lss_dt_reports: 52

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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

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