions to appeal against the dismissal of the action. Although the Respondent proceeded to file MC/RA 1612018 on ll May 2018 to appeal the striking out of the claim, there were some unusual aspects relating to this attempt to appeal, which bear noting. A supporting affidavit was signed by Ms Thuy and Mr Chung on 28 May 2018. Unfortunately, a complete copy of this affidavit was not made available to us, as there was a missing page.80 It was also unclear when this was filed. The Respondent himself deposed to an affidavit in support of MC/RA 1612018 but this was only signed on 2 July 2018. MC/RA 1612018 was then heard before District Judge Lim Wee Ming on 4 July 2018 and leave was granted to the Plaintiffs to withdraw the 7e 80 PBD Tab 38 at pl PBD Tab 40. There are two copies of page 2butpage 3 is missing 37 appeal with costs of 5$800.00 to be paid to the Defendants. The circumstances that led to the Respondent asking for leave to withdraw MC/RA 1612018 are unclear. However, in a subsequent affidavit that the Respondent deposed to on 15 August 2018, he explained that when MC/RA 1612018 was heard on 4 July 2018 before District Judge Lim Wee Ming, the Court took the view that MC/RA 1612018 had been filed out of time.8l The reason why the Court was of this view is not entirely clear, but what is clear is that even though the Respondent did not agree that the appeal was filed out of time, he proceeded to ask for leave to withdraw MC/RA 1612018, which the Court granted. Consequent to the withdrawal of MCiRA 1612018, Ms Thuy and Mr Chung were ordered to pay costs of S$S00.00 to the Defendants. There is no evidence that the Respondent ever had his clients' instructions to seek leave to withdraw the appeal. 49. The Respondent eventually filed MC/SUM 599812018 to seek leave to file the Notice of Appeal out of time, but this was only filed on 17 Septenrber 2018, more than two months after MCiRA 1612018 had been withdrawn. The only affidavit that appears to have been submitted in support of MC/SUM 599812018 was the afEdavit the Respondent deposed to on 15 August 2018 which is referenced in paragraph 48 above. Again, when MC/SUM 5998/2018 eventually came up for hearing before District Judge Chiah Kok Khun on 2 Novernber 2018, the Respondent again sought leave to withdraw MC/SUM 599812018, and this time it was granted with a costs order of 3$1,500.00 against Ms Thuy and Mr Chung. 8r PBD Tab 44 paragraphs 3-6 38 50. A fuller consideration of MC 16562 therefore shows that once the Unless Order was issued, the Respondent's subsequent conduct only served to make matters worse for his clients. The Respondent himself has repeatedly acknowledged that he was negligent in his handling of MC 16562.We are therefore satisfied that the 3d Charge is made out, and that the Respondent's conduct is in breach of Rule 5(2Xc) of the PCR and amounts to improper conduct under section 83(2Xb) of the LPA. The 4th Charge/Alternative 4ft Charge 51 With regards to the 4th ChargelAltemative 4th Charge, it is the Law Society's case that the Respondent failed to keep Ms Thuy and Mr Chung reasonably informed of the progress of MC 16562 and is consequently in breach of Rule 5(2Xe) of the PCR. In (d) of the particulars under the 4th Charge, the Law Society contends that despite knowing about the Unless Order, the Respondent failed to inform Ms Thuy and Mr Chung about the Unless Order and failed to ensure that they filed the ORC 3009 Affidavits by 3 May 2018. Although the Respondent has disputed Ms Thuy and Mr Chung's claim that they remained in the dark about the breach of the Unless Order until the Bailiff arrived at their home on 17 October 2018, this is neither here nor there. What the Respondent is being charged with is a failure to keep his clients informed of the Unless Order with the consequence that they ended up in breach as of 3 May 2018, and the evidence indicates that Ms Thuy and Mr Chung remained unaware of the Unless Order by the time their claim was struck out by the Court. 39 52. As for the Respondent's insistence that Ms Thuy and Mr Chung knew about the Unless Order and the need to appeal the dismissal of their claim well before the Bailiff showed up at their home, even if the Respondent's claims are true, they would not assist him. Under (i) of the particulars under the 4th Charge, the Law Society asserts that the Respondent failed to keep Ms Thuy and Mr Chung reasonably informed of the progress of MC 16562 in that he ""did not provide [Ms Thuyl and [Mr Chung] with any timeous updates andlor details about the progress/status of the Suit whilst it was ongoing, including inter aliathat the Unless Order had been made against them, that they were found to be in breach of the Unless Order and that the Defendants had obtained judgment against them pursuant to the Unless Order"". At best, the Respondent is saying that he had told his clients about the Unless Order and/or the dismissal of their claim after the fact. He cannot be said to have kept his clients ""reasonably informed"" of the progress of MC 16562 simply by claiming that the period where he had failed to keep them informed was not as long as was claimed by the complainants. 53. We also make the following observations: (1) The Respondent was unable to produce any contemporaneous evidence that he followed-up with Ms Thuy and Mr Chung in writing. The lack of access to his Hotmail account and the disappearance ofhis physical file do not assist his case. While there is evidence that Ms Thuy and Mr Chung were both asked to sign an affidavit on 28 May 2018, there is no other evidence relating to what the Respondent told them about the progress of MC 16562 at the time. There is also 40 no evidence that the Respondent updated them on what happened with the appeal that he filed on 17 May 2018, no evidence as to whether Ms Thuy and Mr Chung's instructions were sought before the Respondent sought leave to withdraw the appeal on 4 July 20t8, whether he had kept them informed as to why a subsequent application had to be filed to seek leave to file a Notice of Appeal out of time, why that application was also eventually withdrawn by the Respondent on 2 November 2018, and certainly no evidence that the Respondent had ever informed Ms Thuy and Mr Chung that at each of these stages of the proceedings, additional cost orders were being made against them. (2) We are also unable to accept the Respondent's assertion that Mr Pang's affidavit filed in the Interpleader Summons 82 supports his Defence. Indeed, as the Respondent himself admitted during the Inquiry, Mr Pang's affidavit does not show, on its face, that the Respondent had kept Ms Thuy and Mr Chung updated.s3 (3) As for the so-called delay in the frling of the Complaint, we find this to be irrelevant. There is evidence that Ms Thuy, Mr Chung and Mr Pang agreed not to sue the Respondent for negligence only because the Respondent signed a Letter of agreement dated 13 May 2019 acl. His assertion is that Angela was an experienced conveyancing secretary, there were no red flags, and there was never any real doubt that Naseeruddin accepted proprietorship and was of full age and legal capacity. Hence, the Respondent contends that there was no actual need for him to meet with or speak to Naseeruddin before he signed the Certificate of Correctness in the Transfer Instrument. Respondent’s Evidence 16. The Respondent took the stand in his own defence. As the facts relating to the 1* Charge and the Alternative 1 Charge were not disputed, the Respondent’s testimony was focused on the 2! Charge and the Alternative 2""! Charge, i.e., the circumstances leading to him signing the Transfer Instrument. 17. The Respondent’s evidence can be summarised as follows: '4 Statement of Agreed Facts at para 14 (amended by the parties on 14 June 2021) '5 Respondent’s Skeletal Submissions at para 29 11 He acknowledged that he pleaded guilty to the second of the State Court Charges, and in so doing, had admitted that he “did falsely certify to the correctness of a dealing, fo wif, a Transfer in respect of the property at 35 Saraca Terrace, Singapore 805486, in implying that the person acquiring title, one Mohammad Naseeruddin bin Allamdin, accepts proprietorship and is of full age and legal capacity” and had thereby committed an offence under s 59(6) of the LTA. In pleading guilty to the second of the State Court Charges, the Respondent had agreed to the Prosecution’s Statement of Facts. This included the statements found in para 13 of the Prosecution’s Statement of Facts which stated that the Respondent did not meet Naseeruddin at any point!®, did not contact Naseeruddin to enquire whether he accepted the transfer of the property!’, and would sign the conveyancing documents that were left on his desk without examining its contents!* as he assumed that the said documents would have been prepared correctly. Paragraph 13 of the Prosecution’s Statement of Facts also included the statement that “It was only when [the Respondent] was questioned by CAD officers did he become aware that his law firm acted on behalf of Naseeruddin in relation to the Property”. '© NE 14 June 2021 at p 82 line 12-14 17NE 14 June 2021 at p 82 line 15-17 '8 NE 14 June 2021 at p 82 line 18-30 12 In para 36 of his Affidavit of Evidence-in-Chief, the Respondent explained that he pleaded guilty and agreed to the Prosecution’s Statement of Facts because he had “had enough and decided to plead guilty to get the matter over with as quickly as possible even though there were matters stated in the [Prosecution’s Statement of Facts] ... that were clearly incorrect.” The Respondent nevertheless acknowledged that at no point in his mitigation plea did he seek to object to or request any correction to para 13 of the Prosecution’s Statement of Facts!”, During re-examination, the Respondent was asked to explain why he went ahead to plead guilty without objecting to the Prosecution’s Statement of Facts, and he said that “sometimes client PG out of expediency ... and I suppose that’s what happened here.””° The Respondent took the view that there was no need for him to meet with Naseeruddin to see whether he was of full age and legal capacity, because there was a copy of Naseeruddin’s NRIC in the file to show that he was more than 21 years of age.”! However, when he was asked if he could recall looking at the file before he signed the Certificate of Correctness for the Transfer Instrument, he said that he could not remember.** As for legal capacity, he explained that it was not only his pair of eyes looking at the transaction, and the “bank has .. got their own lawyers” and they “will go through the same checklist, because for [Naseeruddin] to take a... loan, ... he would need to be of age and of legal capacity as well. So there was no '° NE 20NE 21 NE 22 NE 14 June 2021 at p 84 line 19 to p 85 line 1 14 June 2021 at p 101 line 1-3 14 June 2021 at p 87 line 1-5 14 June 2021 at p 105 line 14-19 13 objection from the bank.”*? He also stated that it would have been ludicrous for him to ask the client to produce a medical certificate to demonstrate that he was mentally sound,” and he also did not agree that there was a need for him to meet up personally with Naseeruddin to ascertain for himsel£?>. As for whether Naseeruddin accepted proprietorship, the Respondent pointed to the fact that when he signed the Transfer Instrument, it was already “very far into the transaction” and Naseeruddin would have already paid the option monies, signed the loan documents with Maybank and paid the stamp duty, and therefore he assumed that Naseeruddin must have accepted proprietorship”®. In fact, the Respondent had no doubt that Naseeruddin wanted to take proprietorship of the Property, otherwise he would not have turned up at the office to sign the documents to complete the matter?’. When asked if he accepted that it would have been a reasonable step to check with Naseeruddin by calling him on the phone, the Respondent disagreed, explaining that in the circumstances of this case, Naseeruddin’s documents were in the file to let him know that he was of age, capacity and he accepted proprietorship of the Property”®. 23 NE 24NE 25 NE 26 NE 27 NE 28 NE 14 June 2021 14 June 2021 14 June 2021 14 June 2021 14 June 2021 14 June 2021 at p 87 line 5-10 at p 97 line 1-4 at p 97 line 12-15 at p 85 line 11-23 at p 85 line 26-29 at p 87 line 22-26 14 When it was suggested to him that rather than rely on the documents placed on his desk, it would have been prudent for the Respondent to actually make enquiries with Naseeruddin personally, the Respondent explained that at the time, he was the only lawyer in the firm and he would also have to be in Court for his other matters, so if “the file shows the documents and the steps gone so far”, it would be reasonable for him to conclude that Naseeruddin “was of age, capacity and took proprietorship of ... he wanted to buy the property””?. In the Respondent’s Affidavit of Evidence-in-Chief, he had stated at para 45 that “When documents are placed by Angela on my table for ... signature, the files are also there. I go through the files and ask her any questions that I have.” The Respondent agreed that this was intended to describe his general practice*’, As for this particular conveyancing transaction, it was pointed out to the Respondent that there was no way of knowing what files were actually placed before him on his desk because no such evidence had been adduced.*! Eventually, during re-examination, the Respondent was able to produce the conveyancing file relating to the Property, through his counsel**, He then pointed to inter alia a photocopy of Naseeruddin’s NRIC (albeit not a clear copy) that was in the file’?. 229 NE 14 June 2021 at p 87 line 27 to p 88 line 5. See also NE 14 June 2021 at p 96 line 27-28 3°NE 14 June 2021 at p 88 line 32 to p 89 line 7 3'NE 14 June 2021 at p 90 line 28 to p 91 line 13 32 NE 14 June 2021 at p 101 line 4-6 33 NE 14 June 2021 at p 101 line 7 15 is The Respondent acknowledged that he had left it to Angela to fill up the Transfer Instrument and he did not check the document himself. When it was suggested to him that a solicitor would be in dereliction of duty if he has a duty to check his staff's work and does not do so, the Respondent disagreed because the staff did not do anything wrong and there were no problems that were surfaced to his attention”. [The above is not intended to be a comprehensive statement of the Respondent’s evidence or testimony before the DT]. Submissions made by the parties in relation to the 1‘' Charge 18. In relation to the 1** Charge, Mr Rai highlighted the Respondent’s admission that he falsely represented that he had witnessed Naseerudin’s signature on the Mortgage Instrument by signing as a witness and thereafter also signing the Certificate of Correctness in the Mortgage Instrument. Accordingly, Mr Rai submits that the 1* Charge is made out and the Respondent’s conduct can be said to amount to grossly improper conduct within the meaning of s 83(2)(b) of the LPA. On the facts of the case, it was submitted that the Respondent had acted dishonestly and there is cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA. 34 NE 14 June 2021 at p 98 line 15-32 16 19. In Anwar Patrick Adrian v Ng Chong & Hue LLC*°, the Court of Appeal held that “an accurate certificate of correctness for registration is of paramount importance because the Registrar of Titles and the public place enormous faith on it — especially when it emanates from an advocate and solicitor’**. 20. The Court of Three Judges went on to state in Law Society of Singapore v Chia Choon Yang*’ that a solicitor’s act of false attestation would necessarily involve dishonesty, as he would be asserting a fact relating to a state of affairs which he knows to be untrue**, Chia Choon Yang was a case in which the respondent solicitor acting as a notary public attested that he had witnessed a party sign on a power of attorney when in fact the party had already placed his signature on the power of attorney when it was brought before him for notarisation, and the attestation was therefore false. The Court of Three Judges noted that a solicitor’s misconduct involving dishonesty is treated with utmost severity, even where the dishonesty might be described as being “technical” in nature®’. Relying on Chia Choon Yang, the Law Society submits that the Respondent’s conduct in falsely attesting to Naseeruddin’s signature must similarly be said to amount to gross misconduct under s 83(2)(b) of the LPA. In Chia Choon Yang, the Court of Three Judges found the respondent lawyer guilty of grossly improper conduct and was satisfied that the charge under s 83(2)(b) of the LPA had been made out. 35 [2014] 3 SLR 761, CBOA Tab 9 36 At [57] 37 [2018] 5 SLR 1068 (“Chia Choon Yang”), CBOA Tab 13 38 At [15] 3° At [18] 17 21. Mr Rai also referred the DT to Law Society of Singapore v Sum Chong Mun”, a case involving a respondent lawyer who falsely attested to a signature on a Lasting Power of Attorney. Again, the Court of Three Judges was satisfied that the respondent lawyer was guilty of grossly improper conduct and that the charge under s 83(2)(b) of the LPA had been made out*!. 22. Mr Rai also made the point that under Para 50 of the Practice Directions and Rulings 2013 which were in force at the material time in 2014, the Law Society had advised its members that false attestation of documents may amount to grossly improper conduct in the discharge of a solicitor’s duty, and that this direction remains in force today on the same terms”, 23, In seeking to persuade the DT that there is cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA, the Law Society is not submitting that the DT is bound to arrive at such a finding if it finds that the Respondent acted dishonestly. Rather, Mr Rai submits that based on the precedents, solicitors’ misconduct that involves dishonesty is always treated with utmost gravity, and on the facts of this case, there are sufficient grounds for the DT to conclude that the Respondent’s dishonest conduct is cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA. 40 [2017] 4 SLR 707 (“Sum Chong Mun’), CBOA Tab 16 4! At [5] and [50] “2 NE 14 June 2021 at p 17 line to p 20 line 4 18 24. We now turn to the Respondent’s submissions on the 1** Charge. Mr Pereira began by submitting that the 1S* Charge goes beyond the scope of the original complaint made by the Complainant. When the Complainant submitted the complaint letter dated 14 July 2020, the Complainant concluded the letter by stating that it appeared that the Respondent has been guilty of misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession under s 83(2)(h) of the LPA. No reference was made to s 83(2)(b) of the LPA. 25, We note that in response, Mr Rai submitted that there is no merit to the Respondent’s claim, and the way in which the 1 Charge was framed captures the gravamen or Complainant’s substance of the Complaint against reference to s 83(2)(h) of the LPA the Respondent. The cannot be interpreted as a directive or instruction to the Law Society, one that the Law Society is obliged to follow without being able to exercise any discretion of its own. 26. As noted earlier, the Respondent pleaded guilty to the Alternative 1‘ Charge. This means that the Respondent not only acknowledges that there was wrongdoing on his part, he also accepts that the wrongdoing amounted to misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession (i.e. s 83(2)(h) of the LPA). 19 27. Citing Law Society of Singapore v Constance Margreat Paglar” and Law Society of Singapore v Jasmine Gowrimani d/o Daniel“’, Mr Pereira has argued that only the most serious cases should be heard by the Court of Three Judges, and the Respondent’s conduct was not so serious as to warrant such a referral, As Mr Pereira submits, this is because if one looks at the particulars on the Mortgage Instrument, “[p]ractically everything on it is correct *46 and the only thing that was inaccurate was Naseeruddin’s the fact that the Respondent signature when Naseeruddin had signed as did not actually a witness sign before to the Respondent*’, Mr Pereira pointed out that the conveyancing transaction itself was genuine. Although Naseeruddin did perpetrate a fraud on Maybank, this was not something the Respondent knew about or had any part in. Even if the Respondent had personally witnessed Naseeruddin’s signature, it would not have prevented the fraud on Maybank. Hence, Mr Pereira submitted that the Respondent “did not cause any harm to anyone”, and that Naseeruddin was the only party that the Respondent acted for in the transaction and he did not act in a way that was adverse to the interests of his client*®, 28. On the 1° Charge, Mr Pereira submitted that the Respondent’s signing of the Certificate of Correctness on the Mortgage Instrument “is in order”, and under s 59 of the LTA, the signing of the Certificate of Correctness “implies representations that to the best of the signatory’s knowledge and belief and in so far as he has 43 [2021] SGHC 27 CSBOA Tab 4 4412010] 3 SLR 390 Respondent’s 2""4 Supplementary Bundle of Authorities 45 Respondent’s 46 Respondent’s 47 Respondent’s 48 Respondent’s Skeletal Submissions Skeletal Submissions Skeletal Submissions Skeletal Submissions at para 11 & 12 at para 18 at para 19 at para 20 20 reasonable means of ascertaining, the Mortgage was made in good faith and that the matters contained in it are substantially correct”. In the present case, Mr Pereira submits that the matters stated on the Mortgage were “definitely substantially correct” *?, 29. Mr Pereira also sought to distinguish Chia Choon Yang and Sum Chong Mun, submitting that the facts in those cases were “far removed” from the present case, because in those two cases, someone else had purportedly signed as the signatory and ended up being given wide ranging powers, and as a result the respondent solicitors had caused actual harm or potential harm*°, Mr Pereira also referred the DT to Kanthosamy Rajendran’s case, a case involving the “same offences as the Respondent but Kanthosamy’s case was worse because the purchaser for whom Kanthosamy was acting for claimed that he never bought the property”. The Inquiry Committee in Kanthosamy Rajendran’s case had decided to recommend a penalty rather than refer the matter to a disciplinary tribunal*'. 30. Notwithstanding the above submissions, Mr Pereira acknowledged that the Alternative 1‘' Charge that the Respondent has pleaded guilty to does involve an element of dishonesty. Mr Pereira nevertheless seeks to persuade the DT that not all cases of dishonesty result in a striking off or suspension, and there “can be a case, 9952 albeit rare, where a censure or fine would be sufficient”’*. Accordingly, Mr Pereira * Respondent’s Skeletal Submissions at para 21 5° Respondent’s Skeletal Submissions at para 22 5! Respondent’s Skeletal Submissions at para 23 > Respondent’s Skeletal Submissions at para 25 21 submits that with respect to the Respondent, there is no cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA. Submissions made by the parties in relation to the 2"" Charge 31, With respect to the 2""! Charge and the Alternative 2°4 Charge, the parties disagree on whether the Respondent can be said to be guilty of any wrongdoing at all. am The Law Society’s case is that by signing the Certificate of Correctness to the Transfer Instrument, based on s 59(2)(c)(i) of the LTA, the Respondent shall be taken to imply representations that to the best of his ability and in so far as he had any reasonable means of ascertaining, Naseeruddin had accepted proprietorship and was of full age and legal capacity. In this case, the Respondent did not in fact use reasonable means to ascertain those facts or act to the best of his ability. He had simply relied on what his conveyancing secretary prepared without checking the Transfer Instrument himself and/or taking any steps to personally verify with Naseeruddin. Consequently, the Law Society submits that the Respondent’s certification was provided recklessly or negligently. 33. The Respondent’s position is clear from the evidence he gave in these proceedings. Although he admits that he did not meet with or call Naseeruddin about the Property, he maintains that he was entitled to rely on Angela, his experienced conveyancing secretary, and there were no red flags that warranted additional action on his part. 22 34. A key part of the parties’ submissions related to the significance of the Respondent’s decision to plead. guilty to the second of the State Court Charges. Mr Rai pointed out that by pleading guilty to the second of the State Court Charges, the Respondent had already admitted that he “falsely certif[ied] to the correctness” of the Transfer and committed an offence under s 59(6) of the LTA. Accordingly, the Respondent’s conviction is final and conclusive against him in these proceedings under s 83(2) of the LPA*?. However, Mr Pereira contended that all that the Respondent can be taken to have admitted to is that he did not during the criminal proceedings in the State Courts dispute the Prosecution’s Statement of Facts, but this does not preclude the Respondent from now demonstrating to the DT how the facts in the Prosecution’s Statement of Facts are not entirely accurate™. 35. The Respondent points out that Naseeruddin was in fact of full age and legal capacity and there was never really any doubt that he accepted proprietorship of the Property. It was therefore submitted that notwithstanding the fact that the Respondent pleaded guilty to the second of the State Court Charges, and in so doing accepted the Prosecution’s Statement of Facts, in the end the, certification that he provided in the Transfer Instrument was correct and he was entitled to rely on his staff Angela not only to prepare the Transfer Instrument but to carry out all the necessary checks. 53 Law Society’s Skeletal Submissions dated 9 July 2021 at para 19 54 Respondent’s Further Submissions at para 2 23 V. DT’s Findings The 1* Charge 36. On the preliminary issue of whether the Law Society’s decision to frame the 1* Charge under s 83(2)(b) of the LPA went beyond the scope of the Complaint, we find that the substance of the 1*' Charge falls squarely within the matters raised in the Complaint. We do not agree that the Complainant’s reference to s 83(2)(h) of the LPA was intended to or can be said to have the effect of removing the Law Society’s discretion to proceed on the basis of s 83(2)(b) of the LPA, if the Law Society considered it appropriate to do so. Accordingly, we find that the Respondent’s objection to the 1‘' Charge on this ground lacks merit and cannot be sustained. 37. We next find that the Respondent’s false representation of having witnessed Naseeruddin’s signature by signing as a witness to his signature and by signing the Certificate of Correctness in the Mortgage Instrument, was sufficiently serious to constitute grossly improper conduct in the discharge of his professional duties within the meaning of s 83(2)(b) of the LPA. There can be no doubt that an act of certification is an important aspect of a solicitor’s duty under s 59 of the LTA. We do not agree with Mr Pereira that the Mortgage Instrument can be said to be “definitely substantially correct”, because the fact remains that the Respondent knowingly made a false representation of having personally witnessed Naseeruddin’s signature. To the extent that this false representation was being 24 downplayed Pereira’s in the Respondent’s acknowledgement that submissions, this does not comport with Mr the false representation on the Mortgage Instrument involved dishonesty. Nor is it consistent with the Respondent’s decision to plead guilty to the Alternative 1*t Charge and his admission that what he did with regards to the Mortgage Instrument constitutes misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession. 38. Having found that the 18' Charge has been made out, the DT has to consider whether in exercising its power under s 93 of the LPA, there is cause of sufficient gravity for disciplinary action under s 83 of the LPA. 39. That the false attestation on the Mortgage Instrument involves dishonesty is not in dispute between the parties. As officers of the Court and members of an honourable profession, solicitors are expected to uphold high standards of probity and integrity. It is difficult to see how the Respondent’s decision to assert a fact that he knows to be false (while performing a statutory duty under s 59(2) of the LTA) can be regarded as anything other than a case in which cause of sufficient gravity for disciplinary action has been established. In our view, such a conclusion is well supported by the decisions of the Court of 3 Judges in Chia Choon Yang and Sum Chong Mun. We find ourselves unable to agree with Mr Pereira that Chia Choon Yang and Sum Chong Mun can be considered “far removed” from the present case. The Court of 3 Judges in those cases had underscored the importance of the solemn. duty of attestation that a solicitor undertakes, leaving no doubt that falsely attesting to having personally witnessed a party signing a document would involve an 25 element of dishonesty and is an act that the court will view severely. We do not agree that the threshold for cause of sufficient gravity was met in Chia Choon Yang simply because “someone else had purportedly signed as the signatory and ended up being given wide ranging powers” >>. In fact, there was no definite finding made by the Court of 3 Judges in Chia Choon Yang that the signatory to the power of attorney in that case did not actually sign the power of attorney. Rather, the finding was that it was clear it was not signed in the respondent’s presence. Whether or not there is actual or presumed harm, an act of false attestation should still be regarded as sufficiently serious to constitute cause of sufficient gravity within the meaning of s 93(1)(c) of the LPA. This outcome should not change even if the false attestation was only a “technical” breach because it turned out that the correct person did sign the document. While the actual degree of harm will be a factor in sentencing, that is ultimately a matter for the Court of 3 Judges to decide. As for Kanthosamy Rajendran’s case, the DT does not consider itself bound by the decision reached by the IC in that case, nor do we necessarily agree with the decision. The 2™ Charge/ Alternative 2""! Charge 40. As for the 2"" Charge/Alternative 2""! Charge, we are unable to accept the Respondent’s contention that he was under no duty to personally verify with Naseeruddin that he was of full age and legal capacity and accepted proprietorship of the Property before signing the Certificate of Correctness in the Transfer Instrument. It bears noting again that the Respondent was performing an act of 55 Respondent’s Skeletal Submissions at para 22 26 statutory certification pursuant to s 59 of the LTA. It was not only important that the information on the Transfer Instrument ultimately be correct. A solicitor providing the certificate of correctness on a Transfer Instrument must represent “to the best of the signatory’s knowledge and belief and in so far as he has any reasonable means of ascertaining” that the matters set forth in the Transfer Instrument are substantially correct and the person acquiring title accepts proprietorship and is of full age and legal capacity. This, the Respondent clearly failed to do. By the Respondent’s own admission, he had simply relied on his staff. He even relied on Maybank and its legal officers because Naseeruddin had been granted a loan. However, any steps the Respondent himself may have taken (if at all) clearly fell short of the expectation that he was to use “any reasonable means” he had to personally verify for Respondent’s argument information before himself what that he was signing the needed to be verified. entitled to rely on others Certificate of Correctness To accept the to verify that would render the solicitor’s duty under s 59 of the LTA meaningless. 41. There is of course, the fact that the Respondent pleaded guilty to the second of the State Court Charges, a charge based on the assertion that the Respondent “did falsely certify to the correctness of a dealing, fo wit, a Transfer”. He had also accepted the Prosecution’s Statement of Facts, including the admission that he not only did not contact Naseeruddin, but he would also sign the conveyancing documents left on his desk without examining its contents, and was only aware that his law firm acted for Naseeruddin in relation to the Property when he was subsequently questioned by CAD officers, 27 42. Section 45A of the Evidence Act (Cap 97, 1997 Rev Ed) states that “the fact that a person has been convicted ... of an offence by or before any court in Singapore shall be admissible in evidence for the purpose of proving ... that he committed ... that offence ... and where he was convicted, whether he was so convicted upon a plea of guilty or otherwise”. 43. Rule 23(2) of the Legal Profession (Disciplinary Tribunal) Rules states that the DT “may, in its discretion, accept as conclusive a finding of fact of a court of competent Jurisdiction in Singapore to which proceedings the respondent was a party”. 44. In pleading guilty to the State Court Charges, the Respondent accepted his wrongdoing and guilt. He also accepted the facts stated in the Prosecution’s Statement of Facts. Indeed, s 227(2)(b) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) makes it clear that before a court records a plea of guilty, it must record the accused’s advocate’s confirmation that the accused understands the nature and consequences of his plea and intends to admit to the offence without qualification. 45. The Respondent has sought to explain that he only pleaded guilty to the second of the State Court Charges and did not raise any objection to the Prosecution’s Statement of Facts because he had had enough and wanted to bring the matter to an end as quickly as possible. Accordingly, he does not actually agree that he falsely certified the Transfer/Transfer Instrument; neither could it be said that what he 28 certified was false, since Naseeruddin was in fact of full age and legal capacity and was prepared to accept proprietorship. 46. We find that an offence under s 59(6) of the LTA is made out so long as a solicitor claims to have performed the duties of certification, when he/she did not do so. It does not become an offence only if it can be proven that the facts stated on the Transfer Instrument were in fact false. The duties of certification require the solicitor to personally verify that the person acquiring title accepts proprietorship and is of full age and legal capacity, or the person divesting title is entitled to divest the interest under the instrument and is of full age and legal capacity. Accordingly, a solicitor who fails to personally discharge this duty under s 59(2) of the LTA and simply assumes that this is so because others have checked for him, does so at his own peril and can be held responsible for failing to discharge his duty. In other words, the certification is false so long as there was in fact no meaningful certification, and this is so even if the facts stated on the Transfer Instrument turned out to be true. 47, In the present case, the Respondent had already admitted without qualification to para 13 of the Prosecution’s Statement of Facts that he “would sign conveyancing documents that were left on his desk without examining its contents, as he assumed that the said documents would have been prepared correctly”. Having accepted those facts in a court of law, we do not agree with the Respondent’s contention that this should not be regarded as an admission and that he is not precluded from now arguing that the Prosecution’s Statement of Facts are not entirely accurate. We note 29 that a similar position had been unsuccessfully advanced by the respondent in Law Society of Singapore v Choy Chee Yean*’, The Court of 3 Judges in Choy Chee Yean noted that the respondent had already expressly admitted the elements of the criminal offence at the time of his guilty plea and had acknowledged that the offence involved dishonesty. As a lawyer, “he knew precisely what the plea of guilt meant and entailed”>’. The same can be said of the Respondent in the present case. 48. We therefore find that the facts in the 2.4 Charge/Alternative 2"" Charge have been established. In this regard, we note that the Law Society is not claiming that the offence was committed by the Respondent dishonestly; rather, the Respondent signed the Certificate of Correctness in the Transfer Instrument recklessly or negligently because he did not conduct any checks of his own. The question is this: can the Respondent’s actions be said to constitute grossly improper conduct in the discharge of his professional duty (s 83(2)(b) of the LPA), or is the Respondent guilty of misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession (s 83(2)(h) of the LPA)? 49, In the recent decision of Loh Der Ming Andrew v Koh Tien Hua’®, the Court of Appeal stated the following: “A solicitor’s conduct is grossly improper if it is dishonourable to the solicitor concerned as a man and in his profession (Law Society of Singapore v Ezekiel Peter 56 [2010] 3 SLR 360 (“Choy Chee Yean”), RSBOA Tab 2 7 At [25] 58 [2021] SGCA 81 30 Latimer [2019] 4 SLR 1427...). In contrast, the test for misconduct unbefitting an advocate and solicitor is broader, and considers whether reasonable people, on hearing what the solicitor had done, would have said without hesitation that as a solicitor he should not have done it..”°? In the round, we thought that Koh had acted appropriately in his conduct before the court. By consenting to have the particulars struck out, he had saved judicial time and resources. However, where Koh erred was in failing to advise his client properly and failing to inform his client of the position he would be taking before the court. This was improper, but in the circumstances, it was not grossly so, and it certainly was not fraudulent.” 50. In the present case, we find that the Respondent’s failure to perform his duty under s 59(2) of the LTA in relation to the Transfer Instrument was improper conduct on his part, but it was not grossly so. The Law Society did not allege that there was any dishonesty on the Respondent’s part, and we accept that the Respondent had simply lacked diligence in performing his duty, choosing instead to assume that if there was any irregularity, his staff Angela would have spotted it. We are satisfied that reasonable people, upon knowing that the law requires the certification to be performed by the solicitor of the party to the instrument, would have said without hesitation that the Respondent should not have simply relied on his staff but was expected to personally take steps to contact his client Naseeruddin and check © At [47] © At [49] 31 through the contents of the instrument. We therefore conclude that the 2""! Charge was not made out in that the Respondent’s conduct, while improper, did not rise to the level that it was grossly improperly. However, we find that the Alternative 2™ Charge has been proven against the Respondent. 51. Finally, we considered if the Respondent’s conviction on the Alternative 2"" Charge would give rise to cause of sufficient gravity to warrant disciplinary action under s 83 of the LPA. Between the 1 Charge and the Alternative 2""! Charge, the former must be regarded as being more serious in nature and extent, in terms of the impropriety of the conduct. If the Alternative 2""! Charge was being considered on its own, we might have been persuaded that cause of sufficient gravity may not be established, and the matter could be referred back to the Law Society to consider if a fine, censure or warning should be imposed. However, bearing in mind that we have already decided that cause of sufficient gravity has been established on the 1“ Charge, and the fact that the subject matter of both charges relates to a single conveyancing transaction for which the Respondent was the solicitor in charge, we are of the view that the conviction on both the 1 Charge and the Alternative 2"" Charge should rightly be considered holistically in terms of what sanction would be appropriate to impose. Accordingly, in relation to both the 1 Charge and the Alternative 2.4 Charge, we are satisfied that there is a prima facie case on the relevant evidence that due cause is present, and in the circumstances, we find that both ought to be referred to the Court of 3 Judges. VII. Conclusion 16th ",2024-11-11T04:00:28+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-nov-2024/,"In the Matter of Mohammed Lutfi bin Hussin (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-nov-2024/",1128 40,f722e6cb2861a341a3e5f7755ea48b5b62e45e8e,"In the Matter of Krishnamoorthi s/o Kolanthaveloo (Respondent), Advocate & Solicitor","In the Matter of Krishnamoorthi s/o Kolanthaveloo (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Mr Seto Wan Tarng (the Complainant). The Respondent was admitted to the Roll of Advocates and Solicitors of the Supreme Court of the Republic of Singapore on 8 July 1992 and was, at all material times, a partner of M/s K. Krishna & Partners (the Firm). The Complainant had sustained personal injuries in a motor accident while driving his taxi. He sent his taxi for repairs at ComfortDelGro’s authorised car repairer, who referred him to the Firm regarding his personal injury claim. The Complainant signed the Firm’s Warrant to Act on 17 May 2019, and received the Firm’s letter dated 30 May 2019 confirming their appointment to act and enquiring as to his medical condition. The Respondent then received a specialist medical report on the Complainant’s injuries around 28 August 2019, but did not seek the Complainant’s instructions on it nor advise the Complainant on the quantum of damages claimable in respect of his injuries. Without seeking the Complainant’s instructions or keeping him informed, between 26 September 2019 and 17 December 2019, the Respondent proceeded to exchange letters with NTUC Income (the insurers for the tortfeasor) (NTUC) to settle the Complainant’s claim, including counter-proposals by the Respondent. Copies of these correspondences were not provided to the Complainant by the Respondent or the Firm. Throughout the entire duration of the Respondent’s handling of the claim: the Respondent did not personally speak with the Complainant at any time; all dealings were between the Respondent’s paralegal, Mr Veknesh Mohanathass (Veknesh) or other staff and the Complainant; none of the Firm’s emails to NTUC, or NTUC’s emails to the Firm, were furnished to the Complainant; there was no email communication between the Firm and the Complainant; and no reasonable advice was given to the Complainant regarding his personal injury claim, party-and-party costs and solicitor-and-client costs. On 17 December 2019, Veknesh telephoned the Complainant to discuss NTUC’s counter-offer of 17 December 2019, during which the Complainant was informed that NTUC had initially offered compensation of $2,000; the Complainant informed Veknesh that he was unhappy with the figure of $2,000 and wanted a sum of at least $3,000; Veknesh explained that it was unlikely that NTUC would increase their offer such that the Complainant would receive more than $3,000; and at the end of the discussion, the Complainant agreed to accept a sum of $2,800. On 18 December 2019, there was another telephone conversation between Veknesh and the Complainant, during which Veknesh informed the Complainant about NTUC’s counter-offer of 18 December 2019. On 2 January 2020, the Firm sent a letter to the Complainant, enclosing NTUC’s discharge voucher dated 17 December 2019 for the amount of $5,783.49 in settlement of the Complainant’s claims. The Complainant signed the discharge voucher and the matter was eventually concluded on around 28 January 2020 when the Complainant collected a cheque of $3,500 from the Firm after paying $700 in cash. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Lok Vi Ming SC and Ms Disa Sim Jek Sok as DT member. One amended charge was proceeded against the Respondent (the Amended Charge): Amended Charge For breach of Rules 5(2)(b), 5(2)(e), 5(2)(h) and 17(2)(c) of the Legal Profession (Professional Conduct) Rules 2015 in that the Respondent: issued the Firm’s 26 September 2019 letter to NTUC, rejected their counter-offer of 25 November 2019, and issued the Firm’s further counter-offer of 2 December 2019 to them, without the Complainant’s instructions; failed to keep the Complainant informed of the matters in (a) above and did not supply copies of any correspondence passing between the Firm and NTUC throughout the entire duration of his handling of the claim; and failed to give any reasonable advice to the Complainant on his personal injury claim, his right to recover party-party costs from the tortfeasor, and his liability to pay solicitor-client costs to the Firm; amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b)(i) of the Legal Profession Act 1966 (LPA). Findings and Determination of the DT, Council’s Sanctions The DT concluded that this is not a case where only reprimand or a censure is appropriate. It is the very core of a legal practitioner’s duty to give proper guidance and advice to a client, especially so where the client may lack certain sophistication and general understanding of the law such as in this case. It was therefore incumbent on the Respondent to give a full breakdown of what the Claimant would be getting in NTUC’s various offers and a proper explanation on the various types of costs he should pay. However, the DT notes that due consideration should be placed on the fact that the Respondent had pleaded guilty to the Amended Charge on the first day of the hearing on 6 June 2022. The Respondent had also since returned the sum of $700 which was charged as solicitor-and-client costs to the Complainant. The DT placed great weight on this gesture as the gravamen of the complaint was that the Complainant felt aggrieved that he had to pay the Firm $700 from the damages for his personal injury claim, despite the manner in which the Respondent had handled his matter. Nevertheless, the DT noted that the Complainant’s dissatisfaction would also have been mitigated or completely avoided if the Respondent kept him informed of the various offers exchanged between NTUC and the Firm, and supplied him copies of the correspondence passing between the Firm and NTUC. He would then at least have had the opportunity to raise queries or objections regarding NTUC’s various offers and would have been aware of the party-and-party costs of $2,283.49 claimed by the Firm instead of only finding out when he received NTUC’s discharge voucher on 2 January 2020. Therefore, the DT was of the view that the issue of the $700 payment falls squarely within the four corners of the Respondent’s failures as reflected in the Amended Charge. The DT determined that while there exists no cause of sufficient gravity for disciplinary action under section 83 of the LPA, the Respondent should be ordered to pay a penalty of pursuant to section 93(1)(b)(i) of the LPA and recommended the sum of $3,500 which the DT considers sufficient and appropriate for the misconduct committed. The DT also ordered the Respondent to pay costs of $4,000 (all-in). Council accepted the findings of the DT and imposed a financial penalty of $2,500 on the Respondent. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2024/10/Oct_24_Full_DT_report_-_Krishnamoorthi_so_Kolanthaveloo.pdf,"DT/24/2021 IN THE MATTER OF KRISHNAMOORTHI S/O KOLANTHAVELOO (AN ADVOCATE & SOLICITOR) AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Coram President: Mr Lok Vi Ming, S.C. Advocate & Solicitor: Ms Disa Sim Jek Sok Solicitors for the Law Society: Solicitors for the Respondent: Mr Daniel John Ms Cara Satapornvanit Mr Ragbir Singh s/o Ram Singh Bajwa GOODWINS LAW CORPORATION 143 Cecil Street #03-02 GB Building Singapore 069542 BAJWA & CO 3 Shenton Way #08-02 Shenton House Singapore 068805 Dated this 3rd day of January 2023 2 I. INTRODUCTION 1. Mr Krishnamoorthi s/o Kolanthaveloo (the “Respondent”) was admitted to the roll of advocates and solicitors of the Supreme Court of the Republic of Singapore on 8 July 1992 and was, at all material times, a partner of M/s K. Krishna & Partners (the “Firm”). 2. These proceedings arose out of a complaint made by way of a letter dated 26 November 2020 against the Respondent by Mr Seto Wan Tarng (the “Complainant”), a taxi driver who has been working with ComfortDelGro since 2002. II. CHARGES AND PROCEEDINGS OF THE TRIBUNAL 3. On 11 November 2021, this Disciplinary Tribunal (“the Tribunal”) was appointed. In the Statement of Case filed by the Law Society against the Respondent dated 21 October 2021, the original charges preferred were as follows: a. The first main charge was that the Respondent had breached rules 5(2)(b), 5(2)(e), 5(2)(i), 17(2)(c), 17(4), 26(2) and/or 39(2) of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”) in that sometime between 26 September 2019 and 2 December 2019, during the course of the Firm’s retainer in acting for the Complainant in his personal injury matter, the Respondent had: i. issued the Firm’s 26 September 2019 letter to NTUC Income Insurance Cooperative Limited (“NTUC”), rejected their counter-offer of 25 November 3 2019, and issued the Firm’s further counter-offer of 2 December 2019 to them, without the Complainant’s instructions; and/or ii. failed to keep the Complainant informed of the matters in (i) above; and/or iii. failed to explain to the Complainant that in any event, he is personally responsible for paying his own solicitor-and-client costs in full, and that NTUC may not pay the full amount of such costs even if he was successful in his claim, and such conduct amounted to improper conduct or practice as an advocate and solicitor with the meaning of section 83(2)(b) of the Legal Profession Act 1966 (“LPA”). b. The first alternative charge was that the same conduct as in the first main charge also amounted to improper practice as an advocate and solicitor with the meaning of section 83(2)(h) of the LPA (i.e., misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession). c. The second main charge was that the Respondent had breached rules 5(2)(b), 5(2)(e), 5(2)(j), 17(2)(c), 17(4), 22(1)(a), 22(2), 22(3)(a) and/or 22(3)(b) of the PCR in that sometime on 17 December 2019, during the course of the Firm’s retainer in acting for the Complainant in his personal injury matter, the Respondent had: 4 i. obtained the Complainant’s instructions to settle the Complainant’s personal injury claim with NTUC at $2,800 in damages whilst failing to inform the Complainant that NTUC had already made its 17 December offer comprising $3,000 in damages and $2,283.49 for costs and disbursements; and/or ii. rejected NTUC’s 17 December offer of $3,000 in damages with the intention of getting NTUC to make a higher offer of damages with the intention that any amounts in excess of $2,800 would be charged to the Complainant as the Firm’s solicitor-and-client costs, and such conduct amount to improper conduct or practice as an advocate and solicitor with the meaning of section 83(2)(b) of the LPA. d. The second alternative charge was that the same conduct as in the second main charge also amounted to improper practice as an advocate and solicitor with the meaning of section 83(2)(h) of the LPA (i.e., misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession). e. The third main charge was that the Respondent had breached rules 5(2)(a), 5(2)(b), 5(2)(e), 5(2)(i), 5(2)(j), 17(2)(c), 17(4), 22(1)(a), 26(2) and/or 39(2)(g) of the PCR in that sometime on 18 December 2019, during the course of the Firm’s retainer in acting for the Complainant in his personal injury matter, the Respondent had led the Complainant to believe that NTUC had offered to settle the Complainant’s personal injury claim at $3,500, from which the Complainant had to pay the Firm 5 $700 in legal fees, whilst deliberately omitting to inform him that NTUC’s settlement offer included an additional sum of $2,283.49 for costs and disbursements which would be paid to the Firm directly, and by such deliberate omission, the Respondent induced the Complainant into instructing the Firm to accept NTUC’s settlement offer and/or agreeing to pay the Firm $700 in legal fees, and such conduct amount to improper conduct or practice as an advocate and solicitor with the meaning of section 83(2)(b) of the LPA. f. The third alternative charge was that the same conduct as in the third main charge also amounted to improper practice as an advocate and solicitor with the meaning of section 83(2)(h) of the LPA (i.e., misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession). 4. The matter was initially fixed for hearing from 6 June 2022 to 8 June 2022. However, prior to and on the first day of the hearing, the parties engaged in extensive discussions, leading eventually to the Law Society proceeding only on one amended charge (the “Amended Charge”) which is as follows: “AMENDED CHARGE You, Krishnamoorthi s/o Kolanthaveloo, an Advocate & Solicitor of the Supreme Court of the Republic of Singapore, are charged that sometime between 26th September 2019 and 28th January 2020, while practicing law under the law firm of K Krishna & Partners (the “Firm”), during the course of the Firm’s retainer in acting for the Complainant in his personal injury claim breached Rules 5(2)(b), 6 5(2)(e), 5(2)(h) and 17(2)(c) of the Legal Profession (Professional Conduct) Rules 2015, in that you had: a. issued the Firm’s 26th September 2019 letter to NTUC, rejected their counteroffer of 25 November 2019, and issued the Firm’s further counter-offer of 2 December 2019 to them, without the Complainant’s instructions; b. failed to keep the Complainant informed of the matters in (a) above and did not supply copies of any correspondence passing between the Firm and NTUC throughout the entire duration of your handling of the claim; and c. failed to give any reasonable advice to the Complainant on his personal injury claim, his right to recover party-party costs from the tortfeasor, and his liability to pay solicitor-client costs to the Firm; and such breaches amounted to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b)(i) of the Legal Profession Act 1966.” 5. The Amended Charge and the Statement of Facts were read to the Respondent subsequently in the afternoon of the first day of the hearing, 6 June 2022, and he pleaded guilty. We therefore found the Respondent liable for the matters raised in the Amended Charge. 7 6. The hearing was then adjourned for parties to tender written submissions on sentencing and the parties reconvened at a subsequent hearing on 17 August 2022 where the Law Society and the Respondent made further oral submissions on sentencing. III. BACKGROUND FACTS (i) The Statement of Facts (as reproduced from the version which was read to and agreed to by the Respondent on 6 June 2022) 7. The Respondent is an Advocate and Solicitor of the Supreme Court of the Republic of Singapore of 29 years’ standing, and was at all material times a practising advocate and solicitor and a partner in the Firm (as defined above). 8. The Respondent’s main area of work is personal injury and accident claims. 9. The Complainant who was at all material times a taxi driver with ComfortDelGro. On 26 April 2019, the Complainant sustained personal injuries in a chain collision accident while he was driving his taxi. 10. The Complainant sent his taxi for repairs to ComfortDelGro’s authorised car repairer, Chunni Motor Work Pte Ltd. The latter referred him to the Firm regarding his personal injury claim. 11. The Complainant signed the Firm’s Warrant to Act on 17 May 2019. 8 12. The Respondent subsequently received the Firm’s letter dated 30 May 2019 confirming their appointment to act and enquiring as to his medical condition. 13. Though the Respondent received Dr. Steven Ang’s specialist medical report around 28 August 2019, he did not seek the Complainant’s instructions on it nor advise the Complainant on the quantum of damages claimable in respect of his injuries. 14. The Respondent did not give the Complainant any reasonable legal advice regarding the expected damages he could get for his injuries, the legal costs he could recover from the tortfeasor’s insurer, or the legal costs he was expected to pay the Firm for handling the matter. 15. Without seeking the Complainant’s instructions, on or around 26 September 2019, the Respondent wrote a letter to NTUC (the insurers for the tortfeasor) quantifying the Complainant’s claim seeking the following:- General Damages $ 7,000.00 Special Damages (including three days’ lost earnings) $ 345.50 Others (inclusive of medical report and search fees) $ 582.49 Contribution towards legal costs (i.e., P&P Costs) $ 2,500.00 TOTAL 16. $10,427.99 Neither the Respondent nor the Firm supplied a copy of the above letter and enclosures to the Complainant. 9 17. On or around 2 December 2019, the Respondent received NTUC’s counter-offer dated 25 November 2019, in which they proposed to settle the Complainant’s claim at a sum of $4,007.49 comprising $2,000 for damages and $2,007.49 for costs and disbursements. Neither the Respondent nor the Firm supplied a copy of this letter to the Complainant. 18. Without consulting the Complainant nor keeping him informed of the action taken, the Respondent rejected NTUC Income’s offer, and on 2 December 2019, counter-proposed the following:- 19. a. General Damages $ 4,000.00 b. Medical report fees $ 321.00 c. GIA/LTA Fee $ 36.49 d. Costs (inclusive of GST) $ 1,926.00 TOTAL $6,283.49 By their without prejudice response email of 17 December 2019 (of 9:03am) NTUC counter-offered the following:- a. Damages $ 3,000.00 b. Costs and disbursements $ 2,283.49 TOTAL $5,283.49 Neither the Respondent nor the Firm supplied a copy of this email to the Complainant. 20. The Respondent concluded the matter on around 28 January 2020. 10 21. Throughout the entire duration of the Respondent’s handling of the claim:- a. the Respondent did not personally speak with the Complainant at any time; all dealings were between the Respondent’s paralegal, Mr. Veknesh Mohanathass (“Veknesh”) or other staff and the Complainant; b. none of the Firm’s emails to NTUC, or NTUC’s emails to the Firm, were furnished to the Complainant; c. there was no email communication between the Firm and the Complainant; and d. no reasonable advice was given to the Complainant regarding his personal injury claim, party-and-party costs and solicitor-and-client costs. 22. The claim was eventually concluded with the Complainant’s consent, but he was aggrieved by the matters stated above and lodged a complaint with the Law Society of Singapore. (ii) 23. Other relevant facts Aside from the Statement of Facts, both the Law Society and the Respondent referred to other pertinent facts in their respective submissions on sentencing which we find ought to be highlighted as well. 11 24. Following NTUC’s counter-offer of $5,283.49 (comprising $3,000 for damages and $2,283.49 for costs and disbursements) on 17 December 2019, Veknesh replied NTUC on the same date to counter-propose $3,600 for damages. 25. On 17 December 2019, Veknesh telephoned the Complainant to discuss NTUC’s counter-offer of $5,283.49. There is disagreement as to whether this telephone conversation took place before or after Veknesh replied to NTUC to counter-propose $3,600 for damages. However, while the Complainant and Veknesh had different accounts of this telephone conversation, both the Law Society and the Respondent described the contents of this conversation to include the following: a. the Complainant was informed that NTUC had initially offered compensation of $2,000;1 b. the Complainant informed Veknesh that he was unhappy with the figure of $2,000 and wanted a sum of at least $3,000;2 c. Veknesh explained that it was unlikely that NTUC would increase their offer such that the Complainant would receive more than $3,000;3 and d. at the end of the discussion, the Complainant agreed to accept a sum of $2,800.4 1 Paragraph 11 of the Affidavit of Evidence-in-Chief of Seto Wan Tarng dated 6 January 2022; Paragraph 11.a. of the Defence dated 2 December 2021. 2 Paragraph 11 of the Affidavit of Evidence-in-Chief of Seto Wan Tarng dated 6 January 2022; Paragraph 11.b. of the Defence dated 2 December 2021. 3 Paragraph 12 of the Affidavit of Evidence-in-Chief of Seto Wan Tarng dated 6 January 2022; Paragraph 9 of the Affidavit of Evidence-in-Chief of Veknesh Mohanathass dated 19 January 2022. 4 Paragraph 12 of the Affidavit of Evidence-in-Chief of Seto Wan Tarng dated 6 January 2022; Paragraph 12 of the Defence dated 2 December 2021; Paragraph 10 of the Affidavit of Evidence-in-Chief of Veknesh Mohanathass dated 19 January 2022. 12 26. Following this, NTUC replied on 17 December 2019 to make a subsequent counter-offer of $5,783.49 (comprising $3,500 for damages and $2,283.49 for costs and disbursements). There was yet another telephone conversation between Veknesh and the Complainant subsequently on 18 December 2019 where Veknesh informed the Complainant about NTUC’s latest counter-offer. However, on one hand, Veknesh’s version of this conversation was that he informed the Complainant that NTUC had offered $3,500 and proposed that the Complainant contribute $700 as legal costs payable to the Firm to which the Complainant agreed.5 On the other hand, the Complainant’s recalls Veknesh informing him that NTUC had agreed to pay him $2,800 but that NTUC would issue a cheque for $3,500 and he would have to pay $700 in cash in exchange for this cheque.6 27. On 2 January 2020, the Firm sent a letter to the Complainant, enclosing NTUC’s discharge voucher dated 17 December 2019 for the amount of $5,783.49 in settlement of the Complainant’s claims. The Complainant signed the discharge voucher and the matter was eventually concluded on around 28 January 2020 when the Complainant collected cheque of $3,500 from the Firm after paying $700 in cash. IV. LAW SOCIETY’S SUBMISSIONS ON SENTENCING 28. The Law Society recommended that a fine of $10,000 be imposed on the Respondent. In support of this recommendation, the Law Society submitted, inter alia, that: 5 Paragraphs 16 and 17 of the Affidavit of Evidence-in-Chief of Veknesh Mohanathass dated 19 January 2022. 6 Paragraph 13 of the Affidavit of Evidence-in-Chief of Seto Wan Tarng dated 6 January 2022. 13 a. The Complainant was entitled to expect that (1) the Respondent would gather information from him on his claim (the injuries he suffered, expenses he incurred in treatment, etc.), (2) advise him on the prospects of success of his claim, (3) advise him on the expected general and special damages he might recover, (4) advise him on the party-and-party costs he may recover and that such costs belongs to him, (5) advise him on the solicitor-and-client costs the Firm was entitled to charge him and that this amount had to be approved by the Public Trustee, and (6) advise him that the settlement sum would be paid by NTUC to the Public Trustee who would then in turn pay the Firm’s solicitor-and-client costs and return the balance to the Complainant. Instead, the Respondent did none of these acts.7 b. The Respondent never discussed any aspects of the pre-action letter of demand dated 26 September 2019 which was sent to NTUC with the Complainant (i.e., the first letter of demand sent to NTUC). Instead, the Respondent, inter alia, chose to pitch the Complainant’s injury at the upper level of a “minor whiplash injury and soft tissue damage classified as Grade 1 whiplash injury” as found in the Guideline for the Assessment of General Damages in Personal Injury Cases, and claim partyand-party costs of $2,500 in the matter. The latter meant that his claim for solicitorand-client costs would be even higher.8 c. The Respondent should have realised that the Complainant’s medical report which he had relied on to quantify the Complainant’s injuries was issued by a general practitioner and not an orthopaedic specialist, and should have advised the 7 Paragraph 15 of the Law Society’s Sentencing Submissions dated 12 July 2022. 8 Paragraph 20 of the Law Society’s Sentencing Submissions dated 12 July 2022. 14 Complainant to see an orthopaedic specialist or to submit to an examination by NTUC’s specialist (which NTUC offered in their letter dated 2 October 2019).9 d. The Respondent was careless about what damages the Complainant was entitled to and arbitrarily brought down his quantification of general damages from $7,000 to $4,000 in the Firm’s letter dated 2 December 2019 without any discussion with or explanation to the Complainant.10 e. The Respondent provided no explanation to neither Veknesh nor the Complainant as to why the general damages of $3,000 offered by NTUC was fair and instead there was simply some unprincipled haggling between Veknesh and the Complainant leading to the Complainant agreeing to accept a net sum of $2,800 for his claim. The Respondent was therefore reckless in his actions of getting Veknesh to persuade the Complainant to accept NTUC’s counter-offer of 17 December 2019.11 29. The Law Society referred us to two cases: (1) The Law Society of Singapore v Sham Chee Keat [2018] SGDT 5 (“Sham”) where the respondent had misunderstood the outcome of a pre-trial conference and acted carelessly and caused the client to affirm statements in his affidavit that were inaccurate or false, resulting in a penalty ordered of $5,000;12 and (2) The Law Society of Singapore v Constance Margret Paglar [2020] SGDT 4 (“Constance”) where the Law Society submitted that, in the absence of aggravating factors, where a legal practitioner is charged and found liable for breach of 9 Paragraphs 24 and 25 of the Law Society’s Sentencing Submissions dated 12 July 2022. 10 Paragraph 28.a. of the Law Society’s Sentencing Submissions dated 12 July 2022. 11 Paragraphs 34 and 37 of the Law Society’s Sentencing Submissions dated 12 July 2022. 12 Paragraph 47 of the Law Society’s Sentencing Submissions dated 12 July 2022. 15 rule 5(2) of the PCR, a monetary penalty was appropriate and that a penalty of $6,000 in that case was appropriate.13 30. The Law Society’s view here was that the Respondent’s conduct was more serious than that of the charges proceeded against the lawyers in Sham and Constance14 and therefore a penalty of $10,000 would be appropriate. V. THE RESPONDENT’S SUBMISSIONS ON SENTENCING AND MITIGATION PLEA 31. Conversely, the Respondent submitted that only a reprimand or a censure should be imposed for the Amended Charge. The Respondent raised the following arguments in mitigation: a. The Respondent accepts that he should have been more circumspect and prudent and should have engaged with the Complainant at every stage. Instead, drawing on his experience in dealing with cases involving taxi drivers, the Respondent had thought that taxi drivers preferred not to get involved at the early stages of such matters given their daily work routine and would find it disruptive to attend the lawyer’s office or receive calls at the early stages of negotiations. Thus, he had proceeded to engage with NTUC until a reasonable offer had been received, and had the interest of the Complainant at the forefront.15 13 Paragraphs 46 and 49 of the Law Society’s Sentencing Submissions dated 12 July 2022. 14 Paragraph 52 of the Law Society’s Sentencing Submissions dated 12 July 2022. 15 Paragraphs 16 and 19 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 16 b. The Respondent also took the position that if he had engaged the Complainant at the early stages of the negotiations, the Complainant would have in all likelihood told him to negotiate further. Moreover, from his experience, some offers are ridiculously low and do not merit any consideration nor reference to the client.16 c. While the Respondent did not supply copies of the correspondence between the Firm and NTUC, he had, through Veknesh, updated the Complainant by phone on 17 December 2019 and 18 December 2019.17 d. The Respondent, through Veknesh, had discussed the Complainant’s medical report with him and did advise the Complainant as to the damages which he could reasonably expect during the call on 17 December 2019. On the 18 December 2019 phone call, the Respondent had also, through Veknesh, advised the Complainant that NTUC’s final offer of $3,500 was reasonable. Thus, while the Respondent accepts that he had “failed to give any reasonable advice to the Complainant” as per the Amended Charge, it was not the case where he gave no advice at all.18 e. While the Respondent concedes that he should have explained to the Complainant the difference between party-and-party costs and solicitor-and-client costs, the Complainant should have reasonably deduced from NTUC’s discharge voucher for $5,783.49 that NTUC was paying $2,283.49 as costs and disbursements in addition to the agreed damages of $3,500.19 16 Paragraph 21 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 17 Paragraph 34 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 18 Paragraphs 27 to 30 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 19 Paragraphs 36 and 37 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 17 32. The Respondent also relied on the case of Constance and highlighted the similarities in Constance and this case, namely that:20 33. a. both cases involved the solicitors acting in motor accident cases; b. both involved negotiations with insurers; c. both involved a reduction of charges prior to pleading guilty; d. both involved a breach of the PCR; and e. both were for improper conduct and not grossly improper conduct. The Respondent drew our attention to the fact that while the Law Society had submitted for a fine of $6,000 in Constance, the tribunal in that case only ordered a penalty of $2,500.21 34. The Respondent also highlighted his lack of antecedents and unblemished record of 30 years, and his service in the Law Society’s Non-Injury Motor Accident / Personal Injury Motor Accident sub-committee in mitigation.22 35. In addition to the submissions mentioned above, the Respondent also submitted at the hearing on 17 August 2022 that the Law Society had raised new assertions of fact that 20 Paragraph 39 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 21 Paragraph 41 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 22 Paragraph 47 of the Respondent’s Sentencing Submissions and Mitigation Plea dated 12 July 2022. 18 the Respondent did not agree to. Particularly, the Respondent took issue with the Law Society’s submission at paragraph 28(c) above that the Respondent did not advise the Complainant to see an orthopaedic specialist or submit to an examination by NTUC’s specialist, and that this submission was neither raised in the complaint nor the subject of the complaint or Amended Charge. 36. Finally, at the hearing before us on 17 August 2022, the Respondent indicated that he was willing to make amends with the Complainant by returning the sum of $700 which was charged as solicitor-and-client costs. We understand that this $700 has been returned by way of cheque to the Complainant on 13 September 2022. VI. DECISION OF THE TRIBUNAL 37. Section 93 of the LPA provides as follows: “93.— (1) After hearing and investigating any matter referred to it, a Disciplinary Tribunal must record its findings in relation to the facts of the case and according to those facts shall determine that — (a) no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be); (b) while no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be), the regulated legal practitioner should be — (i) ordered to pay a penalty that is sufficient and appropriate to the misconduct committed; 19 (ii) reprimanded; (iii) ordered to comply with one or more remedial measures; or (iv) subjected to the measure in sub‑paragraph (iii) in addition to the measure in sub‑paragraph (i) or (ii); or (c) cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be).” 38. We agree with the Respondent that the case of Constance bears several similarities with this case. Notably, the Court of Three Judges held in Law Society of Singapore v Constance Margreat Paglar [2021] 4 SLR 382 at [31] that: “31 It cannot be gainsaid that the respondent could only be held to account for the specific misconduct that she had been charged for. To hold otherwise would be prejudicial to the respondent, since it is the charge that informs a lawyer facing disciplinary proceedings of the case that he or she has to meet and impacts the decision he or she makes as to how to respond to the disciplinary proceedings… The court did not dispute the point made that the Disciplinary Committee was not at liberty to consider the allegation which had been omitted from the amended charge…” 39. As such, as it was in Constance, our decision on sentence must only be limited to the Amended Charge to which the Respondent had pleaded guilty. In this regard, we agree with the Respondent that the Law Society’s submission at paragraph 28(c) above that the Respondent should had advised the Complainant to see an orthopaedic specialist or to 20 submit to an examination by NTUC’s specialist, was a new assertion of fact which was not borne out in the Amended Charge, Statement of Facts or complaint. 40. That said, this is certainly not a case where only reprimand or a censure is appropriate. It is the very core of a legal practitioner’s duty to give proper guidance and advice to a client. This is especially so where the client may lack certain sophistication and general understanding of the law such as in this case. It was therefore incumbent on the Respondent to give a full breakdown of what the Claimant would be getting in NTUC’s various offers and a proper explanation on the various types of costs he should pay. 41. Legal practitioners also have a basic duty to keep clients informed of the progress of their matter and to provide the client with copies of correspondence sent by the legal practitioner on the client’s behalf. This is so that the client will be aware of what is happening in the matter and have an opportunity to raise any queries or objections. This was not done by the Respondent. 42. We also agree with the Law Society that based on the Amended Charge and Statement of Facts, the present case is in our view more severe than in Sham (where a penalty of $5,000 was ordered) and Constance (where a penalty of $2,500 was ordered). 43. First, the Amended Charge (to which the Respondent pleaded guilty and has been found liable for) concerned a breach of the following rules of the PCR: 21 a. rule 5(2)(b) of the PCR: the legal practitioner must when advising the client, inform the client of all information known to the legal practitioner that may reasonably affect the interest of the client; b. rule 5(2)(e) of the PCR: the legal practitioner must keep the client reasonably informed of the progress of the client’s matter; c. rule 5(2)(h) of the PCR: the legal practitioner must provide timely advice to the client; and d. tule 17(2)(c) of the PCR: the legal practitioner must explain clearly and properly to his or her client a proposal of amicable resolution, or any other offer or position taken by any other party, which affects the client. 44. In contrast, the respondent in Sham was found to have breached only rule 5(2)(c) of the PCR (i.e., failure to act with reasonable diligence and competence) and the amended charge in Constance concerned a breach of only rule 5(2)(e) of the PCR (i.e., failure to keep the client reasonably informed of the progress of the matter). 45. Secondly, in Constance, the gravamen of the amended charge was that after the respondent was instructed by the client to accept the tortfeasor’s insurer’s offer, the respondent proceeded to negotiate further to obtain a higher party-and-party costs without informing the client. In Sham, the respondent was found liable of failing to act with reasonable diligence and competence when she caused the client to include an inaccurate and false statement in her client’s affidavit. 22 46. Here, the Amended Charge pertains to the Respondent’s act of negotiating with NTUC without the Complainant’s instructions, failure to keep the Complainant informed of the initial negotiation, failure to supply any correspondence to the Complainant, and failure to give any reasonable advice to the Complainant. The scope of the Amended Charge is therefore much wider than both the amended charge in Constance and the charge in Sham. 47. However, we do note that unlike in Sham where the respondent did not plead guilty and the matter proceeded for hearing, the Respondent in this case had pleaded guilty to the Amended Charge on the first day of the hearing, 6 June 2022. Due consideration and weight should be placed on this fact. We have also taken into consideration the Respondent’s submissions on costs (as detailed below) in mitigation. 48. More crucially, the Respondent has since returned the sum of $700 which was charged as solicitor-and-client costs to the Complainant. We place great weight on this gesture as in our view, the gravamen of the complaint was that the Complainant felt aggrieved that he had to pay $700 out of the damages for his personal injury claim to the Firm despite the manner in which the Respondent had handled his matter. This is evident in the Complainant’s handwritten complaint dated 26 November 2020 where he states: “I complaint (sic): a) Lawyer K. Krishnamoorthi did not provide the best interest of his client – The personal injury claim payout is $3,500 but told his client is $2,000 then ask me to settle at $2,800. 23 b) Lawyer K. Krishnamoorthi is dishonest, cheat and greedy – He tried to get a bigger amount for his legal fee from the personnal (sic) injury claim payout of his client. c) Overcharge of legal fee – He already claim his legal fee from NTUC Income Co-operative Limited and still ask his client to pay legal fee.” [Emphasis added] 49. In essence, the Complainant felt wronged that the Respondent had required him to pay $700 in cash (i.e., the Respondent had “tried to get a bigger amount for his legal fee” and “already [claimed] his legal fee from [NTUC] and still [asked] [the Complainant] to pay legal fee”), even though (1) he had informed Veknesh that he wanted at least $3,000 in damages but was advised to “settle at $2,800”; (2) NTUC had in fact offered $3,500 in general damages; and (3) the Firm was already pocketing $2,283.49 in costs (i.e., the “legal fee from NTUC Income Co-operative Limited”). 50. We would also add that we are cognisant of the Tribunal’s duty to hear and investigate the complainant and charges as has been held by the High Court in Law Society of Singapore v Yeo Khirn Hai Alvin and another matter [2020] 4 SLR 858 at [59] – [77]. However, while the Amended Charge may not capture the full extent of the Respondent’s transgression, the Amended Charge did not take away the gravamen of the complaint nor was it outside the scope of the complaint. 51. As mentioned above, the gravamen of the complaint centres around the $700 which the Complainant had to pay out of the damages for his personal injury claim. The Complainant’s complaint that he was advised to “settle at $2,800” despite the offer from 24 NTUC being $3,500 and the “overcharge of legal fee” was a consequence of the Respondent’s failure to “to give any reasonable advice to the Complainant on his personal injury claim, his right to recover party-party costs from the tortfeasor, and his liability to pay solicitor-client costs to the Firm” as reflected in the Amended Charge. 52. The Complainant’s dissatisfaction would also have been mitigated or even completely avoided had the Respondent kept him informed of the various offers exchanged between NTUC and the Firm and if copies of the correspondence passing between the Firm and NTUC were supplied to him. He would then at least have had the opportunity to raise queries or objections regarding NTUC’s various offers and would have been aware of the party-and-party costs of $2,283.49 which was being claimed by the Firm instead of only finding out when he received NTUC’s discharge voucher on 2 January 2020. Therefore, in our view, the issue of this $700 payment falls squarely within the four corners of the Respondent’s failures as reflected in the Amended Charge. 53. In light of the above and having regard to the submissions made by the Law Society and the Respondent, the Tribunal determines that while there exists no cause of sufficient gravity for disciplinary action under section 83 of the LPA, the Respondent should be ordered to pay a penalty of $3,500 pursuant to section 93(1)(b)(i) of the LPA which we consider sufficient and appropriate for the misconduct committed. 25 VII. COSTS 54. Having made a determination under section 93(1)(b)(i) of the LPA, the Tribunal is permitted under section 93(2) of the LPA to make an order for payment of costs. 55. The Law Society submitted that the Respondent should pay costs of $6,014.08. This being the $5,000 honorarium which the Law Society pays to prosecuting counsel and $1,014.08 for tax and disbursements. However, bearing in mind the fact that the Respondent had pleaded guilty, and hearing did not proceed, counsel for the Law Society left the issue of costs to our discretion. 56. The Respondent submitted that costs should be fixed at $4,000 (all in) as was ordered in the case of Constance, bearing in mind the similarities of this case with Constance, namely that the Law Society had amended the original charges to drop any allegation of dishonesty, and that the Respondent had pleaded guilty after the charges were amended. 57. Having heard the parties in relation to costs, the Tribunal orders that the Respondent pay costs to the Law Society of $4,000 (all in). 26 58. We thank counsel for the Law Society and the Respondent for their spirited and suceinct arguments and assistance. Dated this3rd day of January 2023 ( Mr Lok Vi Ming,,S.C. (President) Disa Sim Jek Sok (Member) ",2024-10-11T07:00:15+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-oct-2024/,"In the Matter of Krishnamoorthi s/o Kolanthaveloo (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-oct-2024/",1114 41,e02b86b3be69f93346960ef6b5e60f712a139242,"In the Matter of Nedumaran Muthukrishnan (Respondent), Advocate & Solicitor","In the Matter of Nedumaran Muthukrishnan (Respondent), Advocate & Solicitor These proceedings against the Respondent arose from a complaint made by Mr Chan Yee Huat (the Complainant) who was a client of the Respondent from 2013 to 2019. The Respondent was engaged to represent the Complainant in the following lawsuits involving various insurance companies: HC/S 324/2016, HC/S 325/2016 and HC/S 52/2017. The first two suits had their judgments entered into on 3 October 2017 and 10 October 2017 respectively. The defendants in both suits were ordered to pay certain costs and disbursements to the Complainant. However, the Complainant was made a bankrupt on 13 November 2017. At the Respondent’s request, a part of the judgement sums amounting to approximately $160,395.96 (the sum) was paid to the Respondent’s law firm. Between February to April 2020, the Complainant instructed the Respondent on numerous occasions to utilise the sum to pay various persons nominated by the Complainant. Despite the Respondent’s numerous instances of assurances via email, the Respondent did not make any payments to the nominated persons, nor did he inform and/or account to the Complainant as to how he had utilised the sum. Subsequently, the Respondent admitted to the Inquiry Committee that when he issued the emails he had already set off the sum against his legal fees and costs. However, no invoice was ever issued to the Complainant with respect to the sum or any part of it that was allegedly set off. In relation to the complaint, the Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Tan Kok Quan, SC and Mr Andrew Chan as DT member. Four charges (and their alternatives) were preferred against the Respondent: First Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the Legal Profession Act (Chapter 161) (LPA) in that the Respondent had misled the Complainant into believing that he had or would shortly be posting and/or hand-delivering cheques for the payment of persons nominated by the Complainant in circumstances where he did not do so and/or had no intention to do so, in breach of Rule 5(2)(a) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). First Alternative Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(h) of the LPA in that the Respondent had misled the Complainant into believing that he had or would shortly be posting and/or hand-delivering cheques for the payment of persons nominated by the Complainant in circumstances where he did not do so and/or had no intention to do so, thereby breaching Rule 5(2)(a) of the PCR. Second Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA in that the Respondent was not honest in his dealings with the Complainant and had applied the sum received on behalf of the Complainant towards the settlement of his professional legal fees and costs without obtaining the Complainant’s prior consent, thereby breaching Rule 5(2)(a) of the PCR. Second Alternative Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(h) of the LPA in that the Respondent was not honest in his dealings with the Complainant and had applied the sum received on behalf of the Complainant towards the settlement of his professional legal fees and costs without obtaining the Complainant’s prior consent, thereby breaching Rule 5(2)(a) of the PCR. Third Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA in that the Respondent had failed to inform the Complainant of the basis on which your fees for his professional services would be charged and of the manner in which his fees and any disbursements in respect of, inter alia, H/S324/2016, HC/S325/2016 and HC/S52/2017 were to be paid by the Complainant, thereby breaching Rule 17(3)(a) of the PCR. Third Alternative Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(h) of the LPA in that the Respondent had withdrawn the sum from the client account in satisfaction of his solicitor’s costs in circumstances where (a) no bill of costs or other written intimation of the amount of solicitor’s costs incurred was delivered to the Complainant; and (b) the Respondent had failed to notify the Complainant that the sum would be applied towards or in satisfaction of his legal costs, thereby breaching Rule 17(3)(a) of the PCR. Fourth Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA in that the Respondent had withdrawn the sum from the client account in satisfaction of his solicitor’s costs in circumstances where (a) no bill of costs or other written intimation of the amount of solicitor’s costs incurred was delivered to the Complainant; and (b) the Respondent had failed to notify the Complainant that the sum would be applied towards or in satisfaction of his legal costs, thereby breaching Rule 7(1)(a)(iv) of the Legal Profession (Solicitors’ Accounts) Rules (the SAR). Fourth Alternative Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(h) of the LPA in that the Respondent had withdrawn the sum from the client account in satisfaction of his solicitor’s costs in circumstances where (a) no bill of costs or other written intimation of the amount of solicitor’s costs incurred was delivered to the Complainant; and (b) the Respondent had failed to notify the Complainant that the sum would be applied towards or in satisfaction of his legal costs, thereby breaching Rule 7(1)(a)(iv) of the SAR. The DT had determined pursuant to section 93(1)(c) of the LPA that there is cause of sufficient gravity for disciplinary action under section 83 of the Act and that the Respondent is to pay the Law Society’s costs of the proceeding in the sum of $10,000 and reasonable disbursements. Findings of the DT First Charge (and its Alternative) The DT found that the Respondent had not been honest in his dealings with the Complainant and had strung the Complainant along by falsely and deliberately concealing the truth from him over a period of one month as he had already set off the $160,000 against his legal fees and costs. The DT noted that the Respondent had misled the Complainant into believing that he had or shortly would be posting and/or hand-delivering cheques for the payment of persons nominated by the Complainant when the Respondent did not do so and/or had no intention of doing so. Thus, the DT determined that the Respondent was guilty of the First Charge (and its alternative) beyond a reasonable doubt. Second Charge (and its Alternative) In relation to the Second Charge, it was suggested that the Complainant was never told about the set-off prior to it being effected. The DT found that the Respondent had not been honest in his dealings with the Complainant when he applied the sum towards the settlement of his professional legal fees and costs without obtaining the Complainant’s prior consent and/or without first informing the Complainant of his intention to do so. Thus, the Second Charge (and its alternative) had been made out. Third Charge (and its Alternative) On the Third Charge, the Respondent failed to produce any evidence regarding the basis on which his professional legal fees would be charged. There had been no accounting provided by the Respondent during the investigation. Therefore, the DT found that the Respondent had failed to inform the Complainant of the basis on which his fees for professional services would be charged and of the manner in which his fees and any disbursements were to be paid by the Complainant. Hence, the Third Charge (and its alternative) was made out. Fourth Charge (and its Alternative) On the Fourth Charge, the Respondent had admitted that he had indeed used the Sum, which was the Complainant’s money and was paid into the client account, to pay his professional legal fees and costs, without issuing any bill of costs or written intimation to the Complainant. As stated by the Court of Three Judges in Law Society of Singapore v Lim Yee Kai [2001] 1 SLR(R) 30 at [17], where rules relating to accounts are breached, disciplinary action is warranted as such contravention of the rules amount to grossly improper conduct in the discharge of a solicitor’s professional duty. Thus, the Fourth Charge (and its alternative) was made out. In respect of the above Charges, the DT determined that cause of sufficient gravity for disciplinary action existed, with the Respondent to be referred to the Court of Three Judges (C3J). The DT awarded costs amounting to $10,000 and disbursements (to be agreed, if not, taxed) to the Law Society. The Council adopted the DT’s findings. The C3J’s findings On 4 July 2024, the C3J found that the First Charge and the Third Charge had been proven beyond reasonable doubt. In respect of the Second Charge, the C3J found that pursuant to section 6(4) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) (the MVA), the Respondent was the beneficial owner of the Sum, and that accordingly, the Second Charge had not been made out. Consequently, with regards to the Fourth Charge, the C3J found that the Sum was not client’s money within the meaning of Rule 2 of the SAR and that accordingly, the Fourth Charge, which was premised on a breach of Rule 7(1)(a)(iv) of the SAR, had not been made out. The C3J therefore acquitted the Respondent of the Second and Fourth Charges. In respect of the First and Third Charges, the C3J ordered the Respondent to be suspended for four (4) years commencing 4 July 2024, with costs in the sum of $12,000 (inclusive of disbursements) be paid to the Law Society of Singapore, and for the costs order of the DT to remain. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2024/10/Oct_24_Full_DT_report_-_Nedumaran_Muthukrishnan.pdf,"DISCIPLINARY PROCEEDINGS UNDER THE LEGAL PROFESSION ACT 1966 DT/10/2022 IN THE MATTER OF NEDUMARAN MUTHUKRISHNAN (FORMERLY OF N NEDUMARAN & CO) AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) REPORT OF DISCIPLINARY TRIBUNAL DISCIPLINARY TRIBUNAL PRESIDENT: MR TAN KOK QUAN, SC ADVOCATE & SOLICITOR: MR ANDREW CHAN TEO YIHUI NEDUMARAN MUTHUKRISHNAN (FORMERLY OF N NEDUMARAN & CO) POINTER LLC 144 ROBINSON ROAD #18-01 ROBINSON SQUARE CEDAR SUITES SINGAPORE 068908 RESPONDENT-IN-PERSON Counsel for the Law Society of Singapore Dated this 18th day of September 2023 Background Facts 1. The Complainant is Mr Chan Yee Huat (the “Complainant”). During the period 2013 to 2019 he was a client of Mr Nedumaran Muthukrishnan (the “Respondent”). 2. The Respondent was called to the Bar on 25 May 1996 and at the material time was practising at the law firm of Messrs M Nedumaran & Co. However, the Respondent has not held a practising certificate since April 2020. 3. The Respondent was engaged to represent the Complainant as well as members of his family in various lawsuits involving various insurance companies in respect of health issues, traffic accidents and home accidents. The claims in which the Complainant was the plaintiff included HC/S 324/2016, HC/S 325/2016 and HC/S 52/2017. 4. Judgements (by consent) were entered for the Complainant in HC/S 324/2016 on 3 October 2017 and in HC/S 325/2016 on 10 October 2017. 5. The defendant in HC/S 324/2016 was ordered, inter alia, to pay to the Complainant: a. b. c. 6. $120,000 (inclusive of $20,000 as interim payment) being $100,000 in general damages and $20,000 in special damages; Costs and disbursements to be agreed or taxed; and The disbursements included $225.00 being the Public Trustee fees. The defendant in HC/S 325/2016 was ordered, inter alia, to pay to the Complainant: a. b. c. d. $660,000 (inclusive of $170,000 as interim payment), being $260,000 in general damages, and $400,000 in special damages; Costs at $55,000; Disbursements to be agreed or taxed; and The disbursements included $225.00 being the Public Trustee fees. 7. The Complainant was made a bankrupt on 13 November 2017 and Mdm Yvonne Hill was appointed his private trustee in bankruptcy (the “Private Trustee”). 8. At the Respondent’s request, a part of the judgement sums amounting to approximately $160,395.96 (the “$160k”) was paid to the Respondent’s law firm. 9. Between February to April 2020, the Complainant instructed the Respondent on numerous occasions to utilise the $160k to pay various persons nominated by the Complainant. 10. By way of emails between March and April 2020, the Respondent assured the Complainant or gave him the impression that the Respondent would be making the payments shortly or had already made the payments to the nominated persons from the $160k. 11. However, notwithstanding his assurances, the Respondent did not make any payments to the nominated persons. Neither did the Respondent inform and/or account to the Complainant as to how the Respondent utilised the $160k. 1 12. On 18 October 2021, the Respondent admitted to the Inquiry Committee that when he issued the emails he had already set off the $160k against his legal fees and costs. However, no invoice was ever issued to the Complainant in respect of the $160k or any part of it that was allegedly set off. The Charges dated 5 September 2022. 13. In the Statement of the Case (“SOC”) dated 3 June 2022, the Law Society formulated 4 Charges (and Alternative Charges) against the Respondent. Except for the 3rd Charge (and Alternative 3rd Charge), the 1st, 2nd and 4th Charges (and each of their Alternative Charges) were on 5 September 2022 amended, with the leave of this Tribunal. 14. The Charges which the Law Society proceeded against the Respondent at the hearing on 11 November 2022, 9 & 14 December 2022 were as follows: a. The Amended 1st Charge and Alternative Amended 1st Charge concerned the Respondent not being honest in his dealings with the Complainant in that he misled the Complainant into believing that he had posted or would shortly be posting and/or hand delivering cheques to pay the persons nominated by the Complainant, in breach of Rules 5(2)(a) of the Legal Profession (Professional Conduct) Rules 2015 (the “PCR”); b. The Amended 2nd Charge and Alternative Amended 2nd Charge also concerned the Respondent not being honest in his dealings with the Complainant in that he applied various sums received on behalf of the Complainant to his legal fees and costs without obtaining the Complainant’s prior consent and/or without first informing him, in breach of Rule 5(2)(a) of the PCR; c. The 3rd Charge and Alternative 3rd Charge concerned the Respondent’s failure to inform the Complainant of the basis on which his professional fees would be charged and the manner in which his professional fees and disbursements would be paid in breach of Rule (17)(3)(a) of the PCR; d. The Amended 4th Charge and Alternative Amended 4th Charge concerned the Respondent’s failure to issue any bill of costs or written intimidation of the amount of legal costs incurred as well as for failing to notify the Complainant that he would be withdrawing client’s money from client’s account in satisfaction of his legal costs in breach of Rule 7(1)(a)(iv) of the Legal Profession (Solicitor’s Accounts) Rules (the “SAR”). The Defence 15. In his Amended Defence No.1 filed on 23 September 2022 the Respondent alleged that the Complainant was lying and abusing the due process of the law, including the disciplinary process. No or limited particulars were provided. He further denied (again without any particulars) all allegations in the SOC “as if the same were set forth seriatim and traversed separately”. 2 16. In his Affidavit of Evidence-in-Chief (“AEIC”) affirmed on 11 November 2022, the Respondent alleged that: a. The claims he was handling related to the Complainant, his wife and his brother; b. They related to multiple road and other accidents, illnesses, hospitalisations and medical leaves and ran into double digit millions of dollars; c. All claims were based on tens of insurance policies; d. There were hundreds of claims filed running into thousands of days of hospitalisations and medical leaves; e. He attended numerous hearings, CDRs, interlocutory applications regarding the numerous claims. f. As the Complainant was impecunious, he felt sorry for the Complainant and he took only what the Complainant could pay and when he could pay; g. From whatever the Complainant paid, he would partly apply for his fees and disbursements; h. When he did not have enough, he would request the Complainant to pay for the disbursements; i. The Complainant precisely knew the details of the monies paid to him or received by him from third parties like insurers and/or their lawyers; j. At all times the Complainant knew exactly what he paid and for what; and k. The Complainant always maintained proper report of figures. The Hearing 17. At the hearing, the Respondent cross-examined the Complainant extensively relating to the Complainant’s credibility which as the Disciplinary Tribunal (“DT”) pointed out to him was not the issue relating to the 4 Charges or their alternatives. Law Society’s Application to Amend the Charges 18. After the close of hearing on 14 December 2022, Counsel for the Law Society indicated that she was taking instructions and might be amending the SOC, in particular the Charges. On 26 January 2023, the DT heard Law Society’s application to amend the SOC and the Charges. The Law Society’s reasons for the amendments were that they related to 3 clarifications/admissions made by the Respondent during the hearing on 14 December 2022 concerning: 19. a. The Amended 1st Charge/Alternative Amended 1st Charge, the time frame within which the Respondent informed the Complainant that he had already posted and/or hand delivered cheques for the payment to the various payees nominated by the Complainant; b. The Amended 2nd Charge/Alternative Amended 2nd Charge, how and when the Respondent had set off the sum of $160,395.96 (the “Sum”) against his professional fees and costs; and c. The Amended 4th Charge/Alternative Amended 4th Charge, how the Respondent had set off the Sum against his professional fees and costs. The Respondent objected to the amendments on the grounds: a. That they were made very late as the information was available or within the knowledge of the Complainant/Law Society; b. No reasons were given for the lateness of the amendments; and c. In this case the credibility of witnesses is critical and the Complainant is a liar. 20. After hearing both Counsel and considering their submissions, the DT allowed the Law Society’s application to amend the SOC and Charges. We further gave leave to the Respondent to amend his Defence as a result of the Law Society’s amendments and allowed each party to file a further list of documents, if necessary. 21. The Respondent filed his Amended Defence on 16 February 2023 and a further pre-hearing conference (“PHC”) was held on 13 April 2023. At the PHC, Law Society confirmed that it has no further list of documents to file. On 22 March 2023, the Respondent wanted to file his list containing 1037 new items and 14 separate emails. It was not in the usual format and Counsel for the Law Society as well as the DT could not access any of these documents. On 27 March 2023, the DT directed the Respondent to file and serve his List of Documents (“LOD”) in the correct format. The Respondent was also directed to file and serve copies of his documents listed in his LOD in PDF format. The Respondent, thereafter, filed his LOD by way of a Google spreadsheet and copies of the documents listed in the LOD by way of a Google spreadsheet with links. There were 2626 links in the Respondent’s Google spreadsheet of 3 April 2023 and neither Counsel for the Law Society, nor the DT or its Secretariat could access any of the documents. 22. The DT then directed the Respondent to file and serve 3 sets of hard copies of his documents by 10 April 2023 failing which the DT would not be considering these documents. The Respondent did not comply with this direction and at the PHC on 27 April 2023, the DT informed him that his new documents were not admitted. 4 23. As a result of the Amended SOC and Charges, the Respondent applied to recall the Complainant for further cross-examination. When asked for the reasons for his application, the Respondent admitted that his whole defence to the Charges is that the Complainant is a liar and he wanted to recall the Complainant to cross-examine him and show that the Complainant cannot be believed and for that reason the Charges should be dismissed. In other words, the reason for recall is essentially to only further test the credibility of the Complainant and nothing more. 24. We dismissed the Respondent’s application to recall the Complainant as the Complainant in his affidavit affirmed on 15 April 2023, stated that he “has no knowledge of the reasons for and/or behind the Law Society’s various Amendments to the SOC and Charges over the course of DT10/2022” and credibility of the Complainant is not relevant to the 4 Amended Charges and their Alternative Amended Charges. The Complainant’s Bankruptcy 25. Although it was not raised by the Respondent, the DT asked Counsel for the Law Society and the Respondent to address the issue of whether the bankruptcy of the Complainant in any manner affects this proceeding and his capacity to give instructions/directions on the $160k. 26. Section 78 of the then applicable Bankruptcy Act (“BA”) sets out the description of a bankrupt's property divisible amongst creditors: 78. — (1) The property of the bankrupt divisible among his creditors (referred to in this Act as the bankrupt's estate) shall comprise — (a) (b) all such property as belongs to or is vested in the bankrupt at the commencement of his bankruptcy or is acquired by or devolves on him before his discharge; and the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge. (2) Subsection (1) shall not apply to (a) (b) (c) (d) property held by the bankrupt on trust for any other person; such tools, books, vehicles and other items of equipment as are needed by the bankrupt for the bankrupt’s personal use in the bankrupt’s employment, business or vocation; such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the bankrupt and his family; and property of the bankrupt which is excluded under any other written law … 5 27. According to Section 2(1) of the BA, “property” of the bankrupt: “includes money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested contingent, arising out of or incidental to, property.” 28. The definition of ""property” at Section 2(1) of the BA does not encompass choses in action in respect of personal injury to the bankrupt, as well as damages recovered as compensation thereto. 29. With respect to the former, this is provided for at Section 131 of the BA, which stipulates that a bankrupt is subject to certain disabilities whilst he is yet undischarged. These disabilities relate to his incompetency to maintain any legal action without previous sanction of the Official Assignee, save for an action for injury to his person. “Disabilities of bankrupt 131.---(1) Where a bankrupt has not obtained his discharge — (a) he shall be incompetent to maintain any action, other than an action for damages in respect of an injury to his person, without the previous sanction of the Official Assignee; and (b) he shall not leave, remain or reside outside Singapore without the previous permission of the Official Assignee.” [Emphasis Added] 30. The rationale behind the special carve out for personal injury actions was succinctly explained in the Court of Appeal case of Standard Chartered Bank v Loh Chong Yong Thomas [2010] 2 SLR 569 (""Thomas Low”). 31. In Thomas Low, the Court of Appeal recognised at [12] that Section 2(1) of the BA was in pari materia with the definition of ""property"" at s 436 of England's Insolvency Act 1986 (c 45) (UK) (the “lA""), and observed that cases over the years have not considered damages recovered pursuant a personal injury action to be ""property"" of a bankrupt. 32. The Court of Appeal cited with approval at [13] – [14] the decision of Hoffmann L.J. in Heath v. Tang [1993] 1 W.L.R. 1421, 1423, as follows: “The property which vests in the trustee includes ‘things in action’ [see section 436 [of the IA]. Despite the breadth of this definition, there are certain causes of action personal to the bankrupt which do not vest in his trustee. These include cases in which the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property:’ see Beckham v. Drake (1849) 2 H.L. Cas. 579, 604, per Erle J. and Wilson v. United Counties Bank Ltd. [1920] A.C. 102. … Section 436 of the Insolvency Act 1986 (c 45) (UK)1 is not in truth a definition of the word ‘property.’ It only sets out what is included. 6 As will appear later from the cases that have been decided over many years, actions which relate to a bankrupt’s personal reputation or body have not been considered to be property and therefore they do not vest in anybody other than the bankrupt. They relate solely to his body, mind and character and any damages recovered are compensation for damage to his body, mind and character as opposed to other causes of action which have been considered to be a right of property. Thus causes of action to recover damages for pain and suffering have been held not to vest in the trustee…. [Emphasis Added] 33. In the circumstances, we are satisfied that the $160K, being compensation or damages obtained pursuant to the Complainant’s personal injury lawsuits in HC/S 324/2015 and HC/S 325/2015 in respect of personal injuries suffered by the Complainant, are excluded from the property that is divisible amongst his creditors pursuant to Section 78 of the BA and the Complainant was always at liberty to utilise the monies at his sole discretion, including giving instructions and / or directions to the Respondent concerning the use of the same. The Charges against the Respondent 34. On 4 June 2022, the Law Society formulated 4 charges under Section 83(2)(b) of the Legal Profession Act (Chapter 161) (“LPA”) and 4 Alternative Charges under Section 83(2)(h) of the LPA. All 4 Charges and Alternative Charges concern the Respondent’s breach of various rules under the PCR and Legal Profession (Solicitor’s Accounts) Rules (the “SAR”) of the LPA. 35. On 5 September 2022 with the leave of the DT the 1st, 2nd and 4th Charges were amended. On 26 January 2023, the 3 amended Charges and Alternative Amended Charges and the 3rd Charge and Alternative 3rd Charge were as follows: 1st CHARGE You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 5(2)(a) of the Legal Profession (Professional Conduct) Rules 2015 of the Legal Profession Act (Cap 161) to wit, you were not honest in your dealings with your client, Chan Yee Huat (“Your Client”) in that between the period of 17 March 2020 and 24 17 April 2020, you had misled Your Client into believing that you had already or would shortly be posting posted and / or hand-delivering cheques for the payment of persons nominated by Your Client for the sum of S$144,800.00 (the “Sum”) which you had received on Your Client’s behalf pursuant to HC/S 324/2016 and H/C 325/2016 to persons whom Your Client had nominated and/or shortly intended to make payment of the Sum (or part thereof) to, in circumstances when you did not do so and/or had no intention to of doing do so, and as such, you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Chapter 161). 7 (Alternative Charge: 1st Charge) You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 5(2)(a) of the Legal Profession (Professional Conduct) Rules 2015 of the Legal Profession Act (Cap 161) to wit, you were not honest in your dealings with your client, Chan Yee Huat (“Your Client”) in that between the period of 17 March 2020 and 24 17 April 2020, you had misled Your Client into believing that you had already or would shortly be posting posted and / or hand-delivering cheques for the payment of persons nominated by Your Client for the sum of S$144,800.00 (the “Sum”) which you had received on Your Client’s behalf pursuant to HC/S 324/2016 and HC/S 325/2016 to persons whom Your Client had nominated and/or shortly intended to make payment of the Sum (or part thereof) to, in circumstances when you did not do so and/or had no intention to of doing do so, and as such, you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(h) of the Legal Profession Act (Chapter 161). 2nd CHARGE You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 5(2)(a) of the Legal Profession (Professional Conduct) Rules 2015 of the Legal Profession Act (Cap161), to wit, you were not honest in your dealings with your client, Chan Yee Huat (“Your Client”), when you applied the sum of $144.800.00 S$160.395.96 (the “Sum”) received on behalf of Your Client pursuant to HC/S324/2016 and C/S325/2016 (the “High Court Suits”) towards the settlement of your professional legal fees and costs in, inter alia, HC/S324/2016, HC/S325/2016 and HC/S52/2017 without obtaining Your Client’s prior consent and/or without first informing Your Client of your intention to utilise the Sum in such a manner, and in circumstances where Your Client was led to believe that you would be utilising the Sum to pay the persons whom Your Client had nominated had instructed you to utilise the Sum for the payment of persons nominated by Your Client, and as such you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Chapter 161). (Alternative Charge: 2nd Charge) You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 5(2)(a) of the Legal Profession (Professional Conduct) Rules 2015 of the Legal Profession Act (Cap161), to wit, you were not honest in your dealings with your client, Chan Yee Huat (“Your Client”), when you applied the sum of $144,800.00 S$160,395.96 (the “Sum”) received on behalf of Your Client pursuant to HC/S324/2016 and HC/S325/2016 (the “High Court Suits”) towards the settlement of your professional legal fees and costs in, inter alia, HC/S324/2016, HC/S325/2016 and HC/S52/2017 without obtaining Your Client’s prior consent and/or without first informing Your Client of your intention to utilise the Sum in such a manner, and 8 in circumstances where Your Client was led to believe that you would be utilise the Sum to pay the persons whom Your Client had -nominated had instructed you to utilise the Sum for the payment of persons nominated by Your Client, and as such you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(h) of the Legal Profession Act (Chapter 161). 3rd CHARGE You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 17(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 of the Legal Profession Act (Cap161), to wit, you failed to inform your client, Chan Yee Huat (“Your Client”), of the basis on which your fees for your professional services would be charged and of the manner in which your fees and any disbursements in respect of, inter alia, H/S324/2016, HC/S325/2016 and HC/S52/2017 were to be paid by Your Client, and as such you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Chapter 161). (Alternative Charge: 3rd Charge) You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 17(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 of the Legal Profession Act (Cap161), to wit, you failed to inform your client, Chan Yee Huat (“Your Client”), of the basis on which your fees for your professional services would be charged and of the manner in which your fees and any disbursements in respect of, inter alia, H/S324/2016, HC/S325/2016 and HC/S52/2017 were to be paid by Your Client, and as such you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(h) of the Legal Profession Act (Chapter 161). 4th CHARGE You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 7(1)(a)(iv) of the Legal Profession (Solicitors’ Accounts) Rules of the Legal Profession Act (Cap 161), in that you withdrew the sum of S$144,800.00 S$160,395.96, being client’s money (the “Sum”), or a part thereof from the client account in satisfaction of your solicitor’s costs in, inter alia, HC/S324/2016, HC/S325/2016 and HC/S52/2017 in circumstances where: (a) No bill of costs or other written intimation of the amount of legal solicitor’s costs incurred by you in respect of HC/S324/2016, HC/S325/2016 and HC/S52/2017 was delivered to your client, Chan Yee Huat (“Your Client”); and (b) You failed to notify Your Client that the Sum would be applied towards or in satisfaction of your legal costs (or a part thereof) 9 and as such, you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Chapter 161). (Alternative Charge: 4th Charge) You, Nedumaran Muthukrishnan, are charged that you, as an Advocate and Solicitor of the Supreme Court of Singapore, did act in breach of Rule 7(1)(a)(iv) of the Legal Profession (Solicitors’ Accounts) Rules of the Legal Profession Act (Cap 161), in that you withdrew the sum of S$144,800.00 S$160,395.96, being client’s money (the “Sum”), or a part-thereof from the client account in satisfaction of your solicitor’s costs, in inter alia, HC/S324/2016, HC/S325/2016 and HC/S52/2017 in circumstances where: (a) No bill of costs or other written intimation of the amount of legal solicitor’s costs incurred by you in respect of HC/S324/2016, HC/S325/2016 and HC/S52/2017 was delivered to your client, Chan Yee Huat (“Your Client”); and (b) You failed to notify Your Client that the Sum would be applied towards or in satisfaction of your legal costs (or a part thereof) and as such, you are thereby guilty of improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(h) of the Legal Profession Act (Chapter 161). The Respondent’s Amended Defence: 36. The Respondent’s defence, as can be gathered from his Amended Defence, AEIC, questions put to the Complainant and his replies to the DT when the DT sought clarification from him were: a. The Complainant, Mr Chan is a liar and cannot be believed; b. He is lying in his complaint dated 26 April 2021; c. The Respondent is entitled to set off the $160k against his professional legal fees and costs; and d. The Complainant was aware of the set off. 37. The Amended Defence and AEIC filed by the Respondent were bare allegations and denials without any particulars or contemporaneous documents adduced by the Respondent in support. 38. The relevant paragraphs of the Respondent’s Amended Defence are as follows: 10 a. “The Complainant (“Chan”) is lying and is abusing the due process of the law, including the disciplinary process.” b. “38 39The Respondent will also aver that the Law Society had confirmed at the PHC of 29.8.2022 that Chan is allegedly unaware of the exact amount in question. In this regard, it will be averred that, inter alia, Chan is being inconsistent or non-committal because he was/is at all material times lying.” c. “39. Further or in the alternative, as regards paragraph 13 of the SOC (Amendment No. 2). the Respondent will aver that Chan is a liar and is misleading the DT that the Respondent only handled a handful of cases to give the false impression that monies due to him (and his family) who have still not settled the full legal fee of the Respondent for handling the multitude of cases from 2012/2013 to 2019 and Chan (and his wife) disappeared in late 2019 without paying the Respondent his full legal fees and disbursements as pleaded at, inter alia, paragraph 34 herein above and Chan (and his wife) is/are fully aware of this at all material times.” d. 40. Further or in the alternative, as regards paragraph 13 of the SOC (Amendment No.2) the Respondent will aver that Chan (and his wife) were at all material times knew of and/or were aware of and/or had prior knowledge of and/or had consented to the set offs including those pleaded by the Law Society at paragraph 13 of the SOC (Amendment No.2) and that they also knew at all material times that they had not fully paid the Respondent all his legal fees and disbursements for all the work that he had done/incurred from 2012/2013 to 2019. e. 41. Further and/or in support of the Defence filed herein, the Respondent will refer to all his responses to the Law Society written and oral including those responses given by the Respondent at the Inquiry Committee hearing on 18 October 2022 and save as alleged herein the Respondent denies all allegations contained in the Case Statement as if the same were set forth seriatim and traversed separately. Legal Principles 39. A breach of Section 83(2)(b) of the LPA arises inter alia if the Respondent is guilty of a breach of any rule of conduct under the PCR which ""amounts to improper conduct or practice as an advocate and solicitor"". 40. The standard of professionalism of an advocate and solicitor is an objective one, determined by the Court: see Law Society of Singapore v K Jayakumar Naidu [2012] 4 SLR 1232 at [43]. To determine whether an advocate and solicitor has complied with the relevant rules under the PCR, the solicitor's conduct will be assessed against what a reasonably competent advocate and solicitor would have done, taking into account the particular circumstances of the case, the context of time and deadline pressures. 41. The key question is thus whether the standards applied and skills discharged by the advocate and solicitor in question are consistent with the legal profession's presumed responsibilities 11 and obligations to its clients: see Lie Hendri Rusli v Wong Tan & Molly Lim [2004] 4 SLR(R) 594 at [44]. 42. Ultimately, no single touchstone will be conclusive in determining the existence and extent of a solicitor's duty in any given matrix; the application of these overarching principles must be undergirded by pragmatism and reality. 43. Section 83(2)(h) of the LPA has been held to be a ""catch-all provision"" which can be invoked when the conduct does not fall within any of the other enumerated grounds in Section 83 of the LPA but is nevertheless considered unacceptable: see Ng Chee Sing v Law Society of Singapore [2000] 1 SLR(R) 466 (“Ng Chee Sing”) at [40]. 44. To make out a charge under Section 83(2)(h) of the LPA, it is sufficient to show that a solicitor is guilty of conduct which ""brings discredit to a respondent as an advocate and solicitor or on the legal profession as a whole"" (see The Law Society of Singapore v Ezekiel Peter Latimer [2019] SGDT 416 at [9]) or ""render[s] him unfit to remain as a member of an honourable profession"" (see Ng Chee Sing at [40]). 45. A practical test for whether such misconduct is made out is to ask ""if reasonable people, on hearing about what [the respondent] has done, would have said without hesitation that as [an advocate and solicitor] he should not have done it”. This is an objective standard determined by the Court, and not based on the standard of peer judgment: Ng Chee Sing at [41]-[42]. The totality of the solicitor's conduct and the whole course of events must be taken into account in this analysis: see The Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2009] SGDT 6 at [19]. 46. A charge under Section 83(2)(h) of the LPA is made out if the advocate and solicitor’s misconduct is “not sufficiently serious to be considered as ‘grossly improper’ but which may be described as ‘unbefitting’ an advocate and solicitor”: see The Law Society of Singapore v Sidambaram Uthayasurian [2009] SGDSC 1 at [28]. Accordingly, it follows that the standard of misconduct required to make out a charge under Section 83(2)(h) of the LPA is less strict than the standard of “grossly improper conduct” required under Section 83(2)(b) of the LPA. The DT’s Findings Amended 1st Charge and Amended Alternative 1st Charge: 47. The Amended 1st Charge concerns improper conduct and practice as an advocate and solicitor under Section 83(2)(b) of the LPA read with Rule 5(2)(a) of the PCR, which requires that an Advocate and Solicitor must ""be honest in all the legal practitioner's dealings with his or her client.” 48. The Amended 1st Alternative Charge concerns ""misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or a member of an honourable profession under Section 83(2)(h) of the LPA."" 12 49. One of the guiding principles of rule 5 of the PCR requires that ""the relationship between a legal practitioner and his or her client imports a duty to be honest in all dealings with the client.” In addition, and as stated by the learned author of Legal Profession (Professional Conduct) Rules 2015: A Commentary: “The primary precepts which flow from the principle of honesty set out in rule 5(1)(a) of the PCR in the context of the lawyer and client relationship may be expressed as follows: (a) the solicitor must be honest in all his dealings with his client and maintain a relationship of trust and confidence which the client is entitled to expect and on which he relies (b) he is accountable to the client for any money or other property with which he has been entrusted or for which he has been made responsible (c) he must be scrupulously fair in the manner he charges his clients for his services."" [Emphasis Added] 50. The following facts were undisputed/admitted by the Respondent: a. The Complainant was a client of the Respondent and that on behalf of his client, the Respondent received the sum of $58,393.13 in HC/S 324/2016 on or about 4 May 2018 and the sum of $102,002.83 in HC/S 325/2016 on or about 6 December 2016 amounting to a total of $160,395.96 (the $160k). b. The Complainant instructed the Respondent to make payment from the $160k to various persons he nominated, namely, his private trustee, various doctors and his previous solicitor (collectively the “payees”) by way of multiple emails to the Respondent from 3 February 2020 to17 April 2020. c. The Respondent represented to the Complainant by his multiple emails between 17 March 2020 to 17 April 2020 that he had posted or would shortly be posting or handdelivering cheques for payment to the payees. d. Despite the Respondent’s representation, he never posted or hand-delivered the cheques to the payees, nor made any payment to the payees in any other form. e. Between 2017 and 2019 (i.e., prior to sending the emails to the Complainant between March 2020 and April 2020), he had already set off the sum against his professional legal fees and costs. f. The Respondent misled/misrepresented to the Complainant when he sent the emails because the Respondent “just wanted to piss off” the Complainant. g. The Respondent further admitted that on hindsight his deliberate misleading of the Complainant was poor judgement on his part. h. During his cross-examination, the Respondent clarified that the $160k was professional legal fees and costs due and owing to him. 13 51. In fact, the Respondent was not honest in his dealings with the Complainant and had strung the Complainant along by falsely and deliberately concealing the truth from him over a period of one month as he on his own case had already set off the $160k against his legal fees and costs. In this connection, the Respondent accepts that he received the $160k and it is clear that he mispresented and misled the Complainant in flagrant breach of his duties to be honest in all his dealings with his client and to maintain a relationship of trust and confidence which the client was entitled to expect and on which he relied. 52. In the circumstances the DT finds the Respondent guilty of the Amended 1st Charge and the Amended 1st Alternative Charge beyond a reasonable doubt. The Respondent was not honest in his dealings with the Complainant, and between 17 March 2020 and 17 April 2020, he misled the Complainant into believing that he had or shortly would be posting and/or handdelivering cheques for the payment of persons nominated by the Complainant when the Respondent did not do so and/or had no intention of doing so. Amended 2nd Charge and Amended Alternative 2nd Charge 53. The issue in these charges relate to whether the Respondent, when he applied the $160k towards the settlement of his legal fees and costs, obtained the Complainant’s prior consent and/or first informed the Complainant of his intention to utilise the $160k in such manner. 54. As stated above a solicitor’s duty of honesty extends to being accountable to his client for any money or other property with which he has been entrusted or for which he has been made responsible. 55. The Respondent admitted that prior to issuing the emails (referred to in the Amended 1st Charge and Amended 1st Alternative Charge) to the Complainant he had already set off the $160k against his professional legal fees and costs in the period 2017 to 2019. 56. The Respondent further made the bare allegation that the Complainant must have been aware of it as the Complainant was in the Respondent‘s office “every day”. The DT does not understand how the Complainant by being in the Respondent‘s office every day could actually know that the $160k was set off by the Respondent against his professional legal fees and costs. Further even if the Complainant somehow became aware of the set off, that did not or in any way lessen the Respondent’s duty of honesty to the client to expressly account for the set off of the $160k. 57. In any event, the Complainant denied any knowledge of the set off. Cross-Examination of the Complainant on 11 November 2022 at page 102: Q: And that---I now put it to you that that somebody, that is me, had obtained your consent before application of the 160,000. A: No, Sir Q: I put it to you that that somebody from whom that knowledge had gone to your and your wife, that is me, had informed you and your wife with regard to this. ""Yes"" or ""No""? 14 A: No, Sir. … 58. 59. Q: ..I put it to you that no bill of costs or other written intimation of the amount was delivered to you because you, at all material times, knew about it---knew about how the monies were applied. ""Yes"" or ""No""? A: Can I clarity your question? Apply to what? Q: Applied, with respect to my $500,000-odd legal fees. A: No, Sir. That the Respondent had never informed the Complainant when he set off the $160k in 2017 to 2019 is further supported by the following: a. The Respondent has not adduced any contemporaneous documents to evidence the fact that he had informed the Complainant of the set off which he alleged was in the period 2017 to 2019. b. Neither has he alleged any prior oral conversation when he informed the Complainant of the set off. c. The fact that the Respondent sent the emails referred to in the Amended 1st Charge and Amended 1st Alternative Charge suggests that the Complainant was never informed of the intention to set-off. Accordingly, no consent could have been obtained to such set-off. Further the Respondent was dishonest when he failed to inform or to obtain the Complainant’s prior consent to set off the $160k for the following reasons: a. The Respondent concealed that he had set off an amount and only revealed it for the very first time before the Inquiry Committee in spite of the Complainant’s demand to know what had become of the monies received by him in his emails to the Respondent in February to April 2020. b. The Respondent did not produce any invoice or breakdown of his legal fees in respect of the set-off. 60. Also, the cross examination as a whole suggests that the Complainant was never told about the set-off prior to it being effected. This explains why much time was spent as whether the Complainant knew what the monies were used for. If the Respondent had informed the Complainant that the monies were to be set and had obtained the consent of the Complainant prior to set-off, the DT would have expected this point be raised in the defence and the AEIC. 61. In the circumstances, the DT finds the Respondent guilty of the Amended 2nd Charge and the Amended 2nd Alternative Charge beyond a reasonable doubt. The Respondent was not honest in his dealings with his client, the Complainant, when he applied the $160k towards 15 the settlement of his professional legal fees and costs without obtaining the Complainant‘s prior consent and/or without first informing the Complainant of his intention to do so. The 3rd Charge and Alternative 3rd Charge 62. The 3rd Charge and the Alternative 3rd Charge concerns improper conduct and practice as an advocate and solicitor under Section 83(2)(b) or alternatively Section 83(2)(h) of the LPA read with Rule 17(3)(a) of the PCR, which requires that a solicitor informs his client of the basis on which his professional legal fees would be charged and the manner in which his fees and disbursements would be paid. 63. Rule 17 of the PCR states that: “A legal practitioner must act in the best interests of his or her client, and must charge the client fairly for work done”. 64. Further, and as stated by the learned author of Legal Profession (Professional Conduct) Rules 2015: A Commentary at [17.023]: “...The client must be fully informed so that he is absolutely clear about the extent of his actual or potential liability for fees and expenses related to [the solicitor’s] retainer. The [solicitor] must be entirely transparent and clearly explain the basis of the fees, disbursements, and any other necessary and foreseeable payments... regarding the basis on which fees are charged... if a time-based rate (hourly rate) applies (as is a common practice), the client should be informed that the rate applies to all time spent in the conduct of the retainer (if this is the agreement), whether it concerns legal research, communications, correspondence, attendance at meetings or any other form of engagement. Such information is important to the client because it gives him a measure of control in deciding the type and extent of work he wants the legal practitioner to undertake. Indeed, this is consistent with the lawyer’s responsibility to evaluate with a client whether the consequence of a matter justifies the expense or the risk involved ...” [Emphasis Added] 65. In the case of Legis Point LLC v Tay Choon Ai [2008] 3 SLR 1269 at [69], the Court observed that: ""The onus should be on law firms to make their fee arrangements clear and unambiguous, and it would be improper and unsatisfactory outcome if law firms could simply take undue advantage of ambiguities in their fee agreements by insisting on their interpretation of the fees at the close of the solicitor-client relationship."" [Emphasis Added] 66. The Respondent has not produced any evidence regarding the basis on which his professional legal fees would be charged. Apart from one invoice which the Respondent said he issued in 2013, no further invoices were issued by the Respondent to the Complainant. In his evidence, the Respondent said he “only took what (the Complainant) can pay as and when he can pay”. 16 67. The Respondent's bare and bald defence and contention at the hearing (which was not pleaded in his Defence) was that a breakdown of the work he had done and time spent was previously given to the Complainant, and that ""it is a breakdown that [the Respondent and the Complainant] actually [went] through together”. 68. The Complainant’s evidence is that he does not recall signing any Letter of Engagement and Warrant to Act with the Respondent. The Respondent has also completely failed to produce any such Letter of Engagement and Warrant to Act (which document would have set out the basis for his legal fees) in the course of these proceedings. 69. The Respondent has previously taken the position before the Inquiry Committee that “what the Complainant owed him was more than what [the Respondent] owed the Complainant”. The Respondent subsequently affirmed this position during his cross-examination. Notwithstanding this, the Respondent has at all material times been unable to adduce any breakdown to the Inquiry committee as well as the DT in the course of these proceedings to demonstrate the basis for his aforesaid statement / position: Cross-Examination Of the Respondent (on 14 December 2022 at page 177 of the transcripts): Q: Mr Nedumaran, you've taken the position before the Inquiry Committee on 18th October 2021 that what Mr Chan owes you in terms of legal fees is more than what you owed him, am I right? A: What Mr Chan owes is more than what I owed him, yes. Q: Yes, what Mr Chan owes you is more than what you owe him? A: Yes. Q: Yes, am I right? Yes. you also asked that the in---I mentioned this earlier, you were asked that the inquiry committee hearing on 18th October and in a post-hearing even on the same day to give an accounting to reconcile the legal fees that you claimed you set off against your legal fees---let me repeat that, sorry. You were asked to provide an accounting to reconcile the legal fees claimed and set off with the sums that you received from the---from Mr Chan, in particular, the sums in Suit 324 and 325. And just now you confirmed that you did not give this accounting, right? A: Yes. Q: Notwithstanding your belief that what the respondent---or rather, what Mr Chan owes you is more than what you owe him, you have yet to provide the committee or this Tribunal of any accounting to substantiate this averment, am I right? A: Yes. 70. The Respondent has not given any evidence as to the basis for his legal fee throughout the course of the proceedings. No accounting has also been provided by the Respondent todate. 71. In the circumstances the DT finds the Respondent guilty of the 3rd Charge and the 3rd Alternative Charge beyond a reasonable doubt. The Respondent failed to inform the 17 Complainant of the basis on which his fees for professional services would be charged and of the manner in which his fees and any disbursements were to be paid by the Complainant. Amended 4th Charge and Amended Alternative 4th Charge 72. Pursuant to Section 83(2)(b) or Section 83(2)(h) of the LPA read with Rule 7(1)(a)(iv) of the SAR, a solicitor must, before drawing any money from his client’s account any of his client’s money as properly required for or towards payment of the client’s costs, ensure that a bill of costs or other written intimidation of the amount of costs incurred has been delivered to the client and the client has been notified that money held for him will be applied towards or in satisfaction of the solicitor’s costs. 73. The raison d'être for the Solicitors Accounts Rules was emphasised in the case of Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR(R) 320 at [19]: ""Solicitors have been conferred a unique statutory privilege by Parliament for the purpose of facilitating the efficient discharge of their professional duties. They are allowed to hold moneys belonging to clients and third parties. This right in turn entails serious responsibilities. The public must be confident that moneys held or maintained by solicitors will be adequately safeguarded and legitimately disbursed at any cost. To this end, detailed accounting rules, practices and conventions have been put in place through subsidiary legislation and practice directions. All practicing solicitors are ipso facto subject to the Solicitors' Accounts Rules and other relevant rules made pursuant to the LPA. The raison d'etre for these rules is clearly to protect the public against any unauthorised use of money maintained by solicitors and to instill in the public confidence that the legal profession is effectively regulated and policed. It is not enough that a solicitor conducts himself honestly in relation to the discharge of his professional duties. A solicitor also has to discharge his obligations and responsibilities competently and conscientiously. Observance of the relevant accounting rules, practices and conventions is a fundamental obligation that all solicitors must observe as a condition for their privilege to practise. We find an observation of Thomson CJ in In re A Solicitor (1962) 3 MC 323 at 323 apposite: The legal profession enjoys very great privileges. In return for these privileges they owe the public a duty and that duty involves not only an extremely high standard or probity but a way of conducting business, and particularly business in relation to financial matters, which is beyond suspicion. In particular it is required, and it is part of the price the profession must pay for its privileges, that separate accounts of solicitors money and clients' money should be kept."" [Emphasis Added] 74. The following facts were undisputed and/or admitted by the Respondent during crossexamination on 14 December 2022: 18 75. a. The $160k was client’s money and paid into client’s account; b. The Respondent used the $160k to pay his professional legal fees and costs; and c. The Respondent did not issue any bill of costs or any written intimidation to the Complainant before withdrawing the $160k from his client’s account. In the circumstances, the DT finds the Respondent guilty of the Amended 4th Charge and the Alternative Amended 4th Charge beyond a reasonable doubt. The Respondent has not complied with Rule 7(1)(a)(iv) of the SAR in that he withdrew the sum of S$160,395.96, being client’s money, in satisfaction of his solicitor’s costs in circumstances where: a. No bill of costs or other written intimation of solicitor’s costs was delivered to the Complainant; and b. The Complainant was not notified that the monetary sum would be applied towards or in satisfaction of the Respondent’s legal costs. Whether Cause of Sufficient Gravity exist for disciplinary action. 76. The powers that this DT may exercise are set out under Section 83 and 93 of the LPA:Section 83 of the LPA “(2) Subject to subsection (7), such due cause may be shown by proof that an advocate and solicitor – …. (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his or her professional duty or guilty of such a breach of any of the following as amounts to improper conduct or practice as an advocate and solicitor: (i) any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of this Act; … (h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession;"" [Emphasis Added] Section 93 of the LPA “(1) After hearing and investigating any matter referred to it, a Disciplinary Tribunal must record its and findings in relation to the facts of the case and according to those facts shall determine that (a) no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be); 19 (b) while no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be), the regulated legal practitioner should be (i) ordered to pay a penalty that is sufficient and appropriate to the misconduct committed; (ii) reprimanded; (iii) ordered to comply with one or more remedial measures; or (iv) subjected to the measure in sub-paragraph (iii) in addition to the measure in sub -paragraph (i) or (i); or (c) cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be)."" 77. The DT may make the following findings under Sections 93(1)(a) – (c) of the LPA as set out as follows: a. No cause of sufficient gravity for disciplinary action exists under Section 83; b. While no cause of sufficient gravity for disciplinary action exists under that section, the advocate and solicitor should be reprimanded, ordered to pay a penalty sufficient and appropriate to the misconduct committed and/or ordered to comply with one or more remedial measures; or c. Cause of sufficient gravity for disciplinary action exists under Section 83. 78. A finding of cause of sufficient gravity is only in instances of the “most serious cases”: see Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 at [24]. 79. Cause of sufficient gravity will be found if, on the totality of the facts and circumstances of the case, the solicitor’s conduct was sufficiently serious to warrant the imposition of sanctions: see Law Society of Singapore v Udeh Kumar s/o Sethuraju and another [2017] 4 SLR 1369 at [30]. 80. More recently, the Court of Three Judges in Law Society of Singapore v Constance Margreat Paglar [2021] 4 SLR 382 expounded on the principles relating to when cause for sufficient gravity exists at [31] – [34]: a. The Respondent could only be held to account for the specific misconduct charged for. To hold otherwise would be prejudicial to the respondent, since it is the charge that informs a lawyer facing disciplinary proceedings of the case that he or she has to meet. b. Where a charge does not contain an allegation of dishonest conduct, it is inappropriate to find cause for sufficient gravity on the basis of dishonesty. c. Only the most serious cases are heard by a Court of Three Judges; the fact that a lawyer’s conduct falls within one or more of the limbs of Section 83(2) of the LPA does not, without more, establish cause of sufficient gravity. 20 18th September 2023. ",2024-10-11T07:00:15+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-oct-2024/,"In the Matter of Nedumaran Muthukrishnan (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-oct-2024/",1107 39,6a8db262533f23464772485715b6e590e9d8e7d4,"In the Matter of Kwa Kim Li (Respondent), Advocate & Solicitor","In the Matter of Kwa Kim Li (Respondent), Advocate & Solicitor These proceedings arose out of a complaint by Mr Lee Hsien Yang and Dr Lee Wei Ling (the Complainants), both executors of Mr Lee Kuan Yew’s estate, on 9 September 2019. There were initially four heads of complaint, including that the Respondent had: Failed to follow the instructions of the late Mr Lee Kuan Yew (the Testator) to destroy his superseded wills (the First Complaint); Breached privilege and her duties of confidentiality by sending emails with records of communications with the Testator to Mr Lee Hsien Loong (LHL) who was not an executor of the estate of the Testator (the Estate) (the Second Complaint); Failed to keep proper contemporaneous notes and records of all the advice given to and instructions received from the Testator (the Third Complaint); and Given false and misleading information to the executors in her emails of 4 June 2015 and 22 June 2015 (the Fourth Complaint). Council determined that there should be a formal investigation by the Disciplinary Tribunal (DT) only on the Second Complaint. The Complainants, being dissatisfied with the Council’s determination, applied to the High Court for an order to direct Law Society to appoint a DT for the First and Fourth Complaints as well. The Chief Justice empaneled a DT presided by Mr Narayanan Sreenivasan, SC and Mr Tan Kheng Ann Alvin as DT member. Charges The Respondent plead guilty to a charge prosecuted by the Law Society (the Law Society’s Charge), and contested a charge prosecuted by the Complainants (the Complainants’ Charge): Law Society’s Charge You, KWA KIM LI, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you on or about the 4th day of June 2015 by your letter dated 4th June 2015 sent to Mr Lee Hsien Loong (LHL) are guilty of knowingly disclosing to LHL, without the consent / authority of the two Executors and Trustees named in Will No. 7 namely Ms Lee Wei Ling (LWL) and Mr Lee Hsien Yang (LHY), the following documents and information which was confidential to your client, Mr Lee Kuan Yew (Mr Lee), and which was acquired by you in the course of your engagement as Mr Lee’s solicitor namely; five of the previous Wills of Mr Lee prepared by you upon his instructions and email trails between Mr Lee and you from 11th December 2011 to 2nd November 2012 (Documents Set A) and explanations as to why your client Mr Lee changed his previous Wills which amounts to misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act (Cap. 161). Complainants’ Charge You, Mdm Kwa Kim Li, are charged that, by way of your letter 22 June 2015, you misled the Executors of the Estate of your former client Mr Lee Kuan Yew, namely Dr Lee Wei Ling and Mr Lee Hsien Yang, by omitting to disclose your communications with Mr Lee Kuan Yew between November 2013 and 13 December 2013 in response to their enquiries and by making the false and misleading representation that Mr Lee Kuan Yew had never instructed you to change his will dated 2 November 2012, such act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court within the meaning of section 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed). Findings and Determination of the DT; Council’s Sanctions Law Society’s Charge The DT accepted that the Respondent was replying to queries by Mr Lee Hsien Loong and Ms Lee Wei Ling under the notion that she ought to respond to queries from beneficiaries, who also happened to be her first cousins with whom she grew up. The DT also accepted that the Testator had previously indicated to her that he would inform his children of his intentions and the reasons for his testamentary dispositions. The DT further accepted that the Respondent had a close personal relationship with the Testator. The DT found that there was no evidence suggesting that the Respondent was acting from any improper motives. However, it would have been clear to the Respondent that she was dealing with sensitive family issues. The Respondent was aware that Ms Lee Wei Ling had previously voiced unhappiness on the change from a position where she has a slightly larger share to equal shares. The DT noted that in such situations, it is imperative that solicitors act strictly within their professional boundaries and exercise care and caution. The Respondent’s misconduct was her failure to scrupulously safeguard the Testator’s confidentiality; and this misconduct was unbefitting of an advocate and solicitor. Pursuant to section 93(1)(b)(i) of the LPA, the DT determined that, while there is no cause of sufficient gravity for disciplinary action under Section 83 of the Legal Profession Act (Act), the Respondent should be ordered to pay a penalty in the sum of $5,000. The DT opined that it did not think that a low culpability – low harm situation involving misconduct under section 83(2)(h) of the Act was one that should be referred to the Court of Three Judges, particularly in the absence of any dishonesty or deceit, or gross negligence. Complainants’ Charge The DT found that the Respondent’s omission to disclose the emails of 30 November 2013 and 12 December 2013 in her email of 22 June 2015 is misleading. The DT further found that the Respondent’s statement in the same email, that she did not receive any instructions from the Testator to change his Will, was false. However, the DT did not find proof beyond a reasonable doubt that the Respondent knowingly or deliberately misled the Complainants. The DT assessed the harm as low, and found that the culpability was low to medium. Nevertheless, the DT noted that the Respondent was communicating with the beneficiaries on matters important to them, and since she had chosen to respond to the queries, it was therefore incumbent upon the Respondent to be complete and accurate in her response. The DT found that had the Respondent exercised due care and diligence, she ought to have disclosed the November / December 2013 communications in the 22 June 2015 email, and ought not to have stated that she had received no instructions to change the Testator’s Will. Pursuant to section 93(1)(b)(i) of the LPA, the DT determined that, while there is no cause of sufficient gravity for disciplinary action under section 83 of the Act, the Respondent should be ordered to pay a penalty in the sum of $8,000. Costs The DT ordered that the Respondent pay: (a) the Law Society’s costs in the sum of $5,000 and to bear all disbursements that have been reasonably incurred which are to be taxed if parties are not able to agree; and (b) the Complainants’ costs in the sum of $12,000 and disbursements in the sum of $9,182.29. Council’s Decision Council adopted the DT’s findings and imposed a global financial penalty of $13,000 (being $5,000 for the Law Society’s Charge and $8,000 for the Complainants’ Charge) on the Respondent. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2024/02/Feb_24_Full_DT_Report-com.pdf,"DT 19 OF 2022 IN THE MATTER OF KWA KIM LI AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal: Mr N Sreenivasan, S.C. – President Mr Tan Kheng Ann Alvin – Advocate & Solicitor Counsel for the Law Society of Singapore Counsel for the Complainant Mr R S Bajwa Bajwa & Co with Mr Rezza Gaznavi of Mahmood Gaznavi Chambers LLC Mr Abraham Vergis, SC with Ms Asiyah Arif and Mr Kyle Chong Providence Law Asia LLC Counsel for the Respondent Mr Cavinder Bull, SC with Ms Gerui Lim and Ms Elisabeth Liang Drew & Napier LLC Dated this 5th day of May 2023 Introduction 1. These proceedings (“DT 19”) arise from a complaint by Mr Lee Hsien Yang (“LHY”) and his sister, Dr Lee Wei Ling (“LWL”), made on 9 September 2019 (the “Complaint”). The Respondent solicitor is Ms Kwa Kim Li. The Respondent is a partner in the firm of M/s Lee & Lee, and is an advocate and solicitor of more than 40 years’ standing. 2. The Complaint covered various matters, which came before this Disciplinary Tribunal through different procedural routes. Procedural History 3. In the Complaint by LHY and LWL, there were four heads of complaint. These were:(a) First, that the Respondent had failed to follow the instructions of the late Mr Lee Kuan Yew (the “Testator”) to destroy his superseded wills (the “First Complaint”); (b) Second, that the Respondent had breached privilege and her duties of confidentiality by sending emails with records of communications with the Testator to Mr Lee Hsien Loong (“LHL”) who was not an executor of the estate of the Testator (the “Estate”) (the “Second Complaint”); (c) Third, that the Respondent had failed to keep proper contemporaneous notes and records of all the advice given to and instructions received from the Testator (the “Third Complaint”); and (d) Fourth, that the Respondent had given false and misleading information to the executors in her emails of 4 June 2015 and 22 June 2015 (the “Fourth Complaint”). 4. After consideration of the Complaint by the Review Committee, the Inquiry Committee and the Council of the Law Society (the “Council”), the Council determined, pursuant to section 87 of the Legal Profession Act 1966 (the “LPA”), that there should be a formal investigation by a Disciplinary Tribunal of only the Second Complaint. Two charges were framed in relation to the Second Complaint, both framed with alternative charges. The Council accordingly applied to the Chief Justice, pursuant to section 89 of the LPA, to appoint a Disciplinary Tribunal to hear and investigate the matter. The Statement of Case prepared by the Law Society of Singapore (the “LSS”), containing 1 the two charges and the alternatives charges, is attached as Annex A. These charges are referred to as the LSS Charges. 5. LHY and LWL were dissatisfied with the determination of the Council in relation to those parts of the Complaint that were not referred to a Disciplinary Tribunal for formal investigation. They applied to the High Court, pursuant to section 96 of the LPA, for an order directing the LSS to apply to the Chief Justice to the appointment of a Disciplinary Tribunal in respect of those matters also. As a result of that application, an order was made, pursuant to section 96 of the LPA, that the LSS apply to the Chief Justice for the appointment of a Disciplinary Tribunal in relation to the First and the Fourth Complaint (in addition to the Second Complaint). 6. Upon appeal by the LSS from the order made by the High Court, the Court of Appeal held inter alia that there was no prima facie case in relation to the First Complaint and held that the First Complaint should not be referred to a Disciplinary Tribunal for formal investigation. 7. As provided under section 97(5) of the LPA, LHY and LWL, as the complainants who had obtained the order in respect of the Fourth Complaint, were to have conduct of the proceedings before the Disciplinary Tribunal in relation to the charges brought in relation to the Fourth Complaint. Subsequently the order was varied such that only LHY would have such conduct. The Statement of Case prepared by LHY (the “Complainant”), containing the additional charge, is attached as Annex B. The charge contained therein is referred to as the Complainant’s Charge. 8. The LSS retained conduct of the charges brought under the Second Complaint. 9. Disciplinary Tribunal 19 of 2022 (the “DT” or “DT 19”) was appointed to hear the matters arising from both the LSS and the Complainant’s Statements of Case (comprising the Second and Fourth Complaints respectively). Mr R S Bajwa acted for the LSS and Mr Abraham Vergis SC acted for the Complainant. Mr Cavinder Bull SC acted for the Respondent in both matters. In this Report, the following terminology will be used hereafter: (a) Statement of Case filed by the LSS (Annex A) - LSS SOC; (b) Statement of Case filed by LHY (Annex B) - Complainant’s SOC; (c) Defence of the Respondent to Complainant’s SOC (Annex C)- Defence to Complainant’s SOC. 2 Background to the matters before the DT 10. LHY and LWL are the two younger children of the Testator and the trustees and executors of the Estate. The Testator’s eldest child is LHL, the current Prime Minister of Singapore. The Testator was the first Prime Minister of Singapore and widely acclaimed and acknowledged as the father of Singapore as a nation. The Respondent had acted as the Testator’s solicitor over many years. In particular, the Respondent had acted in relation to the preparation of six wills for the Testator, from 20 August 2011 to 2 November 2012. 11. On 29 November 2013, the Testator contacted the Respondent regarding certain testamentary matters. Communications continued by way of emails, and possibly by way of conversations, up to 13 December 2013. The nature of these communications and the Respondent’s characterisation of these communications are apposite to the Complainant’s Charge. Subsequently, a seventh will was executed on 17 December 2013, with the involvement of LHY and his wife, Ms Lee Suet Fern, herself an experienced solicitor. 12. The Testator passed away on 23 March 2015. The Testator’s will and testamentary directions attracted significant public interest, in particular arising from the Testator’s intentions in relation to the demolition of the Testator’s home at Oxley Road. Of less public interest, but probably of equal relevance to the present matters was the manner of apportionment of the Testator’s estate amongst his three children. 13. The LSS Charges and the Complainant’s Charge arise from two emails that the Respondent sent, on 4 June 2015 and 22 June 2015, in response to queries from LHL and LWL. These emails were sent to LHL, LWL and LHY. The LSS Charges relate to a breach of confidentiality, in that the Respondent is alleged, by way of the two emails, to have disclosed client confidential information to parties not entitled to receive the information, namely LHL. The Complainant’s Charge relates to the allegation that the two emails were misleading responses to the queries, by omitting matters that should have been included and/or by containing false and misleading representations. We will examine the ingredients of the charges with greater specificity below. 3 The Proceedings Before the DT Preliminary Directions 14. DT 19 was appointed to hear the matters arising from both the LSS SOC and the Complainant’s SOC. We directed that both cases would be heard together, with witnesses only giving evidence once, and the evidence, agreed documents and agreed facts being admitted in relation to both matters. Counsel for the LSS would lead evidence in relation to the LSS SOC and counsel for the Complainant would lead evidence in relation to the Complainant’s SOC. It was indicated to us that the LSS and the Respondent were likely to agree on a statement of facts insofar as the LSS SOC was concerned. It was also indicated that the Respondent would be making representations to the LSS in relation to LSS charges. 15. Insofar as the Complainant’s SOC was concerned, Counsel for the Complainant indicated that the only witness being called would be LHY. We were told that his evidence would be formal, and relate to the documents upon which the Complaint was based. The only witness for the Respondent was to be the Respondent herself. 16. Given that the matters before DT 19 related to estate matters, the documents to be tendered in the course of the hearing were likely to contain private matters. Parties were directed to agree on redactions to be made to documentary exhibits and agreed documents, where possible. All such redactions were made by agreement and we were not required to make any determination on redactions. 17. Directions were given for the filing of the Respondent’s defences, witness statements, an agreed bundle, opening statements, and agreed statements of facts. These directions were complied with. Preliminary Issues 18. Prior to the commencement of the hearing, the LSS indicated that it had received representations from the Respondent. The LSS indicated that it would be tendering an agreed statement of facts in relation to an amended charge. The amended charge was 4 the alternative to the First Charge in the LSS SOC, with further particularization. The LSS stated that this new charge, the Amended First Alternative Charge, would be made out on the statement of facts agreed with the Respondent, and that it would not be calling any evidence. The Respondent confirmed this position and stated that she accepted that the Amended First Alternative Charge was made out in law and on the facts. A copy of the Amended First Alternative Charge is at Annex D and a copy of the Agreed Statement of Facts, agreed between the LSS and the Respondent, is at Annex E. 19. There were two preliminary issues raised by the Complainant. The first was an application for the Complainant to give evidence by video link. The second was whether we should continue to consider both the original charges and their alternatives, as set out in the LSS SOC even though the LSS chose to proceed on only one charge upon a “plea bargain” arising from representations made by the Respondent to the LSS. Before setting out the specifics of the two issues, and our considerations and rulings, we touch on the nature of disciplinary tribunal proceedings, as this informed the approach that we adopted. 20. In the normal course of events, the Council applies to the Chief Justice for the appointment of a Disciplinary Tribunal under section 89 of the LPA, where the Council determines under section 87 of the LPA that there should be a formal investigation, or where the Court makes an order under section 96 of the LPA. Under section 93 of the LPA, the Disciplinary Tribunal must, after hearing and investigating the matter, record its findings in relation to the facts of the case and according to those facts, make one of three determinations: (a) that no cause of sufficient gravity for disciplinary action exists under sections 83 or 83A of the LPA; (b) that while no cause of sufficient gravity for disciplinary action exists under sections 83 or 83A of the LPA, the practitioner should be ordered to pay a penalty, be reprimanded, be ordered to comply with one or more remedial measures, or be subjected to a remedial measure in addition to a penalty or reprimand; or (c) that cause of sufficient gravity for disciplinary action exists under sections 83 or 83A of the LPA. 21. It is clear from section 93 that the main role of the Disciplinary Tribunal is that of fact finder. This is consonant with its duty to conduct a formal investigation. Upon its 5 findings of the facts of the case, the Disciplinary Tribunal will form a view on the gravity of the case, in terms of the need for any further disciplinary action at all, or for the sanctions of penalty or reprimand to be imposed, or for the more serious consequence of referring the matter to the Court of Three Judges (“C3J”). The language of the various sections is not predicated on the Disciplinary Tribunal operating as an adjudicator in an adversarial hearing. 22. However, the situation in practice and as contemplated in the Legal Profession (Disciplinary Tribunal) Rules (“DT Rules”) is predicated on an adversarial / adjudication model. For example, Rule 3(2) / 3(4) and Rule 4(2) / 4(4) of the DT Rules require the Statement of Case to contain charges. Rule 8 provides for a Defence to be filed. Rule 10 provides for the manner in which evidence is to be adduced. Rule 23 provides for the Evidence Act to apply, as it applies in civil and criminal proceedings. Cost orders can be made against the respondent practitioner or a complainant who makes a frivolous or vexatious complaint. These provisions suggest that the Disciplinary Tribunal “tries” the respondent practitioner on the charges in the Statement of Case. 23. We are of the view that, as the Disciplinary Tribunal is an investigative body, our key concern should be ascertainment of facts. 24. However, the the Disciplinary Tribunal is required to adjudicate the charges in the statement of case, as modified by any decision of the LSS not to proceed on any particular charge or to proceed on amended charges. The question which arises is whether we should exercise our powers to investigate all facts or whether we should be bound by the position taken by the LSS; in short whether the position taken by the LSS would circumscribe the findings that the Disciplinary Tribunal may make. 25. The C3J decision in Law Society of Singapore v Constance Margreat Paglar [2021] SGHC 27 is directly on point and extremely pertinent to the issues in this case. In that case, the LSS had amended the charge originally set out in the Statement of Case, which contained an element of deceit, to a charge where the element of dishonesty had been removed. Using the parlance of criminal practice, a reduced charge was preferred. At [31], the C3J considered the fact that the disciplinary proceedings had been conducted on the basis of the reduced charge and stated very explicitly that “It cannot be gainsaid that the respondent could only be held to account for the specific misconduct that she had been charged for. To hold otherwise would be prejudicial to 6 the respondent since it is the charge that informs a lawyer facing disciplinary proceedings of the case that he or she has to meet and impacts the decision he or she makes as to how to respond to the disciplinary proceedings.” The C3J went on to find that the Disciplinary Tribunal in that case had therefore erred in making findings that the respondent solicitor had acted deceitfully, even if she had indeed done so, because the amended charge and the agreed statement of facts contained no allegation of dishonest conduct whatsoever, even though the original charge did. At [37], the C3J considered the decision in Law Society of Singapore v Yeo Khirn Hai Alvin [2020] 4 SLR 858, and approved the position that it was only where the “Law Society has framed a defective charge that fails to reflect the substance of the complaint, that the DT lacks jurisdiction in hearing and investigating the charge and making a determination thereon, and the DT’s decision is liable to be set aside.” (emphasis added). The issue is therefore clearly whether the amended charges proceeded with still reflect the substance of the complaint. On the facts of Law Society of Singapore v Constance Margreat Paglar, the C3J found that while the amended charge did not capture the full extent of the respondent’s transgressions, it was not so defective as to warrant setting aside the DT’s determination for want of jurisdiction. We are therefore of the view that the question of whether the substance of the complaint is proceeded with is a fact-sensitive exercise, where the proceeded charge must be considered against the substance of the complaint. The First Preliminary Issue 26. We now deal with the First Preliminary Issue. Shortly before the commencement of the evidentiary hearing, the Complainant applied for his evidence to be given by video link. The application was supported by an affidavit. The Respondent objected to the application. The reason given by the Complainant was that his “passport was currently being held by immigration authorities in connection with an immigration issue and that he was unlikely to get it back in time for the Hearing.” A video hearing was held to determine the application. The Complainant submitted that he was unable to travel due to matters beyond his control, that there were appropriate administrative arrangements and technical facilities available for him to give evidence by video link, and that the Complainant would face unfair prejudice if the application was not granted. Despite repeated requests by the DT, Counsel for the Complainant declined to state the purpose for which the passport had been handed over, or even when the Complainant had handed over the passport. This latter question was critical as it touched the question of whether the Complainant’s inability to travel was a matter beyond his 7 control or occasioned by his own actions. This argument was made forcefully by the Respondent’s counsel, who also submitted that the Respondent would be prejudiced by the inability to cross-examine the Complainant in person. The Complainant’s response was that the Complainant was a formal witness and that the Complainant’s case was based on documents. 27. After careful consideration, we allowed the application for the Complainant to give evidence by video link even though we were disturbed by the Complainant’s refusal to give reasons why and the circumstances under which he did not have possession of his passport. Allowing the Complainant to give evidence by video link would permit us to carry out our investigative function with the full benefit of all available evidence. We were of the view that the Respondent would not be prejudiced by having to conduct the cross-examination by video link. In making our determination, we applied the standard and the tests set out in the section 281(5B) of the Criminal Procedure Code 2010 and section 62A(2) of the Evidence Act 1893. The Second Preliminary Issue 28. As stated above, the LSS and the Respondent had reached an agreement whereby the LSS would proceed on one amended charge and the Respondent would admit to an Agreed Statement of Facts. The Respondent also agreed that the facts admitted to would make out the amended charge. The charge proceeded with was marked as the Amended First Alternative Charge, attached hereto as Annex D. This was tendered with an Agreed Statement of Facts, marked as ASOF-LS, and attached as Annex E. The Amended First Alternative Charge related to the email of 4 June 2015 sent by the Respondent to LHY, LWL and LHL. The original Second Charge and its alternative related to the Respondent’s email of 22 June 2015. 29. The Complainant took the position, communicated to us by letter dated 2 February 2023, that the Complainant was concerned about the LSS’s course of action as it would result in a situation where we would not be able to investigate the original Second Charge and its alternative. The Complainant went on to state that he reserved his right to apply for judicial review. The Complainant did not state his position as to the proper course of action we should take. 30. All parties were invited to address the point raised by the Complainant, on the first day of the hearing, before the evidentiary hearing commenced. The LSS’s position was 8 that it was not offering evidence in relation to the original First Charge and the original Second Charge and Second Alternative Charge. The LSS went further to state that DT 19 not only should not, but could not, consider the matters set out in the original First Charge, the original Second Charge and the original Second Alternative Charge. The Complainant took the position that we could and should consider all the matters in the LSS SOC, even in relation to charges where the LSS chose not to offer evidence. We indicated that we were inclined to agree with the position taken by the LSS. However, the Respondent took the position that we could consider all the matters in the LSS SOC, and therefore the Respondent should be permitted to file a Supplementary Affidavit of Evidence-in-Chief addressing the matters in the original Second Charge. In doing so, the counsel for the Respondent adverted to the fact that the Complainant might take this issue further and that it was in the Respondent’s interest that she address the facts relating to the LSS’s Second Charge and its alternative and that a finding on the merits be made thereon. 31. We gave leave to the Respondent to file the Supplementary Affidavit of Evidence-inChief and indicated that we would consider the correct approach to be taken in relation to charges where no evidence was offered, in the course of our determination. 32. Having considered the matter, we are of the view that the LSS has a discretion to consider representations and to weigh the merits of possible defences and consider facts raised by a respondent solicitor; and thereafter to determine whether any charges should be amended and whether no evidence should be offered on any charge. Where there are multiple charges, we are of the view that the same approach can be taken in considering whether to offer evidence on any of the charges. 33. We have considered the strictures of the C3J in Law Society of Singapore v Constance Margreat Paglar that amendments [or offering of no evidence in respect of some of the charges] should not result in the gravamen of the complaint being so diluted or modified as to result in a want of jurisdiction. In this regard, we cite its statement at [39] where the C3J states, “… save to reiterate that the Law Society’s duty to investigate complaints referred to it implies a concomitant duty to frame appropriate charges that adequately reflect the gravamen of the complaint (see Alvin Yeo at [78]). These are weighty obligations that the Law Society has been entrusted with, and the principle of self-regulation in disciplinary matters makes it even more imperative that the Law Society thoroughly discharges these duties. Any failure to fulfil these responsibilities would only serve to undermine the overriding purpose of legal 9 disciplinary proceedings - to protect the public and uphold public confidence in the legal profession (see Law Society of Singapore v Chia Choon Yang [2018] 5 SLR 1068 at [41]). Having said that, the Law Society does of course retain the discretion to amend charges in appropriate circumstances after it has considered the relevant facts and the law. A complainant’s view of the gravamen of the complaint may not always be sustainable.” (emphasis added) 34. The position taken by the LSS in not offering evidence on the original Second Charge and its alternative was predicated on its view that the email of 22 June 2015 was not a breach of confidentiality as the email did not contain confidential information. This was a view that could be reasonably held on an assessment of the evidence. We are not privy to the substance of the representations made and form no view on the merits of the representations. We find that the gravamen of the complaint (i.e., a breach of confidentiality) was the subject matter of the original First Charge and its alternative, and was addressed by the Amended First Alternative Charge. Further, in choosing to proceed with the alternative to the original First Charge rather than the original First Charge, the Law Society was pitching its case as a breach of section 83(2)(h) of the LPA, as opposed to a breach of section 83(2)(b). This was a position taken after consideration of the law, and was a position that could be reasonably held. The amended charge still addressed the gravamen of the complaint, which was the breach of confidentiality. There was accordingly no want of jurisdiction. For the reasons set out in Law Society of Singapore v Constance Margreat Paglar at [31], we are of the view that it is not open to us to consider the charges which were not proceeded with and in relation to which evidence was not offered. 35. We bear in mind the Respondent’s concerns that our view may be wrong, and that the Complainant may proceed with judicial review on the question of our failure to exercise jurisdiction on the original First Charge and the original Second Charge and its alternative. Accordingly, we have proceeded to consider the merits of the charges not proceeded with, in our discussion of the facts below. The LSS SOC 32. The Amended First Alternative Charge (Annex C) is set out below. You, KWA KIM LI, an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you on or about the 4th day of June 2015 by your 10 letter dated 4th June 2015 sent to Mr Lee Hsien Loong (“LHL”) are guilty of knowingly disclosing to LHL, without the consent / authority of the 2 Executors and Trustees named in Will No. 7 namely Ms Lee Wei Ling (“LWL”) and Mr Lee Hsien Yang (“LHY”), the following documents and information which was confidential to your client, Mr Lee Kuan Yew (“Mr Lee”), and which was acquired by you in the course of your engagement as Mr Lee’s solicitor namely; 5 of the previous Wills of Mr Lee prepared by you upon his instructions and email trails between Mr Lee and you from 11th December 2011 to 2nd November 2012 (“Documents Set A”) and explanations as to why your client Mr Lee changed his previous Wills which amounts to misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161). 33. The Amended First Alternative Charge was supported by an Agreed Statement of Facts (Annex E). Of significance is [9] of the Agreed Statement of Facts, where the Respondent admits that she did not obtain the consent/authority of the 2 Executors and Trustees named in the Testator’s Will dated 17 December 2013 (“Will No. 7”), namely LHY and LWL, prior to sending [by e-mail] the letter dated 4 June 2015 to LHL, LWL and LHY. We sought confirmation from the Respondent’s Counsel that the Respondent admitted to and accepted the facts set out in the Amended First Alternative Charge and Agreed Statement of Facts, and admitted that these facts amounted to misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession, within the meaning of section 83(2)(h) of the LPA. 34. The Respondent so confirmed and submitted that the circumstances of this case did not require referral to the C3J, and that we should issue a reprimand or impose a modest penalty. The Law Society took the position that a reprimand was not sufficient and that a penalty of $3,000 to $5,000 should be imposed. 35. Before we deal with the substance of the Amended First Alternative Charge, we address a point of difference between the LSS and the Respondent. Both parties took the common position that the information and documents set out in the charge were confidential to the Testator, and upon his death, to his Estate. The LSS took the position that the confidentiality could not be breached unless LHY and LWL, as Executors, gave permission. The Respondent took the position that they could not give 11 permission until Probate was granted. Nothing turned on this as the Respondent did not seek the permission of LHY and LWL in communicating to LHL. 36. The Respondent pitched her breach of confidentiality as a breach of the lowest level, submitting that that the Testator would have wanted her to share the information with LHL, LWL and LHY. Her position was that she released the information out of a deep sense of loyalty to the Testator, although she accepts that she did not have specific instructions from the Testator, prior to his death, to release such information. The LSS did not take a position on whether the Testator would have wanted the Respondent to release the information to LHL, but agreed that the Respondent’s culpability and the harm caused by the breach was not substantial. On consideration of all the facts, we accept this submission. 37. We accept that the Respondent was replying to queries by LHL and LWL under the notion that she ought to respond to queries from beneficiaries, who also happened to be her first cousins, with whom she grew up. We accept that the Testator had previously indicated to her that he would inform his children of his intentions and the reasons for his testamentary dispositions. We also accept that the Respondent had a close personal relationship with the Testator. We note that there is no evidence before us suggesting that the Respondent was acting from any improper motives. 38. However, it would have been clear to the Respondent that she was dealing with sensitive family issues. The Respondent was aware that LWL had previously voiced unhappiness on the change from a position where she has a slightly larger share to equal shares. In a situation such as the present case, it is imperative that solicitors act strictly within their professional boundaries and exercise care and caution. The Respondent’s misconduct was her failure to scrupulously safeguard the Testator’s confidentiality; and this misconduct was unbefitting of an advocate and solicitor. 39. In the premises, we determine pursuant to section 93(1)(b)(i) of the LPA, that while no cause of sufficient gravity for disciplinary action exists under section 83, the Respondent should be ordered to pay a penalty that is sufficient and appropriate to the misconduct committed. Further, we are of the view that a penalty that is sufficient and appropriate to the misconduct committed is a penalty of $5,000. Given the DT’s role as a filter of case, we do not think that a low culpability-low harm situation, involving misconduct under section 83(2)(h) of the LPA is one that should be referred to the C3J, particular in the absence of any dishonesty or deceit, or gross negligence. 12 40. On the question of costs, the LSS asked for a very modest $5,000. Pursuant to section 93(2) read with section 93(1)(b)(i) of the LPA, we order the Respondent to pay the LSS’s costs in the sum of $5,000 and to bear all disbursements that have been reasonably incurred which are to be taxed if parties are not able to agree. 41. We now deal with the original First Charge, the original Second Charge and the alternative to the original Second Charge. As stated earlier, we are of the view that these are not matters for our consideration. If we are wrong and should have considered these matters, there would have made no difference to our earlier determination – that while no cause of sufficient gravity for disciplinary action exists under section 83 of the LPA, the Respondent should be ordered to pay a penalty of $5,000 being a penalty that is sufficient and appropriate to the misconduct committed. As the party framing the Statement of Case, the LSS is entitled to frame alternative charges, to choose which alternative to proceed upon, and to amend the charges. 42. In any event, we are the view that the misconduct in the present case does not fall within the ambit of grossly improper conduct within the meaning of section 83(2)(b) of the LPA and the original First Charge would not have been made out. 43. In relation to the original Second Charge, we accept the Respondent’s submissions that the contents of the 22 June 2015 letter were different in nature from that of the 4 June 2015 letter. The thrust of the letter was to distance the Respondent from any involvement in the preparation of Will No. 7, not to give information about that will and its execution. We also accept the Respondent’s submissions that the information contained in the 22 June 2015 letter was already known to the parties. Specifically, the contents of the 1st Will (the will of 20 August 2011, which has been referred to in other proceedings as the 2nd Will), which was mirrored in Will No. 7, had been discussed with LHL, LWL and LHY at the time the 1st Will was executed. It was also clear that LHL, LWL and LHY had entered into a deed of Family Arrangement immediately after and predicated upon the contents of the 1st Will. In any event, even if the information disclosed in the 22 June 2015 was information confidential to the Testator and his Estate, we do not find that the disclosure amounted to misconduct under section 83(2) of the LPA. 44. The Respondent submitted that the Complainant’s position on the original Second Charge and its alternative was frivolous and vexatious. We do not agree. There is a 13 significant zone between a frivolous and vexatious complaint that ought not to have been made at all and a finding that misconduct has not been made out beyond reasonable doubt. We recognize that the Complainant had viewed the two letters as part of a continuum, while the LSS had analysed the two letters as two discrete acts. While we accept that the LSS’s approach is the correct one, we will not go so far as to state that the Complainant’s approach was frivolous and vexatious. The Complainant’s SOC 45. The Complainant’s SOC contained a single charge, as follows: You, Mdm Kwa Kim Li, are charged that, by way of your letters dated 4 June and 22 June 2015, you misled the Executors of the Estate of your former client Mr Lee Kuan Yew, namely Dr Lee Wei Ling and Mr Lee Hsien Yang, by omitting and/or otherwise failing to disclose your communications with Mr Lee Kuan Yew between November 2013 and 13 December 2013 in response to their enquiries and/or by making the false and misleading representation that Mr Lee Kuan Yew had never instructed you to change his will dated 2 November 2012, such act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed). 46. The Complainant and the Respondent tendered an Agreed Statement of Facts as well, which is at Annex F, together with an Agreed Bundle of Documents. The Complainant and the Respondent also filed affidavits of evidence-in-chief, upon which they were cross-examined. We observe the following: (a) The letters of 4 June 2015 and 22 June 2015 are dealt with together in a single charge, without making any distinction between the different contents of the two letters and the different queries that were being addressed by the Respondent. (b) In terms of the Respondent misleading LWL and LHY as executors, there are two separate averments, namely that the Respondent misled LWL and LHY by omitting to disclose and/or otherwise failing to disclose her communications with the Testator which had taken place between November 2013 and 13 December 2013 and/or making the false and misleading representation that the Testator had never instructed her to change his will. 14 47. The Respondent did not raise any objections as to duplicity in the charges. We are mindful that it is our function to formally investigate the matter and make a determination upon the facts, and the purpose of the charge is to give the Respondent notice of the case to meet. Nonetheless, we are obliged to identify the specific ingredients made out, and to make our determination only upon the facts that we have found to be made out beyond reasonable doubt. 48. We identified to the Complainant and Respondent the steps that we were of the view would be involved in making our determination on the Complainant’s Charge. These were: (a) To identify the queries that the Respondent was addressing in each of the two letters. The queries could be identified by evidence of what LHL and LWL asked the Respondent, what the Respondent and those receiving the letters would have understood the response as relating to, and what the two letters themselves had set out as the queries being responded to. (b) Following from the findings on point (a) above, whether the responses in each of the two letters were misleading, either by omission or expressly so. (c) Following from the findings on point (b) above, whether the responses were knowingly or deliberately misleading or misleading as a result of a lack of due care and diligence. (d) Following from the findings in point (c) above, whether the Respondent’s conduct was unbefitting that of an advocate and solicitor as an officer of the Supreme Court, and if so whether a reprimand or penalty should be imposed or whether the matter should be referred to the C3J. 49. The key documents in relation to this charge are: (a) The email exchanges between the Respondent and the Testator dated 30 November 2013, 12 December 2013 and 13 December 2013. (b) The Respondent’s exchange of emails with LWL on 3 June 2013. (c) The Respondent’s email to LHL, LWL and LHY on 4 June 2015, which has also been referred to as the 4 June 2015 letter. (d) The Respondent’s email to LHL, LWL and LHY on 22 June 2015, which has also been referred to as the 22 June 2015 letter. 50. The Complainant and the Respondent have characterized the background to and the contents of these documents quite differently. In approaching these differences, we have given weight to the plain and simple meaning of the language used in the 15 documents. In considering what the emails addressed and were intended to address, we construed the actual language used. To the extent that we considered evidence of witnesses, we were mindful that the two parties who raised queries, LHL and LWL, did not give evidence. The party who did give evidence was the Respondent who was the party to whom the queries were addressed. In the final analysis, we had to consider the plain meaning of the documents, with the background as context, and consider the Respondent’s explanation. In doing this, we were mindful that the burden of proof on the Complainant was proof beyond reasonable doubt. 51. The communications between the Respondent and the Testator in November / December 2013 clearly show the following: (a) The Testator contacted the Respondent on 29 November 2013 and discussed his concerns that the Oxley Road property would be “de-gazetted” and wished to make arrangements such that any increase in value upon such “de-gazetting” would be shared by LHL with LWL and LHY, and not be retained by just LHL, who was to be bequeathed the Oxley property. (c) In the week before 12 December 2013, the Respondent and the Testator had a further discussion and discussed the shares that LHL, LWL and LHY would each get. In doing so, the Testator indicated his wish to give all three children equal shares, as opposed to his existing will where LWL received an extra share. (d) In her email of 12 December 2013, the Respondent stated that she would prepare a codicil to effect the Testator’s wish, for the Testator’s signature that week or when he was ready. The Respondent also stated that she had “some thoughts” on the Oxley Road property and would call the Testator later that day. (e) On 13 December 2013, the Testator sent an email to the Respondent asking for a further amendment to his will, regarding the bequest of two carpets to LHY. 52. The Testator passed away on 23 March 2015. The two emails that are the subject matter of the Complainant’s Charge were sent by the Respondent on 4 June 2015 and 22 June 2015. The 4 June 2015 Email 53. There is no evidence from LHL or LWL as to what queries were being addressed in the 4 June 2015 email. LWL’s email of 3 June 2015 gives some indication as she stated “It would be useful to have emails, and not just a summary of evolution of the Oxley clause”. No reference at all is made to Will No. 7, executed on 17 December 2013. The 16 heading was “Papa’s Wills”. The Respondent’s email of 4 June 2015 is headed “Chronology of 6 Wills - my file records will focus on Oxley”. This does seem to be a follow up on LWL’s 3 June 2015 email. It is noteworthy that no mention is made of any issue in relation to any change that equalizes the shares amongst the three children. 54. The Respondent’s 4 June 2015 email focused entirely on the evolution of the distribution amongst the children and matters relating to the Oxley Road property in the 1st to 6th Wills, which had been prepared by the Respondent. No mention at all is made of the exchange of emails and the communications between the Respondent and the Testator in November / December 2013. 55. We first observe that there is no extraneous evidence as to the query made by LHL or LWL, except for the 3 June 2015 email. We find that there is nothing in the direct extraneous evidence that shows that there was any query that required reference to the November / December 2013 communications between the Testator and the Respondent as part of the answer. 56. We now consider the Complainant’s second argument; which is that the Respondent and the recipients knew that the context of the queries related to the execution of Will No. 7 and therefore the Respondent should have included reference to the November / December 2013 communications between the Testator and the Respondent as part of the answer. We note that the Respondent had started her email with the words “[LHL] and [LWL] have requested me for file records of your father’s previous Wills, for notes/emails/information on his instructions regarding Oxley.” The Complainant reads this line with emphasis on the second part, that is, the Respondent should have given information relating to the Testator’s instructions regarding the Oxley Road property. The Respondent urges us to construe the query with emphasis on the first part, and to read the query as being limited to the 1st to 6th Wills. The Respondent also urges us to read the word “instructions” as being limited to a direction by a client to carry out a particular task. 57. In the absence of evidence from LHL and LWL as to what their queries were, we are constrained to consider the Respondent’s evidence only, and weigh it against the background evidence and the actual words in the 4 June 2015 email. As candidly admitted by Counsel for the Complainant, LHY did not have any personal knowledge in this regard. 17 58. An omission, whether wilful or negligent, that amounts to professional misconduct can only arise if there is a clear breach of duty to furnish that information. In the present case, we are unable to find any evidentiary basis for a query that would clearly have required a response containing reference to the November / December 2013 communications. We agree with the Respondent that the reference to instructions relation to the Oxley Road property are circumscribed by the earlier reference to the 1 st to 6th Wills. This is made clear by the fact that the earlier 6 wills are identified and copies were given. 59. We wish to point out that the question before us is not whether the Respondent should have given details of the November / December 2013 communications in the 4 June 2015 letter, but whether there was any query that made her failure to do so misleading. We do not find sufficient evidence, to prove beyond a reasonable doubt, that there was any query that required a reference to the November / December 2013 communications. 60. The Complainant’s alternative argument was that the great degree of detail given by the Respondent would have led the recipients to conclude that all information was given. Quite apart from the absence of evidence in this regard, we are obliged to consider the issue objectively and not what the recipients subjectively hoped or expected to be informed about. 61. Since there is no clear query established, we find that the issues relating to whether the answer was misleading, and the subsequent considerations, do not arise in relation to the 4 June 2015 email. For completeness, we do not find that the Complainant’s Charge in relation to the Respondent’s 4 June 2015 email is made out on the facts. The 22 June 2015 Email 62. We now consider the 22 June 2015 email. Again, there is a no evidence from LHL and LWL on the queries that they raised. However, unlike the 4 June 2015 email, the 22 June 2015 email itself contained clear statements as to what queries were being raised. The queries being addressed were: (a) A request for the draft will of 19 August 2011; and (b) The background which led to the signing of Will No. 7. 18 63. Given that Will No. 7 was a return to the will of 20 August 2011 (i.e., the 1st Will) and that both the 1st Will and Will No. 7 were based on the 19 August 2011 draft, it was clear that the subject matter being addressed was Will No. 7. This is reinforced by the second query, requesting the background which led to the signing of Will No. 7. 64. The Complainant submitted that this was clearly a request for information relating to the circumstances leading up to the execution of Will No. 7. We agree. Indeed, as the queries were quite obviously a follow-up to the answers received on 4 June 2015, the logical inference was that LHL and LWL were seeking information specifically in relation to Will No. 7, in relation to which the Respondent had given no information in her earlier 4 June 2015 email. The query therefore concerns the circumstances leading up to the execution of Will No. 7. 65. We move on to consider the second issue, which is whether the Respondent’s answers were misleading. We note that there was no reference at all to the November / December 2013 communications with the Testator. In this regard, we note that that the distribution of shares and issues relating to the Oxley Road property were changes that were discussed in the November / December 2013 communications and were matters that were addressed and changed in Will No. 7. We also note that although these matters were discussed between the Respondent and the Testator, the Respondent stated in the email that “After your father signed Will no. 6 dated 2nd November 2012, he did not instruct me to change his Will. I first learnt about Will no. 7 via email from Fern and Lin Hoe.” 66. The Respondent’s explanation was that her statement was true and complete as she was not involved at all in the preparation or execution of Will No. 7, and that it would be inappropriate and irresponsible for her to guess or speculate as to the Testator’s reasons for the treatment of the Oxley Road property in Will No. 7. The Respondent submits that she had made it clear that she was not involved in Will No. 7. The Respondent submits further that the November / December 2013 communications were not material to the background to the signing of Will No. 7 and did not contain any instructions from the Testator about Will No. 7. The Respondent characterizes the November / December 2013 communications as relating to the possibility of preparing a codicil to the 6th Will, but her understanding was that the Testator was still in the 19 midst of considering or compiling possible amendments to include or provide for in the proposed codicil. 67. We do not agree with the Respondent’s submissions. The issues are quite simple. The first question is whether the November / December 2013 communications should have been disclosed in response to a query on the background to the signing of Will No. 7. The second question is whether the omission to disclose made the response misleading. The third question is whether it was true that the Respondent did not receive any instructions to change the Testator’s Will. 68. It was clear that the live issue to LHL and LWL was the Testator’s mindset in terms of his wishes in relation to the distribution of the Oxley Road property. The failure to disclose the November / December 2013 communications, coupled with the statement that the Testator did not instruct the Respondent to change his Will gave the clear and unequivocal impression that the Respondent had no knowledge as to how Will No. 7 came about. On the face of the 30 November 2013 and 12 December 2013 emails, it was clear that the Respondent knew that the Testator wished to equalize the shares of his childrenn and to address matters relating to the Oxley Road property. Unlike the 4 June 2015 email, the Respondent did not circumscribe her answers to any particular series of wills or time periods. We find that the nub of the queries by LHL and LWL was to find out how Will No. 7 came about, and not the formalities of its execution. It is clear that the Respondent knew that the Testator wanted to change the 6th Will and that the changes related to the shares amongst the children in the Oxley Road property. 69. We observe that the query was for the background which led to the signing of Will No. 7. These words clearly suggest that the answer given would be expansive and address the issues in the mind of the querists. 70. The Respondent argues that her use of the word “instruct”, in stating that the Testator did not instruct her to change the Will, was not false. The basis for this argument was that there were no instructions, but only discussions, as the Respondent was not expressly told to make any changes. The Complainant argues that the word “instruct” should be given its dictionary meaning i.e. “To convey information as a client to an attorney” and “the facts and details relating to a case given by a client to his or her 20 solicitor”. We are of the view that the word “instruct” should be given a meaning that the parties reading the 22 June 2015 email would have understood it to mean. We accept the submission made by the Complainant. On that basis we find the statement that the Testator did not instruct the Respondent to change his Will to be untrue. The instructions may not have been finalized, but it is clear that the Respondent received instructions relating to the changes that were shortly made. 71. The Complainant had further argued that instructions were in fact actually finalized for the Respondent to change the 6th Will. This is based on the wording of the Respondent’s email of 12 December 2013 to the Testator which states “We discussed last week that you would now like to sign a Codicil to change this, and to give Ling equal shares with Loong and Yang out of the total estate. I will prepare the codicil for you to sign this week, or when you are ready.” 72. The Complainant also points to the change in caption of the emails from “your question on the properties in your name” in the email of 30 November 2013 to “Codicil to equalize Ling” in the Respondent’s email of 12 December 2013 as an acknowledgement by the Respondent that she had received instructions to change the 6th Will. 73. The Respondent disagreed with the suggestion that there were final instructions from the Testator in this regard. Her explanation was that she had actually sent the email of 12 December 2013 to the Testator to ask whether that was what he really wanted. 74. Her evidence was that it was normal for her to have many discussions with the Testator over an issue with him changing his mind several times before coming to a conclusion, hence she assumed this to be part of that process when asked to recall the circumstances surrounding what led her to send the Testator the email of 12 December 2013. 75. Given her view that the emails (from 30 November 2013 to 13 December 2013) did not contain any final instructions, her position was therefore that the statement in her 22 21 June 2015 email that she did not receive any instructions to change the 6th Will was not false or misleading. 76. We find that the Respondent’s omission to disclose the emails of 30 November 2013 and 12 December 2013 in her email of 22 June 2015 is misleading. We further find that her statement in that same email that she did not receive any instructions from the Testator to change his Will is false. We now move on to the next stage of the inquiry, whether the responses were knowingly or deliberately misleading or misleading as a result of a lack of due care and diligence. 77. The Respondent’s subjective view that the omission of the November / December 2013 communications from her 22 June 2015 email did not render it misleading does not accord with the objective analysis of what the November / December 2013 communications amounted to. 78. There was no direct evidence that the Respondent knowingly or deliberately misled the recipients of the 22 June 2015 email. There was no evidence or even suggestion that she chose to avoid disclosure for personal or any partisan purposes. The Complainant suggested that the Respondent did not disclose her November / December 2013 communications with the Testator out of embarrassment that she had been tardy in carrying out his instructions. There was no evidence to support this suggestion. We briefly considered the possibility that the Respondent was deliberately choosing to distance herself from Will No. 7, and the issues amongst the Testator’s children in relation to it. There is some evidence that LWL had reached out to the Respondent in relation to her unhappiness in having her share reduced. However, this was not put to the Respondent. Therefore, on the evidence before us, we do not find proof beyond a reasonable doubt that the Respondent knowingly or deliberately misled LHY and LWL or that she intentionally made a false statement. 79. Nevertheless, the Respondent was communicating with the Testator’s beneficiaries on matters that were obviously important to them. The Respondent was aware that LWL had expressed some unhappiness in relation to Will No. 7 in terms of the change to her share. Having chosen to respond to the queries, it was incumbent upon the Respondent to be complete and accurate in her response. We find that had the 22 Respondent exercised due care and diligence, she ought to have disclosed the November / December 2013 communications in the 22 June 2015 email and ought not have stated that she had received no instructions to change the Testator’s Will. 80. We now consider the appropriate determination. We expressly asked Counsel for the Complainant to address us on the issue of harm caused by the Respondent’s breach of duty. We were referred to paragraph 30 of the LHY’s affidavit of evidence-in-chief, wherein he stated that the Respondent’s failure to disclose the fact that the Testator had communicated his wishes to give his children equal shares and her failure to disclose the context in which the Testator decided to include the demolition clause in Will No. 7 “caused unnecessary doubt and confusion about what prompted the [Testator] to change his 2 November 2012 Will”. Counsel for the Complainant confirmed that this was the only harm alleged. 81. Given the absence of any further background or information, we assessed the harm as low. We were mindful that the 22 June 2015 email was in response to a second query for information and was quite specific. Accordingly, we find that the culpability was low to medium. 82. In the premises, we determine pursuant to section 93(1)(b)(i) of the LPA, that while no cause of sufficient gravity for disciplinary action exists under section 83, the Respondent should be ordered to pay a penalty that is sufficient and appropriate to the misconduct committed in relation to the Respondent’s 22 June 2015 email. Further, we are of the view that a penalty that is sufficient and appropriate to the misconduct committed is a penalty of $8,000. For completeness, we set out an amended charge, that encapsulates our findings, which is as follows: You, Mdm Kwa Kim Li, are charged that, by way of your letter 22 June 2015, you misled the Executors of the Estate of your former client Mr Lee Kuan Yew, namely Dr Lee Wei Ling and Mr Lee Hsien Yang, by omitting to disclose your communications with Mr Lee Kuan Yew between November 2013 and 13 December 2013 in response to their enquiries and by making the false and misleading representation that Mr Lee Kuan Yew had never instructed you to change his will dated 2 November 2012, such act amounting to misconduct 23 unbefitting an advocate and solicitor as an officer of the Supreme Court within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed). 83. We now address the question of costs. Parties made written submissions on costs on 3 March 2023. The Complainant’s submissions sought $60,000 in costs at [1] of his cost submissions but sought a different figure of $15,000 in [5] of his costs submissions. Disbursements were sought in the sum of $9.182.29. Pursuant to section 93(2) read with section 93(1)(b)(i) of the LPA, we order that the Respondent should pay the Complainant’s costs in the sum of $12,000 and disbursements in the sum of $9,182.29. 84. We would like to thank Counsel for their assistance in addressing our questions and concerns, in the course of submissions. Dated this 5th day of May 2023 ___________________________ __________________________ Narayanan Sreenivasan SC Tan Kheng Ann Alvin President Member 24 Cz IN THE MATTER OF KWA KIM LI AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) STATEMENT OF CASE . Kwa Kim Li (the ""Respondent""), an Advocate and Solicitor of the Supreme Court of Singapore of 35 years' standing, was admitted to the Roll of Advocates & Solicitors on 16"" January 1980, and was at all material times, practising as an advocate and solicitor at the law firm of Lee & Lee. . The Complainants are Ms Lee Wei Ling (“LWL.”) and Mr Lee Hsien Yang (""LHY”), and the complaint was made by a letter dated 5! September 2019 Society""), supported by a Statutory Dectaration declared on the same day. to the Law Society of Singapore (""the Law . LWL and LHY were the Executors and Trustees named in the Last Will and Testament of Mr Lee Kuan Yew (‘Mr Lee”) dated 17 December 2013 (‘Will no.7) . Probate of Will no. 7 was obtained by the Executors and Trustees sometime in October 2015. . Rule 24 of the Legal Profession (Professional (Revised Edition 2010) (""PCR 2010"") states: Conduct} Rules (1) An advocate and solicitor shall not in any way, directly or indirectlyi disclose any confidential information which the advocate and solicitor receives as a result of the retainer; or ii. disclose the contents instructions of the papers recording such unless with the consent of the client or is required by law or order of court. 8. On 4 June 2015, the Respondent responded to the requests from LHL, by way of a letter/email addressed to LHL, LHY and LWL and provided copies of the following documents to LHL,LHY and LWL; a) The previous 6 Wills; b) Email trail between Mr Lee and the Respondent from 17"" August 2011 to 2°¢ November 2012 (“Documents set A”) 9. By the text of the 4° June 2015 letter addressed to LHL,LHY and during the 15-month period and the duration during which prepared the 6 previous Wills on his instructions she LWL the Respondent also expiained the background as to why Mr Lee signed 6 Wills over 15 months and in doing so disclosed confidentiat information that she was privy to as Mr Lee's solicitor 10. Further to her letter dated 4"" June 2015 and upon the request of LHL for a copy of draft will dated 19"" August 2011 and about the background which led to the signing of Will no. 7, the Respondent on 22° June 2015, under her covering emailetter of the same date, forwarded to LHL,LHY and LWL, the following documents: a) The draft Will of Mr Lee dated b) c) 19 August 2011 with covering email; Email trails of 16 December 2013 from Lee Suet Fern; Email trails of 3° January 2014 from Lin Hoe; (collectively referred to as “Documents set B”) 14.1n addition to Documents Set B, the Respondent by the text of her letter dated 22""4 June 2015 also provided information to LHL, LHY and LWL that she did not receive any instructions from Mr Lee to change his will after he had signed Will no.6 dated 2°4 November 2012 and that she first learnt about Will No.7 via email from Lee Suet Fern and Lin Hoe 12.Whilst, LHY and LWL were the 2 Executors and Trustees named in Will no. 7 and were thereby authorised to receive the information contained in the Respondent's letter dated 4!"" June 2015 and 22""4 June 2015 as well as the Documents set A and Documents set B. LHL was not authorised to receive the same from the Respondent without the consent/authority of the 2 Executors and Trustees named in Will no. 7, namely, LHY and LWL. 13.The Respondent did not seek nor obtain the consent/authority of the 2 Executors and Trustees named in Will no.7, namely, LHY and LWAL. prior to sending the letter dated 4!"" June 2015 and the letter dated 22™4 June 2015 to LHL 14.In providing the previous 6 Wills, the documents set A and the documents set B and the background explanation to LHL without the consent /authority of the 2 Executors and Trustees named in Will no.7, namely LWL and LHY, the Respondent had breached the confidentiality principle set out in Rule 24 of the PCR 2010. 15. The Respondent's disclosure of confidential information amounted to a breach of the confidentiality principle set out in Rule 24(1) of the PCR 2010. The breach of Rule 24(1) of the PCR 2010 amounts to grossly improper conduct in the discharge of her professional duty within the meaning of Section 83{2)(b) of the Legal Profession Act (Cap. 161)(""LPA""} 16.Further and/or in the alternative, the disclosure of confidential information by the Respondent amounts to misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the LPA 17. Accordingly, the Law Society against the Respondent: formulates the following charges 48TCHARGE You, KWA KIM LI an Advocate and Solicitor of the Supreme Court of Singapore are charged that you are guilty of a breach of Rule 24(1) of the Legal Profession (Professional Conduct) Rules (Revised Edition 2010) (""PCR 2010"") in that you on or about the 4!"" of June 2015 had knowingly disclosed to Mr Lee Hsien Loong (‘LHL”) without the consent / authority of the 2 Executors and Trustees named in, Will no.7 namely Ms Lee Wei Ling (“LWL"") and Mr Lee Hsien Yang (‘LHY’), fhe following documents and information which was confidential to your client, Mr Lee Kuan Yew (""Mr Lee""), and which was acquired by you in the course of your engagement as Mr Lee’s solicitor namely; The previous 6 Wills of Mr Lee prepared by you upon his instructions and email trails between Mr Lee and you from 17 August 2011 to 2""? November 2012 (‘Documents set A”) and explanations as to why your client Mr Lee changed his previous 6 Wills and by such breach of Rule 24(1) of the PCR 2010 you are guilty of grossly improper conduct in the discharge of your professional! duties within the meaning of $83(2)(b) of the Legal Professional Act (Cap. 161). ALTERNATIVE 48T CHARGE You, KWA KIM LI an Advocate and Solicitor of the Supreme Court of Singapore are charged that you are guilty of knowingly disclosing fo Mr Lee Hsien Loong (“IHL”) without the consent / authority of the 2 Executors and Trustees named in Will.no 7 namely Ms Lee Wei Ling (“LWL”) and Mr Lee Hsien Yang (“LHY’), the following documents and information which was confidential to your client, Mr Lee Kuan Yew (“Mr Lee”), and which was acquired by you in the course of your engagement as Mr Lee's solicitor namely; The previous 6 Wills of Mr Lee prepared by you upon his instructions and email trails between Mr Lee and you from 17"" August 2011 to 2"" November 2012 (“Decuments Set A"") and explanations as to why your client Mr Lee changed his previous 6 Wills which amounts to misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161) 2"" CHARGE You, KWA KIM LI an Advocate and Solicitor of the Supreme Court of Singapore are charged that you are guilty of a breach of Rule 24(1) of the Legal Profession (Professional Conduct) Rules (Revised Edition 2010) (""PCR 2010"") in that you on or about the 224 of June 2015 had knowingly disclosed to Mr Lee Hsien Loong (""LHL"") without the consent / authority of the 2 Executors and Trustees named in Will no. 7, namely Ms Lee Wei Ling (“LWL"") and Mr Lee Hsien Yang (""LHY""), the following documents and information which was confidential to your client, Mr Lee Kuan Yew (""Mr Lee”), and which was acquired by you in the course of your engagement as Mr Lee’s solicitor namely; the draft Will of Mr Lee dated 19 August 2011 with covering email, email trails of 16 December 2013 from Lee Suet Fern and email trails of 3% January 2014 from Lin Hoe (“Documents Set B”) and information that you did not receive any instructions from Mr Lee to change his will after he had signed will no.6 dated 2 November 2012 and that you first learnt about will No.7 via email from Lee Suet Fern and Lin Hoe and by such breach of Rule 24(1) of the PCR 2010 you are guilty of grossly improper conduct in the discharge of your professional duties within the meaning of s83(2)(b) of the Legal Professional Act (Cap. 161). ALTERNATIVE 2°? CHARGE You, KWA KIM LI an Advocate and Solicitor of the Supreme Court of Singapore are charged that on or about the 22"" of June 2015, you had knowingly disclosed to Mr Lee Hsien Loong (LHL) without the consent / authority of the 2 Executors and Trustees of Will no. 7 namely Ms Lee Wei Ling (“LWL"") and Mr Lee Hsien Yang (""LHY”), the following documents and information which was confidential to your client, Mr Lee Kuan Yew (“Mr Lee”), and which was acquired by you in the course of your engagement as Mr Lee’s solicitor namely; the draft Will of Mr Lee dated 19"" August 2011 with covering email, email trails of 16 December 2013 from Lee Suet Fern and email trails of 3% January 2014 from Lin Hoe (‘Documents Set B”) and information that you did not receive any instructions from Mr Lee to change his will after he had signed will no.6 dated 2° November 2012 and that you first learnt about Will No.7 via email from Lee Suet Fern and Lin Hoe and such breach of confidentiality amounts to misconduct unbefitting of an Advocate and Solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83({2)(h) of the Legal Profession Act (Cap. 161) Dated this 16th day of Sep 2022 R.S. Bajwa BAJWA & CO. SOLCITORS FOR THE LAW SOCIETY OF SINGAPORE IN THE MATTER OF KWA KIM LI, AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CAP 161, 2009 REV. ED.) STATEMENT OF CASE Counsel for the Complainant Mr Abraham Vergis, S.C. Ms Asiyah Arif Providence Law Asia LLC 1 Raffles Place One Raffles Place Tower 2 #29-62 Singapore 048616 Tel: 64381969 Dated this 25"" day of July 2022 Complaint in his sole name. LHY will therefore be referred to in these proceedings as the “Complainant”. i. RELEVANT STATUTORY PROVISIONS §. At the material times in or around June 2015, the relevant statutory provisions in force were the Legal Profession Act (2008 Rev Ed) (""LPA"") and the Legal Profession (Professional Conduct) Rules (2010 Rev Ed) (“PCR’). 6. Section 83(1) of the LPA provides that “aif advocates and solicitors shail be subject to the control of the Supreme Court and shall be liable on due cause shown” to be struck off the roll, suspended from practice, pay a penalty and/or to be censured. 7. Section 83(2)(h) of the LPA provides that: Such due cause may be shown by proof that an advocate and solicitor ~ (h) has been guilty of such misconduct unbefitting an advocate and Solicitor as an officer of the Supreme Court or as a member of an honourable profession; 8. Rule 2(2) of the PCR provides that: “In the interpretation of these rules, regard shall be had to the principle that an advocate and solicitor shall not in the conduct of his practice do any act which would compromise following obligations: or hinder the {a) fo maintain the rule of law and assist in the administration of justice. (b) to maintain the independence and integrity of the profession.” A solicitor has a duty and an obligation under the PCR not to do anything which would compromise or hinder their obligations to assist in the administration of justice and to maintain the independence and the integrity of the honorable profession. This includes the general duty to act honestly, competently and with due care and diligence in the conduct of her professional duties. 10. As detailed below, the Respondent has on this failed to act honestly and/or discharge her professional obligations with due care and diligence, which amounts to conduct unbefitting an advocate and solicitor under 83(2)(h) of the LPA. CIRCUMSTANCES GIVING RISE TO THE COMPLAINT 14 The original Complainants, LWL and LHY, together with Mr Lee Hsien Loong (“LHL”), are siblings and the children of Mr Lee. 12. Prior to his death, Mr Lee Kuan Yew (“Mr Lee”) executed a total of eight wills. Mr Lee’s initial will was prepared by his wife, Ms Kwa Geok Choo, and was signed by Mr Lee and dated 7 December 1995. Lee instructed the Respondent to draft and engross Thereafter, Mr his next six wills between August 2011 and November 2012, each of which was signed by Mr Lee and dated as follows: a. 20 August 2011 (""First Will’), b. 21 December 2011 (‘Second Will’); om 6 September 2012 (""Third Will’); d 20 September 2012 (“Fourth Will’); e. 4 October 2012 (“Fifth Will’); and f. 2 November 2012 (""Sixth Will’). (collectively referred to as Mr Lee's “six wills”) In or around end-November 2013, Mr Lee asked the Respondent to draft another will to effect further amendments to his Sixth Will. 14. On 30 November 2013, the Respondent sent Mr Lee an email to record the contents of her discussion with Mr Lee the previous evening, and to advise Mr Lee on the amendments that Mr Lee was intending to make to his last will (‘30 Nov Email”). Specifically, the email recorded that Mr Lee had asked the Respondent to re-cap the contents of his Sixth Will. Mr Lee had also raised the possibility that his family home at 38 Oxley Road (“Oxley”) might be “de-gazetted” after his passing and sought the Respondent's advice on the legal implications if that were to happen. 15, On 12 December 2013, the Respondent sent another email to Mr Lee setting out further information regarding his Sixth Will and recorded the contents of a discussion with Mr Lee the previous week (""12 Dec Email’). In her email, the Respondent said: “Under your present will dated 2 Nov 2012, [LWL] has been given 1 share more than [LHL] and [LH], out of your total estate. This is because you reasoned that [LWL] does not have double income like her brothers. We discussed last week that you would now like to sign a Codicil to change this, and to give {LWL] equal shares with [LHL] and [LHY] out of the total estate. ! will prepare the codicil for you to sign this week, or when you are ready. Regarding the Oxley property, | have some thoughts and will call you iater today.” 16. On 13 December 2013, Mr Lee replied to the Respondent to request an additional amendment to his will to give two carpets to LHY (“13 Dec Email""). The 13 December 2013 email stated: “Another amendment is a cadicif to specify that two carpets: a silk one on the wall over my PV and another a larger woollen one on the wall above the bed in my bedroom, fo go to [LHY].” 17. The 30 Nov Email, 12 Dec Email and the 13 Dec Email are collectively referred to as the “Emails”. Mr Lee thereafter finally determined to revert to the terms of his First Will, and he accordingly executed his last will and testament on 17 December 2013 (""Last Will’), on terms which substantially mirrored the contents of his First Wil In his Last Will, Mr Lee named LHY and LW/ as the executors and trustees of his estate. Mr Lee passed away on 23 March 2015. The Executors stepped into Mr Lee’s shoes and represented his Estate thereafter. 20. On 3 June 2015, LWL wrote to the Respondent to request information about Mr Lee’s wills. 21. On 4 June 2015, in response the request from LWL (and a purportedly similar request from LHL) for the Respondent's file records of copies of Mr Lee's previous Wills and for any notes, information and emails relating to or connected with Mr Lee's instructions regarding his Oxley property, the Respondent issued a letter to the Executors and LHL titled “Chronology of 6 Wills — my file records with focus on Oxley’ {the “4 June Letter’). 22. In the 4 June Letter, the Respondent set out a comprehensive account of Mr Lee’s six wills and her discussions with Mr Lee regarding his testamentary wishes based on her file records. 23. The summary included Mr Lee’s instructions in respect of the preparation of his six wills and various instructions and wishes, drafts of the same, the changes to his and correspondence with him in relation to the Oxiey property. The Respondent also attached copies of all six wills and her email correspondence with Mr Lee. 24. However, the Respondent omitted to mention the fact that and/or failed to disclose the Emails which would show that in or around 30 November 2013, Mr Lee had given the Respondent instructions to amend the terms of his Sixth Will by way of another will. In particular, the Respondent did not reveal that Mr Lee had specifically sought the Respondent's advice in November 2013 on what was to be done with Oxley, nor did she disclose to the Executors her Emails with Mr Lee on this issue. 25. It would have been evident to the Respondent that the Emails and her communications with Mr Lee in November to December 2013 were relevant to the inquiries made by LWL and LHL as: a The Respondent issued the 4 June Letter in response to the specific requests from LWL and LHL for “notes/emails/information on his instructions to {the Respondent] regarding Oxley’. The Emails are self-evidently relevant and material to the requests made to the Respondent. b. Mr Lee had passed away in March 2015, less than 3 months before the 4 June Letter was sent out. There was significant public interest and nation-wide discussion over the mainstream media and social media over whether Oxley should be gazetted and preserved as a heritage site or demolished in honour of Mr Lee’s wishes. The said Emails recorded the /ast time the Respondent had communicated with Mr Lee in respect of Mr Lee’s testamentary intentions for Oxley, and immediately correspondences preceded were the signing of his Last Will. These therefore critical to understanding the context of Mr Lee's wishes and his underlying concerns regarding Oxley, and in particular, the fact that Mr Lee had reiterated his testamentary intention to ultimately have his family home at Oxley demolished. Given Mr Lee’s standing as the former Prime Minister and founding father of modern Singapore and the historical significance of Oxley, the Respondent's records of her discussions with Mr Lee were both of personal importance to him and potentially of national importance. The Respondent clearly understood the scope and significance of the requests made by LWL and LHL. In her 4 June Letter, she set out a comprehensive record of her discussions and correspondence with Mr Lee. The Respondent's account included her previous discussions with Mr Lee regarding Oxley, whether or not it directly related to any of Mr Lee's wills or resulted in any changes to any of Mr Lee’s witls. cancelled versions She had even put together of his previous wills to reconstruct all the relevant events. 26. On 22 June Executors and 2015, LHL the Respondent in response then sent a to further queries further from letter to the LWL and LHL regarding the signing of the Last Will (the “22 June Letter’). In her email, the Respondent explained “Further to my note to you dated 4 June 2015, [LHL] has asked me: 1} For a copy of draft Will dated 19” August 2011; 2) About the background which father’s last Will dated 17 27. It would fed to the signing December 2013 of your (""Will no. 7°)"" similarly have been evident to the Respondent that Mr Lee's instructions to her te amend the contents of his Sixth Will and Mr Lee's request for her advice regarding Oxley (all of which were captured in the Emails between the Respondent and Mr Lee which were exchanged up to 4 days before he signed his Last Will), would have been relevant to these specific requests for information, and in light of the facts set out in paragraph 25 above. However, the Respondent omitted to disciose to the Executors the fact of her communications with Mr Lee regarding his will and Oxley in November to December 2013, or the existence of the Emails between her and Mr Lee. 28. The Respondent was also abie to disclose another chain of emails dated 46 December 2013 to 3 January 2014 relating to the execution of Mr Lee’s Last Will, ie. shortly after the Emails were disclose copies of the Emails or make sent. mention However, she did not of the communications between her and Mr Lee that were referenced in the Emails. 29. Instead, in her 22 June Letter, the Respondent misrepresented to the Executors in specific and unambiguous language that “fajfter [Mr Lee Kuan Yew] signed Will no. 6 dated 2°"" November 2012, he did not instruct [the Respondent] to change his Will’. 11 30. The Respondent's statement was false and/or misleading, as the Emails demonstrate that Mr Lee Kuan Yew had in fact instructed the Respondent to change his Sixth Will in his discussions with her in November to December 2013. His instructions and those discussions were recorded or referenced in the Emails. 31 After the 4 June Letter and the 22 June Letter, the Respondent did not attempt to correct her misrepresentation that Mr Lee had not instructed her to change his will after his Sixth Will was executed or notify the Executors about the existence or contents of the Emails. 32. Thereafter, the Executors, through their then solicitors, Rajah & Tann LLP, made repeated requests to the Respondent for copies of all her documents and records on file in respect to Mr Lee’s wills. In or around March 2019, in response to the Executors’ requests, the Respondent her records and documents to the Executors, provided copies of including copies of the Emails. It was only then that the Executors discovered the existence of the Emails and learned that the Respondent had made false and/or misleading statements in her 4 June Letter and 22 June Letter. The Respondent did not disclose the existence of or copies of the Emails or make any attempt to correct the false and/or misleading statements in her 4 June Letter and 22 June Letter at any time prior to March 2019. 33. The Respondent's accounts in the 4 June Letter and the 22 June Letter would have given the Executors the impression that Mr Lee had never expressed to her his intention to change the terms of his Sixth Will or to divide his estate equally between his children. This caused unnecessary doubt and confusion about whether Mr Lee had intended to change his Sixth Will, and what his concerns were in respect of Oxley prior to executing his Last Will. The Respondent omissions and misrepresentation to the Executors were made knowingly and deliberately, or in the alternative, as a result of lack of care and diligence on her part. The Respondent's actions, in knowingly and deliberately making false and misleading statements and/or omitting to mention or failing to disclose information received from one of the Executors, would in response to the inquiries be in breach of her general duties of honesty, competence, due care and diligence under Rule 2{2) of the PCR and would accordingly amount to a breach of Section 83(2)(h) of the LPA. 35. Even if the Respondent made false and misleading statements to the Executors and/or had omitted disclosing information and documents in response to the Executors' specific inquiries unintentionally, be it as a result of carelessness, negligence and lack of due care and diligence, her conduct feli short of the standards of integrity, probity and trustworthiness expected of a solicitor who found herself in the critical context and circumstance that the Respondent was in, and would accordingly amount to a breach of Section 83(2)(h) of the LPA. CHARGES 36. Accordingly, the Complainant formulates the following charge against the Respondent. CHARGE 37. You, Mdm Kwa Kim Li, are charged that, by way of your letters dated 4 June and 22 June 2015, you misled the Executors of the Estate of your former client Mr Lee Kuan Yew, namely Dr Lee Wei Ling and Mr Lee Hsien Yang, by omitting and/or otherwise failing to disclose your communications with Mr Lee Kuan Yew between November 2013 to 13 December 2013 in response to their enquiries and/or by making the false and misleading representation that Mr Lee Kuan Yew had never instructed you to change his will dated 2 November 2012, such act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court within the meaning of s 83{2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed). Dated this 25"" day of July 2022 =) Cans a Counsel for the Complainant Providence Law Asia LLC DT/19/2022 IN THE MATTER OF KWA KIM LI AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CAP 161, 2009 REV ED) STATEMENT OF DEFENCE (TO STATEMENT OF CASE OF THE COMPLAINANT) Solicitors for the Respondent Mr Cavinder Bull SC Ms Gerui Lim Ms Elisabeth Liang Drew & Napier LLC 10 Collyer Quay #10-01 Ocean Financia! Centre Singapore 049315 Tel: 6535 0733 Fax: 6535 4906 Ref: CAB/GRL/439722 Dated this 14"" day of November, 2022. With regard to paragraph 14 of the SOC: (a) it is admitted that on 30 November 2013, the Respondent sent LKY an email to note the contents of an oral discussion between her and LKY. (b) The discussion had taken place the previous night; the second and third sentences of paragraph 14 of the SOC are admitted; and (c) it is not admitted that LKY intended to make amendments te his last will. As far as the Respondent was aware, LKY was in the midst of considering whether he would make amendments to his then-last will dated 2 November 2012 (“Sixth Will”), and also considering potential options available to him. In her discussion with LKY on the night of 29 November 2013 and in her email of 30 November 2013, the Respondent had provided advice to LKY on potential options for his consideration. As far as the Respondent was aware, LKY had not made any decisions nor given any instructions which he wanted the Respondent to act on. in the past, LKY would typically consider and discuss with the Respondent the possible options available to him and consequences of any changes, and take some time to mull over them. A number of times, he would also discuss his considerations with his children, instructions to the Respondent to act on. before giving firm Paragraph 15 of the SOC is admitted. The Respondent subsequently departed from Singapore to London on about 15 December 2013. Up till her departure from communication the Respondent is admitted. LKY’s on understood not receive any The Respondent did not prepare any such codicil. Paragraph 16 of the SOC emai] did from LKY to instruct her that he was ready to sign the proposed codicil. 10. Singapore, at 10.50pm LKY to mean 13 When the Respondent received December that he was 2013, the Respondent still in the midst of considering or compiling amendments to include or provide for in a codicil to his Sixth Will. As the Respondent was departing for London shortly, she intended to have further discussions with LKY on his intentions after she returned to Singapore on about 21 December 2013. 44. However, as set out below, the abovementioned events were superseded by LKY’s execution of a new will. 12. On 17 December 2013 and shortly before 2.59pm, the Respondent sighted an email from Mrs Lee Suet Fern (“LSF”) to her dated 17 December 2013 which had been sent around 1.16pm. LSF’s email stated, infer alia, “just a quick note to say this has been dealt with already.” 13. Embedded in LSF’s email] dated 17 December 2013 was an earlier email dated 16 December 2013 from LSF to LKY sent at around 7.08pm. Although the 16 December 2013 email had been copied to the Respondent and the Complainant, the Respondent had not sighted this email previously and did not appear to have received it. LSF’s 16 December 2013 email stated: “Dear Pa Pa This was the original agreed Will which ensures that all 3 children receive equal shares, taking into account the relative valuations (as at the date of demise) of the properties each receives Kim Li Grateful if you could please engross. Kind regards Fern” 14. Reading LSF’s emails dated 16 and 17 December 2013 together, the Respondent understood LSF's email of 17 December 2013 to mean that: (a) following LKY’s discussions with LSF and/or the Complainant, LKY had instructed LSF to prepare a new will for his execution; (b) the new will had since been prepared and engrossed without the Respondent's knowledge and involvement, and executed by LKY (‘Seventh Will’); and (c) the Sixth Will was accordingly revoked and superseded by LKY’s latest Seventh Will. 15. Shortly after reading LSF’s emails dated 16 and 17 December 2013, the Respondent emailed LSF on 17 December 2013 at around 2.59pm to inform LSF that the Respondent did not seem to have received LSF’s email dated 16 December 2013. The Respondent also asked whether LSF’s email dated 17 December 2013 meant that “/LKY] has signed a new will yesterday, in which case the former will which is on my record, is revoked? if so, | will update my file record.” 16. LSF replied to the Respondent by an email dated 17 December 2013 sent at around 3.10pm. LSF stated, “Yes, he has signed already. going back to his 2011 In fact this is will so it supercedes all. He read it extremely carefully before signing.” 17. Based on LSF’s above statements: (a) LKY's latest testamentary wishes were set out in his Seventh Will; {b) it was implicit that LKY had decided not te proceed with the possible codicil to the Sixth Will that he had previously discussed with the Respondent; and (c) there was nothing further for the Respondent to do apart from updating her file record to note that the Sixth Will had been revoked and superseded. 18. The Respondent does not plead to paragraph 17 of the SOC. 19. The Respondent has no personal knowledge of the matters pleaded at the first sentence of paragraph 18 of the SOC and does not plead to the same. Paragraphs 12 to 17 of the Statement of Defence (""SOD"") are repeated. The second sentence of paragraph 18 of the SOC is admitted. 20 The first sentence of paragraph 19 of the SOC is admitted. The second sentence of paragraph 19 is admitted insofaras the Complainants obtained a grant of probate on 6 October 2015 in respect of LKY's estate. 21 Paragraph 20 of the SOC is admitted. The Respondent understood Ms Lee Wei Ling’s (“LWL"") request to be for information about LKY’s intentions with regard to his property at 38 Oxley Road (“Oxley Property”) as expressed in the six wills which the Respondent had prepared for LKY and which LKY had executed (""Six Wills”). 22 With regard to paragraph 21 of the SOC, the Respondent's letter dated 4 June 2015 was sent in response to requests from LWL and Mr Lee Hsien Loong (“LHL”) for information focusing on LKY’s intentions with regard to the Oxley Property. Save as aforesaid, paragraph 21 of the SOC is denied 23. Paragraph 22 of the SOC is denied. The Respondent's 4 June 2015 letter did not purport to be a comprehensive account of her discussions with Mr Lee regarding his testamentary wishes. The Respondent's 4 June 2015 letter expressly stated that its purpose was to “summarise your father's Wills based on my file records chronologically, focusing again on Oxley.” [Emphasis added.] 24. Paragraph 23 of the SOC dated 4 June 2015 is admitted insofar as the Respondent's letter had provided points of information and documents which were materially relevant to her summary of the Six Wills focusing on the Oxley Property. 25. With regard to paragraph 24 of SOC: (a) it is admitted the Respondent's letter dated 4 June 2015 did not refer to or attach copies of her emails with LKY dated 30 November 2013, 12 December 2013 and 13 December 2013. These emails were not material to, and did not impact any of the Six Wills which were summarised in the Respondent's fetter dated 4 June 2015 with a focus on the Oxley Property; (b) when the Respondent prepared the 4 June 2015 letter, she did not recall her emails with LKY dated 30 November 2013, 12 December 2013 and 13 December 2013. Those emails had not registered with the Respondent as having any particular significance and/or material import, because they had never led to any decision or instructions by LKY in relation to Oxley Property, nor any decision or instructions by LKY for the Respondent to change his Sixth Will, nor any draft instrument being prepared by the Respondent. Paragraphs 7 to 17 of the SOD are repeated; and {c) save as expressly admitted above, paragraph denied. 24 of the SOC is 26. With regard te paragraph 25 of the SOC including subparagraphs 25(a) to 25(c): {a) the first sentence of subparagraph 25(a) is admitted; (b) the first sentence of subparagraph 25(b) is admitted. The second sentence of subparagraph 25(b) is admitted insofar as there were substantial discussions in mainstream media and social media over the appropriate treatment of the Oxley Property and LKY's wishes for the Oxley Property. it is admitted that LKY’s standing was as the former Prime Minister and founding father of modern Singapore; (c) with regard to paragraph 25(c), paragraphs 21, 22 and 24 of the SOD are repeated; and (d) save as expressly admitted above, paragraph 25 of the SOC including subparagraphs 25{a) to 25(c) are denied. 27. Paragraph 26 of the SOC is admitted, save that LWL and LHY were not Executors of LKY’s estate at the time the Respondent sent the 22 June 2015 letter to LHL, LWL and LHY. 28. Paragraph repeated. 27 of the SOC is denied. Paragraphs 7 to 17 of the SOD are 10 29. The Respondent was not involved in the preparation of LKY’s Seventh Will and did not discuss or receive any instructions from LKY regarding the contents of his Seventh Will. Where the Respondent had received further queries from LHL and LWL about the “background which led to the signing of [LKY’s] last Will dated 17 December 2013"", the Respondent's letter dated 22 June 2015 had accurately and truthfully conveyed the fact that any instructions given by LKY for the preparation of the Seventh Will, and his execution of the Seventh Will, had occurred without the Respondent's involvement. This was evident from two email chains enclosed to the Respondent's 22 June 2015 letter, namely: (a) the emails from LSF pleaded at paragraphs 12 to 16 of the SOD; (b) an email dated 3 January 2014 from Mdm Wong trailing emails) which inter alia: {i) recorded that the Respondent had Seventh merely been provided copies of the Lin Hoe (with Will and a subsequent codicil after they were executed “for her record"", while the originals were kept in LKY's office. This differed from LKY’s usual practice in respect of the Six Wills prepared by the Respondent, where he had asked the Respondent to safekeep the originals of the Six Wills for him; and (ii) also showed that after LSF’s email dated 16 December 2013, arrangements were made for LKY to execute the Seventh Will without the Respondent's involvement. 30. Paragraph 28 of the SOC is admitted. The Respondent's letter dated 22 June 2015 enclosed the email chains referred to at paragraph 28 of the 11 SOC because they were relevant to communicating the matters pleaded at paragraph 29 of the SOD above 31. The Respondent's letter dated 22 June 2015 did not enclose the emails dated 30 November 2013, 12 December 2013 and 13 December 2013. These were not relevant or material to the Respondent's responses in her letter dated 22 June 2015, which only addressed the two queries pleaded at paragraph 26 of the SOC. When the Respondent prepared her letter dated 22 June 2015, she also did not recall her emails with LKY dated 30 November 2013, 12 December 2013 and 13 December 2013, which had not registered with her as having any particular significance and/or material import because they had never led to any decision or instructions by LKY for the Respondent to change his Sixth Will, nor any draft instrument being prepared by the Respondent. Paragraphs 7 to 17 of the SOD are repeated. 32. Save where a statement from the Respondent's letter dated 22 June 2015 is reproduced at paragraph 29 of the SOC, paragraphs 29 and 30 of the SOC are denied. It was not a misrepresentation, nor false or misleading, for the Respondent’s letter dated 22 June 2015 to state that LKY had not instructed the Respondent to change his Sixth Will. That statement was truthful and accurate. Contrary to paragraph give the any Respondent 30 of the SOC, instructions to change LKY did not his Sixth Will in his discussions with her in November to December 2013. Further, the emails dated 30 November 2013, 12 December 2013 and 13 December 2013 did not contain or lead to any instructions by LKY for the Respondent to change his Sixth Will. In addition, the Sixth Will was never changed by any 12 instrument prepared by the Respondent upon LKY’s instructions, nor did the Respondent prepare any draft instrument with the intention of changing the Sixth Will. was The Sixth Will was superseded by the Seventh Will which instructed, involvement. 33. In respect subsequently prepared and executed without the Respondent's Paragraphs 7 to 17 of the SOD are repeated. of paragraph 31 of the SOC, the Respondent did not attempt to correct statements in her 4 and 22 June 2015 letters because she had not misrepresented facts as alleged or at all. The first two sentences of paragraph 32 of the SOC are admitted. The third Paragraph 31 of the SOC is therefore denied. 34. and fourth sentences of paragraph 32 of the SOC are denied, including the allegation that false and/or misleading statements had been made by the Respondent in her letters dated 4 and 22 June 2015. 35. Paragraphs 33, 34 and 35 of the SOC are denied. 36. There is no basis for the charge formulated in paragraphs 36 and 37 of the SOC. The Respondent denies the charge set out in paragraph 37 of the soc. Dated this 14° day of November, 2022. —_— SOLICITORS FOR THE RESPONDENT DREW & NAPIER LLC a \- —~ AMENDED YOU, KWA 1°! ALTERNATIVE CHARGE KIM LI an Advocate and Solicitor of the Supreme Court of Singapore are charged that you on or about the 4"" day of June 2015 by your letter dated 4"" June 2015 sent to Mr Lee Hsien Loong (""LHL"") are guilty of knowingly disclosing to LHL without the consent / authority of the 2 Executors and Trustees named in Will.no 7 namely Ms Lee Wei Ling (“LWL”) and Mr Lee Hsien Yang (“LHY”), the following documents and information which was confidential to your client, Mr Lee Kuan Yew (“Mr Lee”), and which was acquired by you in the course of your engagement as Mr Lee’s solicitor namely; 5 of the previous Wills of Mr Lee prepared by you upon his instructions and email trails between Mr Lee and you from 11° December 2011 to 24 November 2012 (“Documents Set A”) and explanations as to why your client Mr Lee changed his previous Wills which amounts to misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161) IN THE MATTER OF KWA KIM LI AN ADVOCATID AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) AGREED STATEMENT OF FACTS Kwa Kim Li (the ""Respondent""), an Advocate and Solicitor of the Supreme Court of Singapore of over 40 years’ standing, was admitted to the Roll of Advocates & Solicitors on 16"" January 1980, and was at al! material times, practising as an advocate and solicitor at the law firm of Lee & Lee, The Complainants are Ms Lee Wei Ling (“LWL"") and Mr Les Hsien Yang (“LHY""), and the complaint was made by a letter dated 5"" September 2019 to the Law Society of Singapore (""the Law Society''), supported by a Statutory Declaration declared on the same day, LWL and LHY were the Executors and Trustees named in the Last Will and Testament of Mr Lee Kuan Yew (""Mx Lee"") dated 17 December 2013 (""Will no.7”), LWL, LHY and Mr Lee Hsien Loong (“LHL”) were Mr Lee’s three children and the only beneficiaries of Will no. 7, Probate of Will no. 7 was obtained by LWL and LHY sometime in October 2015. The Respondent acted for Mr Lee as his lawyer and in her capacity as an Advocate and Solicitor in the preparation of his Last Will and Testament. She had thereby received from Mr Lee confidential information as a result of the retainer. The Respondent did so over a period of time from August 2011 to November 2012, and from time to time received instructions from Mr Lee to infer alia change his Last Will and Testament, This resulted in the Respondent preparing altogether 6 Wills of Mr Lee, who executed the same. The Wills were dated as follows; a) The Last Will of Mr Lee dated 20"" August 2011; b) The Last Will of Mr Lee dated 21* December 2011; c) The Last Wil of Mr Lee dated 6"" September 2012; d) The Last Will of Mr Lee dated 20"" September 2012; e) The Last Will of Mr Lee dated 4"" October 2012: and f) The Last Will of Mr Lee dated 2"" November 2012; (Collectively referred to as ""the previous 6 Wills""). Mr Lee passed away on 23 March 2015, Sometime after the passing of Mr Lee, LHL and LWL separately requested the Respondent to provide her wills/notes/emails/information on file records Mr Lee's of Mr instructions Lee's previous her regarding to Oxley. On 4"" June 2015, the Respondent responded to the requests from LHL LWL by way beneficiaries of a letter addressed of Mr Lee’s Estate. following documents to LHL, LHY to LHL, The LHY Respondent and LWL provided and as the only copies of the and LWL; a) The previous 6 Wills; and b) Email trail between Mr Lee and the Respondent from 17"" August 2011 to 2™ November 2012 (“Documents set A”) By the text of the 4"" June 2015 letter addressed to LHL, LHY Respondent signed 6 also provided a summary Wills over 15 months and of the background in doing so and LWL, as to why disclosed the Mr Lee confidential information that she was privy to as Mr Lee's solicitor during the 15-month petiod and the duration during which she prepared the 6 previous Wills on his instructions. 9. The Respondent did not seek nor obtain the consent/authority of the 2 Executors and Trustees named in Will no.7, namely, LHY and LWL, prior to sending the letter dated 4"" June 2015 to LHL, LWL and LHY, Dated this day of A RS 2023 aS ne BAJWA BAJWA & CO SOLICITORS DREW FOR ee THE LAW SOCIETY OF SINGAPORE & NAPIER SOLICITORS FOR THE RESPONDENT DT/19/2022 IN THE MATTER OF KWA KIM LI, AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CAP 161, 2009 REV. ED.) AGREED STATEMENT OF FACTS (COMPLAINANT’S CHARGE) Counsel for the Complainant Mr Abraham Vergis, S.C. Ms Asiyah Arif Mr Kyle Chong Counsel for the Respondent Mr Cavinder Bull, S.C. Ms Gerui Lim Ms Elisabeth Liang Providence Law Asia LLC 1 Raffles Place One Raffles Place Tower 2 #29-62 Singapore 048616 Tel: 64381969 Drew & Napier LLC 10 Collyer Quay #10-01 Ocean Financial Centre Singapore 049315 Tel: 65350733 Dated this 31st day of January 2023 1 AGREED STATEMENT OF FACTS 1. The Respondent, Mdm Kwa Kim Li, is an Advocate and Solicitor of the Supreme Court of Singapore. She was admitted to the roll of advocates and solicitors on 16 January 1980. 2. The Respondent is and was at the material times the Managing Partner of Lee & Lee (“the Firm”). 3. The original Complainants, Ms Lee Wei Ling and Mr Lee Hsien Yang (“LWL” and “LHY” respectively), are the sole Executors and Trustees of the Estate of Mr Lee Kuan Yew (the “Executors”). LHY, LWL and Mr Lee Hsien Loong (“LHL”), are siblings and the children of Mr Lee Kuan Yew (“Mr Lee”). 4. Prior to his death, Mr Lee executed a total of eight wills. The Respondent was Mr Lee’s solicitor who drafted and engrossed six of his wills between August 2011 and November 2012, each of which was signed by Mr Lee and dated as follows: a. 20 August 2011; b. 21 December 2011; c. 6 September 2012; d. 20 September 2012; e. 4 October 2012; and f. 2 November 2012 (“2 November 2012 Will”). (collectively referred to as Mr Lee’s “Six Wills”) 2 5. In or around end-November 2013 there were discussions between Mr Lee and the Respondent on whether he wished to draft a new will and if so, what might be included in such a further will. 6. On 30 November 2013, the Respondent sent Mr Lee an email to record the contents of an oral discussion which had taken place between her and Mr Lee the previous night (“30 November Email”). Amongst other things, the email recorded that Mr Lee had asked the Respondent to re-cap the contents of his 2 November 2012 Will, and that Mr Lee had raised the possibility that his family home at 38 Oxley Road (“Oxley Property”) might be “de-gazetted” after his passing and sought the Respondent’s advice on the legal implications if that were to happen. The Respondent concluded the email by asking Mr Lee to “Please let [her] know [his] thoughts, and [she] can make the appropriate changes to the Will”. 7. On 12 December 2013, the Respondent sent an email to Mr Lee (“12 December Email”) stating: “Under your present will dated 2 Nov 2012, [LWL] has been given 1 share more than [LHL] and [LHY], out of your total estate. This is because you reasoned that [LWL] does not have double income like her brothers. We discussed last week that you would now like to sign a Codicil to change this, and to give [LWL] equal shares with [LHL] and [LHY] out of the total estate. 3 I will prepare the codicil for you to sign this week, or when you are ready. Regarding the Oxley property, I have some thoughts and will call you later today.” 8. On 13 December 2013, Mr Lee sent an email to the Respondent (“13 December Email”) stating: “Another amendment is a codicil to specify that two carpets: a silk one on the wall over my PV and another a larger woollen one on the wall above the bed in my bedroom, to go to [LHY].” 9. The 30 November Email, 12 December Email and the 13 December Email are collectively referred to as the “Emails”. 10. The Respondent subsequently departed from Singapore to London on about 15 December 2013. The Respondent did not prepare any codicil for Mr Lee. 11. While the Respondent was overseas, Mr Lee executed his last will and testament dated 17 December 2013 (“Last Will”). In his Last Will, Mr Lee named LHY and LWL as the only executors and trustees of his estate. LHL was not named as an executor and trustee of Mr Lee’s estate. 12. The Respondent was informed by Mrs Lee Suet Fern (“LSF”) that Mr Lee had executed the Last Will. LSF sent the Respondent an email dated 17 December 2013 at around 1.16pm. The email stated, inter alia, “just a quick 4 note to say this has been dealt with already”. Embedded in LSF’s email dated 17 December 2013 was an earlier email dated 16 December 2013 sent from LSF to Mr Lee at around 7.08pm. LSF’s 16 December 2013 email stated: “Dear Pa Pa This was the original agreed Will which ensures that all 3 children receive equal shares, taking into account the relative valuations (as at the date of demise) of the properties each receives. Kim Li Grateful if you could please engross. Kind regards Fern” 13. The Respondent emailed LSF on 17 December 2013 at around 2.59pm. Her email stated that she did not seem to have received LSF’s email dated 16 December 2013. The Respondent also asked whether LSF’s email dated 17 December 2013 meant that “[Mr Lee] has signed a new will yesterday, in which case the former will which is on my record, is revoked? If so, I will update my file record.” 14. LSF replied to the Respondent by an email dated 17 December 2013 sent at around 3.10pm. LSF stated, “Yes, he has signed already. In fact this is going back to his 2011 will so it supercedes all. He read it extremely carefully before signing.” 5 15. Mr Lee passed away on 23 March 2015. 16. On 3 June 2015, LWL wrote to the Respondent to request information about Mr Lee’s wills. 17. On 4 June 2015, in response to LWL’s request and a separate request from LHL for information focusing on LKY’s intentions with regard to the Oxley Property, the Respondent issued a letter to the Executors and LHL titled “Chronology of 6 Wills – my file records with focus on Oxley” (the “4 June Letter”) with enclosures. 18. The 4 June Letter stated, amongst other things: “To: Hsien Loong, Wei Ling, and Hsien Yang 4 June 2015. Loong and Ling have requested me for file records of your father's previous Wills, for notes/emails/information on his instructions to me regarding Oxley. I thought best to write this note addressed to the 3 of you as the only beneficiaries of his Estate. Your father signed 6 Wills with me over the period of August 2011 to November 2012. (2 in 2011, and 4 in 2012). He instructed me several times, by phone, by email and personally at his office typically in the evenings before his Chinese class. I attach file copies of the 6 cancelled Wills, numbered 1 to 6 for ease. Background why your father signed 6 Wills over 15 months. Regarding the 6 Wills which your father signed over August 2011 to November 2012, I would estimate that I prepared at least 15 drafts for his review over that period, to take into account the many changes he wanted to make. There were also one or two occasions that I went to his office for signing after he approved the draft Will, but he had second thoughts, did not sign the Will and asked for further changes. I am telling you these details for you to know that your father spent much time and thought on his 6 Wills. 6 Much of the discussions and changes revolved around: 1) Where Ling is to stay - at Oxley or in his other properties, or at Ho Ching's Belle Vue apartment, whether or not to give Ling a life interest in Oxley. 2) The division of the Estate - although he was aware that it was intended/agreed that he would divide his entire Estate into 3 equal shares for the 3 children, he asked me to prepare Wills no. 3 and 6 where the Estate was to be divided unequally. He said he would talk to the children to inform them why he wanted to divide the Estate unequally. 3) Oxley - how to give the children least problem after he is gone. You have asked me to focus on Oxley. I set out a brief 3 point summary regarding the Oxley Clauses in the 6 Wills: … I now summarise your father’s Wills based on my file records chronologically, focusing again on Oxley…” 19. On 22 June 2015, the Respondent sent a further letter to LWL, LHY and LHL in response to further queries from LWL and LHL regarding the signing of the Last Will (the “22 June Letter”). The letter stated: “Dear Hsien Loong, Wei Ling and Hsien Yang, Further to my note to you dated 4 June 2015, [LHL] has asked me: 1) For a copy of draft Will dated 19th August 2011; 2) About the background which led to the signing of your father’s last Will dated 17 December 2013 (“Will no. 7”) Wei Ling also asked me the same question 2 in May 2014. I thought it best to write to all of you, so that everyone has the same reply from me. After your father signed Will no. 6 dated 2nd November 2012, he did not instruct me to change his Will. I first learnt about Will no. 7 via email from Fern and Lin Hoe.” 7 20. The 22 June Letter enclosed copies of emails dated 16 December 2013 to 3 January 2014 relating to the execution of Mr Lee’s Last Will. 21. On 6 October 2015, the Executors obtained a grant of probate in respect of Mr Lee’s estate. 22. On 25 February 2019, the Executors, through their then solicitors, Rajah & Tann LLP, asked the Respondent for copies of all her documents and records on file in respect to Mr Lee’s wills. In or around 8 March 2019, in response to the Executors’ requests, the Respondent provided copies of her records and documents to the Executors, including copies of the Emails. The Emails had not been enclosed to the 4 June or 22 June Letters. 23. On 5 September 2019, the Executors filed a complaint against the Respondent (“Complaint”). The Complaint comprised four distinct heads of complaint. The fourth head of complaint, namely that the Respondent had given the Executors false and misleading information in her 4 June and 22 June Letters, is the subject of the present charge. Dated this 31st day of January 2023 8 ",2024-02-12T04:00:28+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2024/,"In the Matter of Kwa Kim Li (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2024/",1128 1,87b42ad0f3658b6132e9a9ab8ad488c495dc0fb6,"In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor","In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Goh Yng Yng Karen (the Complainant), who was the daughter of the late Mdm Liew Khoon Fong (Mdm Liew) and executrix of Mdm Liew’s will. The complaint arose from two Powers of Attorney (POA) dated 20 November 2017. POA 6414 was related to the sale of 107 Namly Avenue (Namly Property), while POA 6417 was related to the purchase of a condominium unit (Condominium Unit). At the material time, Mdm Liew was 87 years old. On or around 17 November 2017, Mdm Liew’s son (Kelvin), as well as Kelvin’s wife (Jacqueline), visited the Respondent to seek his assistance to prepare two POAs for Mdm Liew who was not present at this meeting. On Kelvin’s instructions, the Respondent prepared the two POAs for Mdm Liew on or around 20 November 2017. The Respondent had prepared the draft POAs without receiving any written, or any other authority, from Mdm Liew authorising Kelvin to give him instructions on her behalf. The Respondent met and spoke to Mdm Liew for the first time on 20 November 2017 at the Namly Property. Kelvin, Jacqueline, their sons, one Goh Eng Sheng Daniel (Daniel) and one Goh Eng Chun David (David) were present. Mdm Liew signed the POAs at this meeting. POA 6414 authorised Kelvin to act on Mdm Liew’s behalf to sell the Namly Property and have the sale proceeds paid to Daniel, then 19 years old, to hold on trust for Mdm Liew for the purchase of the Condominium Unit. POA 6417 authorised Kelvin to purchase the Condominium Unit in Mdm Liew and Daniel’s names, with Kelvin having the authority to add himself as a joint owner. It also authorised Kelvin to borrow monies from banks and other financial institutions on the security of the Condominium Unit if the sale proceeds from the Namly Property sale were insufficient. Kelvin was also authorised to execute documents, such as an option to purchase and sale and purchase agreement on behalf of Mdm Liew. On 22 November 2017, Kelvin granted an Option to Purchase (OTP) to buyers for the purchase of the Namly Property. The OTP was exercised on 7 December 2017, and the Respondent was appointed by Kelvin to act as Mdm Liew’s conveyancing lawyer with respect to the sale of the Namly Property. On 1 December 2017, the OTP for the Condominium Unit was granted to Kelvin and Jacqueline with the OTP being exercised on 8 December 2017 in the names of Kelvin, Jacqueline and Mdm Liew. The Respondent also acted for Kelvin, Jacqueline and Mdm Liew in this transaction. On 13 December 2017, the Complainant discovered that a caveat had been lodged against the Namly Property. On 15 January 2018, the Complainant commenced HC/S 45/2018 (Suit 45) in her capacity as Mdm Liew’s sole donee under a Lasting Power of Attorney to stop the sale of the Namly Property. On 17 September 2020, the High Court determined that Mdm Liew had lacked the mental capacity to understand and execute the POAs on 20 November 2017 and declared the POAs void. The Respondent was not a party to Suit 45 but had given evidence at the trial. Mdm Liew passed away on 10 June 2020. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Davinder Singh SC, and Mr K Anparasan as DT member to investigate the complaint. Seven charges were preferred against the Respondent: First Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the Legal Profession Act 1966 (LPA), in that the Respondent had acted for Mdm Liew in the preparation of the two POAs dated 20 November 2017 with the client as the donor and Kelvin as attorney, without ensuring that Kelvin had the authority to give those instructions on behalf of Mdm Liew, and when the Respondent had no evidence of such authority, failed to obtain confirmation of the said instructions from Mdm Liew regarding the preparation and drafting of the said POAs, in breach of Rule 5(5)(a) and 5(5)(b) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to act with reasonable diligence and competence in the provision of services to Mdm Liew, in the preparation of the two POAs dated 20 November 2017 with the client as the donor and Kelvin as attorney, and permitted Mdm Liew to execute the said POAs without first taking sufficient steps to satisfy himself that Mdm Liew understood the nature and effect of the terms that were set out in the POAs, in breach of Rule 5(2)(c) of the PCR. Third Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to act with reasonable diligence and competence in the provision of services to Mdm Liew, by failing to take sufficient steps to safeguard Mdm Liew’s interests by ensuring that he received his instructions, and explained the nature and effect of the two POAs dated 20 November 2017, to Mdm Liew without the presence of the attorney or other family members of the attorney so as to avoid any undue influence being exerted over the client, in breach of Rule 5(2)(c) of the PCR. Fourth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had acted for Mdm Liew, Kelvin and Jacqueline in the purchase of the Condominium Unit, where there was a diversity of interests that existed between the parties, and failed to advance Mdm Liew’s interests unaffected by Kelvin’s and/or Jacqueline’s interests, by removing Mdm Liew’s name from the OTP dated 1 December 2017, in breach of Rules 20(5) and 20(6) of the PCR. Fifth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent failed to inform Mdm Liew of all information known to him that may reasonably affect her interests in respect of the purchase of the Condominium Unit, in particular the removal of her name, the non-inclusion of Daniel’s name, and the inclusion of Jacqueline’s name, in the OTP dated 1 December 2017, in breach of Rule 5(2)(b) of the PCR. Sixth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to inform Mdm Liew of all information known to him that may reasonably affect Mdm Liew’s interests in respect of the POAs, in particular the medical report prepared by Dr Ang Yong Guan and correspondence from Templars Law LLC relating to Mdm Liew’s alleged lack of mental capacity as at the time of the execution of the POAs, in breach of Rule 5(2)(b) of the PCR. Seventh Charge For misconduct unbefitting of an advocate and solicitor in the discharge of his professional duties as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(h) of the Act, in that the Respondent, who had acted for Mdm Liew in respect of the matters that were the subject-matter of Suit 45, failed to advance Mdm Liew’s interests unaffected by Kelvin’s interests, by failing to take Mdm Liew’s instructions or her donee’s instructions when he was served with a subpoena by solicitors acting in Suit 45, and instead taking Kelvin’s instructions. Findings and Determination of the DT, Council’s Sanctions The DT found that the First Charge and Second Charge were made out, while the remaining Charges were dismissed. With reference to the First Charge, the DT noted that the disparity between the Respondent’s evidence about the meeting on 20 November 2017 and what was said in the Respondent’s Attendance Note was simply too huge to be credibly accounted for. The DT further observed that it was not just the nature, terms and implications of the POAs which required careful explanation, but also the issues arising from the interaction between the two POAs. The DT stated that as Mdm Liew was 87 years old at the time and had difficulty speaking, the Respondent should not only have carefully explained the relevant matters, but should also have asked if they were in line with her wishes and instructions and how she thought they were in her interests – including asking why she felt that it was in her interest for the POAs to be irrevocable. Also, as Mdm Liew was unable to communicate her understanding verbally or in writing, the Respondent should have called for a pause and asked for her condition to be reviewed by an independent medical expert or declined to act for her. Two specific red flags were raised by the DT – (1) the fact that Mdm Liew nodded when the Respondent read the POAs to her, in light of these particular POAs that he was asked to draft by Kelvin, and the fact that one of them dealt with the disposal of her home, it should not have been accepted by the Respondent as evidence that she understood the terms, nature and consequences in the POA; (2) the fact that she did not ask any questions in light of the issues in the POAs should have raised a red flag. Crucially, the Respondent also did not take steps to meet Mdm Liew privately and without the presence of Kelvin and Daniel, who stood to benefit from the POAs, and their family members to determine whether Mdm Liew was acting under any misrepresentation, misapprehension or improper influence. The Respondent also did not ask Mdm Liew whether the POAs accorded with her wishes under any will. As for the Second Charge, the DT found that the offending conduct was the same, hence it did not add to the Respondent’s culpability. In the Third Charge, the DT found that this aspect of the Respondent’s conduct was insufficient to amount to a breach of Rule 5(2)(c), and his conduct should not be viewed in isolation, and was just one of the matters that has to be taken into account in determining whether the Respondent breached his duties. The Fourth to Seventh Charges were dismissed based on the fact that Law Society had failed to discharge its burden to show that there was in law a solicitor-client relationship between the Respondent and Mdm Liew at the material time in relation to the Condominium Unit. The Respondent was ordered to pay a financial penalty that was sufficient and appropriate to the misconduct committed, and the Law Society’s costs of $5,000. Council accepted the findings and recommendations of the DT and imposed a financial penalty of $2,000 on the Respondent. To access the full report, click here. ",https://lawsoc-mc-assets.s3.ap-southeast-1.amazonaws.com/dtr-2023-06-c.pdf,"DT/SEC/21/2021 IN THE MATTER OF TEO ENG THYE AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) Between THE LAW SOCIETY OF SINGAPORE .---Applicant And TEO ENG THYE ..--Respondent Mr Davinder Singh, S.C. (President) Mr K. Anparasan (Advocate & Solicitor) Mr Vikna Rajah and Ms Antje Wong for the Law Society of Singapore Mr Peter Cuthbert Low, Ms Elaine Low and Ms Christine Low for the Respondent REPORT OF THE DISCIPLINARY TRIBUNAL A. INTRODUCTION The Complainant is one Goh Yng Yng Karen. She is the daughter of the late Mdm Liew Khoon Fong (alias Liew Fong) (“Mdm Liew”) and executrix of Mdm Liew’s will. Goh Yong Chiang Kelvin (“Kelvin”) is Mdm Liew’s son. His wife is Goh Sok Ngoh Jacqueline (“Jacqueline”). Goh Eng Sheng Daniel (“Daniel”) is one of their two sons, The Respondent is Mr Teo Eng Thye. He is an Advocate and Solicitor of the Supreme Court of Singapore and was admitted on 19 April 2000. He is, and was at all material times, a director of City Law LLC. The Complainant’s complaints arise from two Powers of Attorney dated 20 November 2017. Both were lodged with the Supreme Court of Singapore as HC/PA 6414/2017 (“POA 6414”) and HC/PA related to the sale of 107 Namly 6417/2017 (“POA Avenue, Singapore 6417”). POA 267676 6414 (the “Namly Property”) and POA 6417 related to the purchase of a condominium unit (the “Condominium Unit”). On 15 January 2018, the Complainant commenced HC/S 45/2018 (“Suit 45”) in her capacity as Mdm Liew’s sole donee under a Lasting Power of Attorney registered on 16 September 2014 (the “2014 LPA”), inter alia, against Kelvin in relation to the sale of Namly Property. On 17 September 2020, the High Court determined that Mdm Liew had lacked the mental capacity to understand and execute the POAs on 20 November 2017 and declared the POAs void. The Respondent was not a party to Suit 45 but gave evidence at the trial of that Suit. THE HEARING AND THE WITNESSES The Disciplinary Tribunal (the “DT”) was constituted on 8 October 2021. The hearing took place on 4 and 5 May 2022. The Applicant called the Complainant as its only witness. The Respondent gave evidence on his own behalf. He did not call any other witness. THE UNDISPUTED FACTS 10. The following matters are not in dispute’. 11. Mdm Liew passed away on 10 June 2020. The Complainant was also the executrix of Mdm 12. Liew’s will. On or around 17 November 2017, Kelvin and Jacqueline visited the Respondent to seek his assistance to prepare two POAs for Mdm Liew, who was not present at this meeting. The Respondent recorded a summary of Kelvin’s instructions in a note dated 17 November 2017. 13. On Kelvin’s instructions, the Respondent prepared the two POAs for Mdm Liew on or around 20 November 2017. The Respondent accepts that Mdm Liew was his client. 14. The Respondent prepared the draft POAs without receiving any written, or any other authority from Mdm Liew authorising Kelvin to give him instructions on her behalf. 15. At 12.28pm on 20 November 2017, the Respondent’s secretary emailed the two draft POAs to Kelvin’s email address kjgoh@hotmail.com on the Respondent’s behalf. In that email, he requested that Kelvin “go thru [sic] the drafis and let us have your comments if any.” 16. At around Spm on 20 November 2017, the Respondent visited the Namly Property. There, he met and spoke to Mdm Liew for the first time in connection with the POAs and their execution (the “Meeting”). Kelvin, Jacqueline and their sons, Daniel and Goh Eng Chun David, were present throughout. 17. Mdm Liew listened and nodded while the Respondent took her through the POAs. ) The DT has in this section and others adopted in many places the language that the parties have used in the pleadings, affidavits of evidence and submissions 18. Very generally speaking, the first POA authorised Kelvin to act on Mdm Liew’s behalf to sell the Namly Property and have the sale proceeds paid to Daniel, then 19 years old, to hold on trust for Mdm Liew for the purchase of the Condominium Unit (the “1** POA”). 19. Broadly, the second POA authorised Kelvin to purchase the Condominium Unit in Mdm Liew and Daniel’s names, with Kelvin having the authority to add himself as a joint owner (the “2™ POA”). It also authorised Kelvin to borrow monies from banks and other financial institutions on the security of the Condominium Unit if the sale proceeds from the Namly Property sale were insufficient. Kelvin was also authorised to execute documents, such as an option to purchase and sale and purchase agreement, on behalf of Mdm Liew. 20. Mdm Liew signed the POAs at the Meeting. She was 87 years old at the time. 21, The Respondent prepared an attendance note of the Meeting (the “Attendance Note”). 22. On 22 November 2017, Kelvin granted an option to “Leow Tang Liea and/or nominees” to purchase the Namly Property (the “Namly OTP”). Leow Tang Lie was, at the material time, a director of Pinnacle Development (Greenmead) Pte Ltd (“Pinnacle”). The Namly OTP was exercised on 7 December 2017. Pursuant to the 1 POA, Kelvin appointed the Respondent as Mdm Liew’s conveyancing lawyer with respect to the sale of the Namly Property. 23. On 1 December 2017, the Option to Purchase the Condominium Unit (the “Condominium OTP”) was granted to Kelvin and Jacqueline. 24. The Condominium OTP was exercised on 8 December 2017 in the names of Kelvin, Jacqueline and Mdm Liew. On the same day, the Respondent furnished the signed acceptance copy of the Condominium OTP to the seller’s solicitors, Sterling Law Corporation (“SterlingLaw”). In that letter, the Respondent said he was acting for Kelvin, Jacqueline and Mdm Liew. Daniel was not named as a purchaser in the Condominium OTP. 25. According to the e-Notice of Transfer, the Condominium Unit was sold to Kelvin and Jacqueline on 8 December 2017. 26. On or about 13 December 2017, the Complainant discovered that a caveat had been lodged against the Namly Property in favour of Pinnacle. Following this discovery, the Complainant instructed her lawyers, Templars Law, to write to Pinnacle’s solicitors, WongPartnership, to persuade Pinnacle to defer the completion of the sale of the Namly Property. 27. On 15 December 2017, Templars Law wrote to WongPartnership to draw attention to the unusual circumstances surrounding the sale of the Namly Property and asked that Pinnacle agree to defer the completion of the sale until Mdm Liew’s mental capacity could be determined by a medical expert. That letter also added that the Complainant was the sole donee under the 2014 LPA, that the Complainant reasonably believed that Mdm Liew’s mental capacity had significantly deteriorated since September 2017, and that Kelvin had moved Mdm Liew to an unknown location’. 28. On 22 December 2017, Templars Law sent the 2014 LPA to WongPartnership*. 29. On 30 December 2017, Dr Ang Yong Guan issued a medical report in respect of Mdm Liew’s mental capacity‘. 30. On 5 January 2018, Templars Law wrote to WongPartnership and enclosed Dr Ang’s report. The report stated that the 1 POA was invalid and unenforceable, and 2 page 1044 of the Complainant's AEIC » page 1048 of the Complainant's AEIC “page 1064 of the Complainant's AEIC that Mdm Liew lacked the mental capacity to make the decision to sell the Namly Property. Templars Law asked that the sale be stopped>. By 31. an email and a letter dated 10 January 2018, Templars Law wrote to WongPartnership to ask if they had instructions to accept service of process on behalf of their client®. On 10 January 2018, WongPartnership wrote to the Respondent to ask how “[his] 32. client” intended to resolve the matter. They stated that, if the sale and purchase could not be proceeded with, that “[his] client” would compensate Pinnacle for all losses. WongPartnership enclosed Templars Law’s letters dated 15 December 2017, 22 December 2017, 5 January 2018 (with Dr Ang’s medical report attached) and 10 January 2018”. 33. On 15 January 2018, the Complainant commenced Suit 45 in her capacity as Mdm Liew’s donee, pursuant to the 2014 LPA, against Pinnacle and Kelvin to stop the sale of the Namly Property. 34. Onor around 24 January 2018, the Respondent wrote to SterlingLaw. In that letter, the Respondent stated his clients’ intention to withdraw Mdm Liew’s name from the purchase of the Condominium Unit. 35. On 12 February 2018, Templars Law wrote to the Respondent to inform him that: a. the Complainant was the sole donee under the 2014 LPA; b. Dr Ang opined that Mdm Liew had been suffering from dementia since the middle of 2017 and lacked mental capacity to make financial decisions; and S page 1062 of the Complainant's AEIC * page 1072 of the Complainant's AEIC 7 page 1074 of the Complainant’s AEIC c. the Complainant had commenced Suit 45 against Kelvin for the sale of the Namly Property and to request a statutory declaration setting out the full circumstances under which Mdm Liew came to sign the POAs*. 36. On27 February 2018, the Complainant’s application for an interlocutory injunction to restrain the sale of the Namly Property from being completed was refused. The sale was allowed to proceed on the basis that the sale proceeds would be paid into Court. Eventually, the sale was completed and the sale proceeds of S$5.1m were paid into Court. 37, On or around 27 February 2018, the Respondent wrote to SterlingLaw. In that letter, the Respondent referred to a fresh Option to Purchase for the Condominium Unit, to be signed by the seller pursuant to the withdrawal of Mdm Liew’s name as a joint purchaser of that unit. Kelvin and Jacqueline exercised this Option to Purchase, with the exercise date backdated to 8 December 2017 (the “Amended Condominium OTP”). 38. On 3 February 2020, Templars Law issued a subpoena in Suit 45 against the Respondent requiring him to attend the trial and to produce documents that they had asked for in their letter of 21 January 2020. It was served on the Respondent on 4 February 2020°. 39. The Respondent then consulted Drew & Napier, who were Kelvin’s solicitors, in relation to the subpoena. According to the Respondent"", he believed that he was entitled to seek instructions from Kelvin and/or his solicitors because Kelvin was a party to Suit 45. 40. The Respondent informed Templars Law over the phone that he would not be responding to the Complainant’s confidentiality! ® page 1078 of the Complainant's AEIC ° page! 103 of the Complainant's AEIC *° paragraphs 70 of the Respondent's AEIC 31 paragraph 62 of the Respondent's AEIC request because of solicitor-client 41. On 12 February 2020, the Accountant-General was directed to pay out the sale proceeds of the Namly Property to Mdm Liew. 42. The Respondent filed an affidavit of evidence-in-chief and appeared as a witness in Suit 45. THE RESPONDENT’S JURISDICTIONAL OBJECTION 43. In paragraph 3 of the Respondent’s Defence (Amendment No. 1) (the “Defence”), the Respondent pleaded that, insofar and to the extent that any of the matters in the Statement of Case (Amendment No.1) (the “SOC”) and the charges in paragraph 37 of the SOC go beyond or are different from the complaint, they are not within the jurisdiction or remit of the DT. However, the Respondent does not pursue that point in his Closing Submissions. 45. ‘Notwithstanding this, we are unable to agree with this point. As the Applicant has argued, and as made clear from the Complainant’s complaint dated 26 October 2020, the charges against the Respondent “encapsulate the gravamen of the complaint”: LSS v Yeo Khirn Hai Alvin and another matter [2020] 4 SLR 858 at [64}-[65}. THE APPLICANT’S RELIANCE ON THE JUDGMENT IN SUIT 45 AND PROOF OF MDM LIEW’S MENTAL CAPACITY 46. In the SOC, the Applicant pleaded Mdm Liew’s mental capacity (see paragraph 3(b)) and referred to one Dr Ang’s medical report dated 30 December 2017, which the Applicant said, “opined that Mdm Liew started suffering from dementia around the middle of 2017 and was progressively getting worse” (see paragraphs 26-30). The Applicant also pleaded what it said were the High Court’s findings in Suit 45, including those in relation to Mdm Liew’s mental capacity to understand and execute the POAs and the Respondent’s conduct (see paragraphs 35-36). 47. In the Defence, the Respondent denied paragraph 3 of the SOC (see paragraph 43A), disputed the findings in Dr Ang’s report of 30 December 2017 (see paragraph 67), pleaded that that report was insutticient evidence that Mdm Liew did not have mental capacity when she signed the POAs and agreed to the sale of the Namly Property (see paragraphs 68 and 69), and that it had not been enough for Dr Ang to have relied solely on the information that the Complainant had provided to conclude that Mdm Liew lacked the mental capacity to agree to the sale of the Namly Property (see paragraph 69). 48. The Respondent also pleaded that while the SOC reproduced the High Court’s findings in Suit 45 (see paragraphs 76- 88), the findings of the High Court in Suit 45 are opinion evidence (see paragraph 89). 49. The Applicant would have therefore been aware from the Defence that the Respondent had pleaded that the findings in Suit 45 relied on by the Applicant are in the nature of opinion. The Applicant would also have been aware of the Defence’s assertion that there was insufficient evidence that Mdm Liew lacked mental capacity when she signed the POAs and agreed to the sale of the Namly Property. 50. As mentioned above, the Applicant only called the Complainant as a witness. It did not call Dr Ang or any expert on the issue of Mdm Liew’s mental capacity. 51. In her Affidavit of Evidence in Chief (“AEIC”), the Complainant referred to and relied on parts of the Judgment in Suit 45 (see e.g., paragraphs 16, 17, 38, 46, 53, 62, 63, 65, 71, 73, 86, 89, 90, 91, 93, 94). She also referred to and relied on Dr Ang’s reports (see e.g., paragraphs 122-124) and on Dr Ang’s opinion that “Mdm Liew was suffering from dementia which started around the middle of 2017 and was progressively getting worse”. 52. However, while the Complainant is a medical doctor, she was called as a witness of fact and not as an expert witness on Mdm Liew’s mental capacity. As she testified, she was not qualified to comment on Mdm Liew’s mental capacity (TS, 4 May 2022, page 25 lines 3-7). 53. In his closing submissions, the Respondent contended that in view of section 45 of the Evidence Act, Arul Chandran v Chew Chin Aik Victor JP [2000] SGHC 111 at [141], Zrans-World (Aluminium) Ltd v Cornelder China (Singapore) [2003] 2 SLR(R) 501 at [19], the findings of fact in Suit 45 (that were referred to and relied on by the Complainant in her AEIC and at the hearing) are not evidence and not admissible for their truth. 34, The Respondent also submitted that the hearing before the DT was a de novo hearing. The Applicant did not respond to this point. 55. At the end of the hearing, the DT gave the parties liberty to ask for leave to submit reply submissions to the other side’s closing submissions. The Applicant did not ask for leave to respond to these submissions. 56. As per Rule 23 of the Legal Profession (Disciplinary Tribunal) Rules, the Evidence Act applies to proceedings before the DT in the same manner as it applies to civil and criminal proceedings. 57. The position under section 45 of the Evidence Act as set out in Arul Chandran and Trans-World was later reaffirmed by the Court of Appeal in Zainal bin Kuning v Chan Sin Mian Michael [1996] 2 SLR (R) 858 at [69], where it held that a “judgment determining a fact in one trial cannot be used or relied upon in another trial”. 58. This was also addressed by the Singapore Intemational Court (“SICC”) in Beyonics Asia Pacific and others v Goh Chan Peng and another [2020] 4 SLR 215 which, applying Arul Chandran, held at [33] that “evidence of statements made in an earlier case may be adduced in order to seek to discredit evidence given by a witness in a later case, but there is an important distinction between reliance upon statements made in a previous action and conclusions reached by the court in that previous action on the basis of those statements”. 59. The SICC also applied Zainal bin Kuning and held at [35] that “a finding of fact in a previous judgment cannot be relied upon to prove primary facts which have to be proved in a subsequent action, 60. Here, although the Respondent was a witness, he was not a party to Suit 45. Neither was the Applicant. The Applicant has not submitted that any exception to section 45 of the Evidence Act applies. 61. While there had been an agreement in relation to the documents in the bundles of documents, it was qualified. On the first day of the hearing, Mr Peter Low for the Respondent informed the DT that the Respondent agreed to the documents in the bundles of documents, “subject to cross-examination”. In cross-examination, Mr Low challenged the assertion that Mdm Liew lacked mental capacity at the material time and took issue with Dr Ang’s reports and views. 62. On the question of whether the hearing before the DT was a de novo hearing, although the Respondent did not cite any authority, his submission is supported by Re Parti Liyani [2020] SGHC 227 at [48] where the Honourable Chief Justice held that “the Disciplinary Tribunal is obliged to hear the matter de novo”. The Disciplinary Tribunal in that case accordingly treated the hearing before it as a de novo hearing: see The Law Society of Singapore v Tan Yanying and another [2022] SGDT 6 at [20]. 63. In the circumstances, we agree with the Respondent that the Applicant cannot rely on the findings in the Judgment in Suit 45 to prove the existence or truth of matters that the Respondent has not admitted or agreed to in this case. We also find that there was no evidence before us of Mdm Liew’s mental capacity. THE STANDARD OF PROOF 64. It is trite that the charges have to be proved beyond a reasonable doubt: Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR 308 at [6]. G. THE CHARGES THE FIRST CHARGE 65. The First Charge is as follows: That you, Teo Eng as an advocate in section whilst you Thye, are charged 83(2)(b)(i) acted of with Supreme Kelvin with Court the as the attomey, Profession the for Madam of the 2 Powers respectively improper and solicitor of the Supreme preparation the with Legal Liew of Attomey as client 1966 that, Fong) in the dated 20 November 2017 lodged and HC/PA as donor one Goh Conduct) in (alias Liew 6414/2017 in breach of Rule (Professional Fong Act HC/PA the or practice Court of Singapore as set out Profession Khoon conduct and 5(5)(a) Rules 2015 6417/2017 Yong Chiang and 5(5)(b) of the Legal you took instructions from Goh Yong Chiang Kelvin without ensuring that he had the authority to give those evidence instructions of such instructions from on behalf of your authority, your you client client and failed to obtain regarding the when confirmation preparation and you had no of the said drafting of the said Powers of Attorney. THE PARTIES’ CONTENTIONS 66. The Applicant recounts the following: First, the Respondent met Mdm Liew for the first time only at the Meeting. Second, the Meeting was his first and only contact with her. Third, he did not, at the 17 November 2017 meeting with Kelvin, obtain confirmation of Kelvin’s authorisation to act for Mdm Liew in relation to the POAs. 67. It is argued that although it became plain to the Respondent during the Meeting that Mdm Liew was not able to communicate verbally, the Respondent should not have been satisfied with Mdm Liew’s nods and smile as he went through the POAs with her, not least because the Respondent accepted that there was a greater need for him to confirm Kelvin’s instructions with Mdm Liew because Kelvin stood to benefit from the POAs. 68. The Applicant contended the following: First, Mdm Liew’s responses were insufficient to confirm her instructions. Second, the Respondent did not speak to her alone to confirm if Kelvin’s instructions were indeed hers. Third, the Respondent did not ask her to repeat the instructions that she had allegedly given to Kelvin. It argued that the Respondent could have asked Mdm Liew to confirm her instructions by writing them down. 69. The Respondent relied on the dicta in Law Society of Singapore v K Jayakumar Naidu [2012] 4 SLR 1232 (“K Jayakumar Naidu”) to contend that solicitors should not be held to the same “strict protocols appropriate in a business setting” and that “by and large, family members do not take advantage of each other”. 70. He also argued that there was nothing remarkable or suspicious about the circumstances of this case. Tl. The Respondent contended that since Kelvin was Mdm Liew’s son, the Respondent was entitled to assume that Kelvin had the authority to give him instructions on her behalf. He contended that at the 17 November 2017 meeting he informed Kelvin that he needed to personally take Mdm Liew’s instructions and to witness her execution of the POAs. 72. The Respondent said that at the Meeting, he took instructions from Mdm Liew personally, verified Kelvin’s instructions, and also confirmed Mdm Liew’s own instructions. According to him, after explaining the terms of the POAs, he not only asked Mdm Liew if she understood what he had said but also asked her why she wanted to move out and if she wanted to buy a single-storey condominium unit to live in. He contended that he was satisfied that she possessed mental capacity at the time. 73. The Respondent further argued that he witnessed her execution of the POAs, adding that he even observed her taking off her glasses and reading them before signing. 74. The Respondent also argued that he was entitled to rely on Mdm Liew’s nodding as confirmation of her instructions, and for that purpose relied on section 5(1)(d) of the Mental Capacity Act (“MCA”). He said that he had used simple language when explaining the terms of the POAs, that Mdm Liew was able despite her physical limitations to sit upright on her own, and that she even took off her glasses to read the POAs before signing them. He added that if he had stated anything incorrect, Mdm Liew would have corrected him, just as she was able to correctly identify the members of her family and even referred to Kelvin by his nickname. 75. Insofar as section 5(1)(d) of the MCA is concemed, the Applicant’s position was that nodding is insufficient where, as here, Mdm Liew did not ask any questions or make any amendments to the POAs. 76. Both parties relied on a number of authorities, which we have considered. Some of them were cited for more than one of the charges. Il. OUR FINDINGS 77. Section 83(2)(b)(i) of the Legal Profession Act 1966 (the “Act”) concerns, inter alia, a breach of any rule of conduct made by the Professional Conduct Council. 78. Rule 5(5) is the subject of the First Charge. That Rule provides that where a legal practitioner is given instructions purportedly on behalf of his or her client, the legal practitioner must, under Rule 5(5)(a), ensure that the person giving those instructions has the authority to give those instructions on behalf of the client or, under Rule 5(5)(b), if there is no evidence of such authority, obtain the client’s confirmation of those instructions within a reasonable time after receiving those instructions. 79. It is alleged that the Respondent breached both Rule 5(5)(a) and Rule 5(5)(b). 80. Insofar as Rule 5(5)(a) is concerned, it is not in dispute that the Respondent met Mdm Liew for the first (and only) time on 20 November 2017. That means that the Respondent was unable to ensure at that meeting that Kelvin had Mdm Liew’s authority to give instructions to him in relation to the POAs when he met Kelvin and Jacqueline on 17 November 2017 and when his assistant secretary emailed, on his behalf, the drafis of the POAs to Kelvin at Kelvin’s email address at around 12.28pm on 20 November 2017 requesting that Kelvin “go thru the drafts and let us have your comments if any”. 81. However, that does not mean that Rule 5(5)(a) was breached. Rule 5(5)(b) shows that in cases where it is not possible to obtain evidence of such authority, the solicitor must obtain the client’s confirmation of those instructions within a reasonable time after receiving those instructions. 82. In this case, the Respondent acted reasonably and in compliance with Rule 5(5)(a). It was the Respondent’s uncontested evidence that at the 17 November 2017 meeting, he told Kelvin to bring Mdm Liew to his office to enable him to take her instructions and witness her execution of the POAs, and that when Kelvin asked if there was another way for the Respondent to do that since Mdm Liew was unable to walk and had trouble speaking, he informed Kelvin that he could visit Mdm Liew at the Namly Property. 83. The Meeting was arranged for Monday 20 November 2017, the first working day after 17 November 2017, which was a Friday. In his contemporaneous note of the 17 November 2017 meeting’, the Respondent recorded “To visit client 20/11/17 evening 5-6pm to the house”. 84. According to the Respondent, the Meeting was arranged for him to meet Mdm Liew for the Respondent to take her instructions and witness her execution of the POAs#, 85. In the circumstances, we do not agree that there was a breach of Rule 5(5)(a). 2 see paragraph 10 of the Respondent's AEIC and TAB-I of TET-I » see paragraphs 10 and 1 of the Respondent's AEIC 86. The next question we will address is whether at the Meeting, the Respondent had obtained Mdm Liew’s confirmation of Kelvin’s instructions. 87. The Court of Appeal’s observations in Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 at [60] on the duty of solicitors who undertake the task of preparing and/or witnessing the execution of wills are instructive: “In our view, this case demonstrates that solicitors who undertake the task of preparing wills and/or witnessing the execution of wills must take the necessary precautions or steps in order to fulfil their duties to their clients. The precautions are not complicated nor are they time consuming. In any case, as solicitors, they must do what is required, however complicated or difficult the task may be. The central task is to ensure that the terms of the will reflect the wishes of the testator. How this is done depends on the circumstances of each case. In every case, the solicitor should be cautious about taking instructions from any person who is to be named as a beneficiary in the will.” 88. At [61], the Court of Appeal in the same case reiterated the following points that were made in Low Ah Cheow v Ng Hock Guan [2009] 3 SLR (R) 1079: “73. The preparation of a will involves serious professional responsibilities, which solicitors must uncompromisingly observe and discharge. Regrettably, it seems to us that, all too often nowadays, solicitors appear to consider the preparation of a will to be no more than a routine exercise in form filling. This is wrong. Before preparing a will, the solicitor concerned ought to have a thorough discussion with potential complications the testator on all the possible legal issues that might arise in the implementation and of the terms of the will. The solicitor ought to painstakingly and accurately document his discussions with and his instructions from the testator. He should also confirm with the testator, prior to the execution of the will, that the contents of the will as drafted accurately express the latter’s intention.” 89. In Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 477 at [95], the Court of Three Judges held, in relation to a solicitor’s duty when asked to prepare a Power of Attorney to be executed by the client, that: “The respondent was obliged to take reasonable care to advise and ensure that the complainants understood the implications of executing a power of attorney in the prevailing circumstances”. 90. In Zan Phuay Khiang at [97], the Court also observed that where “there was a real possibility that the execution of a power of attorney had not been initiated by the [clients] themselves, but at a third party's behest instead....it was imperative for the [solicitor] to have privately met with the [clients] and ensured that the [clients] were not acting under any misrepresentation or improper influence and could communicate with him freely”. 91. In K Jayakumar Naidu, the Law Society decided not to pursue the charge relating to the respondent’s failure to advise his client on the nature, purport and consequence of the Power of Attorney. In that context, the Court of Three Judges said at [44] and [45]: “44, The gravamen of the first charge relates to the respondent's alleged failure to advise HCS on the nature, purport and consequence of the power of attorney. 45, As the Law Society eventually did not pursue this charge we need not dwell on this save to make the following observation. To require solicitors to hold their clients’ family members to the same strict protocols appropriate in a business setting would place them in an untenable attitude of opposition with their clients’ families and would not be in the interest of the client. Nor would it accord with the common experience that, by and large, family members do not take advantage of each other. The Law Society was therefore correct in eventually submitting that there was nothing remarkable or suspicious about the circumstances in which HBS approached the respondent to prepare the power of attorney. At that stage, he need not have done anything more than confirm that HCS wanted to sell the flat and that he wanted HBS to act on his behalf.” 92. However, the Court also said this at [1]: “A solicitor should also ensure that the client understands sufficiently any risks that may arise. This duty is elevated when a solicitor has reason to suspect that there are special risks or unusual pitfalls involved in the subject transaction. Naturally, the extent of this duty depends on the precise identity, sophistication and circumstances of the client: a vulnerable client, such as one who is mentally and/or physically disadvantaged, uneducated or impecunious, may require comprehensive and comprehensible advice for even the simplest of matters; in contrast, a client who is a seasoned businessman management team may or a corporate entity with an in-house risk be reasonably presumed to have greater situational awareness. In a similar vein, the extent of the duty will also vary with the client’s apparent familiarity owe clients their advance with a proposed a fundamental their client’s interests duty and transaction. All of undivided loyalty not place themselves solicitors to also ethically in a position of conflict.” Goh Yng Yng Karen v Goh Yong Chiang Kelvin [2021] 3 SLR 896"" held at [119] that: “It is well established that what amounts to a transaction that calls for an explanation is a “fact-sensitive inquiry” where “much would depend on the strength of inferences to be drawn from the circumstances”: Moh Tai Siang v Moh Tai Tong and another /20/8] SGHC 280 at [80]. I note also the observation in Royal Bank of Scotland ple v Etridge (No 2) [2002] 2 AC 773 at [22] citing with approval the view of Lindley LJ in Allcard v Skinner (1887) 36 Ch D 145 at 185 that a transaction calls for an explanation where accounted for on the ground it cannot “be reasonably of Sriendship, relationship, charity or other ordinary motives on which ordinary men act.” % which is being relied on for the law as set out by the Court 93. After considering Muriel Chee and Low Ah Cheow, the High Court opined that in cases involving a solicitor’s duty in connection with a client’s disposal of property to his or her successors, there is no material distinction between a situation involving wills and one which involved the making of an inter vivos gift. 94, In view of these authorities, the question whether there was a breach of Rule 5(5)(b) is a “fact-sensitive inquiry” where “much would depend on the strength of inferences to be drawn from the circumstances”. It is important therefore to consider all the circumstances. In doing that, it must be borne in mind that this case involved family members (see Jayakumar Naidu). This requires a consideration of the circumstances leading to and what happened at the Meeting. 95. The starting point is what the Respondent said happened. 96. According to the Respondent"", during the meeting on 17 November 2017, Kelvin informed him that Jacqueline and their family were residing with his mother, Mdm Liew, at the Namly Property. Furthermore, Mdm Liew had instructed him that she wanted to move out of the Namly Property as soon as possible for two principal reasons: First, that as she was wheelchair-bound, it was inconvenient for her to move up and down the stairs in the Namly Property, as well as to and from her bedroom to the toilet. Second, that as she spent most of her time at the Namly Property, Mdm Liew was affected by ongoing construction work in the neighbouring properties which generated noise, dust, and pollution, causing her discomfort and affected her sleep during the day. As such, she suggested that she, Kelvin, and his family move to a single-storey condominium unit where she would be able to move freely and more independently in her wheelchair. Further, Kelvin, his family, and their domestic helper would be on the same floor and thus be able to respond to her needs more easily. 97. According to the Respondent, at the 17 November 2017 meeting, Kelvin had told him that Mdm Liew had instructed him to engage a lawyer to prepare two Powers of Attomey for Kelvin to act on her behalf in the sale of the Namly Property and + paragraph 9 of the Respondent's AEIC the purchase of a single-storey condominium unit. She had also instructed that the Powers of Attorney should allow for the following: a. Kelvin to sell and absolutely dispose of the Namly Property; b. Kevin to request for all sale proceeds to be issued to Daniel to be held on trust for Mdm Liew for the purchase of the single-storey condominium unit. (Mdm Liew wanted to give the Namly Property to Daniel, her favourite grandson), and; c. Kevin to purchase the single-storey condominium unit in her and Daniel’s names with the option to include Kelvin as a joint owner. 98. The Respondent also said that at the 17 November 2017 meeting, Kelvin requested that he prepare the Powers of Attorney for the sale of the Namly Property and for the purchase of a single-storey condominium unit. 99. The Respondent said’ that he also asked Kelvin whether Mdm Liew had a history of mental illness or had ever been admitted to the Institute of Mental Health (“IMB”) or any other mental health facilities and Kelvin informed him that Mdm Liew was in perfect mental health and that he could verify the same after meeting her. The Respondent also said that he did not sense anything was amiss, given that he had adult children approaching him on their parents’ behalf before and that Kelvin had identified himself to the Respondent as a medical doctor. He said he had trusted Kelvin when he said that Mdm Liew was in perfect mental health and had never been admitted to IMH or any other mental health facilities. He added that he was satisfied that he would be able to verify Mdm Liew’s mental capacity himself and to take her instructions when he met her on 20 November 2017. 100. According to the Respondent, at the Meeting, the Respondent met Mdm Kelvin, Jacqueline and their two sons were present throughout. 6 paragraphs 13 and 14 of the Respondent's AEIC Liew. 101. The Respondent said""? that Kelvin had begun the Meeting by introducing him to Mdm Liew as the lawyer who he had approached to act for her. The Respondent explained tv Mdin Liew that he was there because Kelvin had told him that Mdm Liew had asked Kelvin to engage a lawyer to prepare legal documents to give Kelvin the power to sell the Namly Property and purchase a single-storey condominium unit, and for the lawyer to act in the sale of the Namly Property and the purchase of the single-storey condominium unit. Mdm Liew nodded her head in affirmation of the Respondent’s explanation. 102. The Respondent also said that upon meeting Mdm Liew, he had introduced himself and asked for her name. As Mdm Liew had difficulty speaking audibly, the Respondent was unable to decipher her response. He then read out Mdm Liew’s name from her NRIC card, which Daniel handed him. Mdm Liew confirmed her identity by nodding and smiling. 103. The Respondent then asked Mdm Liew if she recognised the people around her. She said yes, and introduced him, one by one, to her family members who were present, in the following order: Kelvin, Jacqueline, Daniel and David, and lastly her domestic helper. She was able to softly refer to Kelvin as “Vin”, which the Respondent understood was her affectionate nickname for him. She also correctly identified each individual present in the room. 104, Following the confirmation of Mdm Liew’s identity, he then asked Mdm Liew three times if she was comfortable having the Meeting in the presence of Kelvin, his family members, and the domestic helper. Mdm Liew nodded her head in response each time she was asked, indicating that she was comfortable. 105. The Respondent then proceeded to ascertain if Mdm Liew possessed mental capacity by first asking her if she had a history of mental illness or if she had ever been admitted to IMH or any other mental treatment facilities. In response, Mdm Liew shook her head, indicating that she did not have a history of mental illness » paragraphs 21-37 of the Respondent's AEIC and that she had not ever been admitted to IMH or any other mental treatment facilities. 106. The Respondent tumed to Kelvin and asked the same questions in Mdm Liew’s presence. Kelvin confirmed that Mdm Liew had no history of mental illness, nor had she ever been admitted to IMH or any other mental treatment facilities. The Respondent proceeded to ask Mdm Liew if she understood the purpose of the Meeting. Mdm Liew nodded her head, indicating that she understood the purpose of the Meeting. 107. Throughout their interaction, the Respondent observed that Mdm Liew was fully alert, and was able to understand and respond to his questions although she was unable to walk and had difficulty speaking audibly. As such, the Respondent was satisfied that Mdm Liew possessed mental capacity. 108. The Respondent asked her if the Namly Property was suitable for her to continue residing in. In response, Mdm Liew shook her head, indicating that the Namly Property was not suitable for her to continue residing in. He also asked if the noise from the construction from the neighbouring properties was one of the reasons why the Namly Property was no longer suitable for her to live in. Again, Mdm Liew nodded her head. 109. The Respondent asked if Mdm Liew had difficulty manoeuvring up and down the stairs in the Namly Property, and in response, she nodded her head. 110. He asked Mdm Liew if she wished to move to a single-storey condominium unit to avoid having to manoeuvre up and down stairs and to avoid the noise from the neighbouring properties, and Mdm Liew nodded her head again. 111. The Respondent asked Mdm Liew to confirm that she wished to appoint Kelvin as her attomey to sell the Namly Property and to purchase a single-storey condominium unit. She nodded. He then proceeded to explain the following, inter alia, in respect of the POAs to Mdm Liew: a He explained to Mdm Liew that the sale proceeds of the Namly Property were to be used to purchase a single-storey condominium unit in the joint names of herself and Daniel. He also explained the meaning and consequences of Daniel holding the sale proceeds on trust for Mdm Liew. He further explained that as Daniel was not 21 years of age, his share in the property would be held on trust by Kelvin and that usually for trust matters, a separate trust deed would be drafted. However, as at the time of the execution of the two POAs, the address of the single-storey condominium unit was not yet known, the trust deed could not yet be drafted; Q) The Respondent explained the meaning of joint tenants and tenants-incommon and the implications. To explain the concept of a joint tenancy and the right of survivorship to Mdm Liew, he employed a hypothetical situation in which persons A, B and C were joint tenants of a property. He explained that if A passed away, B and C would be the owners of the entire property. Likewise, if B passed away, A and C would be owners of the entire property, and if C passed away, A and B would be owners of the entire property. He then explained that in a tenancy-in common, each tenant possesses their own share which can be distributed according to their will or by intestacy; @) He explained that if the sale proceeds of the Namly Property were insufficient to purchase the single-story condominium unit, Kevin’s name would be included as a joint tenant for the purposes of obtaining a bank loan to finance the remaining balance of the purchase price. He then asked Mdm Liew if she wanted Kelvin’s name to be included as a joint tenant in the event a bank loan is required to finance the balance purchase price. Mdm Liew nodded, indicating her assent and that she understood the above. The Respondent then explained to Mdm Liew that the two POAs had the effect of giving the Namly Property to Daniel, and asked Mdm Liew if she intended to give the Namly Property to Daniel. Mdm Liew nodded. He asked Mdm Liew if she intended to give the Namly Property to David. Mdm Liew shook her head, indicating that she did not wish to give the Namly Property to David; and (4) He said that Kelvin’s consent would be required to revoke the two POAs. He informed Mdm Liew that the two POAs were irrevocable without written approval from Kelvin or the Family Justice Courts, He explained that this meant that Mdm Liew could not withdraw, cancel, or amend the two POAs after their execution, and asked if she understood. Mdm Liew nodded, indicating that she understood. 112. The Respondent said he repeated these explanations twice. Mdm Liew nodded her head in response to each explanation, indicating that she understood the terms and the consequences of the two POAs. When the Respondent finished his explanation, he asked Mdm Liew if she understood what he had said. She nodded her head. 113. He asked Mdm Liew once more if she wanted to move out of the Namly Property because it had become inconvenient for her to stay there, and that she wanted to buy a single storey condominium unit to live in instead. Mdm Liew nodded her head again. 114. The Respondent was satisfied that she had mental capacity to sign the two POAs. He then placed the two POAs in front of Mdm Liew, who removed her glasses and took some time to read them before signing them in his presence. The Respondent then affixed his stamp to the two POAs and countersigned against them. 115. He observed that during the Meeting, Mdm Liew appeared relaxed, alert and showed no signs of discomfort or that she was not acting on her own. 116. We are unable to accept the Respondent’s evidence of what happened during the Meeting for the following reasons:117. First, this evidence does not accord with the Respondent’s Attendance Note of the Meeting which he prepared at around 6.15pm when he retumed to his office after the Meeting'®. According to the attendance note: +8 see paragraph 39 of the Respondent's AEIC and TAB 5 of TET-1 a. Mdm Liew is recorded as the client; b. The Meeting took place between Spm to 5.45pm; c. The Meeting concemed “2x Powers of Attorney at 107 NamlyAve”; d. The Respondent “saw Mdm Liew around Spm and read the POA to her”; e. “She was aware that her son had told me to come and she had given instruction to her son”. Her response, if any, was not recorded; f. The Respondent “askfed] her whether she understand what I was saying and whether she recognise the people around her”. Mdm Liew’s response, if any, was not recorded; g. | The Respondent “askfed] her whether she was admitted to woodbridge or mental clinic before, she said No”; 118. h. “She said that staying here is inconvenient and want to move out”; i. “She was relaxed ... and no sign of oppression or discomfort”; and j. “end 5.45pm”. The Respondent sought to explain the difference between his evidence and the Attendance Note by saying that the latter did not fully reflect his communications with Mdm Liew. 119. While we accept the Attendance Note was not, and could not have been, meant to be a verbatim note of what was said at the Meeting, the fact is that the Respondent ‘was conscious of the need to have a contemporaneous record of what he considered to be the main and important aspects of the Meeting. Further, the fact that he prepared it immediately after the Meeting meant that his memory of the Meeting was fresh at that time. 120. The disparity between his evidence about the Meeting and what is said in the Attendance Note is simply too huge to be credibly accounted for. 121, According to the Attendance Note, the Respondent “read the POA to her”. There is nothing about him explaining the POAs (let alone more than once) in the manner that he claimed in his evidence. There is also nothing in the Attendance Note about him explaining the nature and effect of the POAs to Mdm Liew. The Applicant submitted that the Respondent accepted that he did not say any of this in his affidavit of evidence-in-chief in Suit 45 (his “45 AEIC”). 122. In his Defence, the Respondent also claimed that he explained the nature and consequences of joint ownership of the Condominium Unit by Mdm Liew, Kelvin and Daniel. This was not in the Attendance Note. The Applicant submitted that the Respondent did not say this in his 45 AEIC. 123. The Respondent also took the position that he explained the meaning and consequences of Daniel holding the sale proceeds of the Namly Property on trust for Mdm Liew and that as Daniel was below 21 years of age, his share in the property would be held on trust by Kelvin. This was not in the Attendance Note. The Applicant submitted that this was different from what the Respondent said in his 45 AEIC where the Respondent said that he explained that the sale proceeds would be held by Daniel on trust for her to purchase the Condominium Unit. 124, As the Applicant pointed out, the Respondent’s own understanding of the legal effect of the 2"" POA was inaccurate and that Kelvin could, at his own discretion, add himself as a joint tenant to the purchase of the Condominium Unit. It was also not correct that Kelvin would be added as a joint tenant to the purchase of the Condominium Unit only if there were insufficient funds to finance the purchase the Condominium Unit from the sale proceeds of the Namly Property. 125. According to the Attendance Note, Mdm Liew “was aware that her son had told me to come and she had given instruction to her son”. However, her response, if there was any, was not recorded. This also begged the question whether she understood what the Respondent was talking about when he said that “she had given instructions to her son”. 126. The Attendance Note also said that the Respondent “ask/ed/ her whether she understand what I was saying and whether she recognise the people around her”. This presents a particular difficulty because the POAs had unusual clauses and features that gave rise to various issues that needed very careful explanation, particularly to an 87 year old lay person who could not readily interact because of her speaking difficulties. 127. In fact, it was not just the nature, terms, and implications of the two POAs which required careful explanation but also the issues arising from the interaction between the two POAs. They raised, inter alia, the following issues or concerns: a. The concept of joint tenancy; b. That Mdm Liew would be making an inter-vivos gift to Daniel to the exclusion of others; c. How that intention could still be fulfilled if Kelvin included his name in the purchase of the Condominium Unit; d. The fact that she could not on her own change her mind; e. That Daniel was a minor (the Respondent knew that Daniel was about 19 years old at the time!® and cannot be a trustee); f. What the terms of the trust would be and how would they affect Mdm Liew and her rights; +9 NE dated 25 February 2020, page 79, line 16, Tab 19 of Exhibit KG-I at page 720 g. | What would happen if after the Namly Property was sold, complications arose in relation to the purchase of the Condominium Unit e.g., because Daniel refused to allow the sale proceeds to be used, and; h. The fact that Kelvin could choose to be one of the purchasers of the Condominium Unit at a consideration of his own choosing, which might create a conflict of interest. 128. Mdm Liew was 87 years old at the time. She had difficulty speaking. The Respondent should not only have carefully explained these matters but should also have asked if they were in line with her wishes and instructions and how she thought they were in her interests, including asking why she felt that it was in her interest for the POAs to be irrevocable by her. In this connection, the Applicant pointed out that it was the Respondent's evidence in his 45 AEIC that Mdm Liew did not provide reasons for the POAs to be irrevocable and he did not see any necessity to ask her about that. 129. If Mdm Liew was unable to communicate her understanding verbally or in writing, then the Respondent should have called for a pause and asked for her condition to be reviewed by an independent medical expert or declined to act:- a. The fact that Mdm Liew nodded when the Respondent read the POAs to her, in light of these particular POAs that he was asked to draft by Kelvin and the fact that one of them dealt with the disposal of her home, should not have been accepted by the Respondent as evidence that she understood their terms, nature and consequences; and b. The fact that she did not ask any questions in light of the issues and concerns referred to above should have raised a red flag. 130. The Respondent said that because his 45 AEIC was drafted for a different purpose from present proceedings, it did not contain as many details as his AEIC in these proceedings. We are unable to accept that. Although he was not a party to Suit 45, the question whether the Respondent properly explained the POAs to Mdm Liew at the Meeting and whether she executed the two POAs with a full understanding of their terms and effect was an important issue of fact in that case. Therefore, it would have been important for the Respondent to be as comprehensive as possible in his evidence at the High Court Trial about what happened at the Meeting. 131. The Respondent also did not take steps to meet Mdm Liew privately and without the presence of Kelvin and Daniel, who stood to benefit from the POAs, and their family members to determine whether Mdm Liew was not acting under any misrepresentation, misapprehension, or improper influence. The Respondent also did not ask Mdm Liew whether the POAs accorded with her wishes under any will. In this connection, we were shown photos of the Meeting that were taken by Jacqueline which showed that Kelvin stood or sat in front of Mdm Liew, to her right, and that David and Daniel stood directly in front of Mdm Liew”. The proximity was vexing and should have alerted the Respondent to insist on a private meeting with Mdm Liew. 132. If the Respondent’s account of what he did at the Meeting is correct, then the Meeting could not have taken around 45 minutes (around Spm to 5.45pm). 133. We note that the Respondent’s evidence in these proceedings about what he claimed to have explained to Mdm Liew was given after he would have read the High Court’s decision in Goh Yng Yng Karen, where he gave evidence and findings were made about him and his conduct, and which highlighted what he omitted to do at the Meeting. 134. In coming to these findings, we were conscious of the obiter dicta in K Jayakumar Naidu which has been referred to above about family settings. However, even there, the Court recognised that there may be remarkable or suspicious circumstances or situations where family members may seek to take advantage of each other. We are satisfied that for the reasons set out above, including the unusual clauses and features of the POAs, Kelvin and Daniel’s benefits as well as the fact % photos at Tab 21 KG-I at pages 804-806 of the Complainant's AEIC that Mdm Liew could not by herself revoke the POAs, this situation called for special vigilance and care. 135. We are unable to agree with the Respondent’s position on the MCA”!, 136. Section 4 of the MCA states that a person lacks capacity in relation to a matter if at the material time the person is unable to make a decision for himself or herself because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 5(1)(d) of the MCA provides that for the purposes of section 4, a person is unable to make a decision for himself or herself if the person is unable to communicate his or her decision (whether by talking, using sign language or any other means). 137. All that section 5(1)(d) does is to list visual illustrations of when it can be said that a person is unable to make a decision for herself. It does not say, and does not amount to legislative endorsement, that if a person can communicate by sign language or other means, she is able to make a decision for herself. The latter does not flow from the former. 138. We are also unable to accept the Respondent’s reliance on evidence of other events involving Mdm Liew which, according to him, show that Mdm Liew had mental capacity. As he accepted”, he did not know about these other events at the Meeting. 139. In coming to our decision, we have not had any regard to the question of whether Mdm Liew had mental capacity at the material time. Unlike Suit 45, where expert evidence was led, there was no expert evidence on that issue before us. 140. In the circumstances, we find that the Respondent breached Rule 5(5)(b) as alleged in the First Charge. 2 paragraph 121 of the Respondent's Closing Submissions 2 paragraph 107 of the Respondent's Closing Submissions THE SECOND CHARGE 141, The Second Charge is as follows: That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme in section 83(2)(b)(i) of the whilst you acted for Madam Legal Court of Singapore Profession Liew Khoon Act as set out 1966 in that, Fong (alias Liew Fong) in the preparation of the 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme respectively Kelvin with Court the HC/PA 6414/2017 and HC/PA as donor and one Goh in breach of Rule 5(2)(c) of the Legal Profession Rules failed to with reasonable to your client, client as the attorney, (Professional Conduct) diligence competence and that you permitted as your the 2015 in the you provision client to execute act of services the said 6417/2017 Yong Powers Chiang in of Attorney without first taking sufficient steps to satisfy yourself that your client understood the nature and effect of the terms that were set out in the said Powers of Attorney. 142. Under Rule 5(2)(c), a legal practitioner must act with reasonable diligence and competence in the provision of services to the client. THE PARTIES’ POSITIONS 143. According to the Applicant, solicitors breach their duty to advance their clients’ interests with diligence and competence if they fail to advise on the issues peculiar to the matter at hand and to ensure that the client understands any risks that may arise: K Jayakumar Naidu at [1]. 144, The Applicant argued that there was a breach of Rule 5(2)(c) on two grounds: first, that the Respondent failed to ascertain that Mdm Liew had sufficient mental capacity to make a decision with respect to the POAs; and second, that the Respondent failed to render proper advice for Mdm Liew to understand her position and the risks with respect to the nature and effect of the POAs. 145. The Respondent’s position on the first ground was that there was no evidence of mental incapacity and that in any event he relied both on his own independent and in-person assessment that Mdm Liew was mentally competent as well as Kelvin’s confirmation that Mdm Liew was mentally competent. The Respondent’s own assessment of Mdm Liew’s mental capacity was based on the fact that Mdm Liew was able to communicate by nodding her head. 146. With regard to his position on the second ground, the Respondent maintained that he acted consistently with his duties. I. OUR FINDINGS 147. For the reasons set out under our discussion in relation to the First Charge, we find that the Respondent breached Rule 5(2)(c) as alleged in the Second Charge. 148. However, we should add that because the offending conduct in First Charge and the Second Charge is the same, our finding under the Second Charge does not, in our view, add anything to the Respondent's culpability. THIRD CHARGE 149. That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act (Cap. in breach Rules of Rule 2015, you 5(2)(c) of the Legal failed act with to Profession reasonable 161) 1966 in that, (Professional diligence and Conduct) competence in the provision of services to your client Madam Liew Khoon Fong (alias Liew Fong) by failing to take sufficient steps to safeguard the interests of your client by ensuring that you received your instructions and explained the nature and effect of the 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme Court as HC/PA 6414/2017 and HC/PA 6417/2017 respectively with the client as the donor and one Goh Yong Chiang Kelvin as the attorney, to the client without the presence of the attomey or other family members of the attomey so as to avoid any undue influence being exerted over the client. THE PARTIES’ POSITIONS 150. The Applicant contended that the Respondent should have met Mdm explained the POAs, Liew, and taken her instructions in Kelvin’s and his family’s absence. Kelvin and Daniel were beneficiaries and the Respondent should have been concerned that Mdm Liew could not have been able to communicate her wishes in front of them. It relied on Jayakumar [68] and Tan Puay Khiang [97]. 151. The Respondent argued that he had asked Mdm Liew thrice if the Meeting could proceed in the presence of Kelvin and his family. He said that Kelvin was, after all, Mdm Liew’s son and his family were her family members. He contended that he observed that Mdm Liew appeared relaxed, alert and showed no signs that she was not acting on her own free will. IL. OUR FINDINGS 152. Rule 5(2)(c) has been set out above. 153. In our discussion above under the First Charge, we said that all the circumstances had to be considered. The allegation that the Respondent should have received his instructions and explained the POAs without the presence of the attorney or other family members of the attorney cannot be viewed in isolation and was just one of the matters that has to be taken into account in determining whether the Respondent breached his duties. We are not satisfied that a charge based only on this one aspect of his conduct is sufficient to amount to a breach of Rule 5(2)(c). 154, In the circumstances, we dismiss this charge. TH C) .G) 155. That you, Teo Eng Thye, are charged with as an advocate and solicitor of the Supreme improper you acted Yong Chiang Kelvin Ardmore Park for Madam and Goh #36-02, Liew Sok Singapore Khoon Ngoh 1966 (Cap. Fong Jacqueline 259962, or practice Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act whilst conduct where (alias 161) in that, Liew Fong), in the purchase there was of 1 a diversity of interests that existed between the parties, you failed to advance Mdm Liew Khoon Fong’s (alias Liew Fong) interests unaffected by the interest of Goh Yong Chiang Kelvin and/or Goh Sok Ngoh Jacqueline, by removing Mdm Liew’s name from the Option property, to which Purchase dated is a breach 1 December of Rule 20(5) 2017 and in respect Rule 20(6) of the said of the Legal Profession (Professional Conduct) Rules 2015. THE PARTIES’ POSTIONS 156. The Applicant argued that the Respondent’s position that he was acting only for Kelvin in the purchase of the Condominium Unit is mistaken because he admitted that he was acting for Kelvin, Jacqueline and Mdm Liew when the Condominium OTP was exercised. This was also seen in his letter of 8 December 2017 to SterlingLaw when the Condominium OTP was exercised”*. He therefore was under an obligation to inform Mdm Liew, his client, when her name was removed as a purchaser of the Condominium Unit. 157. It contended that a diversity of interests arose when Kelvin instructed the Respondent to remove Mdm Liew’s name as a purchaser and that that removal was to Mdm Liew’s disadvantage and conversely to the advantage of Kelvin and Jacqueline. Further, as the Respondent would have been aware that Kelvin’s instructions conflicted with the 2™ POA, he should have directly informed Mdm Liew of Kelvin’s instructions, which would result in Mdm Liew losing her most significant asset, the Namly Property”. 2 paragraphs 76, 77 and 78 of the Applicant's Closing Submissions » paragraphs 81 and 82 of the Applicant's Closing Submissions 158. The Complainant testified that the Respondent should have informed Mdm Liew, his client, that her name was to be removed under the Amended Condominium OP and that as a result, she would no longer own a property under her name. The Respondent should also have ceased to act in the conveyancing transaction or ceased to act for Mdm Liew and obtain her informed consent, in writing, for him to continue to act in the conveyancing transaction». 159. Instead, the Respondent sent the 24 January 2018 letter to seek the vendor’s consent for Mdm Liew’s name to be removed although he was aware that Mdm Liew might be prejudiced”®. 160. The Respondent made the same arguments for the Fourth Charge and the Fifth Charge. 161. He denied there was a conflict of interests in representing Mdm Liew, Kelvin and Jacqueline because Mdm Liew received fair consideration for the sale of the Namly Property. Thus, there was common interest among the three to purchase the Condominium Unit for the family’s residential purposes and Kelvin and Jacqueline became the Respondent's clients as purchasers of the Condominium Unit only after the original plan to purchase that unit under the terms of the 2"" POA, read with the 1* POA, was aborted”’, 162. He argued that the Option to Purchase that was exercised on 8 December 2017 was not exercised pursuant to the 2"" POA. By that time, he had been told that the “money most likely will not come in”. In any event, the 2"" POA was contingent on the sale proceeds of the sale of the Namly Property being used to purchase the Condominium Unit®*. He was also of the view that, as Mdm Liew would no longer be a party to the purchase of the Condominium Unit, there would be no prejudice 25 paragraph 109 of the Complainant's AEIC 28 paragraph 89 of the Applicant's Closing Submissions » paragraphs 146 and 154 of the Respondent's Closing Submissions 2 paragraph 156 of the Respondent's Closing Submissions to her and as such there was no need for him to cease acting for Mdm Liew or the others as there was no conflict of interests”. 163. The Respondent also contended that, since he believed that the POAs were valid and enforceable, he was entitled to take instructions from Kelvin as Mdm Liew’s attomey in the purchase of the Condominium Unit.>° He also pointed out that the proceeds of sale were to be used for the purchase of a single-storey condominium unit and the 2™ POA did not specify any particular address of that unit.*! 164. The Respondent said that when he wrote the letter dated 24 January 2018 to SterlingLaw, he acted in his capacity as Kelvin’s solicitor in the purchase of the Condominium Unit. This, according to him, was because the Complainant had commenced Suit 45 against Kelvin who had informed him that Mdm Liew would no longer be a party to the purchase of the Condominium Unit which would be purchased in the names of Kelvin and Jacqueline, that that purchase would be financed by his and Jacqueline’s own savings and that he wanted the Respondent to act for Kelvin and Jacqueline in the purchase of the Condominium Unit??. 165. The Respondent also said that as the 2014 LPA had not been activated at the time, there was no need to inform Mdm Liew of the removal of her name, the non- inclusion of Daniel’s name, and the inclusion of Jacqueline’s name*>. Il. OURFINDINGS 166. Rules 20(5) and 20(6) provide that where a legal practitioner acts for 2 or more different parties in a matter or transaction, and a diversity of interests arises between those parties during the course of the retainer for the matter or transaction, he or she must throughout the remainder of the course of the retainer for the matter or transaction continue to be vigilant of any conflict or potential conflict between the ?° paragraph 146 of the Respondent's Closing Submissions ® paragraph 140 of the Respondent's Closing Submissions 31 paragraphs 140 and 142 of the Respondent’s Closing Submissions ® paragraphs 58 and 59 of the Respondent's AEIC % paragraphs 141 and 142 of the Respondent's Closing Submissions interests of any of the relevant parties and inform each relevant party in the matter or transaction if, in the course of the retainer, the legal practitioner has difficulty in advising on and dealing with the relevant parties’ divergent interests competently, evenly and consistently. 167. The following discussion is on the assumption that there was in law a solicitor-client relationship between the Respondent and Mdm Liew. We will come back to that below. 168. Before 24 January 2018, when the Respondent wrote to SterlingLaw to say that his clients intended to withdraw Mdm Liew’s name from the purchase of the Condominium Unit, he had been aware of the letters from Templars Law to WongPartnership dated 15 December 2017, 22 December 2017, 5 January 2018 and 10 January 2018. 169. The Respondent was also aware of the following: First, the Complainant claimed to be the sole donee under the 2014 LPA, and that she claimed that Kelvin had moved Mdm Liew to an unknown location. Second, Dr Ang had issued a medical report which said that Mdm Liew was suffering from dementia which started around the middle of 2017**. Third, the Complainant’s position was that the 1‘ POA was invalid and unenforceable, that Mdm Liew lacked the mental capacity to decide to sell the Namly Property, and that her lawyers had asked that the sale be stopped and had asked WongPartnership if they had instructions to accept service of process on behalf of their client. 170. He therefore found himself in a position where, in acting for Mdm Liew, Kelvin and Jacqueline, he had secured for her an interest in the Condominium Unit and Kelvin was now asking him to divest one of his clients of her interest. Those instructions could not have been given under the POAs meant to facilitate the sale of the Namly Property and the purchase, with Mdm Liew being one of the buyers, of a single-storey condominium unit. The Respondent would also have known that * page 1070 of the Complainant's AEIC the fact that Daniel’s name was not added to the Condominium OTP was not consistent with Mdm Liew’s alleged intention to make a gift to him. 171. Further, he had been put on notice of the matters in Templars Law’s letters. He would have known that, should the 1 POA be said to be invalid because of Mdm Liew’s alleged mental condition, that would also call into question the validity of the 2"" POA which was signed at the same time. 172. He therefore found himself in a position where if the POAs were valid, and he withdrew Mdm Liew’s name, he would affect her interests. If the POAs were not valid, he could not act on Kelvin’s instructions, which were purportedly given under the POAs, to remove her name. 173. In these circumstances, he was under a duty to check the position with Mdm Liew to ensure that there was no divergence of interests between her on the one hand and Kelvin and his family, on the other. He was under a duty to satisfy himself that she continued, after the POAs, to have the mental capacity to instruct him in the sale of the Namly Property and the purchase of the Condominium Unit, as well as ask Mdm Liew if the purchase in Kelvin, Jacqueline and her names was consistent with her intention to make a gift to Daniel, and whether she agreed with giving up her interest in the Condominium Unit. If the Respondent had not been given access to her or was unable to properly obtain instructions, he should have ceased acting for all his clients. 174, However, this does not mean that the Fourth Charge has been made out. 175. These Rules, and the Fourth Charge, are premised on there being a retainer and a solicitor-client relationship between the Respondent and Mdm Liew at the material time. In fact, the Applicant’s Closing Submissions emphasise the Respondent’s duty to his “client”. * see eg paragraph 88 176. It is not the Applicant’s case that the Rules apply even where there is no retainer but that a solicitor believed that there was one. 177. If, as is the Complainant’s case, the POAs were null and void, and the High Court in Suit 45 has found them to be null and void, then the question which arises is whether there was in law a solicitor-client relationship between the Respondent and Mdm Liew after she signed the POAs which have been found by the High Court to be null and void. 178. The fact that he informed SterlingLaw that he acted for Mdm Liew and that he purported to act for Mdm Liew when the Condominium OTP was accepted and thereafter does not mean that there was that relationship in law or that in law, he had been retained by her. 179. As this issue was not addressed by either the Applicant or the Respondent, at a posthearing conference on 19 July 2022, we raised this for the parties to consider their positions on it since it affected the 4"" to 7"" Charges. We asked the Applicant’s counsel whether it wished to proceed with these charges. The Applicant’s counsel said that he will consider the matter and take instructions and get back to us. The Respondent’s counsel said that he did not address this point because of an oversight. 180. By a letter dated 26 July 2022, the Applicant’s counsel said that the Applicant would like to proceed on these charges. In that letter, the Applicant’s counsel referred to Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin [2015] 5 SLR 62 and the disciplinary proceedings which followed from that decision, reported as The Law Society of Singapore v Harjeet Singh [2016] SGDT 9. He argued that in light of these cases, the Applicant was of the view that there “could still be a breach” of the relevant Rules referred to in these charges. 181. With respect, we are unable to see how either case is of assistance. In Mahidon, there was a solicitor-client relationship between the appellants and the solicitor before the deed in issue, i.e., the RBI Deed, came to be executed: see [17]. It was in that context that the Court of Appeal considered the scope of the solicitor’s duties and whether he had breached them. Those findings had no impact on the solicitor- client relationship. Unlike the present case, it was not a situation where the solicitor’s authority was based on the very document which the solicitor was found not to have properly advised. 182. As we set out above, the standard of proof is beyond a reasonable doubt. We are not satisfied that the Applicant has discharged that burden to show that even though the POAs have been found to be null and void, there continued thereafter to be a solicitor-client relationship in law between the Respondent and Mdm Liew. 183. For these reasons, we dismiss the Fourth Charge. EIETH CHARGE 184. That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act 1966 in that, whilst you acted for Madam Liew Khoon Fong (alias Liew Fong) in the purchase of 1 Ardmore Park #36-02, Singapore 259962, you failed to inform the client of all information known to you that may reasonably affect the interests of the client in respect of the purchase of 1 Ardmore Park #36-02, Singapore 259962 in particular of the removal of her name, the non-inclusion of the name of Daniel Goh Eng Sheng and the inclusion of the name of Goh Sok Ngoh Jacqueline from the Option to Purchase dated 1 December 2017 in respect of the said property, which is a breach of Rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015. I. THE PARTIES’ POSITIONS 185. The Applicant argued that the Respondent had failed to inform Mdm Liew that her instructions under the 2"" POA were not being followed by Kelvin, the attorney, because the Condominium Unit was purchased with Jacqueline and not Daniel. It also argued that the Respondent had assumed a responsibility to Mdm purchase the Condominium Unit, % paragraphs 89 and 94 of the Applicant's Closing Submissions Liew to 186. The Respondent made the same arguments as he did in relation to the Fourth Charge. I. QUR FINDINGS 187. Rule 5(2)(b) has been set out above. 188. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 189. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. SIXTH CHARGE 190, That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act 1966 in that, whilst you acted for Madam Liew Khoon Fong (alias Liew Fong) in the preparation, execution and registration of 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme Court as HC/PA 6414/2017 and HC/PA 6417/2017 respectively with the client as the donor and one Goh Yong Chiang Kelvin as the attorney, you failed to inform the client of all information known to you that may reasonably affect the interests of the client in respect of the said Powers of Attorney in particular of the medical report prepared by Dr Ang Yong Guan dated 30 December 2017 and correspondence from Templars Law LLC dated 12 February 2018 relating to the alleged lack of mental capacity of the client as at the time of execution of the said Powers of Attorney, which is a breach of Rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015. THE PARTIES’ POSITIONS 191. The Applicant contended that the Respondent knew from correspondence which was forwarded to him that the Complainant had challenged Mdm Liew’s mental capacity*’, It argued that the Respondent was privy to the Dr Ang’s medical report dated 30 December 2017 which said that Mdm significantly deteriorated since the middle of 2017 Liew’s mental capacity had and of the Complainant’s complaint that Kelvin had concealed Mdm Liew from her’®. 192. The Applicant contends that, in spite of the above, the Respondent failed to inform Mdm Liew of this challenge and instead informed Kelvin*®. 193. The Applicant further said that the Respondent should have been put on notice of the possibility that Mdm Liew was suffering from dementia which started around the middle of 2017 and did not inform her of that to obtain her instructions. It was wrong for the Respondent to assume that the Complainant’s concerns were entirely without substance and did not even consider that there was a risk that Mdm Liew had not authorised Kelvin to find a lawyer to prepare the POAs and yet proceeded to forward the correspondence to Kelvin“, 194, The Respondent argued that when he received the letter dated 10 January 2018 from WongPartnership, he forwarded it to Kelvin, who was Mdm Liew’s attorney, to ask if there had been a change in Mdm Liew’s mental capacity since the Meeting. Kelvin denied that there was any change*!. 195. Insofar as Templars Law’s letter dated 12 February 2018 was concerned, the Respondent maintained that as the information sought was protected by solicitor- client privilege and as the Respondent was of the opinion that the 2014 LPA had » paragraph 100 of the Applicant's Closing Submissions * paragraphs 98 and 104 of the Applicant's Closing Submissions ° paragraph 100 of the Applicant's Closing Submissions “ paragraph 108 of the Applicant's Closing Submissions * paragraph 158 of the Respondent’s Closing Submissions not been properly activated, there was no need for him to respond and therefore no need for him to take Mdm Liew’s instructions on that letter. i. OUR FINDINGS 196. Rule 5(2)(b) has been set out above. 197. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 198. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. SEVENTH CHARGE 199. That you, Teo Eng Thye, are charged with in the discharge of your advocate and solicitor advocate and solicitor of the Supreme section 83(2)(h) whilst you had of acted the Legal for Madam misconduct unbefitting professional of an duties as an Court of Singapore as set out in Profession Liew Khoon Act Fong 1966 in (alias Liew that, Fong) in respect of the matters that were the subject-matter of Suit No 45 of 2018, where in Chiang the said Kelvin Suit was a your client was defendant, the you plaintiff and failed to advance one Goh her Yong interests unaffected by the interests of Goh Yong Chiang Kelvin, by failing to take the instructions subpoena by of your client or her donee the acting solicitors for when your you client in instead taking the instructions of Goh Yong Chiang Kelvin. L THE PARTIES’ POSITIONS were served the said with Suit a and 200. The Applicant argued that whether the Respondent complied with the subpoena is irrelevant to this charge“. It said that the Respondent should not have sought instructions in relation to the subpoena from Kelvin because he had no authority to make decisions and act for Mdm Liew with respect to the subpoena. Further, since Kelvin was a defendant in Suit 45, it was improper for the Respondent to take advice from Kelvin’s solicitors*. 201. The Complainant said“ that the Respondent had conceded during the hearing before the Inquiry Committee (Transcript dated 25 March 20121 page 56) that he should have taken instructions from Mdm Liew and not from Kelvin, who was represented by Drew & Napier. She also said that the Respondent did not advance Mdm Liew’s interests as he disclosed the subpoena to Kelvin and obtained advice from Kelvin’s lawyers as to the manner in which he should comply with the subpoena, even though Kelvin was a defendant in Suit 45. She said that since the Respondent had received the 2014 LPA by then, he should have known that Kelvin had no authority to make decisions and act for Mdm Liew with respect to the subpoena. 202. The Respondent argued that he believed that he was entitled to take instructions from Kelvin and/or his solicitors because Kelvin was a party to Suit 45, the documents that were requested were protected by solicitor-client privilege and that the POAs were valid and enforceable. Further, because Suit 45 was to determine whether Mdm Liew had mental capacity, he continued to take instructions from Kelvin’. I. OUR FINDINGS 203. Section 83 (2)(h) of the Legal Profession Act 1966 states that due cause may be shown by proof that an advocate and solicitor has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. ® paragraph 113 of the Applicant's Closing Submissions “8 paragraph 115 of the Applicant’s Closing Submissions “ paragraphs 145 and 146 of the Complainant's AEIC *5 paragraphs 167 and 170 of the Respondent’s Closing Submissions 204. We do not agree that this Charge has been made out. 205. When the Respondent was served with a subpoena, his interests were potentially divergent from those of the Complainant, who was representing Mdm Liew. Suit 45 was an action to nullify the POAs. The Respondent’s conduct was going to be squarely in issue, and he would likely be criticised. In our view, he was fully entitled to speak to whoever he wished, including Kelvin and any law firm which felt able to advise him on his own position and exposure. 206. We disagree with the assertion that the Respondent should have taken instructions from Mdm Liew, who was effectively the plaintiff in Suit 45, through the Complainant who initially acted pursuant to the 2014 LPA and later as executrix of Mdm Liew’s estate, and therefore on the other side of the Suit. 207. There is another reason we do not agree that this charge has been made out. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 208. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. CONCLUSION 209. In conclusion, we find that the First and Second Charges have been made out. We dismiss the remaining Charges. 210. In considering whether cause of sufficient gravity for disciplinary action exists, we have had regard to the fact that it was not the Applicant’s case and was not put to the Respondent that he acted with any deliberation, dishonesty, or for improper motives. It appears from the Respondent’s evidence that he appears to have been influenced about the scope of his obligations by the small fee that he would eam from preparing and attending to the execution of the POAs. That was an unfortunate 24th ",2023-06-10T04:00:28+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jun-2023/,"In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jun-2023/",1128 2,c94496223939eaecba1cac0ab5c95aae23200a72,"In the Matter of Carolyn Tan Beng Hui (Respondent), Advocate & Solicitor","In the Matter of Carolyn Tan Beng Hui (Respondent), Advocate & Solicitor On or about 2 May 2017, sale proceeds from the sale of a residential property were deposited with the Respondent’s law firm, Tan & Au LLP (TALLP). The property was registered to Seo Puay Guan (SPG), who was one of seven siblings. The other siblings had alleged that SPG held the property on trust for their late mother, and each claimed an interest in the balance sale proceeds. TALLP filed interpleader proceedings in Originating Summons No. 1100 of 2017 (OS 1100) with the seven siblings as respondents. OS 1100 was fixed for hearing for three days from 12-14 September 2018 before Dedar Singh Gill JC (as he then was) (the JC) where SPG was cross-examined on 12 September 2018 and 13 September 2018. The learned JC asked the counsels to attend in his physical chambers to deal with house-keeping matters. The attendance in chambers concluded shortly after noon on 13 September 2018, and at 1.22pm, TALLP filed SUM 4260 of 2018 in OS 1100 (the Recusal Application) for the learned JC to recuse himself from further hearing the proceedings. The Respondent filed an affidavit in support the next day (the Recusal Affidavit) which contained allegations against other legal practitioners without letting them have the opportunity to respond to the said allegations. The Respondent had also made further statements against the learned JC in the Recusal Affidavit which was disrespectful to the Court. The recusal application was heard on 25 September 2018 before the learned JC and was dismissed. An affidavit opposing the application was filed by the late David Kong who was the solicitor for three of the siblings. The Respondent took umbrage at statements made in David Kong’s affidavit and filed a police report accusing him of perjury. The solicitors for the siblings of SPG jointly made a complaint to the Law Society. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Tan Chuan Thye SC and Mr Chong Yee Leong as DT member to investigate the complaint. The following charges were preferred against the Respondent: Under DT 6 of 2019 First Charge For breaching Rule 29 of the Legal Profession (Professional Conduct) Rules 2015 (PCR) in permitting an affidavit to be filed on behalf of TALLP in HC/OS 1100/2017 which contained allegations against other legal practitioners without allowing them an opportunity to respond to the said allegations. Second Charge (Alternative Second Charge under Section 83(2)(h) of the LPA) For breaching Rule 13(2) of the PCR in being disrespectful of the Court in the making of certain statements in respect of the learned JC in an affidavit filed in HC/OS 1100/2017. Under DT 6A of 2019 First Charge (Alternative First Charge under Section 83(2)(h) of the LPA) For breaching Rule 13(2) of the PCR in filing or causing to be filed documents against the Court’s directions and orders, which are discourteous of a Court. Second Charge (Alternative Second Charge under Section 83(2)(h) of the LPA) For breaching Rule 29 of the PCR in having permitted documents to be filed on behalf of TALLP in HC/OS 1100/2017 containing allegations against other legal practitioners without allowing them an opportunity to respond to the said allegations. Findings and Determination of the DT, Council’s Sanctions The DT’s findings are summarised below: The DT cited dicta by Andrew Phang JA in China Insurance Co (Singapore) Pte Ltd v Liberty Insurance Pte Ltd [2005] 2 SLR(R) 509 and Law Society of Singapore v Tan Buck Chye Dave [2007] 1 SLR(R) 581 to remind counsels that “… one can disagree and yet not be disagreeable…” and that there should be “… more civility within the legal profession itself …” and “… more camaraderie within the profession …”. Council accepted the findings and recommendations of the DT, and imposed a financial penalty of S$10,000 on the Respondent. Dissatisfied, the Respondent sought to review and set aside the decision of the Council to impose a financial penalty of S$10,000 in HC/OS 432/2021 (OS 432). The Judge in OS 432 found that the penalty imposed was appropriate and justifiable. The Respondent appealed against the decision of the Judge in OS 432 (the Appeal). The Appeal was dismissed on 12 September 2022 with costs of $30,000 (all-in) payable to the Law Society.* To access the full report, click here. *The decision of the Court of Appeal can be found in Tan Beng Hui Carolyn v Law Society of Singapore [2023] SGCA 7. ",https://lawsoc-mc-assets.s3.ap-southeast-1.amazonaws.com/dtr-2023-05.pdf," 12th November Annex 1 38 39 40 Annex 2 29 30 31 Annex 3 52 53 54 55 56 58 ",2023-05-01T04:00:01+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-may-2023/,"In the Matter of Carolyn Tan Beng Hui (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-may-2023/",961 3,c108894221d0faf7ed81c20748e57b73c4b84b6f,"In the Matter of Ong Lian-Yi Gregory (Respondent), Advocate & Solicitor","In the Matter of Ong Lian-Yi Gregory (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Scarlett Merida Xi Wei Yuan (the Complainant). On or around 27 October 2015, the Complainant was served with a statutory demand for a sum of S$970,547.26 (Statutory Demand) allegedly due to one Ang Boon Kim t/a ABK Leasing (ABKL) under a loan agreement. The Complainant wished to dispute the alleged debt, and met the Respondent on 28 October 2015 and 29 October 2015 respectively to hand him relevant documents and pay a deposit of S$7,000.00 with instructions to file an application to set aside the Statutory Demand (Setting Aside Application). From 1 November 2015 to 4 December 2015, the Complainant and the Respondent exchanged various e-mails and WhatsApp messages wherein the Respondent had provided assurances to the Complainant that there should be no issues with her Setting Aside Application. The Complainant was made a bankrupt on 24 December 2015 and the Complainant terminated the Respondent’s engagement on 18 January 2016. The Respondent returned the deposit of $7,000.00 to the Complainant on 19 January 2016. The bankruptcy order annulled on 27 August 2018 after an application by the Complainant’s new lawyers. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Giam Chin Toon SC and Mr Teo Weng Kie as DT member to investigate the complaint. Three charges (and its alternatives) were preferred against the Respondent: First Charge For grossly improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Legal Profession Act (Chapter 161) (LPA) in that the Respondent had failed to act promptly and diligently on the instructions of the client to set aside the Statutory Demand and/or to apply for an extension of time of the said deadline, in breach of Rule 5(2)(c) of the Legal Profession (Professional Conduct) Rules 2015 (Rules). Second Charge For grossly improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the LPA in that the Respondent failed to keep his client reasonably informed of the progress of the application to set aside the Statutory Demand and/or the application to extend the time to set aside the Statutory Demand, in breach of Rule 5(2)(c) of the Rules. Third Charge For grossly improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the LPA in that the Respondent failed to use all legal means to advance the client’s interests to the extent that he may reasonably be expected to do so, and failed to take the necessary steps to apply to set aside the Statutory Demand and/or to apply for an extension of time of the said deadline, in breach of Rule 5(2)(c) read with Rule 5(2)(j) of the Rules. An alternative charge premised on section 83(2)(h) was preferred for each principal charge. At the hearing, only the Alternative First Charge and Alternative Second Charge were proceeded with (Proceeded Charges), and the remaining charges withdrawn. Findings and Determination of the DT, Council’s Sanctions The DT found that the Proceeded Charges were made out. The DT found that the Respondent was at all times fully aware of the deadline for the Setting Aside Application, but on the evidence, he had not shown any sign of concern or urgency even though time was fast running out. The Respondent’s conduct throughout the engagement was lackadaisical. The DT was satisfied that the Respondent’s conduct was grave enough to amount to misconduct unbefitting of an advocate and solicitor. In arriving at the recommended sanction, the DT considered some mitigating factors such as the Respondent not having gained financially from the matter, no prior antecedents, and there was no form of dishonesty and/or untruthfulness in the matter. In balancing this, the DT was also cognisant that the Respondent’s actions had caused suffering and inconvenience to the Complainant as she was adjudged a bankrupt. The DT found that no cause of sufficient gravity for disciplinary action existed under section 83 of the LPA, but the Respondent should be ordered to pay a financial penalty of $5,000.00 with costs of $2,500.00 to be paid to the Law Society. Council adopted the findings and recommendations of the DT, including but not limited to the finding that the Respondent’s actions had caused suffering and inconvenience to the Complainant as she was adjudged a bankrupt, and the Respondent was ordered to pay a financial penalty of $5,000.00. The Respondent was to pay the Law Society’s costs of $2,500.00 also. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2023/04/dtr-2023-04-c.pdf,"IN THE MATTER OF ONG LIAN-YI GREGORY (AN ADVOCATE AND SOLICITOR) AND IN THE MATTER OF THE LEGAL PROFESSIONAL ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal Mr Giam Chin Toon, SC President Mr Teo Weng Kie Member Counsel for the Law Society Allen & Gledhill LLP Ms Fay Fong 1 Marina Boulevard, #28-00 Singapore 018989 Ref No.: FFONG/dc/1021006176 Counsel for the Respondent K&L Gates Straits Law LLC Mr N. Sreenivasan, SC / Ms Ranita Yogeeswaran 9 Raffles Place #32-00, Republic Plaza Singapore 048619 Ref No.: SN/RY/tm/4901608.00001 Dated this 27th day of June 2022 1 INTRODUCTION THE CHARGES 1. Complainant referred a complaint against Mr Ong Lian- Respondent Law Society October 2020. 2. The Respondent was admitted to the roll of advocates and solicitors of the Supreme Court of Singapore on 10 June 1992. At all material times, the Respondent practised with the firm of David Ong & Co. 3. Pursuant to the complaint, the Law Society referred the matter to the Inquiry IC investigated by a Disciplinary Tribunal (the Tribunal 4. The Law Society had preferred 3 charges each with an alternative charge against the Respondent when the Tribunal was constituted. These charges are as follows: 1ST CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c) of the Legal Profession (Professional Conduct) Rules 2015 (Cap. 161, No. S 706), to wit, by failing to act with reasonable diligence and competence in the provision of services to a client in that despite accepting instructions on or about 28 October 2015, 2 you failed in the period of 28 October 2015 to 18 January 2016 to act promptly and diligently on the instructions of the client to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby breached a rule of conduct under the provisions of the Legal Profession Act (Cap. 161) which amounts to grossly improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act (Cap. 161). ALTERNATIVE 1ST CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did fail to act with reasonable diligence and competence in the provision of services to a client in that despite accepting instructions on or about 28 October 2015, you failed in the period of 28 October 2015 to 18 January 2016 to act promptly and diligently on the instructions of the client to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap. 161). 3 2nd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c) read with Rule 5(2)(e) of the Legal Profession (Professional Conduct) Rules 2015 (Cap. 161, No. S 706), to wit, by failing to act with reasonable diligence and competence in the provision of services to a client, by failing to keep the client reasonably informed of failing to keep the client reasonably informed of the progress of the application to set aside the Statutory Demand which had been served on the client on 27 October 2015 and/or the application to extend the time to set aside the Statutory Demand, and you have thereby breached a rule of conduct under the provisions of the Legal Profession Act (Cap. 161) which amounts to grossly improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act (Cap. 161). ALTERNATIVE 2nd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did fail to act with reasonable diligence and competence in the provision of services to a client, did fail to keep the client reasonably informed of th 2015 to 18 January 2016, failing to keep the client reasonably informed of the progress of the application to set aside the Statutory Demand which had been served on the client on 27 October 2015 (the and/or the application to extend the time to set aside the Statutory Demand and you have thereby committed an act 4 amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2 )( h) of the Legal Profession Act (Cap. 161). 3rd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did act in breach of Rule 5(2)(c) read with Rule 5(2)(j) of the Legal Profession (Professional Conduct) Rules 2015 (Cap. 161, No. S 706), to wit, by failing to act with reasonable diligence and competence in the provision of services to a client, by failing to use all legal means to advance the interests, to the extent that a legal practitioner may reasonably be expected to do so, by, between 28 October 2015 to 18 January 2016, failing to take the necessary steps to apply to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby breached a rule of conduct under the provisions of the Legal Profession Act (Cap. 161) which amounts to grossly improper conduct or practice as an advocate and solicitor under Section 83(2)(b) of the Legal Profession Act (Cap. 161). ALTERNATIVE 3rd CHARGE You, ONG LIAN-YI, GREGORY, an advocate and solicitor of the Supreme Court of Singapore, are charged that you did fail to act with reasonable diligence and 5 competence in the provision of services to a client, did fail to use all legal means to advance the interests, to the extent that a legal practitioner may reasonably be expected to do so, by, between 28 October 2015 to 18 January 2016, failing to take the necessary steps to apply to set aside the Statutory Demand which had been served on the client on 27 October 2015 within the time allowed for such an application to be made (i.e. 10 November 2015) and/or to apply for an extension of time of the said deadline, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 5. Submissions, had raised certain defects in respect of the charges. He submitted that the First Charge and the Third Charge (and their corresponding alternative charges) form what is essentially a single offence and/or are sufficiently close as to constitute a unitary offence for the purpose of sentencing. 1 He raised the issue again at the Hearing the Tribunal asked Counsel for the Law Society, Ms Fong, whether she had received instructions on the points raised and her reply was that she had not as the objections were raised about only a week before the Hearing. The Tribunal therefore granted her time to obtain instructions from the Law Society on the objections. 1 6 6. When the Hearing resumed, Ms Fong informed the Tribunal that the Law Society had considered the matter and her instructions are to withdraw the first, second, third and Alternative 1st Alternative 2nd Charge Charge pro Proceeded Charges 7. The Respondent thereupon claimed trial on the Proceeded Charges. 8. The Respondent also confirmed that he admits to the facts as stated in the Agreed ASOF though he had claimed trial on the Proceeded Charges. As both parties had requested for the Hearing to proceed on a documents-only basis, there was no examination and cross examination of witnesses. AGREED FACTS 9. On or around 27 October 2015, the Complainant was served with a statutory demand Statutory Demand ABKL 10. agreement. The Complainant wished to dispute the alleged debt. She met the Respondent on 28 October 2015 and 29 October 2015 respectively to hand relevant documents and pay a deposit of S$7,000.00 to him with instructions to file an application to set aside the Statu Setting Aside Application 7 11. Thereafter, correspondences between the Respondent and the Complainant took place and these can be summarised as follows: (i) The Complainant wrote to the Respondent on 1 November 2015 to provide a chronology, pursuant to his request to provide him with background facts and a legal research and then draft (ii) setting out his comments and questions to the chronology, as he was of the view that the chronology had In the same email, he set out his opinion on the defence including the timeframe within which the Statutory Demand had to be set aside. He said that according to her, the Statutory Demand had been served on 27 October 2015 and as such, she had 14 days to set it aside. He advised that the due date was therefore 10 November 2015. (iii) On 4 November 2015, the Respondent followed up by email time-stamped 1.44pm, which reminded the Complainant to reply to his queries as the timelines were continuing to run. He also emphasised that he needed these answers in order to prepare the originating summons and supporting affidavit to set aside the Statutory Demand. On the same day, at 1.51pm, the Complainant provided further answers to the Responden she would provide the rest of the answers in later emails. questions and said 8 (iv) By email on 4 November 2015 at 11.22pm, the Complainant sought to provide Whatsapp messages. On 9 November 2015, the Complainant asked for an update and the Respondent said that he was studying her case. (v) On 10 November 2015, which was the deadline the for setting aside, the Complainant sent a Whatsapp message to enquire as to the status of the filing. She noted that the deadline had arrived, to which the Respondent said that her understanding was correct. He then said for extension of time so long as filed within a reasonable period. BTW today is a public holiday. Happy (vi) As there was no further word from the Respondent, the Complainant followed up by Whatsapp on 1 December 2015, asking about her and expressing a hope to have updates soon. The Respondent replied, saying that he was in court. He also said She responded, asking if there was a deadline. There was no reply from the Respondent. (vii) The Complainant then sent an email on 2 December 2015, time-stamped 5.12pm, again inquiring about the deadline for submission of the setting aside application. 9 (viii) That same day, the Respondent replied via email with time-stamp 5.51pm, assuring the Complainant that he was applying for extension of time to file the setting aside application and that (ix) However, as at the time of the deadline to set aside the Statutory Demand (i.e. 10 November 2015), the Respondent had not in fact prepared the application. He had also not filed any ap EOT Application (x) Accordingly, as the Statutory Demand had remained unsatisfied and/or unchallenged, the Complainant was presumed to be unable to pay her debts. A bankruptcy application was filed against the Complainant on 25 November 2015. (xi) On 4 December 2015, the Respondent sent a Whatsapp message to the Complainant stating very busy with court hearings this week. I will complete drafting all court papers and call you when I am (xii) On 24 December 2015, a bankruptcy order was made against the Complainant. (xiii) engagement. 10 (xiv) On 19 January 2016, the Respondent returned the deposit of $7,000.00 to the Complainant. (xv) the bankruptcy order issued against the Complainant was annulled and the Statutory Demand was set aside. A. DOCUMENTS TENDERRED AT THE HEARING 12. The following Affidavits of Evidence in Chief were filed and referred to at the Hearing: (i) 2022; and (ii) 2022. 13. Both Affidavits of Evidence in Chief AEICs were brief. The merely referred to the ASOF as being true and accurate. The AEIC AEIC also merely confirmed the contents of the ASOF. He had added that he verily believed that his conduct that is the subject matter of these proceedings does not amount to misconduct that warrants sanction pursuant to the Act, and on this basis, he respectfully requested that this Tribunal acquit him of the charges made against him. 11 14. The following bundles were tendered at the Hearing: (i) Agreed Bundle of Documents dated 7 March 2022, which included the ASOF at pages 407-412 (the ABOD (ii) (iii) 2022; (iv) and (v) 2022. B. 15. 2022; SUBMISSIONS At the Hearing, Counsel for the Law Society, Ms Fong, had summarised the salient background facts with some details which were not found in the ASOF. However, mind. Mr Sreenivasan S.C. for the Respondent confirmed that he does not dispute these facts even though they were not in the ASOF.2 In any case, the facts were documented in the ABOD. 16. Law Society of Singapore v Chiong Chin May Selena [2013] SGHC 5 ( Selena Chiong ) wa be sufficiently grave and could be considered to be a breach of an essential duty of an advocate and solicitor such that it is inexcusable and would constitute professional misconduct.3 Ms Fong also cited a textbook authority authored by Jeffrey Pinsler SC.4 2 Transcript for the Hearing, page 32 at line 17 and page 33 at line 2, where Counsel for the Respondent was dealing with the limited issue of the emails of 4 November 2015. 3 [14]. 4 [17]. 12 17. The decision of Zhou Tong v Public Prosecutor Zhou Tong was next referred to. Members of the profession have to be competent and diligent in advising their clients when representing their interests. This fundamental professional responsibility requires every solicitor to thoroughly familiarise himself with the facts , analyse the issues carefully, research the applicable law and then . Professional incompetence and consider how best to indolence are no less a cause for concern as compared with cases of dishonesty. 18. It was submitted that the Commentary on the Legal Profession (Professional Conduct) Rules 2015 at [05.047] summarised what professionalism encompasses in the context of competence and diligence pursuant to rule 5 of the Legal Profession (Professional LPPCR 5 Ms Fong noted that in the same commentary at [05.041], it was said that the duty of reasonable diligence also involved completing work for the client as soon as reasonably possible. It was said that this is also prescribed in rule 17(2)(b) of the LPPCR.6 19. Written Submissions, it was urged that we should make a finding that the do, namely, to set aside the Statutory Demand. He was aware of the deadline as evidenced by the correspondence. Yet, after the Complainant had provided the further information on 4 November 2015 to address the 5 6 [19]. [20]. comments and 13 questions about the background facts relating to her case, there was simply no response from or follow-up by him. It was the Complainant who followed up and sought updates.7 20. queries and requests in a manner that disclosed a lack of care and truthfulness. The following are some instances:8 (i) In his response on 9 November 2015, he said that he was studying [her] case"". (ii) On 10 November 2015, he acknowledged that the deadline to set aside had arrived but merely sought to assure the Complainant that an extension of time could be sought so long as it is filed within a reasonable time (iii) While the Respondent told the Complainant in his email response on 2 December 2015 that he was applying for an extension of time to file the setting aside application, no such step was in fact taken. The Respondent s written explanation dated 26 February 2021 to the Inquiry Panel, had confirmed this fact. (iv) Even up to 18 January 2016, when the Complainant realised that she had been made a bankrupt, it was pointed out that the Respondent had continued to string the Complainant along. There was no attempt on the Respondent to explain the delay. Instead, he sought to pin the blame on the Complainant. 7 8 [22]. 14 21. It was contended that the Respondent was very much aware that the failure to set aside the Statutory Demand could result ina bankruptcy application being taken out against the Complainant. Notwithstanding this, he took no steps to advance the Complainant s case nor to protect her interests beyond the initial enquiry for the chronology and to study the case to have, at the very least, written to the creditor s solicitors to inform them that the Complainant was disputing the debt and would be applying to set aside the Statutory Demand or steps would be taken to apply for an extension of time.9 He was aware of the need to set aside but had simply not made any attempt to prepare the application.10 Court searches were not even done to ascertain if the creditor had commenced bankruptcy proceedings.11 It was argued that the draconian consequences resulting from failure to set aside the Statutory Demand would have left the Complainant irremediably prejudiced. In fact, she was adjudged bankrupt on 24 December 2015 and had to spend the next two and a half years or so instituting proceedings to set aside the Statutory Demand and annul the bankruptcy order made against her. 22. The Law Society also contended that given the scope of the retainer (which was to set aside the Statutory Demand) it was incumbent on the Respondent to make the application, and if necessary, to seek an extension of time to do so. The initial inquiries to understand the case and subsequent silence (apart from furnishing false assurances when pressed for updates) were not sufficient to discharge his professional responsibility.12 9 10 11 12 [24]. 15 23. In respect of the Alternative 1st Charge, Counsel for the Law Society stated that the the retainer (i.e. to set aside the Statutory Demand within the prescribed time) and the gross delay in his management of the case would clearly fall afoul of Section 83(2)(h) of the LPA, given that an LPA.13 24. In respect of the Alternative 2nd Charge, the Law case is that the Respondent failed to keep the Complainant reasonably informed of the application to set aside the failure to apply for extension of time was patently unbefitting of an advocate and solicitor under Section 83(2)(h). He was well aware of the avenue of applying for an extension if he needed more time to understand the matter.14 25. Counsel for the Law Society further noted that the present case bears striking similarity to the cases of Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 Ng Chee Sing and Selena Chiong. In Ng Chee Sing, the Court of Three Judges had found that the solicitor had failed to carry out what he had been instructed to do under his retainer. In Selena Chiong, the respondent had made false representations as to the status of the matter.15 In both cases, the solicitor was found guilty of grossly improper conduct under section 83(2)(b) of the Act and/or misconduct unbefitting of an advocate and solicitor under section 83(2)(h) of the Act. 16 In our case, it was submitted that the Alternative 2nd Charge was similarly made out. 13 14 [38]. [39]. 15 16 Transcript for the Hearing, page 105 at lines 15-18. 16 26. At the Hearing, the Tribunal informed counsel for the Law Society that we were minded to hear arguments for sentencing at the same sitting. Counsel for the Law Society stated that her instructions were to await the outcome before arguing on sentencing. Nonetheless, should the Tribunal find that sanctions were necessary, she submitted that there should at least be a fine, subject to instructions from the Law Society.17 C. 27. SUBMISSIONS At the outset, Counsel for the Respondent stressed that the standard of proof beyond reasonable doubt 18 It was argued that if the Law Society was arguing that there was untruthfulness that elevated the various communications into misconduct, the burden rested on it to prove its case. There should be no adverse inference to be drawn against the Respondent.19 28. It was noted that the necessity of adhering to the criminal standard was because moral censure and professional disapprobation cast upon the solicitor [upon a finding as was stated in Law Society of Singapore v Dhanwant Singh [2020] 4 SLR 736.20 17 Transcript for the Hearing, page 105 at lines 15-18. 18 19 20 Transcript for the Hearing, page 105 at lines 19-22. 17 29. The case of Law Society of Singapore v Harjeet Singh Harjeet that:21 Singh egregious than s 83(2)(h) which was described in Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 not fall within any of the other enumerated grounds but is nevertheless considered 30. Counsel for the Respondent also highlighted that mere negligence does not amount to misconduct and does not warrant sanction under the Act. There are different degrees of negligence. Whether or not a particular degree of negligence amounts to misconduct must be determined by viewing the gravity of the negligent act in the context of the matter whilst taking into account all the circumstances of the case. It was observed in Law Society of Singapore v K Jayakumar [2012] 4 SLR 1232 that an compensation but not censure. The professional lapse must be grave if it is to attract disciplinary sanction (see [1] above). Plainly, several serious lapses in the course of a professional engagement would invite serious consequences, including disciplinary sanction(s). 22 21 22 -[34]. 18 31. does not amount to misconduct that warrants sanction pursuant to the Act. The failure to file the Setting Aside Application and/or the EOT Application was his one lapse and would, at worst, amount to a one-off act of innocent bungling want of skill 23 32. In this regard, the present case can be distinguished from Selena Chiong.24 It was also noted that the respondent in Selena Chiong committed several lapses in her engagement with the complainant. The lapses included providing the complainant with inappropriate advice, failing to advice the client as well as misleading the complainant. The Court of Three Judges had noted that there was a pattern of chronic as a solicitor 33. 25 It was submitted that in contrast, the Respondent here had only committed one lapse, i.e. his failure to file the setting aside application or the application to seek extension of time to do so. Unlike in Selena Chiong, his conduct does not involve the failure to properly advise the Complainant, or misleading her. He was not guilty of any pattern of chronic irresponsibility or problem of attitude. The Respondent had also not attempted to provide excuses for his conduct or justify his actions. He has admitted to the factual averments of these charges. He initiated the filing of the ASOF to assist with streamlining these proceedings so that the Complainant would not be subjected to prolonged proceedings.26 23 24 25 26 s Closing Submissions at [55]. -[57]. [57]. [57]. 19 34. Counsel for the Respondent also submitted that while it is true the Respondent did not do as he had promised, it did not make him dishonest. Counsel for the Respondent specifically referred to an email communication dated 2 December 2015 where he told the Complainant that are applying for extension of time to file the setting aside application. Should not be a problem. Yes, we will send a receipt at the same time when we have prepared all the court papers which you have to sign at our offices on a date to be fixed 27 It was submitted that this email clearly showed that there were still things to be done.28 35. As for the Alternative 2nd the Alternative 1st Charge would apply.29 36. In the circumstances, it was submitted that the Respondent should be acquitted of the Proceeded Charges. 37. In the alternative, should the Tribunal find that one or both of the Proceeded Charges have been proven beyond a reasonable doubt, Counsel for the Respondent submitted that the appropriate punishment for each misconduct unbefitting of an advocate and solicitor would have to depend on the circumstances of the case as a whole. In this regard, Counsel for the Respondent cited several cases that stand for the proposition cases involving grossly improper conduct without dishonesty or deceit will 27 Agreed Bundle of Documents at page 462. Transcript for the Hearing, page 95 at line 8. 29 [66]. 28 20 generally attract a monetary penalty 30 He also reserved his right to file a mitigation plea at the appropriate juncture, if necessary.31 38. Mr Sreenivasan SC urged the Tribunal to apply Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390.32 He argued that no cause of sufficient gravity exists, as the present case does not fall within the category of the of complaints that should be referred to the Court of Three Judges.33 39. Instead, it was submitted that a reprimand or a fine should be imposed. Notably, the fine, if imposed, should be on the lower-end.34 The reasons for his submissions are as follows: (i) The charges are closely connected and arise out of the same transaction; (ii) The Complainant terminated her engagement with the Respondent shortly after she found out that a Bankruptcy Order had been made against the Respondent. The Respondent therefore did not have the opportunity to remedy the situation; (iii) The Respondent received no financial advantage. He returned to the Complainant the Deposit paid and did not charge the Complainant for any work done; 30 31 32 Respondent's Bundle of Authorities, Tab 11. 33 34 Transcript for the Hearing, page 99 at line 24. 21 (iv) The Bankruptcy Order was eventually annulled and the Statutory Demand set aside; (v) The motive of the Complainant is called into question. The Complaint was filed more than two years after the Bankruptcy Order had been annulled and the Statutory Demand set aside, and almost five years after the Bankruptcy Application had been filed. The Complainant had not offered an explanation as to why there was an inordinate delay in the filing of the Complaint. Any complaint she wished to make ought to have been filed earlier; (vi) No allegations of dishonesty have been raised against the Respondent; (vii) The Respondent has no antecedents; and (viii) In admitting to the factual averments of the Proceeded Charges, the Respondent has not unnecessarily prolonged these proceedings but has instead shown remorse. The main question before the Tribunal is whether the facts as adduced from the documents in the ABOD and the ASOF are sufficient to establish that the Respondent is guilty of misconduct unbefitting on advocate and solicitor as alleged in the Proceeded Charges. Burden of Proof 40. At the outset, Counsel for the Respondent submitted that even if the evidence before us would have established negligence on the part of the Respondent, they are 22 insufficient to find him guilty of misconduct unbefitting of an advocate and solicitor Act 41. The burden of proof is on the Law Society to establish that the documents would prove not merely negligent but such that it would amount to misconduct unbefitting of an advocate and solicitor. 42. The Law Society on the other hand contended that the evidence is clear that the Respondent was guilty of misconduct unbefitting of an advocate and solicitor. He had failed to apply to set aside the Statutory Demand made against his client and to apply for an extension of time after the deadline to set aside the Statutory Demand had passed. This resulted in a Bankruptcy Order being made against the Complainant. 43. It is trite law that the standard of proof is to show that the Respondent was guilty of the charges beyond reasonable doubt. 35 We would refer to the case of Public Prosecutor v GCK and another matter [2020] 1 SLR 486 where it was held as follows:36 conceptualised in two ways. First, a reasonable doubt may arise from within the case mounted by the Prosecution. As part of its own case, the Prosecution must adduce sufficient evidence to establish the accused guilt beyond a reasonable doubt on at least a prima facie basis. Failure to do so may lead to a finding 35 36 Law Society of Singapore v Wan Hui Hong James [2013] 3 SLR 221 at [50]. Public Prosecutor v GCK and another matter [2020] 1 SLR 486 at [149]. 23 that the Prosecution has failed to mount a case to answer, or to an acquittal. In those situations, the court must nevertheless particularise the specific the threshold of proof beyond a reasonable doubt. (f) case, not been able to discharge its overall legal burden. (g) The second way in which a reasonable doubt may arise is on an assessment of the totality of the evidence. The inquiry here is intimately preferred over the evidence put forth by the accused person where it is a case (h) The assessment of the evidence under the standard must be made with regard to the totality of the evidence, which logically includes the case mounted by the Defence. The evaluative task is not just internal to the case, but also comparative in nature. Where the evidential burden lies on the Defence and this has not been discharged, the court may find that the Prosecution has discharged its burden 24 of proving its case against the accused person beyond a reasonable doubt. At (i) What the Defence needs to do to bring the case below the requisite threshold is to point to such evidence as would generate a reasonable doubt. That evidence need not necessarily be raised by the Defence; what matters is that a (emphasis added) 44. Thus, the burden on the Law Society is to adduce sufficient evidence which must establish the guilt beyond a reasonable doubt on at least a prima facie basis and that the Respondent has to show at the end of the trial that a reasonable doubt exists on the evidence adduced. Did the acts and/or omissions of the Respondent amount to misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession? 45. With that in mind, we proceed to examine and assess the facts and evidence before us in order to arrive at our decision. 46. The Proceeded Charges were both made under s 83(2)(h) of the Act. In this regard, the Tribunal is mindful that in the case of The Law Society of Singapore v Harjeet Singh [2016] SGDT 9, it was stated that s 83(2)(h) is a catch all provision which can 25 be invoked when the conduct does not fall within any of the other enumerated grounds but is nevertheless considered unacceptable 47. The Tribunal accepts the 37 contention that there are degrees of negligence and whether a particular degree of negligence amounts to misconduct must be determined by viewing the gravity of the negligent act in the context of the matter whilst taking into account all the circumstances of the case. 38 Not all cases of negligence support a finding of due cause.39 Innocent bungling which prejudices the grave nature. Several serious lapses would invite disciplinary sanction. 48. We would therefore examine the undisputed material, correspondences and other documents contained in the ABOD read with the ASOF to evaluate if the conduct was just mere negligence or whether it was sufficiently grave to amount to misconduct on the part of the Respondent in the discharge of his professional duty. 49. On 31 October 2015, the Respondent had requested for documents, information and a study, then to do legal research and then draft affidavit. Fighting a case is not like making instant noidle. It has to be carefully thought over and researched. 40 37 38 Re Lim Kiap Khee; Law Society of Singapore v Lim Kiap Khee [2001] 2 SLR(R) 398 at [19]. Law Society of Singapore v K Jayakumar Naidu [2012] 4 SLR 1232 at [79]. 40 ABOD at page 424. 39 26 50. On 1 November 2015, the Complainant responded to the Respondent in an email, providing whatever responses she could to the Respondent.41 51. On 2 November 2015, the Respondent emailed the Complainant, raising further questions on the chronology provided in the Compla 201542 and commented on the insufficiency of the chronology:43 Simply put, the chronology of facts you have given to me has too many unexplained holes and lacks sufficient details. Accordingly, at the moment, such a chronology is not very helpful in the preparation of your application to set aside the statutory notice of demand in bankruptcy against you. You need to work harder on the chronology, recall and remember important facts, names, terms of discussion and dates otherwise the court will not believe what you say as there is no credibility in what you say unless the said holes are plugged and the details provided 52. He further emphasised in the same email:44 ACCORDING TO YOU, YOU WERE SERVED WITH THE BANKRUPTCY STATUTORY DEMAND ON 27 OCTOBER 2015, ACCORDING TO THE LAW YOU HAVE 14 DAYS TO APPLY TO SET ASIDE THE STATUTORY DEMAND IE. TO SET IT ASIDE BY 10 NOVEMBER 2015. 41 ABOD at page 426. ABOD at page 431. 43 ABOD at page 432. 44 ABOD at page 432. 42 27 53. On 4 November 2015 at 1.44pm, the Respondent sent an email to the Complainant, proceed to do her best and reply 54. 45 On the same day, the Complainant replied to the Respondent in 2 emails, one at 1.51pm and the other at 11.22pm,46 which sought to provide the Respondent with the further information he had requested for. In these emails, she notably stated that she would provide the Respondent the slips and loan agreement between her and one Sheraz in later emails. 55. On 4 November 2015 at 11.53pm, the Complainant forwarded to the Respondent an email she had previously received on 14 May 2015 from the law firm representing Sheraz, which had forwarded a Supplementary Agreement for her comments.47 In the for applying the credit line with bank of China be of help. It is unclear however whether a copy of the said company contract was in fact forwarded to the Respondent at all as there was no record of such a document in the ABOD. 56. On 5 November 2015 at 11.15am, the Respondent asked the Complainant if the loan agreement was connected to the loan given to the Complainant by ABKL.48 57. On 9 November 2015, the Complainant sent a WhatsApp message to the Respondent in relation to another matter unrelated to the case. At the same time, however, she 45 ABOD at page 435. See ABOD at page 436-442. 47 ABOD at page 444. 48 ABOD at page 452. 46 28 enquired about her case. To this query, the Respondent specifically responded that he studying your case 58. 49 Up to this point, we find that all the Complainant was told was that the Respondent that neither the Setting Aside Application nor the EOT Application was ever made.50 Further, no drafts of either the Setting Aside Application or EOT Application were ever shown to have been prepared during the period he was acting for her. 59. It ought to be borne in mind that the Respondent was at all times fully aware that the deadline was 10 November 2015. Yet, a day before the deadline, when the And how about my case? Studying your case 60. Thus far, the evidence had not shown any sign of concern or urgency on the Studying your case responsible lawyer faced with a situation where time will run out the next day. We find that this conduct is not what is expected of an advocate and solicitor tasked with consequence after time runs out. In the circumstances, we do not accept that the the 49 50 ABOD at page 71 Agreed Statement of Facts at [15]. 29 Respondent as submitted by Mr Sreenivasan, SC. We are satisfied that the conduct was grave enough to amount to misconduct unbefitting of an advocate and solicitor. 61. Counsel for the Respondent had, in his submissions, also attempted to characterise the Respondent as having [dropped] the ball only on 2 December 2015.51 We disagree. viewed as a whole. We do not accept that he the only from 2 December 2015 onwards. In any case, we find that his conduct and attitude towards the Comp the queries of the Complainant on the status of the matter to the time the Complainant terminated his services. 62. On 10 November 2015 (i.e. the date of the deadline to set aside the Statutory Demand), today is the last day for us to file in and put aside right? [correct] but not to worry we can apply for extension of time so long as it is filed within a reasonable period 52 63. From this reply, we note that: (i) There was simply no urgency shown by the Respondent right up to 10 November 2015. 51 52 Transcript of the Hearing, page 92 at lines 13-26. ABOD at page 454. 30 (ii) His conduct throughout his engagement was to say the least, lackadaisical. In particular, he told the Complainant not to worry as he could apply for an extension of time giving the impression that such an extension would be granted as a matter of course. This amounted to an assurance to the Complainant that so long as an application to extend time is made within a reasonable period of time, there is no cause to worry. We are unable to accept this as mere negligence. As an experienced lawyer, the Respondent ought to know that an extension of time is granted at the discretion of the Court and that it would depend on the reasons given to convince the Court to exercise the discretion in favour of the applicant. (iii) serious consequences that would follow if the extension of time was not granted and the Statutory Demand not set aside. Furthermore, there was no evidence adduced to show that the Respondent had even initiated a search to determine if ABKL had taken steps after the expiry of the Statutory Demand deadline to enforce it. There was not even a suggestion or an attempt made to write to the solicitors acting for ABKL on the matter to state the case or to ask for time to respond. 64. The same pattern of conduct continued well after 10 November 2015. On 28 November 2015 (i.e. 18 days after the deadline to set aside the Statutory Demand had expired), the Complainant sent a WhatsApp message to the Respondent as she had not 31 heard from him, to request for updates on her case. There was no response to this message.53 65. Morning Gregory, do you response.54 have time to talk 66. On 1 December 2015, the Complainant once again messaged the Respondent, requesting an update regarding the Statutory Demand. This time, the Respondent For your setting aside, not yet"".55 The Complainant thereafter enquired if there wa the setting aside this message.56 67. On 2 December 2015 at 5.12pm, the Complainant sent an email to the Respondent, requesting a receipt for her fee payment of $7,000.00 and again asked whether there was a deadline for setting aside the Statutory Demand. 57 He responded to this email on the same day at 5.51pm, stating that he was applying for an extension of time which not be a problem receipt all the court papers which [she would] have to sign at [his] offices on a date to be fixed 68. all the court papers 58 We find that this response gave the impression that the Respondent was ready to proceed with the matter and that the relevant court papers would soon be ready for the 53 ABOD at page 455. ABOD at page 455. 55 ABOD at page 455. 56 ABOD at page 456. 57 ABOD at page 461. 58 ABOD at page 462. 54 32 Complainant to sign. However, as stated previously, the evidence before the Tribunal has showed that in fact no court papers were prepared nor were they sent to the Complainant even though the Respondent had stated he would have them at his office for her to sign on a date to be fixed. 69. After 2 December 2015, there appears to be no further communication between the Complainant and the Respondent until 15 January 2016 when the Complainant emailed the Respondent requesting him to set aside the Statutory Demand immediately.59 70. On 18 January 2016, by an email timestamped 12.50pm, the Complainant terminated had her phone line cut off and her bank account suspended because of his negligence. She also noted in the same email that:60 You have not even had the courtesy to respond to my email of 15 January and my registered letter dated 16th January. I am most disappointed by your derelict attitude. 71. stated that it was defamatory of the Complainant to accuse him of negligence. He accepted the termination of his services and agreed to return the $7,000.00 deposit paid to him.61 59 ABOD at page 463. ABOD at page 464. 61 ABOD at page 466. 60 33 72. and unwavering. The Respondent was engaged to set aside the Statutory Demand. This is shown from the instructions from the time the Respondent was first appointed to act for her62 and throughout the entire retainer period.63 Both the EOT Application and Setting Aside Application are inextricably linked and the whole. 73. We find that while the Respondent was correct to seek further information from the entirely coherent thereby contributing to his inability to prepare the Court papers, it would still be the Re proceed in good time. We find instead that it was in fact the Complainant who was making regular inquiries on the state of the application with no meaningful response received from the Respondent. This was conceded by the Respondent. 64 He had repeatedly assured the Complainant that he was in the midst of preparing the necessary court papers, giving no impression that anything more was needed from the Complainant.65 Therefore, on the assumption that the information provided by the Application and the EOT Application forthwith on an urgent basis in view of the tight timeline. On the evidence before us, it was clearly shown that he had taken absolutely no action right up to the date his engagement was terminated. 62 ASOF at [4]. ASOF [11]64 ABOD at page 379-380. 65 ABOD at pages 453, 462 and 466. 63 34 74. Furthermore, even if the Respondent was unaware of the bankruptcy proceedings filed against the Complainant,66 it is clear that he had not even made an effort to establish if a bankruptcy application had been filed after the deadline had passed. This was admitted by Counsel for the Respondent.67 We are of the view that the Respondent ought to have known that bankruptcy proceedings would be the next step to be taken by ABKL (on 15 January 2016 at the latest) if they receive no response from the Complainant. An urgent search would reveal the status of the matter at the material time.68 75. If negligence is involved, the Tribunal agrees with the Respondent that there is always a need to discern and differentiate the various degrees of negligence, taking into account all the facts of the case69 and that the degree of negligence must still be found to be sufficiently grave for the purposes of a finding of misconduct under s 83(2)(h) of the Act. Otherwise, every negligent act or omission would be tantamount to misconduct unbefitting of an advocate and solicitor. 76. The Court of Three Judges in Selena Chiong provided helpful guidance of the standard required for a charge under s 83(2)(h) of the Act: we do have some difficulties in relation to the misconduct complained of in the first and second charges, which misconduct smacks more of incompetence, disorganisation or lack of care on the part of Chiong rather than any deliberate 66 67 Transcript of the Hearing, page 58 at lines 12-13. en Submissions at [25]. ABOD at page 466. 69 Re Lim Kiap Khee; Law Society of Singapore v Lim Kiap Khee [2001] 2 SLR(R) 398 at [19]. 68 35 would be more appropriate to regard the misconduct set out in the first and second charges as unbefitting of an advocate and within the meaning of s 83(2)(h) of the (emphasis added) 77. In a similar vein, the High Court in Zhou Tong stated that professional incompetence and indolence is a cause for concern. It is indeed a fundamental responsibility of the conscientiously and conscionably.70 We are of the view that the Respondent had failed the test in the present case. 78. We also agree with Counsel for the Respondent that unlike the respondent in Selena Chiong, the Proceeded Charges in our case do not involve any failure to advise the Complainant, the failure to appropriately advise the Complainant or misleading the Complainant.71 The irresponsibility displayed by the respondent in Selena Chiong case 79. However, this does not amount to misconduct under the Proceeded Charges. As established in Selena Chiong, a lack of care and incompetence, despite not being deliberate, can still amount to misconduct unbefitting of an advocate and solicitor within the meaning of s 83(2)(h) 70 71 Zhou Tong v Public Prosecutor [2010] 4 SLR 534 at [1]. 36 of the Act. In this regard, we find that his failure in acting competently for the negligence can be said to be relatively short as he was on retainer from 28 October 2015 to 18 January 2016, the point to emphasise is that he did fail to file the Setting instructions knowing all along the consequences that would follow should he fail to do so on time. For that, we find that the Respondent displayed a total lack of care of time should not present a problem.72 The Respondent was irresponsible to give the impression to the Complainant that an extension of time would be granted if it was applied for within a reasonable time without advising her that it has to be on grounds acceptable to the Court. 80. Similarly, the Respondent had failed to keep the Complainant reasonably informed about her case at least from on or around 6 November 2015 onwards. Notably, the Respondent did not provide any updates to the Complainant after he replied to her chaser on 10 November 2015 (i.e. the period from 11 November 2015 to 30 November 2015).73 This was in spite of the fact that there was a real possibility of bankruptcy proceedings being commenced as the deadline for the Setting Aside Application was due to expire on 10 November 2015. In our view, this period of silence from the Respondent was inexcusably lengthy and puts the Complainant at risk of being made a bankrupt. 72 73 ABOD at page 462. ASOF at [11]-[12]. 37 81. For completeness, we note that Counsel for the Law Society appeared to be hinting at an element of dishonesty specifically at the Hearing, and untruthfulness in relation to Application.74 In response, Counsel for the Respondent pointed out that any untruthfulness all the court papers 75 Similarly, he had sent a Whatsapp message to the Complainant on 4 Dece will complete drafting all court papers and call [her] when [he was] ready 76 82. We find that an allegation of untruthfulness is a grave accusation against a solicitor. However, we are unable to make a finding of fact in respect of the state of mind relating to untruthfulness solely by reference to the documents and without cross-examination of the Respondent. In any event, we find that it is unnecessary to find untruthfulness against the Respondent for the purposes of the Alternative 2nd Charge. The fact is that no such Court papers were produced and we are satisfied that the Respondent had by his own admission no further excuse to allege that he needed further information in order to draft the court papers. 83. In the light of our findings, we are satisfied that the Proceeded Charges (i.e. the Alternative 1st Charge and the Alternative 2nd Charge) have been proven beyond a reasonable doubt and that the Respondent is guilty as charged. 74 Transcript for the Hearing, page 77-79 and 103. Transcript for the Hearing, page 93-94. 76 ABOD at page 150. 75 38 APPROPRIATE SENTENCE 84. determination under either s 93(1)(b) or (c) of the Act. 85. Counsel for the Respondent helpfully drew our attention to the decision of the Court of Three Judges in Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 in which the function of a Disciplinary Tribunal was set out: sorts, thereby ensuring that only the most serious complaints are referred to the court of three Judges... the Disciplinary Tribunal may find that the conduct of the advocate and solicitor concerned does fall within one or more of the limbs of s 83(2).. but feels that the conduct itself, whilst technically within the ambit of one or more of these limbs sanction pursuant to s 93(1)(b) of the Act 86. 77 Here, we are of the view that even though we find that the Respondent is guilty as charged, we would agree with Counsel for the Respondent that the present case does not fall within the category of the most serious of complaints.78 Indeed, we accept that Law Society. 77 78 Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 at [28] and [39]. 39 87. We have considered the mitigating factors raised by Counsel for the Respondent. The Respondent did not gain financially from this incident. He had no prior antecedents. We are mindful that any form of dishonesty and/or untruthfulness has not been established beyond reasonable doubt. Plainly, in the short period of his retainer, the Respondent was negligent and had displayed a lack of professionalism in the way he expected of an advocate and solicitor. 88. We also note that the actions had caused the Complainant suffering and inconvenience as she was adjudged a bankrupt. Bankruptcy is undoubtedly a traumatic experience and the Complainant must have suffered during her period of bankruptcy. However, to attribute the lengthy period of suffering (approximately 2.5 years of bankruptcy) solely to the Respondent is unjustifiable. No evidence was adduced to explain why it had taken approximately 2.5 years for the bankruptcy order to be annulled.79 89. In light of all our findings, and pursuant to s 93(1)(b)(i) of the Act, we determine that while no cause of sufficient gravity for disciplinary action exists under s 83 of the Act, the Respondent should be ordered to pay a penalty of $5,000.00, which in our view is sufficient and appropriate to the misconduct committed 90. Pursuant to s 93(2) of the Act, we award costs of $2,500.00 to be paid by the Respondent to the Law Society. 79 Transcript for the Hearing, pages 99-100. 40 Dated this 27th day of June 2022 Mr Giam Chin Toon, SC President Mr Teo Weng Kie Member ",2023-04-08T04:00:51+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2023/,"In the Matter of Ong Lian-Yi Gregory (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2023/",961 4,f63bd052ac053b01ac1e75de9a98e66d380ac856,"In the Matter of Clarence Lun Yaodong (Respondent), Advocate & Solicitor","In the Matter of Clarence Lun Yaodong (Respondent), Advocate & Solicitor The Council of the Law Society referred information relating to the conduct of the Respondent pursuant to section 85(2) of the Legal Profession Act (LPA). Between October 2019 and January 2020, the Respondent offered training contracts to two individuals, one Mr Lim Teng Jie (Mr Lim) and one Ms Trinisha Ann Sunil (Ms Sunil). The Respondent was not, at any material time, qualified to act as a supervising solicitor pursuant to rule 18 of the Legal Profession (Admission) Rules 2011. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Siraj Omar SC and Mr Tan Jee Ming as DT member to investigate the complaint. Five charges (and its alternatives for the First, Second, Fourth and Fifth Charges) were preferred against the Respondent: First Charge (Alternative First Charge under Section 83(2)(h) of the LPA) For improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Legal Profession Act (Chapter 161) (LPA), in that the Respondent had failed to ensure Mr Lim and Ms Sunil, who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, were supervised by a supervising solicitor who had in force a practising certificate for a total of not less than five out of seven years immediately preceding the date of the supervision of each of the said practice trainees, in breach of Rule 36(2)(a)(ii) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge (Alternative Second Charge under Section 83(2)(h) of the LPA) For contravening Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011, by being the supervising solicitor during the practice training periods of Mr Lim and Ms Sunil, who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, while having in force a practising certificate of a period of less than five out of the seven years immediately preceding the date of the commencement of the Respondent’s supervision of Mr Lim and Ms Sunil, which warrants disciplinary action within the meaning of section 83(2)(j) of the LPA. Amended Third Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, by behaving in a manner inconsistent with the public interest by being the supervising solicitor during the practice training periods of Mr Lim and Ms Sunil, who were practice trainees under separate practice training contracts with Foxwood LLC, when not having in force a practising certificate of a period of not less than five out of the seven years immediately preceding the date of the commencement of the Respondent’s supervision of Mr Lim and Ms Sunil as required under Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011. Fourth Charge (Alternative Fourth Charge for a Breach of Rule 8(3)(b) PCR) For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, by taking unfair advantage of Ms Sunil by demanding that she pay Foxwood LLC the sum of $2,000 when this sum was not recoverable by due process of law, in breach of Rule 8(3)(a) of the PCR. Fifth Charge (Alternative Fifth Charge for Acting in a Manner Contrary to Position as a Member of an Honourable Profession in Breach of Rule 8(3)(b) of the PCR) For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, by acting in a manner which was deceitful by representing to Mr Lim, a practice trainee of Foxwood LLC, that by May 2020 the Respondent would meet the requirements under Rule 18(1) of the Legal Profession (Admissions) Rules 2011 to be Mr Lim’s supervising solicitor during his practice training period when the Respondent knew this to be false, in breach of Rule 8(3)(b) of the PCR. Findings and Determination of the DT, Council’s Sanctions The DT found that the First Charge, Second Charge, Alternative First Charge, Alternative Second Charge and Third Charge, were made out. The Fourth Charge, Alternative Fourth Charge, Fifth Charge, and Alternative Fifth Charge were not made out. The DT cited the principle in Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR(R) 320 (Selena Chiong) whereby all solicitors ought to be familiar with the rules made under the LPA, and will be deemed to be aware of their existence and applicability. It followed that each advocate and solicitor bore personal responsibility to ensure that the applicable rules of practice are strictly adhered to in all areas of his/her practice. The DT found that there was cause of sufficient gravity for the matter to be referred to the Court of Three Judges (C3J): Under section 83(2)(b) of the LPA in respect of the First Charge; Under section 83(2)(j) of the LPA in respect of the Second Charge; Under section 83(2)(h) of the LPA in respect of the Alternative First Charge, Alternative Second Charge and the Third Charge. The Respondent was further ordered by the DT to pay the Law Society’s costs. Council accepted the findings and recommendations of the DT and accordingly referred the matter to the C3J. The C3J found that due cause was proved under section 83(2)(j) of the LPA on the Second Charge. The C3J “agreed with the DT that the respondent “simply did not care whether there were any rules and, if so, what they were.” The Respondent was suspended for 18 months with effect from 7 November 2022, and it was ordered for costs of $10,000 to be paid by the Respondent.* To access the full report, click here. *The decision of the C3J can be found in Law Society of Singapore v Clarence Lun Yaodong [2022] SGHC 269. ",https://lawgazette.com.sg/wp-content/uploads/2023/03/dtr_mar_2023_c.pdf,"DT 13 OF 2021 IN THE MATTER OF CLARENCE LUN YAODONG AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT 1966 REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal: Siraj Omar, S.C. – President Tan Jee Ming – Advocate Solicitors for The Law Society of Singapore Solicitors for the Respondent Mr Sarbjit Singh Chopra / Mr Roshan Singh Chopra (Selvam LLC) Mr Mark Seah / Mr Lau Wen Jin (Dentons Rodyk & Davidson LLP) Dated this 22nd day of March 2022 Introduction 1. The Law Society of Singapore (the “Law Society”) brought five charges against Mr Clarence Lun Yaodong (the “Respondent”)1, a solicitor of 8 years’ standing as at the commencement of these proceedings in 2021. 2. The Respondent admits that he had purported to act as the supervising solicitor for two individuals, Mr Lim Teng Jie (“Mr Lim”) and Ms Trinisha Ann Sunil (“Ms Sunil”), at different periods during their practice training at Foxwood LLC between October 2019 and January 2020.2 The Respondent admits that he was not qualified to act as a supervising solicitor during the material time3 and the fact that he purported to do so is a clear breach of Rule 18(1) of the Legal Profession (Admission) Rules 2011 (the “Admission Rules”). The charges levied against him in these proceedings arise from those breaches as well as events which are alleged to have occurred after those breaches were discovered. 3. Having carefully considered the facts of the case, the evidence of the witnesses and the parties’ respective submissions, we find that: (a) Cause of sufficient gravity for disciplinary action exists: (i) under Section 83(2)(b) of the Legal Profession Act (Cap. 161, Rev Ed 2009) (the “Act”) in respect of the First Charge (as defined below); 1 2 3 The Law Society’s Closing Submissions (“LSCS”) [31]. The Respondent’s Closing Submissions (“RCS”) [1]. RCS [1]. 1 (ii) under Section 83(2)(j) of the Act in respect of the Second Charge (as defined below); and (iii) under Section 83(2)(h) of the Act in respect of the Alternative First Charge, the Alternative Second Charge and the Third Charge (all as defined below), and (b) The Fourth, Alternative Fourth, Fifth and Alternative Fifth Charges (all as defined below) were not made out. 4. We set out our grounds below. We deal first with the Second Charge, which the Law Society described as setting out “the crux of the misconduct of the Respondent”4. We then deal with the First Charge and remaining three charges in numerical order. The Second Charge and Alternative Second Charge 5. The Second Charge alleges: 5 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of contravening Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011, by being the supervising solicitor during the practice training periods of [Mr Lim] and [Ms Sunil], who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, while having in force a practicing certificate of a period of less than 5 out of the 7 years immediately preceding the date of the commencement of your supervision of Mr Lim and [Ms Sunil] which warrants disciplinary action within the meaning of Section 83(2)(j) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 4 5 The Law Society’s Statement of Case (Amendment No. 2) (the “SOC”) page 8. SOC page 13. 2 6. The Law Society also alleged in the alternative that the conduct described in the Second Charge amounted to “misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession” within the meaning of Section 83(2)(h) of the Act (the “Alternative Second Charge”).6 7. To succeed in these charges, the Law Society must establish that (a) Mr Lim and Ms Sunil were practice trainees serving their respective practice training periods under separate training contracts with Foxwood LLC, (b) the Respondent purported to act as their supervising solicitor during their respective practice training periods, and (c) the Respondent was not qualified to do so by reason of not having a valid practicing certificate for at least five out of the seven years immediately preceding the respective commencement dates of Mr Lim’s and Ms Sunil’s training contracts. 8. Each of these facts are admitted. The Respondent admits that he acted as Mr Lim’s supervising solicitor “with effect from 16 December 2019” and as Ms Sunil’s supervising solicitor “with effect from 2 January 2020”.7 He also admits that he held a practicing certificate for a total of only two years and 10 months as at 1 October 2019.8 9. Rule 18(1) of the Admission Rules prohibits a solicitor from acting as a supervising solicitor of a practice trainee unless (i) he is in active practice in a Singapore law practice, and (ii) has had in force a practicing certificate for a total of “not less than 5 out of the 7 years immediately preceding the date of commencement of his supervision of the practice trainee”. 6 7 8 SOC page 14. Defence [10] read with SOC [15]. Defence [9] read with SOC [14]. 3 10. There is therefore no question that the Respondent has breached Rule 18(1) of the Admission Rules. The only question therefore is whether his conduct warrants disciplinary action within the meaning of Section 83(2)(j) of the Act for the purposes of the Second Charge and/or amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession for the purposes of the Alternative Second Charge. 11. The Respondent submits that both questions ought to be answered in the negative.9 We shall deal with each of his arguments in turn. Alleged mitigating circumstances 12. The Respondent points to what he describes as mitigating circumstances. First, he says that he admitted to having acted as supervising solicitor for Mr Lim and Ms Sunil “even though an alternative would have been to argue that they had in fact no Supervising Solicitor”, and that his admission therefore “resolved this issue in [the Law Society’s] favour, even though the position was ‘grey’, stepping up to shoulder the blame”.10 13. During oral closing arguments, the Respondent’s counsel clarified that the Respondent’s argument was simply that he could have argued that there was no supervising solicitor in law – i.e. as defined under the Act.11 However, this argument also does not take him very far. The fact there was no supervising solicitor for the purposes of the Act is undeniable given that the Respondent did not satisfy the requirements under the Act. The critical fact is that he admits to having acted as Mr Lim’s and Ms Sunil’s supervising RCS [59]. RCS [46]. 11 Transcript 7 Dec 2021, 42(9) to 44(6). 9 10 4 solicitor despite not having satisfied the requirements under the Act. This is the very substance of the breach before us. 14. The Respondent appeared to us to be seeking credit for admitting that he had acted as supervising solicitor for Mr Lim and Ms Sunil – i.e. for telling the truth. Telling the truth is not mitigatory – it is the absolute minimum expected of any advocate and solicitor. To claim that he ought to be given credit for not arguing that Mr Lim and Ms Sunil had no supervising solicitor (an argument that he must know to be false given his pleaded admission) is an appalling submission, and one which we completely reject. 15. Second, he argues that the responsibility for ensuring that the practice trainees taken in by Foxwood LLC are properly supervised is shared between the Respondent and Foxwood LLC’s sole director at that time Mr Goh Keng How (“Mr Goh”).12 He argues that it would therefore be unfair to pin the effect of this “lapse” solely on him. 16. Indeed, the Respondent appears to suggest that Mr Goh should bear most of the blame for alleged systemic regulatory and compliance failures at Foxwood LLC.13 He argues that Mr Goh was “responsible for regulatory and compliance matters”14 but (i) “did not raise any concerns regarding regulatory compliance”15 despite the Respondent having kept him in the loop on the hiring of practice trainees, and (ii) “failed to provide any form of guidance or policy relating to the employment of trainees”16 by Foxwood LLC. 17. Mr Goh testified on behalf of the Law Society. He admitted that he had not familiarized himself with the Admission Rules and was not aware that the Respondent was not RCS [47]. RCS [48]. 14 Ibid. 15 Ibid. 16 Ibid. 12 13 5 qualified to act as supervising solicitor for Mr Lim and Ms Sunil. It was also patently clear to us from Mr Goh’s testimony that he was not someone who placed a great deal of importance on the need to comply strictly with the applicable rules and regulations governing practice. 18. However, Mr Goh’s conduct is not the subject of these proceedings. Even if Mr Goh’s conduct had fallen below the standard expected of advocates and solicitors (on which issue we make no finding), it does not mitigate the Respondent’s culpability. 19. The Law Society correctly highlighted that all solicitors ought to be familiar with the rules made under the Act and will at any rate be deemed to be aware of their existence and applicability: Law Society of Singapore v Chiong Chin May Selena (“Selena Chiong”).17 It follows therefore that each advocate and solicitor bears personal responsibility to ensure that the applicable rules of practice are strictly adhered to in all areas of his practice. 20. It was incumbent on the Respondent to familiarize himself with the relevant rules governing his practice as an Advocate and Solicitor. In particular, he ought to have familiarized himself with the rules governing the supervision of practice trainees before hiring Mr Lim and Ms Sunil as practice trainees. He ought, at the very least, to have satisfied himself that he met the statutory requirements for being a supervising solicitor. 21. The Respondent patently failed to do so – he admits he failed to familiarize himself with the relevant rules relating to being a supervising solicitor.18 Indeed, the evidence before us suggests that he simply did not care whether there were any rules and, if so, what 17 [2005] 4 SLR(R) 320, referred to at LSCS [48]. 18 Transcript 17 Dec 2021, 26(29) to 27(2). 6 they were. He claimed that he assumed that someone in the firm (presumably Mr Goh) would have told him if what he proposed to do contravened any applicable rules. That argument does not assist him. The onus was on him to ensure he complied with all relevant rules and regulations governing his practice. His failure to do so is not mitigated by any failing on the part of Mr Goh or anyone else in the firm. 22. Third, he claims that he always believed that “he had a shield” on regulatory issues – namely, that Mr Goh “would take care of regulatory and compliance issues”.19 This is essentially the same argument as above and is rejected for the same reasons. 23. Fourth, the Respondent claims that he did “all he could to rectify the mistake and alleviate the situation for [Mr Lim]”20 by trying “to find solutions to [Mr Lim’s] predicament”21. Mr Lim did not agree that the Respondent had been of much help in resolving the predicament he found himself in. However, while we are prepared to accept that the Respondent did take some steps to try and help, we do not think these steps have much mitigatory value. Mr Lim eventually secured a training contract with another firm through his own endeavors and not because of anything that the Respondent did. 24. We therefore find that none of the alleged mitigatory circumstances raised by the Respondent are of any assistance to him in diminishing his culpability. 19 20 21 RCS [49]. The Respondent’s AEIC, at [51]. The Respondent’s AEIC, at [54]. 7 The Respondent’s state of knowledge 25. The Law Society argues that the Respondent was aware from “at least November 2019”22 that he did not meet the requirements to act as a supervising solicitor for trainees. This is a serious allegation. If true, it would mean the Respondent knew he did not satisfy the requirements under the Act before either Mr Lim or Ms Sunil commenced their training period. It would also mean that the Respondent had deliberately ignored the provisions of the Admission Rules and then dishonestly alleged in these disciplinary proceedings that the breach had been inadvertent. 26. The Law Society relies on the evidence of Mr Tan Yong Xian, Selwyn (“Mr Tan”) and Mr Giam Zhen Kai (“Mr Giam”). Both Mr Tan and Mr Giam are Advocates and Solicitors. Mr Tan practiced at Foxwood LLC between September 2019 and April 2020. Mr Giam practiced at Nair & Co. LLC with the Respondent from February 2019 before moving with the Respondent to Foxwood LLC in July 2019 and practicing there until November 2019. 27. Mr Tan’s evidence was that when he learnt that two practice trainees would be joining Foxwood LLC’s dispute resolution team in December 2019, he “had some concern that [the Respondent] would be the supervising solicitor for these [two] trainees” since he was the only partner who handled litigation and dispute resolution at the firm.23 28. Mr Tan said that these concerns prompted him to check the applicable rules and the Respondent’s LinkedIn profile, and that he then concluded that “it was unlikely that [the Respondent] would be able to meet the criteria” under the Rules. He said that during a break in trial proceedings sometime in November 2019, he had highlighted the 22 23 LSCS [42]. Affidavit of Evidence-in-Chief of Tan Yingxian, Selwyn (“Mr Tan’s AEIC”), at [8] and [9]. 8 applicable rules to the Respondent and had “asked [the Respondent] directly if he had sufficient years of practice with a practicing certificate in force to supervise trainees”. Mr Tan said that Respondent had replied that “there would be ‘no issue’” and that Mr Goh would be the trainees’ supervising solicitor. 24 29. Mr Giam testified that soon after he joined Nair & Co. LLC in February 2019, he was told that the reason Mr Suresh Nair was his supervising solicitor (and not the Respondent) even though he spent “the vast majority of [his] practice training period assisting [the Respondent]” was because the Respondent was not qualified to act as supervising solicitor.25 30. Mr Giam said that during the period when the Respondent was considering joining various other firms, the Respondent had assured him that his practice training “would not be affected as [the Respondent] would be able to assign qualified persons to be [his] supervising solicitor in those firms”.26 31. Mr Giam also said that he had accompanied the Respondent to interview Mr Lim sometime in early October 2019, and that he had asked the Respondent shortly after the interview whether the Respondent would be Mr Lim’s supervising solicitor. Mr Giam said the Respondent replied that “he would not be Mr Lim’s supervising solicitor and that one of the other partners of Foxwood LLC would be named as Mr Lim’s supervising solicitor”.27 24 25 26 27 Mr Tan’s AEIC at [12] to [14]. Affidavit of Evidence-in-Chief of Mr Giam Zhen Kai (“Mr Giam’s AEIC”) at [5] and [6]. Mr Giam’s AEIC at [7] and [8]. Mr Giam’s AEIC at [10] to [12]. 9 32. The Respondent objected to the admission of these portions of the evidence of Mr Tan and Mr Giam and applied to strike them out on several grounds, namely (i) that these conversations had taken him by surprise as they were material facts that ought to have been, but were not, pleaded; (ii) that the evidence was not relevant, (iii) that he did not know the specific charge(s) to which this evidence relates, and (iv) that the evidence was being raised late in the day. 33. Having heard parties, we dismissed these objections and allowed the evidence in. The objection that the conversations were not pleaded was misconceived. The material allegation was that the Respondent knew or ought to have known that he was not sufficiently qualified. This was pleaded. The conversations referred to by Mr Tan and Mr Giam formed part of the evidence tendered by the Law Society in support of that material allegation. It is trite that evidence need not be pleaded. 34. The objection as to the relevance of the evidence is equally unfounded. The issue of whether the Respondent knew he was not qualified is pleaded and in issue. While the Respondent admits that he was not qualified, the main plank of his mitigation is that his breach of the relevant regulation had been purely inadvertent – i.e. he had not known that he was not qualified. The conversations, if proved, would go towards undermining that assertion of inadvertence and are therefore plainly relevant. 35. As to the objection that the Respondent did not know which charge(s) the evidence related to, there is no requirement for each piece of evidence to be tagged to a particular charge. In any event, the nature of the conversations make it quite apparent which charge(s) they relate to. 36. Finally, the evidence was not adduced late in the day. The evidence of the conversations is contained in the affidavits of evidence-in-chief of Mr Tan and Mr Giam, 10 both of which were exchanged together with the affidavits of evidence-in-chief of all the other witnesses. The Respondent’s main complaint appears to be that the conversations should have been raised at the pleading stage. For the reasons stated above, we disagree. 37. Having dismissed the Respondent’s objections, we nonetheless granted him leave to address these alleged conversations either by way of a supplementary affidavit of evidence-in-chief or via oral testimony. The Respondent chose to do so by way of oral evidence. He claimed that his relationship with Mr Tan and Mr Giam had soured towards the end of their time with Foxwood LLC and suggested that this soured relationship tainted their evidence against him. 38. Both Mr Tan and Mr Giam candidly admitted that their relationship with the Respondent had soured. However, they steadfastly maintained that their evidence, particularly in respect of the respective conversations with the Respondent, was true. We would also be slow to find that two Advocates and Solicitors would lie under oath, especially when they had absolutely nothing to gain from doing so and could face severe repercussions if they did so and were found out. 39. Critically, the Respondent did not deny the conversations with Mr Tan and Mr Giam but said that he could not recall if they had taken place.28 At the hearing, the Respondent did not directly challenge the evidence of Mr Tan and Mr Giam in respect of these respective conversations. Instead, he sought to undermine their evidence on this issue by challenging their evidence on the events that led to these alleged conversations. Specifically, he challenged Mr Tan’s evidence on when and why he had searched the 28 RCS [82]. 11 Respondent’s LinkedIn profile29 and Mr Giam’s evidence on how he had come to learn that the Respondent was not qualified to act as supervising solicitor.30 40. While we accept that they were some inconsistencies in the evidence of both Mr Tan and Mr Giam, we find that these inconsistencies do not detract from their unchallenged evidence on their respective conversations with the Respondent. Both Mr Tan and Mr Giam were unwavering in their evidence that they had each, on separate occasions, had conversations with the Respondent about whether he was qualified to act as a supervising solicitor. Having reviewed all the evidence on this issue, we conclude that the conversations alleged by Mr Tan and Mr Giam did take place. 41. The Respondent also argued that the conversations had not registered in his mind even if they had taken place.31 He points to certain concessions made by Mr Tan and Mr Giam during cross-examination in support of this assertion. Mr Tan agreed that his conversation with the Respondent had occurred during an intensive trial and the Respondent could have been preoccupied with the trial.32 Mr Giam agreed that his conversation with the Respondent was not an extended one and he could not provide details of the conversation save that it had occurred shortly after the interview with Mr Lim sometime in October 2019.33 42. We are unable to conclude with the necessary degree of certainty that these conversations had registered in the Respondent’s mind or that he was otherwise aware, prior to 6 January 2020, that he was not qualified to act as a supervising solicitor for practice trainees. We highlight several factors in this regard. First, the fact that the 29 30 31 32 33 RCS [82(g)] to [82(l)]. RCS [82(b)] to [82(f)]. RCS [83]. Transcript 28 Oct 2021 46(21) to 46(22). Transcript 28 Oct 2021 7(5) to 8(18). 12 conversations were one-off, coupled with the concessions by Mr Tan and Giam, suggest it is possible that the conversations had not in fact registered in the Respondent’s mind. 43. Second, there is no other contemporaneous evidence (apart from the conversations) that the Respondent was aware that he was not sufficiently qualified. As stated above, the Respondent’s evidence is that he was not aware of the relevant regulations and had not bothered to check. There is no evidence to suggest that this is untrue. 44. Third, the Respondent informed Mr Lim that he was not qualified to be his supervising solicitor on or around 14 January 2020, shortly after he says he discovered his lack of qualifications on 6 January 2020. If the Respondent had in fact been aware all along that he was not qualified, there is no reason why he should suddenly choose to admit this fact to Mr Lim in January 2020. The fact that he did so is more consistent with him only having discovered this fact shortly before, as he claimed. Is Section 83(2)(j) of the Act satisfied? 45. The Second Charge asserts a breach of Section 83(2)(j) of the Act, which relates to contraventions of the provisions of the Act that warrant disciplinary action. The Respondent contends that his conduct did not cross the threshold to warrant disciplinary action.34 46. We make two observations. First, while the section refers to provisions of the Act, it must necessarily extend to and encompass contraventions of subsidiary legislation and regulations promulgated under the Act. Second, a plain reading of the provision suggests that some contraventions of provisions of the Act may not warrant disciplinary 34 RCS [59]. 13 action. It follows that the mere fact that the Respondent may have contravened a provision of the Act does not necessarily mean that his conduct warrants disciplinary action. This is not controversial and is consistent with the general tenor of the disciplinary framework established under the Act. 47. For the reasons set out below in our discussion in relation to the Alternative Second Charge,35 we find the Respondent’s conduct in breaching Rule (1)(b) of the Admission Rules to be of sufficient severity to warrant disciplinary action and that the Law Society has therefore made out the Second Charge. Is Section 83(2)(h) of the Act satisfied? 48. The Alternative Second Charge asserts a breach of Section 83(2)(h) of the Act, which relates to conduct that amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. The Respondent contends that his actions do not amount to such misconduct.36 49. The standard of unbefitting conduct is met if a solicitor’s conduct is such as would render him unfit to remain as a member of an honourable profession, and the relevant test is whether reasonable people, on hearing what the solicitor had done, would have said without hesitation that as a solicitor he should not have done it: The Law Society of Singapore v Ezekiel Peter Latimer (“Ezekiel Peter”).37 35 36 37 Paragraphs 48 to 52 below. RCS [59]. [2019] 4 SLR 92, [38]. 14 50. The Respondent describes his conduct as “a case of simple negligence”.38 He says he made an honest mistake. During oral closing arguments, the Respondent’s counsel explained that the mistake was “in failing to familiarize himself with the relevant rules relating to … being a supervising solicitor”.39 51. We disagree. This was not a case of a mistake or oversight. A mistake would have been if (for example) the Respondent had incorrectly calculated the number of years he had been in practice and thereby wrongly conclude that he was sufficiently qualified. That was not what happened. The evidence clearly showed that the Respondent did not know what the qualifying requirements were to be a supervising solicitor and did not bother to check. In fact, he admitted as much. 52. While the Respondent repeatedly claimed he had acted under a mistaken belief that he was qualified to act as a supervising solicitor, he could not provide an answer when asked what the basis of that belief was. Indeed, it would appear from his evidence that the first time he familiarized himself with the relevant rules was sometime on 6 January 2020 while waiting for a flight back from Perth.40 53. Applying the test set out in Ezekiel Peter, when asked whether an Advocate and Solicitor should have taken on the role of supervising solicitor for practice trainees without first familiarizing himself with the applicable rules and ensuring that he was qualified to take on the role (which is what the Respondent admits happened in this case), we have no doubt that a reasonable person would have said that he should not. 38 39 40 RCS [61]. Transcript 17 Dec 2021 26(30) to 27(2). Respondent’s AEIC [36]. 15 54. We therefore find that the Respondent’s conduct as particularized in the Alternative Second Charge amounted to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession and that the Law Society has made out the Alternative Second Charge. The appropriate sanction 55. The function of a Disciplinary Tribunal is to act as a filter to determine if there is ‘cause of sufficient gravity’ that could, on a finding by the Court of Three Judges, be ascertained to constitute ‘due cause’ that merited the imposition of one of the range of sanctions prescribed in Section 83(1) of the Act: Law Society of Singapore v Jasmine Gowrimani d/o Daniel (“Jasmine Daniel”).41 56. It is not for us to determine whether ‘due cause’ has been established in this case – that determination lies solely within the purview of the Court of Three Judges. Our role is to decide whether ‘cause of sufficient gravity’ has been established, and for that we need only be satisfied that there was a prima facie case on the relevant evidence that ‘due cause’ might be present: Jasmine Daniel.42 There are three options open to us pursuant to Section 93(1) of the Act: (a) Determine that no cause of sufficient gravity for disciplinary action exists; (b) Determine there while no cause of sufficient gravity for disciplinary action exists, the legal practitioner should be reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed; or 41 [2010] 3 SLR 390, at [37]. 42 Ibid., at [31]. 16 (c) Determine that cause of sufficient gravity for disciplinary action exists, in which case the Law Society is obliged pursuant to Section 94 of the Act to make an application under Section 98 of the Act to the Court of Three Judges. 57. The Respondent submits that his conduct evinces no cause of sufficient gravity. He argues that his conduct was merely a mistake or an oversight. We have explained above why we disagree. 58. The Respondent also refers to and relies on two cases (The Law Society of Singapore v Anand K Thiagarajan43 and The Law Society of Singapore v Anand Kumar s/o Toofani Beldar)44 which he submits are factually akin to the present case and where the respective Disciplinary Tribunals found there to be no cause of sufficient gravity. 59. We do not think these cases take the Respondent very far. Neither of these cases deal with breaches of the Admission Rules. In any event, it is trite that whether cause of sufficient gravity is made out in any given case must necessarily turn on the specific facts and circumstances of that case. 60. Turning to the appropriate sanction, we are acutely conscious of the importance of ensuring that members of the public have access to quality legal advice. The framework for the training of advocates and solicitors seeks to ensure the quality of persons being called to Bar by way of the following three-pronged framework: 43 [2009] SGDT 2. 44 [2011] SGDT 12. 17 (a) Stringent criteria for those wishing to become a ‘qualified person’ as defined in Section 2(1) of the Act, including limiting the number of universities whose law degrees are recognized in Singapore; (b) Requiring them to successfully complete the Preparatory Course leading to Part B of the Singapore Bar Examinations, as well as Part A of the Singapore Bar Examinations for those who obtained their law degree from a recognized foreign university; and (c) Requiring them to undertake and complete six months of relevant legal training, relevant legal practice or work. The Admission Rules specify that such relevant legal training must be carried out under the supervision of suitably qualified person. This includes a solicitor in active legal practice for “a total of not less than 5 out of the 7 years immediately preceding the date of commencement of his supervision”.45 61. The aim of these requirements is plainly to ensure that anyone granted the privilege of admission to the Bar is equipped with the relevant skills to provide clients with legal advice of the requisite standard. Rule 18(1) of the Admission Rule is therefore an important pillar in the framework for ensuring the quality of advocates and solicitors called to the Bar. This in turn helps ensure that the broader public interest of ensuring the quality of legal advice available to clients is met. 62. Viewed in this context, the Respondent’s breach of Rule 18(1) of the Admission Rule is not simply one of “oversight in failing to familiarize himself with the applicable rules”.46 45 Rule 18(1) of the Admission Rules. 46 RCS [61]. 18 The undisputed facts evince a complete disregard for and disinterest in the rules governing his suitability to act as supervising solicitor. Not only did he not know the applicable rules, he also did not (and could not be bothered to) check. Such conduct imperiled the careful framework put in place to ensure the quality of advocates and solicitors admitted to the Bar. 63. We therefore find that cause of sufficient gravity for disciplinary action exists in respect of both the Second Charge and the Alternative Second Charge. The First Charge and Alternative First Charge 64. The First Charge alleges: 47 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching rule 36(2)(a)(ii) of the Legal Profession (Professional Conduct) Rules 2015 …, as part of the management of a Singapore law practice known as Foxwood LLC, by failing to ensure that [Mr Lim] and [Ms Sunil], who were practice trainees serving their respective practice training periods under separate practice training contracts with Foxwood LLC, were supervised during each of their practice training periods with Foxwood LLC by a supervising solicitor who had in force a practicing certificate for a total of not less than 5 out of 7 years immediately preceding the date of the supervision of each of the said practice trainees, which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 65. The Law Society also alleged in the alternative that the conduct described in the First Charge amounted to “misconduct unbefitting an advocate and solicitor as an officer of 47 SOC page 8. 19 the Supreme Court or as a member of an honourable profession” within the meaning of Section 83(2)(h) of the Act (the “Alternative First Charge”).48 66. The Responded raised a preliminary objection to the First Charge and Alternative First Charge, arguing that they were unnecessarily duplicative given the Second Charge.49 He relied on Section 308(1) of the Criminal Procedure Code (the “CPC”), which states: “Limit of punishment for offence made up of several offences 308 – (1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the person who committed the offence shall not be punished with the punishment of more than one of such offences unless it is expressly provided. (2) Where – (a) anything is an offence falling within 2 or more separate definitions of any law in force for the time being by which offences are defined or punished; or (b) several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, The person who committed the offence shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences.” 67. The objection is misconceived. A plain reading of Section 308(1) of the CPC clearly shows that it does not prevent a person facing multiple charges arising from the same set of facts. Rather, it is meant to regulate the punishment that can be meted out to such an individual. There is therefore nothing improper with the First Charge and Alternative First Charge arising from the same facts as the Second Charge. 68. The First and Alternative First Charges assert a breach of Rule 36(2)(a)(ii) of the Legal Profession (Professional Conduct) Rules 2015 (the “PCR”), which states: 48 49 SOC page 12. RCS [7] to [10]. 20 “Responsibilities to practice trainees in law practice 36 – (2) The management of a law practice must ensure that all of the following apply to each practice trainee who serves the practice training period under a practice training contract with the law practice: (a) 69. The practice trainee is supervised by a supervising solicitor who – (i) is in active practice in the law practice; and (ii) has in force a practicing certificate for a total of not less than 5 out of the 7 years immediately preceding the date the supervision of the practice trainee starts.” Rule 36(2)(a) of the PCR imposes an obligation on the management of a law practice in respect of the supervision of practice trainees. It is common ground that this obligation was breached in relation to Mr Lim and Ms Sunil. The only issue therefore is whether the Respondent was part of the management of Foxwood LLC at the material time. 70. The Law Society argues that the Respondent was a “de-facto director of Foxwood [LLC] or was in any event part of [its] management”.50 It argues that the fact that the Respondent had not been formally appointed as a director of Foxwood LLC and had not been notified as such to the Law Society was irrelevant, and that the substance of the Respondent’s role must trump its form. 71. The Respondent argues that he was neither a de facto director of Foxwood LLC nor otherwise part of its management, but was at all times only a “high-level employee”.51 While he accepts that he effectively ran Foxwood LLC’s dispute resolution department, he claims that Mr Goh retained overall control of the department and the rest of the firm and that he did not have “visibility or access to Foxwood [LLC’s] bank accounts, accounting information and clients outside of the [dispute resolution department]”.52 50 51 52 LSCS [60]. RCS [19]. RCS [20]. 21 72. Mr Goh’s evidence53 was that the Respondent ran the entire dispute resolution practice of Foxwood LLC – hiring his own staff, taking on his own clients and running the practice as he saw fit. Mr Goh explained that Foxwood LLC would supply back-end support (e.g. software, payroll and human resource services) but would be compensated for these services. The Respondent would be “entirely responsibly for the profit, losses and sustainability of the dispute resolution practice”.54 73. Mr Goh’s evidence is supported by a Partnership Agreement between Foxwood LLC and the Respondent (the “Agreement”).55 While the copy of the Agreement in evidence was undated and unsigned, the Respondent does not dispute that he entered into the Agreement with Foxwood LLC. Indeed, the Respondent refers to and relies on some of the terms of the Agreement in support of his argument that he was not part of the management of Foxwood LLC56 - an argument we deal with below.57 74. The Agreement expressly states that Foxwood LLC and the Respondent had entered into the Agreement “in order to govern their relationship as stakeholders in [Foxwood LLC] and the management and the affairs of [Foxwood LLC], in particular, the Dispute Resolution Division”.58 Clause 2 of the Agreement states as follows: “2. DISPUTE RESOLUTION DIVISION 2.1 [The Respondent] shall be responsible for starting, heading and maintaining the Dispute Resolution Division. 53 Affidavit of Evidence-in-Chief of Goh Keng Haw (“Goh’s AEIC”), at [14]. Ibid.. Exhibit GKH-2 of Goh’s AEIC. 56 See, for example, [15] and [16] of the Respondent’s AEIC. 57 See paragraphs __ to __. 58 Recital C, at page 16 of Goh’s AEIC. 54 55 22 2.2 [The Respondent] shall have authority to, and be responsible for: (a) Accepting and opening files from new clients and commencing work on behalf of such clients, subject always to satisfactory client due diligence and conflicts check; (b) Signing off on all correspondences (only with respect to the Dispute Resolution Division) for and on behalf of [Foxwood LLC]; and (c) Hiring, employing and terminating [employees of the Dispute Resolution Division]. 2.3 In consideration of the above, [Foxwood LLC] shall pay [the Respondent] a partnership fee, to be paid out from the office account … only, as and when instructed by [the Respondent]. The amount of partnership fee shall be determined solely by [the Respondent].” 75. Clause 3.1 of the Agreement states that the Respondent would pay Foxwood LLC a monthly Administrative Fee of S$1,500 for each fee-earner in the Dispute Resolution Division. Clause 3.2 of the Agreement obliged the Respondent to pay Foxwood LLC a refundable Deposit calculated by multiplying the gross monthly salary of each employee of the Dispute Resolution Division by that employee’s notice period in months. In consideration for the payment of the Administrative Fee and the Deposit, Foxwood LLC was required pursuant to Clause 3.4 of the Agreement to provide the Respondent and the Dispute Resolution Division with the following services: “(a) Costs and use of the following software: (i) Microsoft 365; (ii) Lawnet (two users); (iii) E-litigation; (iv) Waveapp; (v) Clio; and (vi) Nuance Power PDF. 23 76. (b) pay-roll and Human Resource services; (c) Stationaries, such as name cards, pens and papers; (d) Client onboarding and invoicing; (e) Marketing efforts through digital and traditional means; (f) General administrative work in relation to application for practicing certification, professional indemnity insurance, employee benefit.” The picture that emerges is that the Respondent was clearly responsible for the management of Foxwood LLC’s dispute resolution department even if he had not been formally appointed as a director of the firm. As part of this role, he made the hiring decisions concerning lawyers and trainees for the dispute resolution department. 77. This is apparent from the process by which both Mr Lim and Ms Sunil joined Foxwood LLC as trainees in the dispute resolution department. Mr Lim’s evidence was that he sent his application for a training contract directly to the Respondent and was eventually interviewed by the Respondent and the offer to join the firm as a trainee was made by way of a letter on the firm’s letterhead signed by the Respondent as “Head of Dispute Resolution”.59 Ms Sunil went through the same process as well.60 Both Mr Lim and Ms Sunil dealt with the Respondent. There is no evidence that Mr Goh or anyone else at Foxwood other than the Respondent made the final decision on whether to offer them training contracts. 78. We agree with the Law Society that we must look at the substance and not the form of the Respondent’s role at Foxwood LLC in determining whether he was part of its management. Similarly, whether a solicitor is part of a firm’s management for the 59 60 Mr Lim’s AEIC, [9] to [14]. Ms Sunil’s AEIC, [10] to [21]. 24 purposes of Rule 36 of the PCR cannot be determined by simply asking whether he held the title of director or partner. One must look at the actual role he performed in the running of the firm. 79. In this case, it is clear to us that the Respondent was part of the firm’s management insofar as he called the shots in the dispute resolution department. As we described above, it was the Respondent who made the decision to offer Mr Lim and Ms Sunil training contracts with the firm and it was he who put himself forward as their supervising solicitor. It is not the Respondent’s case that Mr Goh or anyone else at Foxwood LLC had made those decisions, and there is certainly no evidence that that was the case. 80. The Respondent argues that the Agreement does not “give the Respondent control to Goh’s exclusion”61 and that the Agreement did not state that Goh had no control over the dispute resolution department. He contends that Mr Goh, as the sole director of Foxwood LLC, always had the power to veto any decisions the Respondent made in relation to the dispute resolution department. 81. This may have been the case in theory, but the Respondent did not adduce any evidence of specific occasions when Mr Goh had done so. All the evidence before us points to the Respondent having been given a free hand to manage the dispute resolution department in accordance with the arrangement set out in the Agreement. It bears noting that the Respondent accepts that ensuring that practice trainees are properly supervised is a shared responsibility by the management of the firm, and he admits that he must take responsibility for his part.62 61 62 RCS [19]. RCS [47]. 25 82. We therefore find that the Respondent was part of the management of Foxwood LLC at the material time and that Rule 36(2)(a)(ii) of the PCR was breached as pleaded in the First Charge and the First Alternative Charge. 83. We note that Rule 36 places the responsibility for providing supervised training on the management of the law firm. While we have found that the Respondent was part of the management of Foxwood LLC, he was certainly not the only person in management. Mr Goh, as the sole director of the firm, was certainly part of management as well. However, neither Mr Goh nor any other individuals are before us and we therefore make no comment on their respective roles or potential culpability. Has Section 83(2)(b) of the Act been satisfied? 84. Section 83(2)(b) of the Act provides (among other things) that due cause may be shown by proof that an advocate and solicitor has been guilty of such a breach of “any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of [the] Act”63 as amounts to improper conduct or practice as an advocate and solicitor. 85. Given the seriousness of the breach (as we explained in dealing with the Second and Alternative Second Charges above), we find that the Respondent’s conduct did amount to improper conduct or practice as an advocate and solicitor and that the First Charge has therefore been made out. 63 Section 83(2)(b)(i) of the Act. 26 Has Section 83(2)h) of the Act been satisfied? 86. The Alternative First Charge asserts a breach of Section 83(2)(h) of the Act, which relates to conduct that amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 87. Applying the test in Ezekiel Peter, we find that the Respondent’s conduct as set out in the Alternative Second Charge amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. We repeat our remarks at paragraphs 48 to 52 above in relation to the Second and Alternative Second Charges in this regard. The Alternative Second Charge has therefore been made out. 88. The failure to ensure that Mr Lim and Ms Sunil were supervised during their respective training contracts by a solicitor who was sufficiently qualified is a serious breach. We find that cause of sufficient gravity for disciplinary action exists in respect of both the First and Alternative First Charges. The Third Charge 89. At the hearing for oral closing submissions on 17 December 2021, Counsel for the Law Society highlighted that the Law Society was considering making amendments to the Third Charge. Subsequently, on 31 December 2021, we allowed an amendment to the Third Charge pursuant to an agreement between the parties. The amended Third Charge alleges: 64 64 Law Society’s Further Submissions (“LCFS”) [7]. 27 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore have behaved in a manner inconsistent with the public interest by being the supervising solicitor during the practice training periods of [Mr Lim] and [Ms Sunil], who were practice trainees under separate practice training contracts contracts with Foxwood LLC, when you did not have in force a practicing certificate of a period of not less than 5 out of the 7 years immediately preceding the date of the commencement of your supervision of Mr Lim and [Ms Sunil] as required under Rule 18(1)(b) of the Legal Profession (Admission) Rules 2011 …, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 90. The crux of the charge is that advocates and solicitors have “a duty to behave in a manner consistent with the public interest” 65 and the Respondent had breached this duty by purporting to act as the supervising solicitor for Mr Lim and Ms Sunil when he was not qualified to do so. 91. The Respondent does not appear to dispute the existence of such a duty. His argument instead is that “the public interest is not engaged every time a lawyer makes a mistake” 66 and that the conduct complained of in the Third Charge did not amount to a breach of that duty. 92. The Respondent’s arguments in response to this Charge focus on his claim that he had not held himself out to be a supervising solicitor in an advertisement published on the Law Society’s practice training website on 18 November 2019 (the “Advertisement”).67 We are prepared to accept the Respondent’s argument on this issue. However, this finding does not assist him. 65 Respondent’s Further Written Submissions (“RFWS”) [3]. 66 SOC page 15. 67 RFWS [5] to [15]. 28 93. The Respondent’s focus on addressing the Advertisement appears to arise from the pleaded particulars to the charge, the majority of which assert that the breach arose because the Respondent held himself out to be a supervising solicitor in the Advertisement. However, the Respondent has not addressed the body of the charge, which asserts that he had purported to act as supervising solicitor for Mr Lim and Ms Sunil while not qualified to do so – something the Respondent admits. 94. As we explained above in dealing with the Second Charge and Alternative Second Charge, the Respondent’s conduct imperiled the framework put in place to ensure the quality of advocates and solicitors admitted to the Bar. Such conduct clearly offends the public interest. 95. We therefore find that the Third Charge has also been made out and that cause of sufficient gravity for disciplinary action exists in respect of this charge. The Fourth Charge and Alternative Fourth Charge 96. The Fourth Charge and Alternative Fourth Charge both relate to the Respondent having allegedly demanded that Ms Sunil pay a sum of $2,000 pursuant to her practice training contract with Foxwood LLC. 97. The Fourth Charge alleges: 68 “That you, Clarence Lun Yaodong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 …, by taking unfair advantage of [Ms Sunil] by demanding that she pay Foxwood LLC the sum of $2,000 when this sum was not recoverable by due process of law, which amounts to misconduct unbefitting an 68 SOC page 17. 29 advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 98. The Fourth Charge asserts a breach of Rule 8(3)(a) of the PCR, which requires a legal practitioner to “not take unfair advantage of any person”. The Law Society alleges that the Respondent took unfair advantage of Ms Sunil by demanding that she pay Foxwood LLC a sum of $2,000 that was “not recoverable by due process of law”. 99. The Alternative Fourth Charge reads: “That you, Clarence Lun Yaodaong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules 2015 by acting in a manner contrary to your position as a member of an honourable profession by demanding that [Ms Ann] pay Foxwood LLC the sum of $2,000 under the terms of a practice training contract under which you agreed to be [Ms Sunil’s] supervising solicitor during her practice training period when you knew or ought to have known that you did not meet the requirements to be [Ms Sunil’s] supervising solicitor under rule 18(1)(b) of the Legal Profession (Admission) Rules … as of the commencement of your supervision of [Ms Sunil] during her practice training period under the terms of that practice training contract, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 100. The Alternative Fourth Charge asserts a breach of Rule 8(3)(b) of the PCR, which requires a legal practitioner to “not act towards any person in a way which is fraudulent, deceitful or otherwise contrary to the legal practitioner’s position as a member of an honourable profession”. The Law Society alleges that the Respondent acted in a manner contrary to his position as a member of an honourable profession by allegedly demanding that Ms Sunil make the $2,000 payment. 30 Did the Respondent demand payment from Ms Sunil? 101. The threshold question therefore is whether the Respondent had in fact demanded that Ms Sunil pay a sum of $2,000 to Foxwood LLC. 102. Ms Sunil had signed a practice training contract with Foxwood LLC. The terms of this contract were set out in the letter of offer dated 11 October 2019 which the Respondent signed on behalf of Foxwood LLC and which Ms Sunil signed and accepted on 12 October 2019.69 Clause 2 of the contract stated her gross monthly salary as $2,000 and Clause 3 permitted either party to terminate the contract “with 1 month prior notice in writing”. 70 103. Ms Sunil officially started her employment with Foxwood LLC on 2 January 2020.71 On 4 January 2020, she decided to leave Foxwood LLC immediately for personal reasons that had nothing to do with the Respondent. 72 She informed the Respondent of this over a telephone conversation on 5 January 2020 – the Respondent being overseas at that time. Ms Sunil’s evidence was that during this conversation, the Respondent asked if she could serve the entire one-month notice period set out in her training contract. Ms Sunil said she told the Respondent that she wanted to leave immediately,73 and that the Respondent then told her that she would have to pay “1 month’s salary in lieu of notice which would be $2,000.00 … within seven days of [her] last day at Foxwood LLC. 74 69 70 71 72 73 74 AB 33 & 34. AB 33. Affidavit of Evidence-in-Chief of Ms Trinisha Ann Sunil (“Ms Sunil’s AEIC”) [30]. Ms Sunil’s AEIC [33]. Ms Sunil’s AEIC [35(c)]. Ms Sunil’s AEIC [35(e)]. 31 104. Ms Sunil said that she understood from her conversation with the Respondent that “she would have to pay damages in lieu of notice if [she] could not serve the 1 month notice period”.75 She explained that while she “had doubts on whether [she] was contractually obliged to pay this money”, she believed the Respondent must be right as “he was a lawyer, a partner at Foxwood LLC and [her boss]”. 76 105. Later that day, after having discussed the matter with her family, Ms Sunil sent the Respondent a WhatsApp message stating that she had “decided that it would be best if [she] terminate [her] contract here and pay the full month of salary in lieu of notice”.77 She was subsequently informed by one of the secretarial staff at Foxwood LLC that the amount she had to transfer to Foxwood was $1,793.13,78 which she believed was derived by deducting from $2,000 a sum of $86.95 for each of her three workings days at Foxwood LLC.79 106. On 9 January 2020, the Respondent sent her a WhatsApp message asking her to “please kindly make payment towards [her] notice period to clear up the remaining issue on [her] employment”.80 She responded to say that would only be able to do so later in the week but would do so with the seven-day period he had mentioned.81 Ms Sunil eventually paid the sum of $1,793.13 on 11 January 2020.82 75 76 77 78 79 80 81 82 Ms Sunil’s AEIC [35(f)]. Ms Sunil’s AEIC [37]. Ms Sunil’s AEIC [39]; AB 48. Ms Sunil’s AEIC [47]. Ms Sunil’s AEIC [48]. AB 237. Ms Sunil’s AEIC [52]; AB 50. Ms Sunil’s AEIC [57]. 32 107. The Respondent denies having made any demands. He says that given Ms Sunil’s desire to leave immediately, he had merely given her the option of doing so by paying a month’s salary in lieu of notice83 and she had voluntarily accepted this option. 84 108. It is therefore common ground that the Respondent had informed Ms Sunil that she would have to pay one month’s salary in lieu of notice if she wanted to terminate her employment immediately. Whether this is characterized as a demand or merely the provision of an option is, in our view, irrelevant. Did the Respondent take unfair advantage of Ms Sunil? 109. The material question insofar as the Fourth Charge is concerned is whether the Respondent can be said to have taken unfair advantage of Ms Sunil by requiring her to pay one month’s salary in lieu of notice to immediately terminate her employment with Foxwood LLC. 110. The Respondent denied having taken advantage of Ms Sunil. He repeated his position that all he had done was to offer her the option of immediately terminating her employment with Foxwood LLC by paying one month’s salary in lieu of notice. 111. The Law Society asserts that the Respondent took unfair advantage of Ms Sunil by “demanding the sum of $2,000 from her when this sum was not recoverable by due process of law”.85 During oral closing submissions, Counsel for the Law Society clarified that what was meant by the $2,000 not being “recoverable by due process of law” was that there was no enforceable contract because the fact that none of the lawyers at 83 84 85 RCS [94]. Respondent’s AEIC [31]. LSCS [103]. 33 Foxwood LLC were qualified to act as supervising solicitors for practice trainees meant that the training contract could not be performed and was therefore a nullity.86 112. To show that the Respondent had taken unfair advantage of Ms Sunil by demanding payment of the $2,000, the Law Society must establish that he knew at the material time that the training contract was void. That in turn would require knowledge that none of the directors of Foxwood LLC were able to act as Ms Sunil’s supervising solicitor. The Law Society argued that it had cleared this threshold. 113. First, the Law Society relied on Selena Chiong for the proposition that each Advocate and Solicitor is taken to know of the relevant Rules governing his practice, and argued that the Respondent therefore must be taken to have known that he was not qualified to act as Ms Sunil’s supervising solicitor. 114. We accept the principles set out in Selena Chiong – an Advocate and Solicitor cannot rely on any alleged ignorance of the relevant regulations to avoid liability. However, we do not think that fundamental principle is directly applicable for the purposes of this charge. For the purposes of showing an unfair advantage, the Law Society must show that the Respondent had actual (as opposed to imputed) knowledge of his lack of qualifications to be Ms Sunil supervising solicitor and that the training contract was therefore a nullity. 115. The evidence in this case does not go that far, certainly not enough to make the point beyond a reasonable doubt. 86 We have explained above why we cannot say with Transcript 17 Dec 2021 19(8) to 20(2). 34 sufficient certainty that the Respondent’s conversations with Mr Tan and Mr Giam were sufficient to bring this fact to his attention.87 116. Second, the Law Society points out that even if we accept the Respondent’s evidence that he only realized that he was not qualified on 6 January 2020, it would mean that the Respondent had the requisite knowledge when he repeated his demand for the $2,000 in his 9 January 2020 WhatsApp message to Ms Sunil. 117. The Respondent says that the WhatsApp message was merely a reminder and the fact that the training contract “does not hold and therefore there is no basis to … make a reminder” was not operative on his mind at that time.88 Based on the totality of the evidence, we cannot say with the requisite certainty that the Respondent’s version cannot be believed. 118. Third, the Law Society referred to and relied on the case of Law Society of Singapore v Ong Teck Ghee89 for the principle that “an advocate and solicitor has to be scrupulously beyond reproach in terms of his integrity, honesty and fairness”.90 119. While we accept this statement of principle, we do not see how the case assists the Law Society. The facts of Ong Teck Ghee bear no resemblance to the present case, the respondent in that case having entered into prohibited borrowing transactions by entering into loan agreements with his client. 120. We therefore find that the Fourth Charge has not been made out. 87 88 89 90 See paragraphs __ to __ above. Transcript 28 Oct 2021 127(16) to 127(25). [2014] SGDT 4. LSCS [89]. 35 Did the Respondent act in a manner contrary to his position as a member of an honourable profession? 121. For the Alternative Fourth Charge, the material question is whether the Respondent had acted in a manner contrary to his position as a member of an honourable profession in requiring Ms Sunil to pay one month’s salary in lieu of notice to immediately terminate her employment with Foxwood LLC. 122. For the reasons set out above in relation to the Fourth Charge, we accept the Respondent’s explanation that he had merely provided Ms Sunil with an option and had not sought to take advantage of her. We therefore find that the Alternative Fourth Charge is also not made out. The Fifth Charge and Alternative Fifth Charge 123. The Fifth Charge and Alternative Fifth Charge stems from the allegation that the Respondent represented to Mr Lim that he would qualify to serve as Mr Lim’s supervising solicitor by May 2020 (the “Alleged Representation”). Both charges assert that the making of the Alleged Representation amounted to a breach of the requirement under Rule 8(3)(b) of the Rules that a legal practitioner “not act towards any person in a way which is fraudulent, deceitful or otherwise contrary to the legal practitioner’s position as a member of an honourable profession”. 124. The Fifth Charge states: 91 91 SOC page 21. 36 “That you, Clarence Lun Yaodaong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules 2015 …, by acting in a manner which is deceitful by representing to [Mr Lim], a practice trainee of Foxwood LLC, that by May 2020 you would meet the requirements under Rule 18(1) of the Legal Profession (Admissions) Rules 2011 … to be Mr Lim’s supervising solicitor during his practice training period when you knew this to be false, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 125. The Fifth Charge therefore asserts that by making the Alleged Representation, the Respondent had breached Rule 8(3)(b) of the Rules by acting in a manner that was deceitful, and that this breach amounted to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 126. The Alternative Fifth Charge states: 92 “That you, Clarence Lun Yaodaong, an Advocate and Solicitor of the Supreme Court of Singapore are guilty of breaching Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules 2015 … by acting towards [Mr Lim], a practice trainee of Foxwood LLC, in a manner which is contrary to your position as a member of an honourable profession by representing to Mr Lim that by May 2020 you would meet the requirements under Rule 18(1) of the Legal Profession (Admissions) Rules 2011 … to be Mr Lim’s supervising solicitor during his practice training period when you knew this to be false, which amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the Legal Profession Act (Cap. 161, 2009 Rev Ed).” 127. The Alternative Fifth Charge therefore asserts that by making the Alleged Representation, the Respondent had breached Rule 8(3)(b) of the Rules by acting in a manner contrary to his position as a member of an honourable profession, and that this 92 SOC page 25. 37 breach amounted to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. Did the Respondent make the Alleged Representation? 128. The threshold question therefore is whether the Respondent had in fact made the Alleged Representation. 129. Mr Lim’s evidence on this issue was as follows:93 “[The Respondent] told me that he would meet the requirements to be a supervising solicitor by May 2020. [The Respondent] mentioned in passing that he would have to ‘check’, but it was unclear what exactly he felt needed to ‘check’. He never said that he would have to check to see if he would qualify by May 2020. I recall with certainty that he did inform me that he would qualify by May 2020. The impression that [the Respondent] gave me was that he would qualify in May 2020 even though he may have been uncertain as to the actual date of qualification.” 130. This evidence is consistent with what Mr Lim had stated on two earlier occasions. The first was in an email dated 16 January 2020 to Professor Eleanor Wong from the NUS Law Faculty, where Mr Lim stated that the Respondent had told him on 14 January 2020 that “he will qualify as a supervising solicitor in May 2020”.94 131. The second occasion was in an affidavit dated 4 August 2020 that Mr Lim had deposed in support of his application to abridge time for the filing of documents for admission to the Bar, where he stated that “[the Respondent] further informed [him] that he would only qualify as an supervising solicitor in May 2020.” 95 93 Affidavit of Evidence-in-Chief of Mr Lim Teng Jie (“Mr Lim’s AEIC”) [37(a)]. 94 AB 249. 95 AB 88, at [9]. 38 132. The Respondent’s evidence is that after he discovered that he was not qualified to act as Mr Lim’s supervising solicitor, he had informed Mr Lim of this fact and had given him the following options for moving forward. One of those options was to continue with Foxwood LLC as a paralegal until May 2020, commence practice training with Foxwood LLC in May 2020 and be called in November 2020. His evidence in this regard was as follows:96 “[One option was to] offer Mr Lim the position of a paralegal and if I was to qualify as a supervising solicitor in May 2020, to commence practice training with Foxwood LLC and to be called to the [Bar] 6 months thereafter. I informed Mr Lim that I would need to check with the Law Society and SILE on whether I would qualify as a supervising solicitor in May 2020. That is because I did not have the exact dates for which I was holding a practicing certificate and intended to check on those matters, if this was proposal was to be advanced. I recall that I had also mentioned June or July 2020 depending on how the SILE/Law Society would respond to me. As I did not want Mr Lim to suffer financially from the mistake, I also mentioned that if Mr Lim went with this proposal and proceed to become a paralegal, I would ensure that he would not be financially worse off compared with his peers in major firms by paying him the big firm rate, which I understood to be $5,600 per month.” 133. In short, the Respondent admits having mentioned being qualified in May 2020 but says he qualified that by saying he would have to check with the Law Society and SILE. 134. Mr Lim struck us as an earnest and truthful witness, and we have no doubt that Mr Lim genuinely believed that the Respondent had made the Alleged Representation to him on 14 January 2020. His contemporaneous email to Professor Wong supports his evidence to the Tribunal and we see no reason why he would say that the Respondent had made the Alleged Representation if he did not believe it had been made. The only 96 Respondent’s AEIC [38(d)] and [38(e)]. 39 question therefore is whether the Respondent had qualified the Alleged Representation as he claims to have done. 135. On this issue, we note that Mr Lim accepts that the Respondent had mentioned that he would have to ‘check’ and says that it was unclear exactly what the Respondent felt needed to be checked. The Respondent maintains that he meant that he would have to check with the Law Society and SILE. It is therefore quite possible on the evidence before us that there had been a degree of miscommunication or misunderstanding between Mr Lim and the Respondent as to whether the Respondent had given an unqualified representation that he would be qualified to act as supervising solicitor from May 2020. 136. In the circumstances, we are unable to conclude with sufficient certainty that the Respondent had in fact made the Alleged Representation. We therefore find that the Fifth Charge and the Alternative Fifth Charge are not made out. Conclusion 137. We therefore find and determine pursuant to Section 93(1)(c) of the Act that cause of sufficient gravity for disciplinary action exists: (a) under Section 83(2)(b) of the Act in respect of the First Charge; (b) under Section 83(2)(j) of the Act in respect of the Second Charge; and (c) under Section 83(2)(h) of the Act in respect of the Alternative First Charge, the Alternative Second Charge and the Third Charge. 40 138. We also find and determine that the Fourth Charge, the Alternative Fourth Charge, the Fifth Charge and the Alternative Fifth Charge were not made out. 139. We order, pursuant to Section 93(2) of the Act, that the Respondent pays the Law Society’s costs in relation to these proceedings, such costs to be taxed by the Registrar if not agreed. th 22nd Dated this 17 day of March 2022 Siraj Omar, S.C. President Tan Jee Ming Advocate 41 ",2023-03-08T04:00:32+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2023/,"In the Matter of Clarence Lun Yaodong (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-mar-2023/",961 5,c9cec5a41473d524bba2a51035f36486a2dbf7b2,"In the Matter of CNH (Respondent), Advocate & Solicitor","In the Matter of CNH (Respondent), Advocate & Solicitor These proceedings arose out of information referred by the Attorney-General to the Law Society on the Respondent’s conduct. The Respondent pleaded guilty to, and was duly convicted of the following: Section 509 of the Penal Code (Cap 224, 2008 Rev Ed) (PC) for intending to insult the modesty of a 23-year-old woman (Victim), and intruding upon her privacy, by using his handphone to take photographs of her chest and brassiere without her consent; and Section 509 of the PC for intending to insult the modesty of the Victim, and intruding upon her privacy, by using his handphone to take photographs of her panties without her consent. The Respondent had also consented to the following to be taken into consideration for the purposes of sentencing: Section 509 of the PC for intending to insult the modesty of the Victim, and intruding upon her privacy, by using his handphone to take photographs of her panties without her consent; and Section 354(1) of the PC for using criminal force on the Victim, by pressing his thigh against her upper arm, knowing it is likely that he would thereby outrage her modesty. The Respondent was sentenced to a total of four weeks’ imprisonment by the State Courts. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Ms Kuah Boon Theng SC and Mr Philip Ling as DT member. Two charges (Charges) were preferred against the Respondent: 1st Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (LPA) in that the Respondent had intentionally used his handphone to take photographs of the chest and brasserie of the Victim, who was his colleague in the law firm, without her consent. 2nd Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA in that the Respondent had intentionally used his handphone to take photographs of the panties of the Victim, who was his colleague in the law firm, without her consent, and pressed his thigh against her upper arm, knowing it is likely that he would outrage her modesty. Findings and Determination of the DT The Respondent was unrepresented, and failed to attend the DT Hearing, despite due notice being given to him. The DT proceeded to make a determination in the Respondent’s absence pursuant to Rule 16 of the Legal Profession (Disciplinary Tribunal) Rules (Rules). The DT noted that the Charges preferred against the Respondent were premised on his conduct culminating in him being charged and convicted of the criminal offences in the State Courts. As the Respondent pleaded guilty to, and has been convicted of his criminal charges, it was therefore taken that he had admitted to all the facts underlying and forming the basis of the criminal charges. With reference to section 45A of the Evidence Act (Cap 97, 1997 Rev Ed) as well as Rule 23 of the Rules, the DT was of the view that it was entitled to, and accepted as conclusive, the facts underlying and forming the basis of the criminal charges. The DT found that the Respondent’s said conduct, taken as a whole, fell below the required standards of integrity and probity, and had brought grave dishonour to the profession. The DT found that the Charges were made out, and was of the view that there was cause of sufficient gravity for disciplinary action under section 83 of the LPA, and recommended for the matter to be referred to the Court of Three Judges (C3J). Council accepted the findings and recommendations of the DT. The C3J subsequently struck the Respondent off the Roll.* *The decision of the C3J can be found in Law Society of Singapore v CNH [2022] SGHC 114. ",,,2023-02-01T02:00:22+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2023/,"In the Matter of CNH (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-feb-2023/",961 6,78768b3ee4c6c45d6fb1e63efe8b0c7aa894ad51,"In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor","In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Jain Alka @ Alka Salecha (the Complainant). The Complainant and her husband, one Mr Padam Kumar Jawerilal Salecha, were shareholders and directors of Swina International Pte Ltd (Swina) at all material times. Swina engaged the Respondent to negotiate with Swina’s creditor banks in relation to outstanding loans of around S$16 million. The Complainant and her husband also engaged the Respondent also attend to the bankruptcy proceedings taken out against them on account they being guarantors of the loans taken out by Swina. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Roderick E Martin SC and Mdm Tan Gee Tuan as DT member. One charge and two alternative charges were preferred against the Respondent: Charges 1st Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act 1966 (LPA) in that the Respondent failed to provide advice to his clients, in relation to the legal proceedings commenced against them, in breach of Rule 5(2)(h) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). 1st Alternative Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA in that the Respondent failed to act with reasonable diligence and competence in the provision of legal services to his clients by failing to advise his clients in relation to the legal proceedings that had been commenced against them, in breach of Rule 5(2)(c) of the PCR. 2nd Alternative Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA in that the Respondent failed to use all legal means to advance his clients’ interests to the extent that he may reasonably be expected to do so, by failing to advise his clients in relation to the legal proceedings that had been commenced against them, in breach of Rule 5(2)(j) of the PCR. Findings and Determination of the DT, Council’s Sanctions The DT found that the main charge, i.e. the 1st Charge, was made out on the facts beyond a reasonable doubt. The DT found that the Respondent did not advise his clients on the options available to the client in response to bankruptcy and winding up applications, i.e. the prospect of voluntary arrangements, schemes of arrangements and/or judicial managements. Further, the Respondent failed to advise his clients on the issue of balance sheet solvency. The DT noted that Swina was balance sheet solvent at the material time, and this fact could have been relied on to either persuade creditor banks to grant more time for repayment, or at the very least, to seek an adjournment from the Court. The Respondent did not do that or advise the clients on the same. Because of the Respondent’s omissions, his clients did not consider making a revised repayment proposal to Maybank to avoid the bankruptcy and winding up orders. In addition, the DT found that the Respondent failed to advise his clients on their options moving forward after bankruptcy and winding up orders were made. The DT concluded that no cause of sufficient gravity existed for a referral to the Court of Three Judges, cognisant of the fact that there was no element of dishonesty on the Respondent’s part, and that he was a candid witness. The DT was of the view that a financial penalty was appropriate to address the Respondent’s misconduct. There was no order as to costs as the Complainant’s counsel had taken on the case on a pro bono basis. Council accepted the findings of the DT and imposed a financial penalty of S$10,000 on the Respondent. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2023/01/dtr_jan_2023-compressed.pdf,"17th BACKGROUND FACTS, ‘The Complainant in these disciplinary proceedings is one Ms Jain Alka @ Alka Salecha (the “Complainant. The Complainant and her husband, Mr Padam Kumar Jawerlal Salecha, were at all material times the shareholders and directors of Swina International Pte Ltd ('Swina’), ‘Tne Respondent is Mr Sarindar Singh, an Advocate and Solicitorof the Supreme Court of Singapore, of 22 years’ standing (the “Respondent’). At all material times, the Respondent was the sole proprietor of Mis Singh & Co, ‘The Respondent was engaged by Swina to negotiate with Swina’s creditor banks In relation to outstanding loans of around SGD 16 million. The Respondent was also engaged by the Complainant and her husband, being personal guarantors of the loans taken out by Swina, for the same purpose The Respondent wrote to the banks proposing repayment plans, but those proposals were rejected Consequently, on 11 December 2017, Swina was served by Maybank with the winding up papers in HCICWU 247/2017 at its office and on 12 December 2017, the Complainant and her husband were personally served with the bankruptey papers in HC/B 2785/2017 and HC/B 2783/2017 respectively at their residence. The bankruptcy and winding up applications were heard and granted on 11 January 2018 and 12 January 2018 respectively (On 9 May 2019, the Complainant lodged a complaint against the Respondent, alleging that the Respondent had breached his duties under the Legal Profession (Professional Conduct) Rules by- (2) falling to act with honesty, competence and dligence; (b) disclosing information without the Claimant's instructions; and (c) ‘grossly overcharging for the work done."" 9. The complaint was referred to an IC, which took the unanimous view that allthree heads of complaint disclosed no necessity for a formal investigation by & Disciplinary Tribunal? 10, Boing dissatisfied with the IC's decision that there was no prima facie case for referral tothe DT, the Complainant took out an application vide HC/OS 41/2024 (COS 41°) for an order to compel the Law Society to refer her complaint to a DT. The parties to OS 41 were the Complainant, as the applicant, and the Law Society, as the respondent. At the hearing, the learned Justice Ang Cheng Hock (the “Judge"") adopted the burden of proof applicable in an IC.? Le. whether there, ‘was a prima facie case for referral. In other words, the learned Judge placed hhimsotf inthe position of the IC and. applying tho burden of proof epplicable to the IC, determined whether or not the IC should have referred the complaint to a oT 11, The leamed Judge held as follows: “1, Alter consideration of the affidavits and the submissions, | am of the view that there is a necessity for a formal investigation by @ i P appticant's Pte Ltdl (""Swina’) Internationa 2. That being the caso, | find that there is a prima facie basis for investigation to be carried out into Mr Sit ‘9 248 0250, FAB 434 » See Notes of Hearing (22 Apri 202%) at paragraph [2], AB 443 to 4 Inhis {sic regard. | find that the Council of the Law Society had erred {in not considering thatthe evi lsclosed a prima f professional misconduct that is of sufficient gravity as to warrant formal investigation by a disciplinary tribunal, 3 Onthe evidence before the Inquiry Committee (IC), ! did not agree that the other complaints raised by the Applicant in relation to Mr ‘Singh's alleged professional misconduct are either made out on a ‘prima facie basis, or were of sufficient gravity as to warrant a format investigation by a disciplinary tribunal. As such, | do not think that Council of the Law Society erred in determining that the other mattors did not require a format investigation by a discipinary tribunal 7. For the above reasons, { will thus grant OS 41/2021 in part. | hereby direct the Respondent to applyto the Chiot Justice for the appointment of a disciplinary tribunal in respect of the following charge against Mr Singh ~ breach of his duty of honesty, competence and diligence under Rule § of the Legal Profession vofessional Conduct) Rules 2015 by failing to advis Applicant in relation to the legal proceedings that had been commenced against her, her husband and Swina, and hence, that Mr Singh is guity of misconduct unbefiting an advacate and solicitor 18 an officer of the Supreme Court under s 83(2)(h) of the Lega! Profession Act” lomphasis added in bold and underine} 12. Pausing here, t ought to be stated that the burden of proof in the IC and before the DT is diferent. At the IC, the IC determines whether. on the material supplied to the IC, thore exists a prima facie case for referral to @ DT. Atthe DT, the burden of proof notches up to a more “onerous” burden, that is, that the Complainant's ‘case hasto be proven beyond a reasonable doubt.* 13. Italso ought to be stated that of the grounds relied on by the Complainant in OS: 41, only one ground was successful, this being that the Respondent failed to provide advice in relation to the legal proceedings in HC/B 2786/2017, HCIB 2783/2017 and HCICWU 247/2017 (the “Legal Proceedings’) I THE CHARGE 414, Its arising from this one ground that the following charge was preferred against the Respondent in the DT. It had two alteratives Charge “You, Sarindar Singh, an Advocate and Sotto ofthe Supreme Court of Singapore, are charged that you are guilty of misconduct unbofiting an advocate and solictor as an officer ofthe Supreme Court or as a ‘member of an honourable profession within the mening of section 83(2)(h) of the Legal Profession Act, to wit, by breaching Rule 5(2)(h) ofthe Legal Profession (Professional Conduct) Rules 2015, n that in the course of your engagement as Jain Alka @ Aika Satecha, Padam Kumar Jaworial Salecha and Swina Interatonal Pte Ltd's lawyer, ‘you had failed to provide advice to your clients, Jain Alka @ Alka Salecha, Padaem Kumar Jawerilal Salecha and Swina International Pte Ltd, proceedings in relation to the legal that had been commenced against them in HC/B 2785/2017, HC/B 2783/2017 and HC/CWU 247/2017 respectively. [emphasis added in bold and undertine} “You, Sarindar Singhan Advocate and Soictor ofthe Supreme Court of Singapore, are charged that you are quity of misconduct unbetitting “Taw Socay of Singapere v Ahmad Knals tn Abu Ghani [2006] 4 SLR(R) 208 at 6) an advocate and solicitor as an officer of the Supreme Court or as a ‘member of an honourable profession within the meaning of section £89(2}() ofthe Legal Profession Act, fo wit, by breaching Rule 5(2Kc} of the Legal Profession (Professional Conduct) Rules 2015, that i the course of your engagement as Jain Aka @ Alka Safecha, Padom Kumar Jawonlal Salocha and Swina International Pte Ltd's lawyer, you had failed to act with reasonable diligence and competence in vour provision of legal services to your clients, Jain Alka @ ‘Aika Salecha, Padam Kumar Jawerilal Salecha and Swina ‘International Pte Ltd, by failing to advise your clients in relation {0 the legal proceedings that had been commenced against them in HC/B 2785/2047, HC/B 27832017 and HCICWU 247/2017 respectively {emphasis added in bold and underline} ‘Second Alternative Charge “You, Sarindar Singh, an Advocate and Solicitor of the Supreme Court of Singaporo, are charged that you are guilty of misconduct unbefiting an advocate and solicitor as an officer of the Supreme Court or as a momber of an honourable profession within the meaning of section £83(2)(h) of the Legal Profession Act, to wit, by breaching Rule $(2)() of the Legal Profession (Professional Conduct) Rules 2015, in that i the course of your engagement as Jain Aika @ Alka Salecha, Padam Kumar Jawerilal Salecha and Swina International Pte Ltd's lauyer, ‘You had failed 10 use all legal means to advance your clients’ Jain Alka @ Alka Salecha, Padam Kumar Jawerilal Salecha and ‘Swina International Pte Ltd, interests to the extent that you may i he in-relation to the legal proceedings that had been commenced against them in HC/B 2785/2017, HC/B 2783/2017 and HC/CWU 247/2017 respectively. [emphasis added in bold and underline] tt ‘THE PARTIES’ POSITIONS a. The Complainant's Account 15. The Complainants account is that over the course of several meetings from 12 December 2017 to 11 January 208, the Respondent tol her and het husband ‘not to be concerned with the Legal Proceedings, 2s it would be a matter of formality to adjourn the hearings as negotiations with the respective credtor banks were underway * In this regard, the Respondent assured the Complainant that ne would attend the hearings on their behalf to inform the Court that a proposal had been made tothe creditor banks, and that the hearings would be adjourned. The Respondent also stated that it would take about 6 10 9 months forthe Legal Proceedings to be determined due tothe adjournments occasioned by the banks needina time to consider the proposals.” 16. On 11 January 2018, the Respondent informed the Complainant and her husband via WhatsApp that he was “in Court now’, then subsequently called the ‘Complainant and her husband to inform them that the bankruptcy orders had been made.* The Complainant was confused as this was contrary to what had been discussed in the previous meetings with the Respondent. In response, the Respondent stated that the orders had been made as Swina, the Complainant ‘and her husband had no money to repay the banks The Complainant later earned that the Respondent did not attend the hearing, but Maybank’s solicitors had instead mentioned on his behalf"" 17. On 12 January 2018, the Respondent informed the Complainant and hor ‘husband via WhatsApp that the winding up application against Swina had been granted. ""* The Complainant was shocked and demanded an explanation as to why the Respondent had not sought an adjournment, but the Respondent was F Complainants AEIC (73) (6ao (26. AECs 33 373) Complainant' (74) 0] 2 Complainant'AEIC s Complainant' AEICs 3 [8a7](83) 3 (86t'a s(89) AEC an Complain "" Complanants AEC * Complanants AEC atat (92). 93) rot forthcoming with a response.""? The Complainant later leamed that the Respondent did not represent Swina at the hearing.” b. The Respondent's Account 18. The Respondent's account is that he repeatedly advised the Complainant and hher husband that they needed to revise their proposals tothe creditor banks, and that this was the best advice that he could give in the circumstances. As what they had put forward was inadequate given the amounts that were owing, they needed to devise new repayment plans that were acceptable to the creditor banks."" 19. The Respondent had also taken the positon that it would be possible to adjoum the bankruptcy hearings as Maybank had not yet rejected the existing proposal. ‘This position changed on 11 January 2018, the day of the bankruptey hearings, ‘when the Respondent was informed by Maybank’ solicitors before the hearings {hat his clints' proposals were to be rejected. In the circumstances, he found himsetf without any grounds to justify an adjournment and accepted Maybank’s solicitors offer to mention on his behalt""® He accordingly advised the ‘Complainant over the telephone that there were no grounds for any adjournment lor resistance to the bankruptcy orders being made.""” IV. FINDINGS OF FACT 20, The Tribunal found that the main charge was made out on the facts beyond ‘reasonable doubt. In other words, the Respondent had failed to give advice to his clients on the Legal Proceedings that wore commenced against his clients, ‘Gomplanant’s AEIC atat 92) 95) Comptanant’s AEIC ‘Respondents AEIC at 1926] a [28 ‘Respondent's AEIC a [18 and (21) °* Responcents AEIC ""Respondents AEIC at[2128 (28) (20) 21. The Trbuna's finding is based largely on the admissions of the Respondent in ot having given advice in relation to the Legal Proceedings 22, In this regard, we refer to the following extracts from the Notes of Evidence (NOE"") soso NOE 14 Decomber 2021, pago 56 line 23 to pane $7 line 31 0 Are you suggesting now that you advised Ms Alka, her husband or Swina about the possibilty of a scheme of arrangement for Swina? A That—that was from day 1 that was told to her to come up with the proposals. And other than— ‘So when you say scheme of arrangement— Yes .do you just mean better repayment proposals? Yes, yes, !—-J meant in that and not in the literal sense of a Court-approved scheme of arrangements. Q So, to be clear, you've never advised Ms Alka, her husband or Swina about possible schemes of arrangement pursuant to Section 210 of the Companies Act? A No, not in this case. No, I didn't Q Thank you. emphasis added in bold] NOE 15 December 2021, page 15 line 27 to page 16 line 27 °@ You also did not advice [sic] Ms Alka and her husband ‘on a voluntary arrangement under Section 45 of the Bankruptcy Act and that that was the basis to stave off the bankruptcy proceedings. Do you agree? A | did not advise them on that voluntary arrangements because Thank you. A —May— 0 © Bo,you agree with m A Maybank was just not replying and the frst time President: if you want fo add on fo your answer— Witposs: Yes. 1 mean: President 4 wil give you loave. soso Witness: Yes, so because Maybank had not responded, the counsel has President Right Witnoss: —come up to me and asked the--they are not going to allow this because, Ihave strict instructions to proceed with t. Your proposalare rejected out of hand.” There's no basis left for me 0 do anything olse. Now this suggestion of voluntary: whatever he said earl Prosident: rrangoment What did you say? For—for the A voluntary arrangement under Section 45, Voluntary arrangement 0 you have something furthor to add, Mr Singh? ‘No, nothing. That-—that's it smphasis added in bold) o> o>o> NOE 15 December 2021, page 18 lines 3 to 12 °@ Now, similarly, you didn't advise your clients on @ scheme of arrangement under Section 210 of the Companies Act, correct? bol dda You did not, right? Mm. ‘Now, I suggest to you that that’s what a reasonably competent and diligent lawyer would have done, agree?” Disagree. You also did not advise your client on judicial ‘management, agree? "" A Agree, [emphasis added in bold] 23, Asis clear from the extracts, the Respondent simply did not advise his clients on. the options available to the cont in response to the bankruptcy and winding up applications, ie. the prospect of voluntary arrangements, schemes. of arrangement andlor judicial management 24. Further, the Respondent failed to advise his clientson the issue of balance sheet solvency: NOE 15 December 2021, Page 17 lines to7 So, to be clear, you disagree with my statement that you did ""OQ not advise them about the balance sheet solvency. So is ‘your evidence that you did advise them about balance sheet solvency? A No, I did not advise them on the balance sheet insolvency [sic] because they didn't~because my instructions were they didn't have the money. 25. This was notwithstanding the Respondent's acceptance that (a) Swina’s balance sheet recorded an excess of total assets over liabilties and (b) a Cour, at the time when the winding up applications were heard, would consider the issue of balance sheet solvency before granting the applcation.""* In respect of the former, the Tribunal noted that Swina’s total assets as at 31 December 2016 were valued at the amount of SGD 18,577.381.41,""* which would have been large enough te settle or substantially settle Swina’s debts to the creditor banks 26. This fact could have been relied on to either persuade the creditor banks (in particular, Maybank) to grant more time for repayment, of at the very least, to NOE 14 December 202%, page 25 ine 1910 page 27ine 13. Aud Statement of Accounts for year ended 31 December 2016, page 8 (Ag 1s Bundle ®‘of Swra's Documents, page °9), ‘seek an adjournment from the Court. However, this was not done. Nor did the Respondent advise his clients on the same 27. In fact, it would appear that the Respondent never advised nis clients to challenge the bankruptey and winding up proceedings by. for instance, fling a roply affidavit exhibiting documents evidencing of Swina’s financial position andior legal submissions, The Respondent made no mention of this in his Affidavit of Evidence-in-Chief or during the hearing, and did not produce any documents evidencing that such advice had been given. In this regard, given the absence of credible (or more accurately. any) contemporaneous records taken by the Respondent, we found it appropriate to draw an adverse inference against the Respondent 28. Perhaps more shockingly, the Respondent did not even advise nis cients on Maybank’s position in respect of his clients’ repayment proposal, and the Implications. of this position on the bankruptcy proceedings, until affer the bankruptey orders had been granted by the Court: smber 2021, page 15 lines 7 to 4 '@ So when did you actually inform Ms Alka and her husband about what Maybank solicitors told you? A Alter 've boen informed ofthis, on that very same morning | ‘informed her. @ Was it before or after Attor my cone A Q =the bankruptcy orders were made? A ‘tor my conversation with the @ That's not my question, Mr Singh. A Okay. After the order was made. [emphasis added in bold] Law Societyof Srgapore v Tan Phy Khiang (20073 SLR(R) 477 at 82), 29. This is despite the fact that the Respondent ha. by his own admission, told tho ‘Complainant that it would be a “matterof formality"" to adjourn the hearings en the basis that negotiations with the creditor banks were underway."" and that would take about 6 to 9 months before the applications would be determined by the Court as a result of the creditor banks needing time to consider the proposals.®? 30. AS a result, the Complainant, her husband and Swina were deprived of the ‘opportunity to consider whether a revised repayment proposal could be pul forward to Maybank to avoid the bankruptcy and winding up orders being made. 31. Finally, after the bankruptcy and winding up orders had been made, the Respondent failed to advise his clients on their options moving forward: NOE 15 De mber 2024 16 to24 Now, after the orders were made, you also did not advise your clients on the possibility of appeals or setting aside the bankruptcy or winding up orders, agree? A Setting aside, you are agai 2 Setting aside or appealing the bankruptcy or winding-up orders, A The bankruptcy order, no, | did not advise them on it. [emphasis added in bold) 32, Throughout the disciplinary proceedings, the Respondent took the position that he had advised his clients by telling them to come up with improved repayment proposals that would be acceptable to the banks In our view, this was not at all sufficient 2 NOE 15 December202%, page 10 ines 25 to 29 NOE 15 December2027, poge 11 ines 1210 17 Respencents AEIC a {26} NOE 1 December 2027, page S# Ine 261 page $8 ine 18, 33. As the High Court held in Law Society of Singapore v K Jayakumar Naidu [2012], 4 SUR 1232 “Solicitors have a duty to loyally advance their clents’ interests with diligence and competence. Among its multiple facets, this duty requires clients to be advised fairly and it faith of the issues peculiar to the matter at hand, .. All solicitors also owe their clients a fundamental duty of undivided loyalty to ethically advance their cont’ interests and not place themselves ina position of conflict. patie needs, and not perfunctory, A grave failure to adequately discharge these duties of care and loyalty, whether resulting om ignorance or @ Jack of conscientiousness, may expose a solicitor to disciplinary action ‘and invito sanctions by the court, It is all the more troubling if in the course of an engagementthe solicitor repeatedly abdicates from these responsibilities to his client."" emphasis added in bold and underline} 34. In teling his clients to do nothing more than to come up with better repayment proposals, the Respondent's advice was plainly perfunctory. The very least the Respondent woukt have been expected to do was to, upon learning of Maybank’s, rejection of his chents’ offer at the door of the Cour, update his clients and seek ‘an adjournment from the Court on the basis that he had just been informed that his clients’ offer was rejected. Soyond belief, he instead went as far as to accept ‘Maybank’s solicitors offerto mention on his behaif 35, The Respondent's otner answer to the charge was that his clients had no money and thereto: the would be misleading the cour if he did anything in relation to the Legal Proceedings.** We do not accept this excuse because, as an Advocate and Solicitor, he should have atleast raised the available options to his clients (ie. challenging the applications, a voluntary arrangoment, a scheme of arrangement andlor judicial management), even though it may have been dificult BENDE 15 Decerbet 202%, page*7 ls 14 10 22 and nage 17 ine 28 0 page 18 woe2 17th ",2023-01-10T04:00:00+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2023/,"In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2023/",1128 7,f8a70a175a9d90c583a38fcf1362967307efc2c3,"In the Matter of Seow Theng Beng Samuel (Respondent), Advocate & Solicitor","In the Matter of Seow Theng Beng Samuel (Respondent), Advocate & Solicitor These proceedings arose from information referred by the Council of the Law Society of Singapore (Law Society) in relation to the conduct of the Respondent, which stemmed from the following circumstances: The initial lodging of a complaint against the Respondent by a former employee of the Respondent’s firm, Samuel Seow Law Corporation, who subsequently withdrew the complaint; and The publication of media reports on the Respondent’s abusive behaviour towards his employees; Upon the application of Council, the Chief Justice empanelled a Disciplinary Tribunal (DT), presided by Mr Siraj Omar SC, and Mr Pradeep Pillai, as DT member. Charges Eight (8) principal charges were preferred against the Respondent with alternative charges pursuant to section 83(2)(h) of the Legal Profession Act 1966 (LPA) (collectively, the Charges). After the hearing had commenced, the Respondent pleaded guilty to all of the Charges and Alternative Charges preferred against him. 1st Charge (Charge 1) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (PCR), in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing files and boxes on the floor in her direction, screaming at her, and verbally abusing her. 2nd Charge (Charge 2) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing a metal stapler on the floor in her direction on 26 March 2018. 3rd Charge (Charge 3) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing a metal stapler on the floor in her direction on 28 March 2018. 4th Charge (Charge 4) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by shouting and advancing towards her in an aggressive manner, such that she stumbled and fell. 5th Charge (Charge 5) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent conducted himself in an intemperate and boorish manner towards his employee by throwing his wallet in her direction, and threatening to kill her with a knife. 6th Charge (Charge 6) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in that the Respondent used criminal force against his employee. 7th Charge (Charge 7) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in which the Respondent verbally abused his employee and voluntarily caused hurt to her. 8th Charge (Charge 8) For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA through a breach of Rule 8(3)(b) of the PCR, in which the Respondent verbally abused and used criminal force against his employee. Findings and Determination of the DT The DT found that the facts relating to the Respondent’s conduct were not disputed and painted a clear picture of physical and verbal abuse. The DT also found that the Respondent’s conduct towards his employees was an abuse of his position of authority over them. The DT found that the seriousness of the Respondent’s misconduct, and the fact that it contravened both sections 83(2)(b) and 83(2)(h) of the LPA, sufficiently constituted cause of sufficient gravity within the meaning of section 93(1)(c) of the LPA in the absence of valid mitigating factors. The DT considered the mitigating factors proffered by the Respondent and found that: They did not assist in mitigating the seriousness of the Respondent’s conduct; The Respondent’s contemporaneous conduct did not reflect genuine remorse; and The arguments raised by the Respondent in mitigation were not sufficient in persuading the DT that the severity of the misconduct did not amount to “cause of sufficient gravity”. The DT therefore found that cause of sufficient gravity for disciplinary action existed and ordered that the Respondent pay the Law Society’s costs in relation to the proceedings. Council adopted the findings and recommendations of the DT and made the application pursuant to section 98 of the LPA for the Respondent to show cause. Pursuant to an application by the Law Society for the Respondent to be sanctioned under section 83(1) of the LPA, the C3J* found that there was due cause for the Respondent to be sanctioned, and ordered that the Respondent be struck off the rolls on 18 May 2022. To access the full report, click here. *The decision of the C3J can be found in Law Society of Singapore v Seow Theng Beng Samuel [2022] SGHC 112. ",https://lawgazette.com.sg/wp-content/uploads/2022/12/dtr_dec_22.pdf,"DT 5 OF 2019 IN THE MATTER OF SEOW THENG BENG SAMUEL AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) REPORT OF THE DISCIPLINARY TRIBUNAL Disciplinary Tribunal: Siraj Omar, S.C. - President Pradeep Pillai - Advocate Solicitor for The Law Society of Singapore Solicitors for the Respondent Mr Dinesh Dhillon / Mr Leong Tse Chuan / Ms Alisa Toh Qian Wen (Allen & Gledhill LLP) Mr Eugene Thuraisingam / Mr Chooi Jing Yen/ Mr Johannes Hadi (Eugene Thuraisingam LLP) ,Jl Dated this JO day of March 2020 .' INTRODUCTION 1. The Law Society of Singapore (the ""Law Society"") brought eight charges against Mr Seow Theng Seng Samuel (the ""Respondent""). The specific charge·s were amended several times, and (as we describe below) the Respondent eventually pleaded guilty to each of the charges framed against him. 2. Having carefully considered the facts of the case and the parties' respective submissions, we find that cause of sufficient gravity for disciplinary action exists: (a) under Section 83(2)(b) of the Legal Profession Act (Cap. 160, the ""Act"") in respect of each of the Charges (as defined below); and (b) under Section 83(2)(h) of the Act in respect of each of the Alternative Charges (as defined below). 3. We set out our grounds below. THE CHARGES 4. The Law Society framed eight charges against the Respondent ( collectively, the ""Charges""), alleging that the conduct set out in each of these charges amounted to ""improper conduct or practice as an advocate and solicitor"" within the meaning of · Section 83(2)(b) of the Act. 1 1 The Law Society's Statement of Case (Amendment No. 3) (the ""SOC""), at [21). 1 .. 5. The Law Society also framed alternative charges (collectively, the ""Alternative Charges"") in respect of each of the Charges, asserting (in the alternative) that the conduct described in each of the Charges also amounted to ""misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession"" within the meaning of Section 83(2)(h) of the Act. 2 6. The Charges and Alternative Charges were set out in the Law Society's Statement of Case, which was amended a total of four times. At the start of the hearing before us, the iteration of the charges facing the Respondent was set out in the Law Society's Statement of Case (Amendment No. 1). The Respondent pleaded guilty to the following part of the Fifth Charge and to the whole of the Sixth, Seventh and Eighth Charges: ""Fifth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 3 April 2018, at about 8pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (ij (ii) Threatened to take a knife to kill Ms Kang Pei Shan Rachel. Sixth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 17 April 2018, at about 5:54pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, 2 SOC, at [21]. 2 .' hava conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of.conduct made by the Professional Conduct Council under Section 71 of the Act), in that you used criminal force against one Ms Kang Pei Shan Rachel by using your finger to jab her forehead, and by pushing the files that Ms Kang Pei Shan Rachel was holding against her chest. Seventh Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 17 April 2018, at about 5:54pm, atthe office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section '71 of the Act), in that you: (i) Voluntarily causing hurt to one Ms Kong Shing Ying Brenda by grabbing her arms, pushing her against a table, repeatedly slapping her, jabbing your finger at Ms Kong's forehead and pushing Ms Kong with your shoulder such that she lost balance and fell backwards; and/or (iO Verbally abused Ms Kong Shin Ying Brenda by aggressively berating her and screaming at her. Eighth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 17 April 2018, at about 5:58pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (i) Used criminal force against one Ms Tan Tzuu Yen Serene by pushing her with such force that she fell to the floor; and/or 3 . ' (ii) Verbally abused Ms Tan Tzuu Yen Serene by aggressively berating her and screaming at her. 7. The Respondent initially contested the First to Fourth Charges and the remaining part of the Fifth Charge, as well as the alternatives to each of these charges. We proceeded to hear evidence from witness for both the Law Society and the Respondent in two tranches, from 14 to 16 August 2019 and on 26 and 27 September 2019. We then directed parties to submit their respective closing submissions by 25 October 2019, and scheduled a hearing for oral closing submissions on 19 November 2019. 3 8. On 1 November 2019, the Law Society sought leave to further amend their Statement of Case, and informed us that the Respondent was prepared to plead guilty to the remainder of the charges as set out in the proposed amendments. 4 The Respondent 5 confirmed this, and we allowed the proposed amendments. 6 9. At the hearing on 19 November 2019, the Law Society sought, and was granted, leave to file a further amended Statement of Case incorporating one minor amendment. The Respondent subsequently pleaded guilty to the First to Four Charges and the remainder of the Fifth Charge (and their alternatives) as set out in the Statement of Case (Amendment No. 3). These Charges read: ""First Charge 3 4 The Tribunal's directions made at the end of the hearing on 26 September 2019. Letter dated 1 November 2019 from The Law Society's solicitors Allen & Gledhill LLP to the Secretariat. 5 6 Email dated 1 November 2019 from the Respondent's solicitors Eugene Thuraisingam LLP to the Secretariat. The Tribunal's directions dated 4 November 2019. 4 , That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 16 March 2018, at or about 7pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section - 83{2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules {being a rule of conduct made by the Professional Conduct Council under Section 71 of/he Act), in that you: (i) Conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by throwing files and boxes on the floor in her general direction, and/or by screaming at her; and/or (ii) Verbally abused Ms Kang Pei Shan Rachel by screaming at her. Second Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 26 March 2018, sometime in the afternoon, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules {being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by throwing a metal stapler on the floor in her general direction. Third Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 28 March 2018, at about 3pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2){b) of the Act by breaching rule 8(3){b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by throwing a metal stapler on the floor in her general direction. 5 . .. Fourth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 28 March 2018, at about 9pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the A_ct by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (ij Conducted yourself in an intemperate and/or boorish manner towards one Ms Kang Pei Shan Rachel by advancing towards her in an aggressive and/or threatening manner such that she stumbled and fell to the floor, and/or by shouting at her; and/or (iij Verbally abused Ms Kang Pei Shan Rachel by shouting at her. Fifth Charge That you, Seow Theng Beng Samuel, an advocate and solicitor of the Supreme Court of the Republic of Singapore, on 3 April 2018, at about 8pm, at the office of Samuel Seow Law Corporation at 79 South Bridge Road, #01-01, Singapore, have conducted yourself in a manner which amounts to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Act by breaching rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules (being a rule of conduct made by the Professional Conduct Council under Section 71 of the Act), in that you: (i) Conducted yourself in an intemperate and/or ~?orish manner towards one Ms Kang Pei Shan Rachel by repeatedly throwing your wallet in her general direction; and/or (ii) 10. The Respondent therefore admitted the facts as set out in the Statement of Case (Amendment No. 3) and pleaded guilty to all of the Charges and Alternative Charges 6 .. proffered against him. The Respondent's admissions mean that it is common ground between the parties that the Respondent's conduct as described in: 7 (a) The Charges amounted to improper conduct under Section 83(2)(b)(i) of the Act; and (b) The Alternative Charges amounted to misconduct unbefitting an advocate and solicitor under Section 83(2)(h) of the Act. THE FUNCTION OF THE DISCIPLINARY TRIBUNAL 11. The function of a Disciplinary Tribunal is to act as a filter in order to determine whether or not there is 'cause of sufficient gravity' that could, on a finding by the Court of Three Judges, be ascertained to constitute 'due cause' that merited the imposition of one of the range of sanctions prescribed in Section 83(1) of the Act: Law Society of Singapore v Jasmine Gowrimani dlo Daniel (""Jasmine Danief'). 8 12. It is not for us to determine whether or not 'due cause' has been established in this case - that determination lies solely within the purview of the Court of Three Judges. Our role is to decide whether 'cause of sufficient gravity' has been established, and for that we need only be satisfied that there was a prima facie case on the relevant evidence that 'due cause' might be present: Jasmine Danie/. 9 If we conclude that 'cause of sufficient gravity' has been established, the Law Society is obliged pursuant to Se.ction 94 of the Act to make an application under Section 98 of the Act to the Court of Three Judges. 7 See also the Agreed Statement of Facts (Amendment No. 1). 8 [201 OJ 3 SLR 390, at [37]. 9 Ibid., at [31 ]. 7 13. We are also mindful that the fact that it is common ground that while the Respondent's conduct fell within the ambit of limbs (b) and (h) of Section 83(2), this does not necessarily mean that 'cause of sufficient gravity' had been established: Jasmine Danie!. 10 14. We turn to consider the parties' respective submissions in light of these principles. THE PARTIES' RESPECTIVE CASES 15. The options available to us at the close of proceedings are set out in Section 93(1) of the Act: ""93 (1) After hearing and investigating any matter referred to it, a Disciplinary Tribunal shall record its findings in relation to the facts of the case and according to those facts shall determine that - (a) no cause of sufficient gravity for disciplinary action exists under section 83_ or 83A (as the case may be); (b) while no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be), the regulated legal practitioner should be - (i) ordered to pay a penalty that is sufficient and appropriate to the misconduct committed; (ii) reprimanded; (iii) ordered to comply with one or more remedial measures; or (iv) subjected to the measure in sub-paragraph (iiij in addition to the measure in sub-paragraph (ij or (iij; or 10 Ibid., at [39]. 8 (c) cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be)."" 16. The Law Society submitted that cause of sufficient gravity for disciplinary action, within the meaning of section 93(1)(c) of the Act, had been shown to exist. Its grounds on which it bases its case can broadly be summarized as follows: (a) 11 The nature of the Respondent's conduct is sufficiently serious by itself to amount to a prima facie case of ""due cause"" under Section 83 of the Act; (b) The Respondent was in a position of authority vis-a-vis the victims, who were his employees; (c) The Respondent's conduct was part of a pattern of intemperate, boorish and belligerent conduct, and were not isolated incidents; and (d) 17. The Respondent has not shown genuine remorse for his actions. The Respondent argued that no cause of sufficient gravity for disciplinary action existed, but that the circumstances nonetheless warranted him bein·g ordered to pay a fine of S$20,000. He described such a fine as the ""most proportionate sanction in this case"", 12 claiming in mitigation that: (a) ""little if any harm was caused"" to the individual victims in this case; 11 The Law Society's Skeletal Submissions on Sanction (the ""LSS' Submissions""), at [42]. 12 The Respondent's Submissions on Sentence (the ""Respondent's Submissions""), at [8]. 9 18. (b) he was suffering from ""Adjustment Disorder"" at the relevant time; (c) he is ""deeply and genuinely remorseful for his behavior'; and (d) his conduct had caused little harm to the integrity of the legal profession. The Law Society's arguments referred to in paragraphs 16(a) to (c) above and the Respondent's argument referred to in paragraph 17(a) above all broadly relate to the severity of the Respondent conduct. We shall therefore deal with this issue first. THE TRIBUNAL'S FINDINGS (a) The severity of the Respondent's conduct 19. The Law Society highlighted several facts which they claimed underscored the severity of the Respondent's conduct. First, the Seventh and Eighth Charges relate to overt acts of physical violence inflicted by the Respondent on Ms Kong Shin Ying Brenda (""Ms Kong"") and Ms Tan Tzuu Yen Serene (""Ms Tan""). 13 20. While Ms Tan did not seek medical treatment after the incident, Ms Kong did do so and was assessed by the examining doctor at Parkway .East Hospital to have sustained ""multiple soft tissue injuries as a result of the assaulf'. The examining doctor also noted tenderness, bruising and abrasions on various parts of Ms Kong's head and body. 14 13 The Respondent's Submissions on Sentence (""Respondent's Submissions""), at [8]. 14 LSS' Submissions, at [47]. 10 , , 21. Second, it is plain from the video recording of the incident that the Respondent was much larger than both Ms Kong and Ms Tan, and was clearly the aggressor in both altercations. 15 It is also clear from the video that the Respondent would have continued attacking Ms Kong and Ms Tan, and most likely have inflicted more severe injuries on both of them, if not for the fact that he had been physically restrained by other employees and thereby prevented from doing so. 22. 16 Third, the attacks had been triggered by a fairly trivial matter - namely, that the Respondent had to meet a client with an associate from the firm but that associate was apparently not in the office at that time. It had nothing to do with any act or omission on the part of either Ms Kong or Ms Tan. 23. 17 Fourth, the Sixth Charge relates to physically aggressive conduct by the Respondent against Ms Kang Pei Shan Rachel (""Ms Kang""). The Respondent has been charged with an offence of using criminal force under Section 352 of the Penal Code for using his finger to jab Ms Kang's forehead knowing that such action would illegally cause annoyance to Ms Kang. 18 24. Fifth, the First to Fifth Charges relate to intemperate and/or boorish conduct by the Respondent directed towards Ms Kang on five separate occasions. These incidents involved (i) throwing files, boxes, a metal stapler and his wallet in Ms Kang's general direction, (ii) shouting at, and advancing towards, Ms Kang in an aggressive and/or threatening manner, and (iii) threatening to take a knife to kill Ms Kang. 15 LSS' Submissions, at [50]. 16 LSS' Submissions, at [59(a)]. 17 LSS' Submissions, at [51]. 18 LSS' Submissions, at [62]. 19 LSS' Submissions, at [66]. 11 19 25. Sixth, the Respondent was charged under Section 3(1 )(a) of the Protection from Harassment Act with using threatening words against Ms Kang with intent to cause distress. This was in relation to the Respondent's threat to take a knife to kill Ms Kang, which also forms part of the Fifth Charge. 26. The Law Society referred to and relied on the decision of the Court of Three Judges in Law Society of Singapore v Wong Sin Yee (""Wong Sin Yee""). 20 That case involved an incident of what is commonly termed 'road rage'. and the respondent advocate and solicitor in that case was charged and convicted in the State Courts under the then Section 323 of the Penal Code for having voluntarily caused hurt to a member of the public, as well as under Section 13A(1 )(a) of the Miscellaneous Offences (Public Order · and Nuisance) Amended Act for uttering insulting words to a member of the public. 27. The Court of Three Judges in that case found that the respondent advocate and solicitor's behavior ""constitute[d] a defect of character and render[ed] him unfit to be an advocate and solicitor'. and that his conduct fell within the ambit of Section 83(2)(a) of the Act. 21 He was consequently suspended from practice for two years. 28. The Law Society relied on the decision in Wong Sin Yee to support its contention that the Respondent's acts of physical violence and verbal abuse towards the various individuals were sufficient to constitute 'cause of sufficient gravity'. The Law Society submits that, as was the case with the respondent advocate and solicitor in Wong Sin Yee, the Respondent here had also demonstrated a serious lack of self-restraint. 22 20 [2003] 3 SLR(R) 209. 21 Ibid., at [15]. 22 LSS' Submissions, at [57]. 12 , , 29. The Law Society also submitted that the Respondent's conduct had not been borne out of mere frustration with Ms Kang's work performance. They argued that the severity and persistence of the Respondent's physical aggression towards Ms Kang (by throwing objects in her general direction and advancing towards her in an aggressive and threatening manner) was evidence of something more, and in fact amounted to bullying. 23 30. They also argued that the severity of the Respondent's scolding of Ms Kang (in terms of volume, frequency and vituperation) was out of proportion to any perceived shortcomings in her work performance, and that there were in any event more appropriate options for dealing with any such shortcomings. 24 31. These facts are not disputed. Taken as a whole, we agree with the Law Society that they paint a clear picture of physical and verbal abuse by the Respondent. 32. It is common ground that as their superior at work, the Respondent was in a position of authority vis-a-vis each of Ms Kang, Ms Kong and Ms Tan. The Respondent's physically and verbally abusive conduct towards these individuals was therefore an abuse of his position of authority over them. 33. We also note that the conduct set out in the Charges (which Respondent admitted) did not involve ""isolated incidents or momentary lapses"". Instead, as the Law Society argues, they appear to be indicative of a pattern of intemperate, boorish and belligerent conduct on the Respondent's part. 25 23 LSS's Submissions, at [72(a)]. 24 LSS's Submissions, at [72(b)]. 25 LSS's Submissions, at [75]. 13 ' ' 34. When all these facts are considered together, the picture that appears is one that shows the Respondent physically and verbally abusing his subordinates in a manner that was not 'one-off' of the resulted of momentary lapses. On any analysis, such misconduct cannot be described as anything other than serious. 35. The seriousness of the Respondent's misconduct and the fact that it contravened both Section 83(2)(b) and 83(2)(h) of the Act would in our view suffice to constitute cause of sufficient gravity within the meaning of Section 93(1 )(c) of the Act in the absence of any valid mitigating factors. We therefore turn next to consider whether there are any such mitigating factors. (b) Harm caused. and impact on. the victims 36. The Respondent argues there was little, if any, harm caused to Ms Kang, Ms Kong and Ms Tan. He points to the fact that Ms Tan did not suffer any injuries as a result of the Respondent's conduct described in the Eighth Charge (which is the only Charge that relates to her). 37. He also relies on two statements from Ms Kang and Ms Kong dated 28 May 2019 26 and 26 June 2019 27 respectively (collectively, the ""Statements""). In Ms Kang's statement, she states that she ""did not suffer any injuries as a result of [the Respondent's] actions on 17 April 2018"". 28 38. Similarly, Ms Kong states that ""although the incident may have appeared violent, [she] only suffered minor injuries such as a scratch and bruise"". She describes the incident 26 The Respondent's Bundle of Documents ""RBOD"") Tab 1. 27 RBOD Tab 2. 28 RBODTab1. 14 'I as ""no more than a noisy and dramatic altercation caused by loud shrieking and some shoving"". 29 The Respondent also relies on the fact that both Ms Kang and Ms Kong ""have wholeheartedly chosen to forgive the Respondent and continue to affirm him"". 30 39. The Law Society objected to these Statements, arguing that they are inadmissible because the Law Society did not have the opportunity of cross-examining the makers of the Statements as they were only tendered as part of the Respondent's closing arguments. The Law Society also argued that even if admissible, the Statements are irrelevant to the question of whether or not sufficient cause of gravity exists. 40. Having considered the parties' arguments and authorities on this issue, we find that the Respondent is entitled to tender and refer to the Statements. However, having considered the contents of the Statements, we find that they are of not much assistance to the Respondent in mitigating the seriousness of his conduct. 41. Taken at face value, the Statements simply set out the purported impact of the Respondent's conduct on Ms Kang and Ms Kong, and that they have both forgiven the Respondent. Two factors are relevant when considering these Statements. First, both Ms Kong and Ms Kang may well have been motivated to speak out in support of the Respondent in these proceedings because the former is his niece and the latter remains an employee of his company. 42. Second, the video of the 17 April 2018 incident clearly shows that the Respondent had to be physically restrained from further attacking Ms Kong and Ms Tan. Had he not been so restrained, he would very likely have inflected more serious injuries on them. The fact that Ms Kong's injuries were relatively minor was likely purely fortuitous. 29 RBOD Tab 2. 30 Respondent's Submissions, at [12]. 15 ' ' 43. The relevance of the Statements is therefore (at best) minimal when considered in the context of these factors. (c) 'Adiustment Disorder' 44. The Respondent argues that he has been ""diagnosed with Adjustment Disorder at the time of the offences"" and that this ""contributed to the commission of the offences"". 31 He relies in this regard on two medical reports dated 21 August 2019 32 and 13 September 2019 33 (the ""Medical Reports"") from Dr Tan Chue Tin, a clinical psychotherapist. 45. Dr Tan states in his first report that the Respondent ""suffered from Adjustment ,--a-.-, ·- Disorder at the time of the altercation recorded in the audio-video clips of April 2018 I 2019"". 34 He expands on this in his second report, saying that the Adjustment Disorder ""contributed to the commission of the offences as depicted'' in the video of the 17 April 2018 incident. 35 46. The Law Society also objected to these Medical Reports on the same grounds as the - Statements. As with the Statements, we find that while the Respondent is entitled to tender and refer to them as part of his mitigation, they do not assist him very much. 47. We note that Dr Tan first saw· the Respondent only _in May 2019, more than a year after the incidents that formed the subject of the charges. Yet the Medical Reports do 31 Respondent's Submissions, at [14]. 32 RBOD Tab 3. 33 RBOD Tab 4. 34 RBOD Tab 3, at page 10. 35 RBOD Tab 4, at [3]. 16 not contain any explanation as to how Dr Tan was able to ascertain that the Respondent suffered from Adjustment Disorder at the time of the incidents. More importantly, Dr Tan does not explain exactly what Adjustment Disorder is and how it purportedly contributed to the Respondent's behavior during the incidents. We therefore found the Medical Reports to be of very little assistance. (d) Remorse 48. The Respondent claimed that he was ""deeply and genuinely remorsefuf' for his behavior. In his affidavit of evidence-in-chief, he stated: ""Lastly, I acknowledge and take full responsibility for my inability to manage my anger. I am also, by nature, a flamboyant and animated person. When I lose my temper, I often scream and shout and throw things about. However, I wish to state that despite my anger management problem, I have never intended to hurt anyone. I regret and unreservedly apologise for my actions. I am undergoing medical treatment to ensure that this does not happen again."" [Respondent's emphasis] 49. The Law Society. contends that the Respondent has not shown genuine remorse for his actions, arguing that this is clear from his contemporaneous conduct. They point in particular to the following: (a) When first confronted with the complaints, the Respondent did not admit any wrongdoing but instead claimed that Ms Kang had been manipulated by one Mr Robert Raj Joseph and Mr Lew Shaun Marc. The Respondent's letter of 2 October 2018 to the Inquiry Committee36 sought to downplay the physical altercation with Ms Kong on 17 April 2018 and sought to justify his conduct by alleging that she had hit him first. 36 Law Society's Supplemental Bundle of Documents (""LS Supp BOD"") Tab 7, at [88] to [99]. 17 (b) In an interview with the Today newspaper published on 17 May 2018, 37 the Respondent sought to downplay the incident which forms the subject of the Seventh Charge, claiming that Ms Kong had ""shoved him first and he had then slapped her for being rude"". He described the incident as a ""typical family type of fighf' (Ms Kang being the Respondent's niece). (c) In that same interview, he claimed that he had not shoved Ms Tan to the ground but had rather ""accidentally knocked her to the ground when he turned around'. This is materially different from the facts set out in the Eighth Charge, which the Respondent now admits. The Respondent admitted to the quotes attributed to him in this interview. (d) In an interview with 8 Days magazine published on 31 May 2018, the Respondent is quoted as having denied punching people, throwing things or hurting people. His denial of having been physically violent is clearly untrue in light of his admissions in these proceedings. The Respondent admitted to the accuracy of the quotes attributed to him. (e) In posts on his Facebook page dated 26 April 2019 38 and 6 June 2019, 39 the Respondent sought to downplay the events which are the subject of some of the Charges. He admits having made these posts. 50. The Respondent's conduct from the time of the incident is clearly relevant to ascertaining whether he is truly remorseful for what happened. 37 Law Society's Bundle of Documents (""LSBOD"") Tab 14. 38 LS Supp BOD Tab 3. 39 LS Supp BOD Tab 4. 18 A review of the Respondent's conduct reveals a clear difference in his conduct before and after April 2019, when the video of the 17 April 2018 incident was made public. 51. The Respondent's correspondence with the Inquiry Committee and the interviews referred to in paragraph 49(a) to (d} above all pre-dated the public disclosure of the video. Far from expressing remorse, the Respondent seeks to deflect blame and responsibility. His approach changed once the video was made public, as evidenced by the social media posts referred to in paragraph 49( e) above. The Respondent expressly referred to the video and sought to downplay the severity and significance of the events. His conduct at the material time therefore does not reflect any degree of remorse on his part. 52. We therefore find that the Respondent's contemporaneous conduct does not support his assertion that he is genuinely remorseful about the incidents that are the subject of the complaints. (e) The Respondent's other arguments 53. The Respondent also makes two broad arguments in support of his submission that no cause of sufficient gravity exists and that a high fine would be the appropriate sanction in this case. First, he argues that he ""manifests a high potential for rehabilitation because he demonstrates insight into his psychiatric condition"" 40 (his emphasis). He relies on the fact that he voluntarily sought psychiatric help and ""is receiving help from Dr Augustine Tan, an experienced psychotherapisf'. 40 Respondent's Submissions, at [19]. 19 . _, 54. We find it self-serving for the Respondent to claim that he has a high potential for rehabilitation. We note that while he relies on the fact that he sought medical help, he did not do so until more than a year after the incidents and only after the video of the incident had been made public. We also note that we do not have the benefit of Dr Augustine Tan's views on this issue. 55. In any event, we do not think that the Respondent's potential for rehabilitation is a factor for us to consider in deciding whether 'cause of sufficient gravity' exists on the facts of this case. That may well be relevant for the Court of Three Judges' considerations on the appropriate sentence should they find that 'due cause' has been established. Even if we are wrong, and the potential for rehabilitation is a factor that we should consider at this stage, there is no evidential basis for us to conclude that the Respondent has a high potential for rehabilitation. 56. Second, the Respondent refers to the judgment of the Court of Three Judges in Law Society of Singapore v Ravi s/o Madasamy (""Ravi Madasamy''), where the Court outlined the principles governing the imposition_ of sanctions in disciplinary proceedings - namely (i) the need to protect members of the public, (ii) the need to uphold public confidence in the integrity of the profession, (iii) the need to deter the same or other solicitors from similar behavior, and (iv) the need to punish the particular solicitor involved. 57. The Respondent argues that these factors, when considered in the context of the facts of this case, support his submission that the imposition of a fine would suffice. 58. We do not agree. In our view, the Respondent's reference to and reliance on Ravi Madasamy is misplaced. The Court of Three Judges in that case set out the principles governing the sentencing of advocates and solicitors where 'due cause' is found to 20 \ have been established. That is plainly evident from the principles themselves, which include considering the impact on members of the public as well as the legal profession as a whole. 59. Such considerations are not within our remit. Our role is limited to deciding whether 'cause of sufficient gravity' has been established to warrant the referral of this matter to the Court of Three Judges. If we answer that question in the affirmative, it would then be for the Court of Three Judges to decide whether 'due cause' has been established, and if so to impose the appropriate sentence having considered the various principles discussed in Ravi Madasamy. 60. We therefore find that the arguments raised by the Respondent in mitigation are not sufficient to persuade us that the severity of his misconduct does not amount to 'cause of sufficient gravity'. CONCLUSION 61. We therefore find and determine, within the meaning of Section 93(1 )(c) of the Act, that cause of sufficient gravity for disciplinary action exists under Section 83(2)(b) of the Act in respect of each of the First to Eighth Charges. 62. We also find and determine, within the meaning of Section 93(1)(c) of the Act, that cause of sufficient gravity for disciplinary action exists under Section 83(2)(h) of the Act in respect of each of the Alternative First to Eighth Charges. 21 63. We also order, pursuant to Section 93(2) of the Act, that the Respondent pays the Law Society's costs in relation to these proceedings, such costs to be taxed by the Registrar if not agreed. fl, Dated this /0 Siraj Omar, C President day of March 2020 Pradeep Pillai Advocate 22 ",2022-12-05T02:00:23+00:00,https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-dec-2022/,"In the Matter of Seow Theng Beng Samuel (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-dec-2022/",961 8,357637d761bd59dd8243306e8e4ecdbf814b4c19,"In the Matter of Yeo Poh Tiang [Yang Baozhen] (Respondent), Advocate & Solicitor","In the Matter of Yeo Poh Tiang [Yang Baozhen] (Respondent), Advocate & Solicitor These proceedings arose from a complaint lodged by one Mdm Koh Hwee Miem (Complainant). On 12 February 2020, the Complainant paid Yeo & Associates LLC (the Firm) a sum of fees to utilise the services offered on an online portal developed by the Respondent to facilitate and expedite uncontested divorces (the Portal). On 5 March 2020, the Complainant requested for a full refund of fees paid as there had been no communication with either the Firm or the Respondent following the payment made on 12 February 2020. The Firm rejected the Complainant’s request on the following grounds: Payment made was non-refundable; and Payment was considered “fully utilised” upon access to the Portal pages. In the absence of an amicable resolution, the Complainant lodged a complaint against the Respondent by way of a letter to the Law Society of Singapore (the Law Society). Upon the application of Council, the Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Andre Yeap SC and Mr Anand Nalachandran as DT member. Charges Two (2) charges and two (2) alternative charges (collectively, the Charges) were preferred against the Respondent. First Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the Legal Profession Act 1966 (LPA), in which the Respondent breached Rule 17(3) of the Legal Profession (Professional Conduct) Rules (PCR), having failed to inform the Complainant that the fees paid were charged on a non-refundable basis. Alternative First Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, in that the Respondent failed to inform the Complainant that fees paid were charged on a non-refundable basis. Second Charge For improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the LPA, in which the Respondent breached Rules 5(2)(c) and (h) of the PCR, having failed to provide and/or initiate the timely provision of services paid for by the Complainant, despite representations that services were fast and expedient. Alternative Second Charge For misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA, in that the Respondent failed to provide and/or initiate the timely provision of services paid for by the Complainant, despite representations that services were fast and expedient. Findings and Determination of the DT First Charge The DT found that the First Charge was made out. The DT found that the Complainant had become a client of the Respondent and the Firm from the time the Complainant utilised the Portal and made payment of the fees on 12 February 2020. The DT found that the disclaimers on the Portal did not negate the presence of a retainer, noting that the disclaimers on the Portal referred to registered users as “clients”. The DT also found that the disclaimers on the Portal did not inform users that their payments were non-refundable. The DT did not accept the Respondent’s explanation that the phrase set out in the Portal being, “your payment is considered fully utilized when you access the subsequent pages for the paid service” adequately conveyed that fees were paid on a non-refundable basis as a “fully utilized” payment could still be refunded. Second Charge The DT found that the Second Charge was not made out. The DT did not find that the Respondent had failed to act with reasonable diligence and competence in providing timely advice to the Complainant, as the Portal provided users with 30 days to edit the online forms submitted. The DT therefore concluded that the Respondent had not acted unreasonably in waiting for the Complainant to edit the forms. DT’s Recommendations Having made their findings on the Charges, the DT determined that while no cause of sufficient gravity for disciplinary action existed under section 83 of the LPA, the Respondent should be reprimanded. Pursuant to section 93(2) of the LPA, the DT ordered that costs fixed at $8,000 (plus reasonable disbursements) be paid to the Law Society. Council adopted the findings and recommendations of the DT. To access the full report, click here. ",https://lawgazette.com.sg/wp-content/uploads/2022/11/dtr_nov_22.pdf,"1 DTlr5l202l In the Matter of Yeo Poh Tiang (Yang Baozhen) an Advocate & Solicitor And In the Matter of the Legal Profession Act 1966 REPORT OF THE DISCPLINARY TRIBUNAL DISCPLINARY TRIBUNAL PRESIDENT: ADVOCATE & SOLICITOR: MR ANDRE YEAP, SC MR ANAND NALACHANDRAN COUNSEL FOR LAW SOCIETY OF SINGAPORE: MS. SHUMIN LIN/ MR BENJAMIN TAN ZHI XIONG COUNSEL FOR RESPONDENT: MR N. SREENIVASAN S.C./ MS RANITA YOGEESWARAN DATED THIS 4th DAY OF MAY 2022 -2Introduction The Honourable the Chief Justice Sundaresh Menon in exercise of his powers under Section 90 of the Legal Profession Act 1966 (""LPA"") appointed the Disciplinary Tribunal (""Tribunal"") on 5 July 2021to hear and investigate the matter against Ms Yeo Poh Tiang (""Respondent"") and submit its findings to the Chief Justice. 2 The Respondent is an advocate and solicitor of the Supreme Court who was admitted to the roll on 12 July 2006. a J These disciplinary proceedings arise from a complaint by Mdm Koh Hwee Miem (""Complainant"") against the Respondent, who was at all material times the Managing Director of Yeo & Associates LLC (""Firm""). 4 By a Notice of Disciplinary Tribunal Proceedings dated 7 July 2021, the Respondent was informed that Disciplinary Tribunal proceedings have been commenced against her and she was required to answer the allegations in the complaint and the statement of case which accompanied the said Notice. 5 The Law Society of Singapore (""Law Society"") was represented by Shumin Lin from M/s Drew & Napier LLC whilst the Respondent was represented by N. Sreenivasan SC, and Ranita Yogeeswaran from M/s Straits Law Practice LLC. Procedural History 6 These proceedings involve 2 charges for breaches of Rule 17(3) as well as Rule 5(2) of the Legal Profession (Professional Conduct) Rules 2015 (""Rules""), which amount to improper conduct or practice as an advocate and solicitor under Section 83(2Xb) of the LPA, with 2 altemative charges for misconduct unbefitting an advocate and solicitor under Section S3(2)(h) of the LPA. In essence, the l't Charge under Rule 17(3) of the Rules alleges that the Respondent failed to inform the Complainant that fees paid for services were charged on a non-refundable basis, while the 2nd Charge under Rule 5(2)(c) and (h) of the Rules alleges that the Respondent failed to provide/contact/instruct the a J Complainant in respect of the services after 22 days even though the services were represented as 7 oofast and expedient"". Pursuanl tu the tlircul.iurrs of this Triburral, the Defenus was filcd ul 1 1 August 2021, tlte Lists of Documents were filed on26 August 2021, the Affidavits of Evidence in Chiel Bundles of Documents and Bundles of Authorities were filed on 28 September 202I,the Opening Statements were filed on 14 October 2011 and the matter was scheduled for hearing from 20 to 22 October 2021. On the 1't day of the hearing, Counsel for the Law Society sought leave to amend the Statement of Case and in particular, to clarifir the elements of the 2 charges, and to separate the altemative charges. Counsel for the Respondent had no objections. The Tribunal granted leave for the amendments and the hearing was completed on the 2""d day after receiving testimony from the Complainant and the Respondent. Following the hearing and as directed by the Tribunal in consultation with the parties, the parties submitted and exchanged their respective written closing submissions on 2 December 2021 as well as written reply closing submissions on 23 December 2021. Background 8 The Firm owns and operates ""DivorceBureau@"" a website (WUirUdjyr:Ioelglgglf.gQ.n.sg) described as a ""Do-It-Yourself (DIY) Portal"" (o'Portal"") developed by the Respondent to facilitate and expedite uncontested divorces at lower cost. DivorceBureau@ Service (""DBS"") was the basic service to assist users with generating the necessary Court documents. The Portal offered the ""PLUS Service"" (also referred to as ""PLUSS"") to assist users with filing the Court papers and the ""Legal Advice Service"" (also referred to as ""LAS"") to provide a consultation with a ""senior family lawyer"". DBS costs 5$599, PLUSS costs 5$380 and LAS costs S$150. 9 On 12 February 2020, the Complainant opted for the DBS, PLUSS and LAS and paid the sum of S$1,129 to the Firm through the Portal. Thereafter, the Complainant did not complete the online forms and had no communication with the Firm and/or the -4Respondent until the Complainant requested a full refund on 5 March 2020, ie,22 days later. 10. On 6 March 2020, the Firm's staff replied to reject this request and despite the Complainant's appeal, the Firm maintained that the payment was ""non-refundable"". On 11 March 2020, there was further communication with the Complainant and the Firm's staff highlighted the disclaimer that the payment was ""considered fully utilised"" with access to the subsequent pages and extended this position beyond DBS to include PLUSS and LAS as well. l1 On 1 I March 2020, the Complainant attempted to contact the Respondent to no avail and replied to the Firm and Respondent via email. The Complainant called the Firm, but the staff was unwilling to discuss the matter fuither. On 12 March 2020, the Complainant and Respondent communicated via email. However, there was no amicable solution or resolution to this issue. 12. On 15 March 2020, the Complainant informed the Firm to stop work (if any) and the Respondent reiterated the previous position and the ""terms and conditions"" of the Portal. The Complaint 13. By way of a letter to the Law Society of Singapore dated 13 May 2020, the Complainant lodged the Complaint against the Respondent for: (a) acting in a way which was contrary to a legal practitioner's position by using intimidating language and accusing her of harassment when she repeated her request for a refund of fees for services which, from her point of view, had not been provided; (b) lacking honesty about the services covered by the fees which the Complainant had paid for, and for refusing to provide services which the Complainant had already paid for; and -5- (c) failing to act with reasonable diligence in the provision of services, as no documents were prepared and no appointment had been made for legal consultationo and the services were not completed by the time the Respondent requested a refund on 5 March 2020, which was 22 days after she paid for the services through the Portal. Law Society's Case 14. The Law Society took the position that the Complainant became a client of the Firm and the Respondent upon making payment for legal services (DBS, PLUSS and LAS) on 12 February 2020. The Law Society submitted that the purported disclaimers relied on by the Respondent: (i) did not negate the solicitor-client relationship, and (ii) did not adequately inform the Complainant that the legal fees were paid on a oonon-refundable"" basis. The Law Society further submitted there was a failure to act with reasonable diligence and competence and to provide timely advice since the Respondent did not contact the Complainant for 22 days and the Portal represented that the process would be 'ofast and easy"". The Tribunal notes that the Law Society has not proposed a particular sanction but highlighted relevant precedents that supported a reprimand for breach of Rule 17(3) and a fine for breach of Rule 5(2) of the Rules. The Tribunal understood the Law Society's position to be that there was no dishonesty and no cause of sufficient gravity for disciplinary action under Section 83 of the LPA. Respondent's Case 15. The Respondent contends there was no solicitor-client relationship with the Complainant because the Portal provided ""DIY services"" and sought to separate the distinct services. The Respondent further contends that the Complainant was a litigantin-person and that the purported disclaimers highlighted: (i) there was no solicitor-client relationship, and (ii) the payments were ""fully utilized"" upon access to the Portal pages. The Respondent explained that the Complainant would have been contacted after 30 days if the forms had not been submitted because the Portal allowed users to ""edit the online form for the next 30 days"" and that the Complainant did not request for PLUSS and LAS. The Tribunal 6notes that the Respondent has proposed a fine or reprimand if one or both charges are established. Tribunal's Determination 16. During the hearing, the Tribunal heard the testimony of the Complainant and the Respondent and after the hearing, the Tribunal has considered the written submissions and written reply submissions of the parties in arriving at its findings on the pertinent issues. From the outset, the Tribunal notes that the Charges do not include DBS and relate to PLUSS and LAS only. The Charges (as amended) are set out below. FIRST CHARGE T'hat you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") Iocated at I0lA Upper Cross Street #12-13, People's Park Centre, Singapore 058358, are charged that you had, on or around I 2 February 2020, breached Rule l7(3) of the Legal Profession (Professional Conduct) Rules, in that you hadfailed to inform Koh Hutee Miem that the fees which she paid on 12 February 2020 for the ""PLUS Service"" and ""Legal Advice Service"" were being charged on a non-refundable basis, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act. ALTERNATIVE FIRST CHARGE That you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") located at l0lA Upper Cross Street #12-13, People's Park Centre, Singapore 058358, are cltarged that you had, on or around l2 February 2020, failed to inform Koh Hwee Miem that thefees which she paid on 12 February 2020for the ""PLUS Service"" and ""Legal Advice Service"" were being charged on a non-refundable basis, and are thereby guilty of such misconduct unbefitting an advocate and solicitor as an -7 - fficer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act. SECOND CHARGE That you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") located at I0lA Upper Cross Street #12-13, People's Park Centre, Singapore 058358, are charged thatyouhad, between I2 February 2020 and 5 March 2020, breached Rule 5(2)(c) and (h) of the Legal Profession (Professional Conduct) Rules, in that you hadfailed to provide tlte services which Koh Hwee Miem had paid.for on l2 February 2020, includingfiling of court documents in Court under the ""PLUS Service"", and providing legal advice under the ""Legal Advice Service"", ond that no document had beenfiled and no appointment had beenfixed with Koh Hwee Miem even after a period of 22 days had passed, despite the fact that the aforesaid services were stated to be fost and expedient; further, that you had failed to contact Koh Hwee Miem in respect of the services that had beenpaidfor on 12 February 2020 or instruct Koh Hwee Miem on how to avail herself of the qforesaid services, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act. ALTERNATIVE SECOND CHARGE That you, YEO POH TIANG (YANG BAOZHEN), an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with the firm of Yeo & Associates LLC (""the Firm"") located at I0lA Upper Cross Street #12-13, People.'s Park Centre, Singapore 058358, are charged thatyouhad, between 12 February 2020 and 5 March 2020, failed to provide the services which Koh Hwee Miem had paidfor on I2 February 2020, including /iling of court documents in Court under the ""PLUS Service"", and providing legal advice under the "" Legal Advice Service "" , and that no document had been filed and no appointment had beenfixed with Koh Hwee Miem even after a period of 22 days had passed, despite the foct that the aforesaid services were stated to be fast and -8expedient; .further, that you had failed to contact Koh Hwee Miem in respect of the services that had been paidfor on I2 February 2020 or instruct Koh Hwee Miem on how to avail herself of the aforesaid services, and are thereby guilty of such misconduct unbefitting an advocate and solicitor as an fficer of the Supreme Court or as a member of an honourable profession within the meaning of Section S3(2)(h) of the Legal Profession Act. 17. Based on the Portal and the available evidence, the Tribunal is satisfied that a solicitorclient relationship was established between the Complainant and the Respondent upon payment being made on 12 February 2020. There is no dispute that the DBS service was provided by and that the payment was received by the Firm, as a consequence of which these payments would constitute legal fees for legal services. On the facts, the Tribunal finds that the purported disclaimers do not negate the presence of a retainer and that the Complainant engaged the Firm and the Respondent via the Portal and paid for legal services. The Tribunal notes that the legal fees for PLUSS and LAS have not been refunded. 1't Charge - Rule 17(3) of the Rules 18. Rule 17(3)(a) of the Rules provides as follows: (3) A legal practitioner must - (a) inform his or her client of the basis on whichfees for professional services will be charged, and of the manner in which those fees and disbursements (f any) are to be paid by the client; 19. The Respondent places heavy reliance on 2 disclaimers, the first of which is referred to as ""the Page 180 Disclaimer"", which stated: ""... Clients are able to take as much time as they need to complete the forms. Thus, your payment is considered fully utilized when you access the subsequent pages for the paid service."" 9- The Page 180 Disclaimer can be found in Exhibit YPT-4 to the Respondent's affidavit of evidence-in-chief (""AEIC "") at p180. 20. The Page 180 Disclaimer, which is set out right before the Payment section on the oolnformations [sic] & Payment"" page, stated as follows: ""Divorcebureau.com.sg seel