lss_dt_reports: 55
Data source: lawgazette.com.sg · About: choco-up/sg-law-archive-data
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| 55 | b699d2fd72a3abf75ffb00305b18fbfe4e5330cb | In the Matter of Ravi s/o Madasamy (Respondent), Advocate & Solicitor | In the Matter of Ravi s/o Madasamy (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from a reference made by the Attorney-General (AG) touching upon the conduct of the Respondent (the Complaint). The Complaint was in respect of criminal proceedings (the Proceedings) where the Respondent was at all material times acting for the accused. Shortly after the criminal proceedings had concluded and the Court had issued its judgment, the Respondent, in an interview with the Online Citizen Asia (TOC Asia), made several false and misleading accusations against the Public Prosecutor and/or the AG which had discredited the Attorney-General’s Chambers (AGC). A video recording of the interview was published online. In response to the interview, the Deputy Attorney-General (the DAG) wrote to the Respondent, alleging that the Respondent was aware that his allegations were false and thereby requesting for an apology and retraction of what was said during the interview. The Respondent maintained that there was sufficient basis, “both objective and subjective”, for the statements to be made and had refused to provide an apology. Thereafter, the Respondent commenced HC/S 1068/2020 (Suit 1068) against the AG, the DAG and the prosecutors who had carriage of the Proceedings, alleging that the AG et al had committed the tort of misfeasance in public office and were in breach of their statutory duty under the Legal Profession (Professional Conduct) Rules 2015 (PCR). These events were publicised by the Respondent via Facebook posts. The following charges were preferred against the Respondent at the onset of the proceedings: First Charge The Respondent made false and/or misleading allegations which were intended to convey to listeners of the interview and/or readers of TOC Asia that the Public Prosecutor and/or the AG had acted in bad faith, maliciously and/or improperly, so as to discredit the AGC and/or its legal officers in the eyes of the public, and thereby committed an act amounting to misconduct under section 83(2)(h) of the Legal Profession Act 1966 (the Act). Second Charge The Respondent made baseless accusations of misconduct and/or a threat to commence legal proceedings against fellow legal practitioners on his Facebook page, and is thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Act read together with Rule 7(2) of PCR. Third Charge The Respondent made a statement on his Facebook page which contained a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers, and is thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Act read together with Rule 8(3)(b) of the PCR. Fourth Charge The Respondent sent a letter to the AGC threatening to commence legal proceedings against the AG, the DAG, and members of the prosecution who had carriage of the Proceedings, and is thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Act read together with Rule 7(2) of the PCR. Additionally, three alternative charges were tendered against the Respondent citing section 83(2)(h) of the Act for misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. Findings by the Disciplinary Tribunal (DT) The DT found that the First Charge was not made out. The DT found that the Second, Third, and Fourth Charges were made out but no cause of sufficient gravity for disciplinary action arose. The DT also ordered the Respondent to pay the Law Society costs in the amount of S$3,000 (inclusive of disbursements) pursuant to section 93(2) of the Act. The Council’s Decision The Law Society applied for a review under section 97(1) of the Act of the DT’s findings in relation to the First Charge, contending that the Respondent’s misconduct amounted to due cause and warranted the imposition of more serious sanctions under section 83(1) of the Act. The Court dismissed the Law Society’s application. Court of Three Judges The Law Society then applied to the Court of Three Judges, contending that the Second, Third, and Fourth Charges gave rise to due cause of sufficient gravity for disciplinary action under section 83(1) of the Act. The Court of Three Judges agreed with the Law Society’s contention, and ordered that the Respondent be suspended for five years commencing from 21 March 2023. The Court of Three Judges also ordered the Respondent to bear the Law Society’s costs. To access the full report, click here. | https://lawgazette.com.sg/wp-content/uploads/2025/04/Apr_25_DT_Reports_Ravi_1.pdf | DT 6/2021 IN THE MATTER OF RAVI S/O MADASAMY, AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) REPORT Coram: Mr Amarjeet Singh, SC Mr Philip Ling Solicitors for the Law Society The Respondent (In person) WongPartnership LLP Wendy Lin Titus Teo K K Cheng Law LLC 12 Marina Boulevard, #28-01 Marina Bay Financial Centre Tower 3 Singapore 018982 Tel: 6416 8000 Fax: 6532 5722 (Ref: LWQ/20210427) 1 North Bridge Road #14-01 High Street Centre Singapore 179094 Tel: 6518 4778 Fax: 6518 4887 (Ref: MR.1145.21) Dated this 20th day of December 2021. 1 I. Introduction 1. These proceedings arise out of a reference made by the Attorney-General (“AG”) in his letter dated 23 October 2020 to the Law Society of Singapore[Note 1] of information touching upon the conduct of Mr Ravi s/o Madasamy of 28 Ceylon Road, #05-04, Singapore 429621 (the “Respondent”), pursuant to s. 85(3)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) (the “Complaint”).[Note 2] 2. The Complaint was in respect of criminal proceedings that had finally concluded in the Court of Appeal on 19 October 2020, in which the Respondent was at all material times acting for the accused person. 3. The Respondent is an Advocate and Solicitor of the Supreme Court of Singapore of about 24 years standing, having been called to the Singapore bar on 31 May 1997. The Respondent is currently practising with K K Cheng Law LLC. He was, at the time when the events giving rise to the subject matter of the Complaint arose, practising with Carson Law Chambers. 4. On 25 March 2021, the Honourable the Chief Justice appointed Mr Amarjeet Singh, SC as the President, and Ling Daw Hoang Philip as a member, of this Disciplinary Tribunal (“DT”) to hear and investigate the matter. Pursuant to s. 93(1) of the LPA, the DT is to hear and investigate into the matter and submit its findings to the Chief Justice. 2 5. By a Notice of Disciplinary Tribunal Proceedings dated 30 March 2021, the Respondent was given notice that Disciplinary Tribunal proceedings have been commenced against him and he is required to answer the allegations contained in the Complaint and the statement of the case that accompanied the said notice. II. The Charges 6. Following the Complaint, the Law Society preferred 4 charges against the Respondent. The 1st Charge is a standalone charge. The 2nd, 3rd and 4th Charges each have Alternative Charges. The four Charges and three Alternative Charges were variously made under the LPA and/or the Legal Profession (Professional Conduct) Rules (“PCR”) and their particulars and the grounds supporting them are as follows: 1ST CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 19 October 2020 attend a live interview with Online Citizen Asia in which you made, inter alia, the following statements in relation to the Court of Appeal's decision in Gobi a/l Avedian v Public Prosecutor [2020] SGCA 102: “... the Public Prosecutor has been overzealous in his prosecution and that has led to the death sentence...” 3 “And one of the things which is troubling in this decision today, is that the Court noted that the Attorney General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal. Then that begs the questions and calls into the fairness of the administration of justice in Gobi's case by the Prosecution...” “... because the Prosecution as the Court observed, ran a different case in the High Court and the Court of Appeal. So therefore, the Prosecution, essentially the fairness of the Prosecution, is called into question by the Court itself.” which are false and/or misleading allegations intended to convey to listeners of the interview and/or readers of The Online Citizen Asia that the Public Prosecutor and/or the Attorney General had acted in bad faith, maliciously and/or improperly, so as to discredit the Attorney General Chambers and/or its legal officers in the eyes of the public, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 2ND CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statements: 4 “... when these government lawyers who handled the Gobi's case are the wrongdoers.” “I have already taken instructions from Gobi and his family to commence proceedings against Mr. Lucien Wong (AG), Mr Hri Kumar (Deputy AG), Mr Faizal SC in court. I will file the writ of summons in the next few days for both personally against all 3 of the above Government lawyers and also against their offices in which they hold public appointment. They have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi's case...” which statements contain a baseless accusation of misconduct and/or a threat to commence legal proceedings against your fellow legal practitioners, and you are thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Legal Profession Act (Cap 161) read together with Rule 7(2) of the Legal Profession (Professional Conduct) Rules. ALTERNATIVE 2ND CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statements: “... when these government lawyers who handled the Gobi's case are the wrongdoers.” 5 “I have already taken instructions from Gobi and his family to commence proceedings against Mr. Lucien Wong (AG), Mr Hri Kumar (Deputy AG), Mr Faizal SC in court. I will file the writ of summons in the next few days for both personally against all 3 of the above Government lawyers and also against their offices in which they hold public appointment. They have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi's case... “ which statements contain a baseless accusation of misconduct and/or a threat to commence legal proceedings against your fellow legal practitioners, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 3RD CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statement: “I will also commence proceedings against law society if it does not do its part to protect lawyers and their independence of the profession if it entertains any further complaints or partcipates [sic] in any harassment by AG to harass me in doing my job.” 6 which statement contains a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers, and you are thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Legal Profession Act (Cap 161) read together with Rule 8(3)(b) of the Legal Profession (Professional Conduct) Rules. ALTERNATIVE 3RD CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 20 October 2020 make and post on your Facebook page the following statement: “I will also commence proceedings against law society if it does not do its part to protect lawyers and their independence of the profession if it entertains any further complaints or partcipates [sic] in any harassment by AG to harass me in doing my job.” which statement contains a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 7 4TH CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 21 October 2020 send a letter to the Attorney General Chambers threatening to commence legal proceedings against Attorney General Mr Lucien Wong S.C., Deputy Attorney-General Mr Hri Kumar Nair, S.C, and members of the prosecution who had carriage of the matter in CA/CCA 20/2017 and CA/CM 3 of 2020, and you are thereby guilty of improper conduct within the meaning of section 83(2)(b)(i) of the Legal Profession Act (Cap 161) read together with Rule 7(2) of the Legal Profession (Professional Conduct) Rules. ALTERNATIVE 4TH CHARGE You, Ravi s/o Madasamy, an Advocate and Solicitor of the Supreme Court of Singapore, did on 21 October 2020 send a letter to the Attorney General Chambers threatening to commence legal proceedings against Attorney General Mr Lucien Wong S.C., Deputy Attorney-General Mr Hri Kumar Nair, S.C, and members of the prosecution who had carriage of the matter in CA/CCA 20/2017 and CA/CM 3 of 2020, and you have thereby committed an act amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under Section 83(2)(h) of the Legal Profession Act (Cap 161). 7. In these proceedings, the Law Society was represented by Messrs WongPartnership LLP. The Respondent was unrepresented and appeared in person. 8 III. Background facts Criminal proceedings of Mr Gobi a/l Avedian 8. The Complaint against the Respondent stems from concluded criminal proceedings with regard to one Gobi a/l Avedian (“Gobi”). Gobi, a Malaysian, then 26 years of age, who arrived in Singapore by land via the Woodlands Immigration and Customs checkpoint on 11 December 2014, was arrested on suspicion of having in his possession two packets of granular substance containing a prohibited drug. The gross weight of the packets before analysis was 905.8 grams. Gobi was subsequently charged under s. 7 read with s. 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) of importing a class ‘A' drug, containing after scientific analysis 40.22 grams of diamorphine (“the Drugs”), an offence punishable by death under s. 33(1) and Schedule 2 of the MDA (the “Capital Charge”). 9. At the conclusion of Gobi’s trial, Justice Lee Seiu Kin (“Lee J”), having sieved through and analysed the evidence, held that Gobi in his defence had rebutted the presumption under s. 18(2) of the MDA (the “s. 18(2) presumption”) that he had knowledge that the granular substance he possessed was diamorphine as charged. Hence, Lee J acquitted Gobi of the Capital Charge, and convicted him instead on an amended lesser charge of attempting to import the said diamorphine believing it to be a controlled drug under Class C instead (the “Amended Charge”), which constituted a non-capital charge. Accordingly, Lee J sentenced Gobi to 15 years’ 9 imprisonment and 10 strokes of the cane. The High Court's decision can be found in PP v Gobi a/l Avedian [2017] SGHC 145.[Note 3] 10. The Prosecution being dissatisfied appealed to the Court of Appeal in CA/CCA 20/2017 against the decision of Lee J as stated above (the “Appeal”). The Appeal was grounded on the Prosecution’s submission that Lee J in the High Court had erred in finding that the s. 18(2) presumption had been rebutted, as Gobi’s evidence was highly suspicious and there were weaknesses and inconsistencies in respect thereof. 11. On 25 October 2018, the Court of Appeal accepted the Prosecution’s submissions and disagreed with the findings of Lee J that the s. 18(2) presumption had been rebutted. Accordingly, the Court of Appeal allowed the appeal, set aside Gobi's conviction on the Amended Charge and convicted Gobi on the original Capital Charge instead. The Court of Appeal's decision can be found in PP v Gobi a/l Avedian [2019] 1 SLR 113 (“Gobi (CA)”). [Note 4] 12. The Public Prosecutors who argued the Appeal in the Court of Appeal were different from those who had conduct of the trial in the High Court, whereas the defence team was the same. 13. Seven months later, on 27 May 2019, the Court of Appeal issued its judgment in the case of Adili Chubuike Ejike v PP [2019] 2 SLR 254 (“Adili”).[Note 5] In Adili, 10 the Court of Appeal held, for the first time, that wilful blindness could not be the subject of the presumption under s. 18(1) of the MDA. 14. On 3 January 2020, Gobi filed CA/CM 1 of 2020 (“CM1”) seeking leave pursuant to s. 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) and s. 11(2) of the Criminal Procedure Rules for the Court of Appeal to review its earlier decision in Gobi (CA) in light of (among other things) the new development in the law established in Adili. Gobi was represented by the Respondent in CM1. 15. On 25 February 2020, upon leave being granted by the Court of Appeal in CM1, Gobi filed CA/CM 3 of 2020 (the “Criminal Motion”) for the Court of Appeal to undertake the said review. Gobi was represented by the Respondent in both CM1 and the Criminal Motion. 16. On 20 April 2020, the Court of Appeal in its review jurisdiction issued a letter directing both parties in the Criminal Motion to file further written submissions in respect of questions it had raised,[Note 6] which were duly filed by the parties on 1 June 2020.[Note 7] The Criminal Motion was thereafter heard on 16 June 2020. At the conclusion of the hearing, judgment was reserved by the Court of Appeal exercising its review jurisdiction. 17. On 19 October 2020, the Court of Appeal, after reviewing the case, orally delivered brief grounds of its Judgment (the “Oral Judgment”) [Note 8], as set out 11 in its Minute Sheet 9 . The Court of Appeal set aside Gobi's conviction on the Capital Charge and reinstated Gobi's conviction on the Amended Charge as had been decided by Lee J in the High Court. 18. The full Judgment of the Court of Appeal after review can be found in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (the “Review Judgment”).[Note 10] In the Review Judgment, the Court of Appeal, relying on the new legal principles established in Adili, held that wilful blindness could similarly not be the subject of the s. 18(2) presumption. The Court of Appeal found that the Prosecution’s case against Gobi at the trial was one of wilful blindness to, and not that of actual knowledge of the nature of the Drugs. Accordingly, the Prosecution was not entitled to invoke the s. 18(2) presumption as it had. As the earlier decision of the Court of Appeal in the Appeal was premised on a finding that Gobi had failed to rebut this presumption, that can no longer form the basis of his conviction on the Capital Charge. In the premises, the Court of Appeal set aside Gobi’s conviction in Gobi (CA) and reinstated the conviction and the sentence imposed by Lee J on the Amended Charge. The Online Citizen Asia Interview: 19. On 19 October 2020, immediately after the delivery by the said Court of Appeal of the Oral Judgment (the full judgment of which was available for collection thereafter), the Respondent attended a live interview with The Online Citizen Asia to discuss the same (the “Interview”), which was video-recorded and uploaded on 12 The Online Citizen Asia's website and its Facebook page on the same day (ie. 19 October 2020). [Note 11] 20. In the Interview, the Respondent made, inter alia, the following statements concerning the AG and/or the Public Prosecutor which form the basis of the 1st Charge (collectively the “Interview Statements”): [Note 12] a. that the Public Prosecutor had been “overzealous in his prosecution” of Gobi, and “that has led to the death sentence of Gobi” (“First Statement”); b. that it was “troubling” that the Court noted that the “Attorney-General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal”, and that “begs the question and calls into the fairness of the administration of justice in Gobi's case by the Prosecution” (“Second Statement”); and c. that the Public Prosecutor, among others, should apologise to Gobi for the suffering Gobi and his family had gone through because “the Prosecution, as the Court observed, ran a different case in the High Court and the Court of Appeal”, and therefore “essentially the fairness of the Prosecution, [was] called into question by the Court itself.” (“Third Statement”) 21. According to the Law Society, as at 26 February 2021, the Interview uploaded on The Online Citizen Asia's Facebook page had been viewed around 93,000 times, 13 shared 659 times, had garnered about 1,300 “reactions”, and had 454 comments. [Note 13] 22. An article titled “Court of Appeal sets aside death sentence of Malaysian inmate, cites miscarriage of justice” was also subsequently uploaded on The Online Citizen Asia's website on 19 October 2020, containing extracts of the Respondent's Interview Statements.[Note 14] 23. On the same day ie. 19 October 2020, the Attorney-General’s Chambers (“AGC”) issued a press statement (“AGC Press Statement”), in which it took issue with certain statements made by the Respondent in the Interview Statements; in particular, the allegation that the Public Prosecutor had been “overzealous” in the prosecution of Gobi. [Note 15] 24. On 20 October 2020, the AGC wrote to the Respondent, stating that by the Interview Statements, the Respondent has made serious allegations that the Public Prosecutor had acted in bad faith or maliciously in the prosecution of Gobi, and that the Respondent is or must be aware that these allegations are false and highly inflammatory (the “AGC Letter”). In the AGC Letter, the AGC also stated that it was highly improper and contrary to the Respondent’s obligations as an officer of the court to have made the said allegations. The AGC demanded that the Respondent apologise and unconditionally retract all the Interview Statements in writing by noon on 22 October 2020. [Note 16] 14 Subsequent actions/conduct by the Respondent 25. On 20 October 2020, the Respondent uploaded the AGC Letter on his Facebook page with an accompanying post (the “First Facebook Post”) containing (among other things) the following statements (the “Facebook Statements”) which form the basis of the 2nd Charge, the Alternative 2nd Charge, the 3rd Charge and the Alternative 3rd Charge: [Note 17] a. that the “government lawyers who handled Gobi's case are the wrongdoers”; b. the Respondent has already taken instructions from Gobi and his family to commence proceedings against AG Mr Lucien Wong, S.C., Deputy Attorney-General (“DAG”) Mr Hri Kumar Nair, S.C., and Mr Mohamed Faizal, S.C. (“Mr Faizal”), and they “have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi’s case”; and c. that the Respondent will also commence proceedings against the Law Society if it entertains any further complaints or participates in any “harassment” by the AG. 26. On 22 October 2020, the Respondent wrote to the AGC (the “Response Letter”), in which the Respondent stated that he did not deny making the Interview Statements referred to in paragraph 2 of the AGC Letter, but denied the AGC’s 15 allegations that these statements were made with actual knowledge or reasons to believe that they were false. The Respondent countered with explanations and criticisms of the handling of the prosecution against Gobi, including threats made against him personally, and refused to apologise or to retract the Interview Statements. He reiterated that he had firm instructions from Gobi and his family to commence legal proceedings against the AG, the DAG, and members of the Prosecution who had carriage of the matter in the Appeal and Criminal Motion, and demanded a public apology by the relevant officers of the AGC by the next day. [Note 18] 27. The Response Letter was subsequently uploaded on the Respondent's Facebook page on the same day whereby the Respondent, in his post (the “Second Facebook Post”), repeated that he had strict instructions to commence legal proceedings as set out in the Response Letter.[Note 19 ] The contents of the Response Letter and the Second Facebook Post form the basis of the 4th Charge and Alternative 4th Charge. Suit No. 1068 of 2020 28. On 4 November 2020, the Respondent commenced an action in the High Court in Suit No. 1068 of 2020 (“Suit 1068”) on behalf of Gobi against AG Mr Lucien Wong, S.C., DAG Mr Hri Kumar Nair, S.C. and Mr Faizal, and 4 other Deputy Public Prosecutors who had conduct of the prosecution of Gobi alleging in the Suit, inter alia, that the defendants had committed the tort of misfeasance in public office and/or were in breach of their statutory duty under the PCR.[Note 20] 16 29. The defendants successfully applied to strike out the Statement of Claim in Suit 1068 and the action was dismissed by the Court. IV. Procedural history 30. Pursuant to the timelines / directions given in letters dated 5 April 2021 and 8 April 2021 issued by the Secretary to the DT to WongPartnership LLP and the Respondent: 31. a. the Respondent filed his Defence on 20 May 2021; b. the Law Society filed its List of Documents on 3 June 2021; c. the Respondent filed his List of Documents on 3 June 2021; and d. the Respondent filed his Affidavit of Evidence in Chief on 6 July 2021. Pursuant to leave granted by the DT on 2 July 2021, the Law Society filed its Statement of Case (Amendment No. 1) on 30 June 2021. 32. The hearing was fixed for 28 to 30 July 2021 (“DT Hearing”). After the DT Hearing, the Law Society and the Respondent filed their respective written submissions on 10 September 2021, and their respective Reply Submissions on 24 September 2021. 17 A. Respondent’s Defence 33. In the Respondent’s Defence, the Respondent:- a. admitted that the Interview was conducted after the hearing in which the Court of Appeal delivered the Oral Judgment, and that he did make the Interview Statements ([13] & [14]); b. denied that the Interview Statements were false and misleading, that he made the Interview Statements so as to discredit the AGC and/or its legal officers in the eyes of the public, and that he was alleging that the Public Prosecutor had acted in bad faith, maliciously and/or improperly in prosecuting Gobi and that such alleged conduct led to the death penalty being imposed on Gobi ([17] & [18]); c. averred that he was entitled to the defence of fair criticism in respect of the Interview Statements, as particularized at [10] of the Defence; d. averred that he was entitled to the defence of fair criticism in respect of the Facebook Statements, as particularized at [14] of the Defence; and e. averred that the statement in the Response Letter (concerning the instructions received by him to commence legal proceedings) was not a threat and in any event, the Respondent did subsequently commence legal proceedings on behalf of Gobi on the latter’s instructions ([17]). 18 B. Respondent’s Affidavit of Evidence in Chief (“RAEIC”) 34. In the RAEIC, the Respondent gave evidence of the background facts leading up to these proceedings. Apart from outlining his experience in acting for Gobi following his conviction by the Court of Appeal on the Capital Charge and, in particular, his filing of the Criminal Motion on behalf of Gobi which eventually led to the Review Judgment, the Respondent also referred to another set of proceedings, HC/OS 111/2020 (“OS 111”), commenced by him on behalf of Gobi and another prisoner (Dachinamurthy) seeking an interim stay of execution of their death sentences, pending investigation of allegations that “executions are carried out by kicking to the back of the neck” [Note 21]. The paragraphs which follow are a summary of the Respondent’s evidence and account of the relevant events which transpired thereafter in OS 111. 35. On 4 February 2020, at a pre-trial conference for OS 111, Senior State Counsel Wong Woon Kwong who appeared for the AG made the statement “I am also instructed to state that we are expressly reserving all rights against Mr Ravi” (the “Reservation Statement”), which made the Respondent perceive that he was under a threat as he was acting on his client’s instructions in commencing OS 111. 36. The Respondent commenced HC/OS 181/2020 (“OS 181”) on behalf of Gobi and Datchinamurthy on 10 February 2020, seeking a declaration that the Reservation Statement constituted an express or implied threat against himself and infringed the rights of Gobi and Datchinamurthy under Article 9(3) of the Constitution of the Republic of Singapore. [Note 22] 19 37. OS 111 and OS 181 were both dismissed by the High Court on 13 February 2020 and the Respondent filed Notices of Appeal on behalf of Gobi and Dachinamurthy on 19 February 2020 against the decision of the High Court (the “Judicial Review Appeals”). 38. On 13 August 2020, the Court of Appeal dismissed the Judicial Review Appeals. In the judgment of the Court of Appeal (Gobi a/l Avedian v Attorney-General [2020] 2 SLR 883), the Court did however observe that the Reservation Statement “might reasonably have been construed as intimidating”, which the Respondent had asserted supported his subjective view that the same constituted an express or implied threat. [Note 23] 39. In relation to the 4 Charges and 3 Alternative Charges preferred against him, the Respondent essentially reiterated and elaborated on the defences raised by him in his Defence. 1st Charge 40. In respect of the 1st Charge which is grounded on the Interview Statements, the Respondent reiterated his defence of fair criticism to justify his First Statement that the Public Prosecutor had been “overzealous” in the prosecution of Gobi, and “that has led to the death sentence of Gobi”, on the basis that there is plainly reasonable basis for the same, by reason of the Prosecution “detracting from their earlier factual concession that Gobi had in fact believed Vinod or Jega, and then arguing on appeal on the opposite factual premise that Gobi did not believe Vinod or Jega, an argument which the Court of Appeal accepted in Gobi (CA) at [39]- 20 [43]… thus leading to the death sentence being imposed on Gobi until the conviction was set aside in the Judgment”. [Note 24] 41. The Respondent further asserted that the Prosecution can also be fairly criticized to be overzealous on two fronts:- [Note 25] a. the Prosecution had, in their submissions for CM1, “not only made harsh characterizations of “abuse of process”, but sought to uphold the Court of Appeal’s findings in Gobi (CA) that Gobi had not believed Vinod and Jega when this was a fact that they had taken a contrary position on at Gobi’s trial”; and b. in view of the fact that Adili “had already cast doubts on the approach of using the s18(2) presumption to presume wilful blindness despite not expressly ruling so then, the Prosecution should have conducted a review of all drug cases which may potentially be impacted by Adili. However, they only adopted such a practice after the Judgment was delivered”. 42. In respect of his Second Statement that it was ‘troubling” that the Court noted that “Attorney-General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal”, the Respondent asserted that he was entitled to make the same as a matter of personal opinion in all the circumstances of the case, for the same reasons outlined above. [Note 26] 21 43. The Respondent further maintained that he was entitled to make such statement in the public forum by reason of the decision of the Court of Appeal in Shadrake Alan v Attorney-General [2011] 3 SLR 778 (at [85]). [Note 27] [Note 28] 44. In respect of his Third Statement that “the fairness of the Prosecution was called into question by the Court”, the Respondent reiterated his submission that “the Prosecution had detracted from their earlier factual concession at trial in order to seek a conviction on the capital charge against Gobi on appeal (and which they had succeeded)”, and had thereby not carried out “its overarching duty of fairness in the prosecution of accused persons in criminal proceedings in general”. [Note 29] 2nd Charge and Alternative 2nd Charge 45. In respect of that part of his Facebook Statements stating that the “government “lawyers who handled Gobi's case are the wrongdoers”, the Respondent, in reliance on his same submission above regarding the Prosecution having detracted from their earlier factual concession at trial, asserted that the Prosecution “may be said to have misled the court and it must therefore follow that the criticism of the prosecutors as “wrongdoers” in relation to their conduct of Gobi (CA) is a rationally supported and reasonable one”, and that this “further lends weight to a fair criticism that they were perpetuating their “wrongdoings””. [Note 30] 46. The Respondent also referred to and relied upon the Reservation Statement made by the Prosecution in OS 111 as a “factor” which “lends weight to the fair 22 criticism that the AGC officers having conduct of Gobi’s case as a whole are the “wrongdoers””. [Note 31] 47. In respect of that part of his Facebook Statements stating that he “has already taken instructions from Gobi and his family to commence proceedings… [t]hey have to be held accountable … and be subject to rigorous cross-examination and public scrutiny of their conduct”, apart from advancing the same submission that there are “reasonable and rationally supported bases” for him to make the statement that the legal officers from the AGC should be held accountable, the Respondent also pointed out that such statement was not made in his personal capacity but on behalf of Gobi, that all he had done was to convey to members of the public that Gobi and/or his family members had instructed him to commence a civil suit on Gobi’s behalf against the members of the Prosecution who had carriage of Gobi’s case to enforce Gobi’s rights, and that a distinction should be drawn between a statement to commence proceedings against another legal practitioner in the legal practitioner’s personal capacity and a statement to commence proceedings against another legal practitioner on behalf of a client. [Note 32] 48. The Respondent also reiterated the fact that he did ultimately commence an action on behalf of Gobi against the prosecutors on the basis of tort of misfeasance in public office and/or breach of statutory duty. [Note 33] 23 3rd Charge and Alternative 3rd Charge 49. In respect of that part of his Facebook Statements stating that he “will also commence legal proceedings against the law society…”, the Respondent relied on s. 38(1)(d) of the LPA which provides that “[t]he purposes of the [Law Society] shall be … to represent, protect and assist members of the legal profession in Singapore ….”.[Note 34] On this basis, the Respondent submitted that while the Law Society may be statutorily obliged to take steps under s. 85(3) of the LPA upon receipt of complaints from the AGC, it “may be said to have failed in its statutory duty under s 38(1)(d) of the LPA” on the facts of his case in view of what had transpired in OS 111. [Note 35] 4th Charge and Alternative 4th Charge 50. The Respondent relied on the same matters as canvassed by him in his defence to the 2nd Charge and Amended 2nd Charge, as summarized at [45] to [48] above. C. Law Society’s Aide Memoire 51. In the Aide Memoire tendered by the Law Society on 26 July 2021 for its oral opening at the DT Hearing, the Law Society made submissions in relation to the 4 Charges and 3 Alternative Charges against the Respondent, which are summarized below. 24 1st Charge 52. Firstly, the Law Society contends that read individually or collectively, in the context of the Interview, the Interview Statements implied that: a. the Prosecution acted unfairly / improperly / in bad faith in the Appeal (leading to Gobi’s death sentence); and b. this alleged lack of fairness / improperness by the Prosecution was called into question by the Court of Appeal in Gobi (Review). and the Respondent’s conduct thus runs foul of s. 83(2)(h) of the LPA. [Note 36] 53. Secondly, the Law Society contends that the defence of fair criticism relied upon by the Respondent is not made out, for the following reasons: a. there is no rational basis for the Interview Statements, because the Prosecution had a reasonably arguable case on Appeal; and b. the Interview Statements were not made by the Respondent in good faith, because, inter alia, the Respondent levelled accusations that the Prosecution acted unfairly / improperly which led to the imposition of the death sentence on Gobi without any rational basis, he chose to make the Interview Statements on a public forum, well knowing that it would reach a larger audience, he had allegedly conveniently omitted several 25 important points which would have provided a more complete picture of the state of the proceedings, and he made no effort to correct / clarify any of the Interview Statements after reviewing the written Review Judgment or the AGC Letter, but instead allegedly further aggravated the matter by making the Facebook Posts. 54. The Law Society also makes the point that it is one thing to note and state factually that the Prosecutor had run a different case in the Appeal, and quite another to go on to level the accusation that the Prosecution had therefore acted improperly / unfairly / in bad faith in the Appeal, and that such improperness / unfairness was also called into question by the Court of Appeal. 2nd Charge (and Alternative 2nd Charge) 55. Firstly, the Law Society submits that the making by the Respondent of the Facebook Statements against the AG and officers of the AGC who handled Gobi’s case (ie. calling them “wrongdoers” whom he had received instructions to commence legal proceedings against and who “have to be accountable to Gobi” and “be subject to rigorous cross-examination and public scrutiny”) in a public forum is, in itself, plainly discourteous and not fair, and runs foul of Rule 7(2) of the PCR [Note 37]. This is regardless of whether these statements had merit. 56. Secondly, the Law Society contends that the defence of fair criticism likewise relied upon by the Respondent is bound to fail, because this is no defence to the 26 mischief intended to be prevented by Rule 7(2) of the PCR and there is in any event no rational basis for the Respondent to have made the Facebook Statements. 57. Thirdly, the Law Society contends that the conduct of the Prosecution in OS 111 and OS 181 relied upon by the Respondent; in particular, the Reservation Statement (summarized at [35] above) is irrelevant to these proceedings, because the “wrongdoers” whom the Respondent was referring to in the First Facebook Post were not the AGC officers who had conduct of OS 111 and OS 181, but those who had conduct of the Appeal and the Criminal Motion. The Law Society further submits that the Court of Appeal (in its reported judgment in Gobi a/l Avedian v Attorney-General [2020] 2 SLR 883) did not actually find the Reservation Statement to be discourteous, only that it was “unnecessarily vague”, and that, in any event, the Respondent’s subsequent conduct also demonstrated that he was in fact not “threatened” or offended by the Reservation Statement. 3rd Charge (and Alternative 3rd Charge) 58. Firstly, the Law Society contends that the Respondent’s statements that he “will also commence legal proceedings against the law society… if it entertains any further complaints or participates [sic] in any harassment by AG” are clearly discourteous because it included a threat to commence legal proceedings against the Law Society and implied that the Law Society was acting improperly if it acted on any complaint from the AG, and thereby ran foul of Rule 8(3)(b) of the PCR. [Note 38] 27 59. Secondly, the Law Society contends that the Respondent’s defence of fair criticism is not an element to be considered when determining whether Rule 8(3) of the PCR has been breached, and the fact that the Respondent had made threats / offensive remarks against the Law Society in a public forum in itself runs foul of Rule 8(3)(b) of the PCR. 60. Thirdly, the Law Society contends that there was no basis for the Respondent’s said statement and they were not made in good faith because: a. the Law Society is statutorily obliged to act on complaints from the AG under s. 85(3) of the LPA and this was not pointed out by the Respondent; and b. the allegation against the Law Society was made without any supporting evidence or facts. 4th Charge (and Alternative 4th Charge) 61. As the Respondent is relying on the same matters canvassed by him in his defence to the 2nd Charge and Amended 2nd Charge, the Law Society is likewise relying on the same matters canvassed by it in support thereof, as summarized at [55] to [57] above. 28 D. Respondent’s Opening Statement 62. In the Respondent’s Opening Statement, the Respondent reiterates his reliance on fair criticism in defence to the Charges and Alternative Charges preferred against him. He also made submissions in relation to the said Charges and Alternative Charges, which are summarized below. 1st Charge 63. The Respondent submits that it is “plainly true that the Prosecution had caused the death sentence to be wrongly imposed on Gobi”, and that this point was not rebutted by the Law Society in its Aide Memoire. He went on the summarise the grounds on which he is basing his defence of fair criticism, as raised and adduced in his Defence and RAEIC. In particular, he highlighted that the Court of Appeal did express its misgivings over the manner in which the Prosecution ran a different case at trial and in the Appeal in the prosecution of Gobi. He also pointed out that he did clarify the statements made by him in the Interview by way of the Response Letter which according to him set out the rational bases for making the Interview Statements. 2nd Charge (and Alternative 2nd Charge) 64. The Respondent similarly relies on the defence of fair criticism and asserts that there are likewise rational bases for criticism of the Prosecution’s conduct in “detracting from their factual concession at trial and therefore leading to the 29 death sentence being wrongly imposed on Gobi by the Court of Appeal”. He also reiterated his reliance on the events in OS 111 and OS 181 and, in particular, the making of the Reservation Statement, as being relevant to the issue of the meaning of the term “government lawyers” as used by him and whom he had described as “wrongdoers” in the Facebook Statements. He made the point that the fact that the Statement of Claim in Suit 1068 had been struck out by the Court did not mean that there was no rational basis for making these statements. 65. As for that part of his Facebook Statements pertaining to the commencement of proceedings against the AG, the DAG and Mr Faizal, the Respondent reiterated his submission that he did not suggest that he had the intention to commence legal action against these individuals in his personal capacity, and that a distinction should be drawn between a statement to commence proceedings against another legal practitioner in the legal practitioner’s personal capacity and a statement to commence proceedings against another legal practitioner on behalf of a client. He argues that the mere conveyance of a client’s intention to commence legal action against a fellow legal practitioner cannot, without more, amount to a threat or discourtesy in the solicitor’s personal capacity and thereby constitute improper conduct on the part of the solicitor himself. 3rd Charge (and Alternative 3rd Charge) 66. The Respondent contends that that part of his Facebook Statements pertaining to commencement of proceedings against the Law Society must be viewed in context, and that the Reservation Statement made in OS 111 is relevant as it sheds 30 light on and is suggestive of the “differential treatment” accorded to these 2 statements, which he says is “in violation of equality before the law under Article 12(1) of the Constitution”. 4th Charge (and Alternative 4th Charge) 67. The Respondent essentially relies on the same matters as canvassed by him in his defence to the 2nd Charge and Alternative 2nd Charge. The DT Hearing 68. The DT Hearing took place over 2 days on 28 and 29 July 2021, during which the Respondent was cross-examined by Counsel for the Law Society on 29 July 2021. 69. In the course of such cross-examination, the Respondent raised the following further points by way of clarification / explanation: a. in respect of his Second Statement “[a]nd one of the things which is troubling in this decision today, is that the Court noted that the Attorney General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal. Then that begs the questions and calls into the fairness of the administration of justice in Gobi's case by the Prosecution...", he was implying that the Public Prosecutor acted unfairly, 31 but he denied he was trying to say that the Public Prosecutor had thereby acted improperly.[Note 39] b. in making reference to the “government lawyers” as “wrongdoers” in his Facebook Statements, he meant that “they are acting as potential defendants”, and “to the extent that … there was a breach of their fairness in terms of they are ministers of justice and administration of justice” and “[t]hey have committed a wrong, means civil wrong”.[Note 40] Subsequently, he further explained that by “wrongdoers”, he also had in mind the “various breaches that have taken place” which formed the subject of the claim in Suit 1068. [Note 41] c. he “didn’t say anywhere that the AGC was malicious … [t]he AGC is overreacting to my statement” and “[w]hether you want to call it bad faith or malicious, I didn’t have those words in mind”. [Note 42] E. The Law Society’s Closing Submissions and Reply Closing Submissions 70. Based on the evidence of the Respondent adduced under cross-examination at the DT Hearing on 29 July 2021, the Law Society made further submissions (by way of Closing Submissions (“LSCS”) and Reply Closing Submissions (“LSRS”)) in relation to the four Charges and three Alternative Charges against the Respondent, which are summarized below. 32 1st Charge 71. Firstly, the Law Society contends that the Respondent did not dispute or deny in the Response Letter that what he was seeking to and did convey by the Interview Statements at the time of the Interview, was that the Public Prosecutor had acted in bad faith or maliciously in the prosecution of Gobi. 72. Secondly, the Law Society contends that the Respondent had conceded that the Interview Statements implied that the Prosecution had acted unfairly, and this would also suggest that the Prosecution acted dishonestly or improperly. 73. Finally, the Law Society contends that what the Respondent had always intended to convey by the Interview Statements is further confirmed by the fact that just a day later, he had referred to the “government lawyers” as being “wrongdoers” in the Facebook Statement. 74. As submitted in its Aide Memoire, the Law Society reiterates its case that the Interview Statements made by the Respondent run foul of s. 83(2)(h) of the LPA, a catch-all provision which can be invoked when the conduct in question does not fall within any of the enumerated grounds in s. 83 but is nevertheless considered unacceptable (see Law Society of Singapore v Ng Chee Seng [2000] 1 SLR(R) 466 at [40]). [Note 43] 75. In respect of the Respondent’s defence of fair criticism, the Law Society likewise reiterates its contention that this is not made out for the following reasons: 33 a. there is no rational (much less highly cogent) basis for the Interview Statements; and b. 76. the Interview Statements were not made in good faith In its LSRS, the Law Society also points out that the Respondent had in his Closing Submissions accepted that by the Interview Statements he was suggesting that there was “impropriety on the part of the Prosecution”, and the word “impropriety” conveys to the public that the Prosecution had acted “improperly”. 2nd Charge (and Alternative 2nd Charge) 77. Firstly, the Law Society contends that the ordinary meaning of the word “wrongdoers” implied that the AG and the officers of the AGC had engaged in serious misconduct or even illegality, as evidenced by the fact that in the First Facebook Post, the Respondent had asserted that a claim would be filed against the AG, the DAG and Mr Faizal “personally” and that they “have to be held accountable … in court and be subject to rigorous cross examination and public scrutiny of their conduct of Gobi’s case”. 78. Secondly, the Law Society contends that the First Facebook Post contained a threat to commence legal proceedings against the AG and members of the AGC. It was pointed out that if, as the Respondent contends, his intention was only to communicate an intention to commence legal action, there would be no need to 34 publish the First Facebook Post. It is also contended that the Respondent wanted to pressure / intimidate the AGC to back off / not file any complaint against him, as is evident from the Respondent’s statement in the First Facebook Post that “[t]he public should demand the AG to retract this letter and apologise”. 79. As submitted in its Aide Memoire, the Law Society reiterates its case that the Facebook Statements made by the Respondent runs foul of Rule 7(2) of the PCR, on the basis that it is plainly discourteous for the Respondent to call the AG and officers of the AGC, in a public forum, “wrongdoers” who should be subjected to public scrutiny in Court, and to threaten legal proceedings against them, regardless of whether the Facebook Statements had merit. 80. In respect of the Respondent’s defence of fair criticism, the Law Society likewise reiterates its contention that this is no defence to the mischief intended to be prevented by Rule 7(2) of the PCR, because accusations / threats against a fellow practitioner should not be levelled (much less in a public forum), regardless of whether they are true or not. The Law Society also reiterates the point that in any event, there is no rational basis for the Respondent to have made the Facebook Statements. 81. Finally, the Law Society makes the same point that the conduct of the Prosecution in OS 111 and OS 181 is irrelevant to these proceedings and that the Respondent was in fact not threatened / offended by the Reservation Statement as demonstrated by his subsequent conduct. 35 82. In its LSRS, the Law Society also submits that it is clear from the Respondent’s Closing Submissions that he does not dispute that he was implying from the Interview Statements that there was misconduct on the part of the AG, DAG and Mr Faizal (as well as the Prosecution team in Gobi’s case). 3rd Charge (and Alternative 3rd Charge) 83. The Law Society reiterates the contentions made in its Aide Memoire on this issue (as set out at [58] to [60]), and further contends that the reliance placed by the Respondent on the fact that the Law Society did not act against the Reservation Statement is misplaced as being an afterthought, irrelevant and that in any event, there was no “threat” made against the Respondent and hence nothing for the Law Society to act on. 4th Charge (and Alternative 4th Charge) 84. The Law Society likewise reiterates the contentions made in its Aide Memoire on this issue (as set out at [55] to [57] above). F. The Respondent’s Written Submissions and Reply Submissions 85. The Respondent’s Written Submissions (“RWS”) and Reply Submissions (“RRS”) in relation to the 4 Charges and 3 Alternative Charges against him, tendered subsequent to the conclusion of the DT Hearing, are summarized below. 36 1st Charge 86. Apart from maintaining his defence of fair criticism, the Respondent essentially reiterates the points made by him in his RAEIC on this issue. In particular, he maintains that the Interview Statements are not false or misleading and did not impute bad faith or malice on the part of the Prosecution. He further asserts that he was only questioning the fairness of the Prosecution towards himself and Gobi in view of the entire history of the matter, in the sense that the AG should have acted fairly in a certain manner, and that there was no element of bad faith or malice suggested thereby. 2nd Charge (and Alternative 2nd Charge) 87. In respect of the word “wrongdoers” contained in the Facebook Statements, the Respondent contends that the meaning to be attributed to or understood by it:- a. must be considered in the context of the circumstances leading to the making of the Facebook Statements; and b. 88. is inextricably linked to the Interview Statements. The Respondent submits that if he succeeds in establishing that there were rational bases for the Interview Statements, it must likewise mean that there were rational bases for his use of the word “wrongdoing”, on the basis that it would be plain in this situation that the prosecutors had done wrong to Gobi. The 37 Respondent also referred to what he described as the AGC’s “inexplicable conduct” of questioning how he had come to be discharged from representing Gobi and Dachinamurthy in the appeals against OS 111 and OS 181. 89. The Respondent also relies on his clarification given under cross-examination at the DT Hearing that in using the term “wrongdoers”, he was referring to a civil wrong. He referred to the definition of “civil wrong” in Oxford References as meaning “[a]n infringement of a person’s rights, for which the person wronged may sue for damages or some other civil remedy”, and contends that it is arguable that Gobi’s rights to be treated fairly had been infringed by the Prosecution’s conduct such that they could reasonably be described as “wrongdoers” in the civil sense. 90. In relation to the striking out of the Statement of Claim and the dismissal of the action in Suit 1068 commenced by him on behalf of Gobi, the Respondent contends that the fact that some of the legal requirements to found the claims in the tort of misfeasance of public office and breach of statutory had not been met, which constituted the basis for the said striking out and dismissal, is independent of the question of whether there are rational bases for the allegations to have been made against the defendants in the action and, in particular, the making of the statements that the prosecutors had done wrong to Gobi personally. 91. Finally, the Respondent reiterates his submission that that part of his Facebook Statements stating that he “has already taken instructions from Gobi and his 38 family to commence legal proceedings …” did not amount to threats by him in his own capacity, and that a distinction should be drawn between a statement to commence proceedings against another legal practitioner in the legal practitioner’s own capacity and a statement to commence proceedings against another legal practitioner on behalf of a client. 3rd Charge (and Alternative 3rd Charge) 92. In relation to that part of the Facebook Statements stating that he “will commence proceedings against law society”, the Respondent contends that this statement does not impute the insinuation that the Law Society has misused its statutory powers, having regard to the context in which it was made, whereby:- a. the Respondent had just given the Interview in which he had appealed for the AGC to apologise for its officers’ conduct in Gobi’s matter; b. to which the AGC had responded to demand the retraction of the Interview Statements and an unconditional apology, failing which the AGC would file the necessary complaint against the Respondent; and c. to-date, nothing had been done by the Law Society about the Reservation Statement. 39 93. In light of the above, the Respondent submits that a possible alternative reading of the said statement could be that he would “commence proceedings” against the Law Society in the event that by entertaining further complaints from the AG, it has not done its part to protect members of the legal profession and their independence, having regard to s. 38(1)(d) of the LPA (relevant extract reproduced at [49] above). 94. The Respondent further submits that the said statement could not be objectively construed as a threat, when one compares it with the terms of the Reservation Statement as well as the AGC’s demand for an apology against the Respondent in the AGC Letter. In particular, the Respondent submits that compared to the Reservation Statement, the said statement was not as wide or open-ended, as the scope under which he had claimed he would commence legal proceedings against the Law Society was only limited to the situation of the Law Society entertaining the AG’s complaint which he had asserted amounted to a failure on the part of the Law Society to protect him as a member of the Bar. 4th Charge (and Alternative 4th Charge) 95. The Respondent reiterates the same point canvassed by him in his RAEIC in support of his defence to the 2nd Charge and Amended 2nd Charge ie. that his statement that he had “firm instructions from Gobi and his family to commence legal action and enforce his rights” against the AG and the DAG etc. did not suggest that he had the intention to commence legal action against them in his own capacity. 40 96. The Respondent further asserts that he had valid reasons to upload the Response Letter on his Facebook page because the said letter also contained his rebuttal against the AGC’s allegations by explaining why there are both objective and subjective bases for the Interview Statements, and he was entitled to exercise his right of reply and put forth his account of events in the public manner he did, given how the AGC themselves had also brought the matter up in the public forum by issuing the AGC Press Statement. IV. Findings and determination of the DT A. 1st Charge 97. The primary issue which we have to consider under the 1st Charge is whether, in making the Interview Statements and posting the same on his Facebook page, the Respondent has been guilty of misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA. In our view, this, in turn, depends ultimately on whether the Interview Statements constitute fair criticism which the Respondent is entitled to rely upon in his defence. 98. As noted by the Law Society in its LSCS (at [32]), it is trite that s. 83(2)(h) of the LPA is a catch-all provision which can be invoked when the conduct in question does not fall within any of the other enumerated grounds in s. 83 but is nevertheless considered unacceptable (see Law Society of Singapore v Ng Chee Seng). 41 99. It is also settled that in Disciplinary Tribunal proceedings, the burden is on the Law Society to prove the charge(s) preferred against the advocate and solicitor beyond reasonable doubt (see The Law Society of Singapore v Terence Tan Bian Chye [2007] SGDSC 10 at [19]). [Note 44] 100. The concept of fair criticism was considered in the context of contempt of court proceedings in Shadrake Alan v Attorney-General [Note 45], where the Court of Appeal (at [81] & [82]) held that the following (non-exhaustive) factors set out in AG v Tan Liang Joo John [2009] 2 SLR(R) 1132 (at [81] & [82]) [Note 46] ought to be considered:- a. The criticism must be made in good faith and must also be respectful. b. The extent to which the criticism is supported by argument and evidence ie. there must be some reason or basis for the criticism. c. The manner in which the criticism is made ie. is must generally be expressed in a temperate and dispassionate manner. d. The act or words in question must not impute improper motives to nor impugn the integrity, propriety and impartiality of judges or the courts. 101. The concept of fair criticism has found statutory recognition in the Administration of Justice (Protection) Act 2016 (No. 19 of 2016), in which s. 3(1)(a), which deals with acts which constitute contempt of court, states by way 42 of Explanation 1 that “Fair criticism of a court is not contempt by scandalising the court … ”.[Note 47] This provision and the defence of fair criticism thereunder was recently considered by the Court of Appeal in Wham Kwok Han Jolovan v Attorney General and others [2021] 1 SLR 804. [Note 48] 102. The concept of fair criticism was also raised as a defence and considered by the Disciplinary Tribunal in disciplinary proceedings against an advocate and solicitor in The Law Society of Singapore v Chia Ti Lik [2011] SGDT 4, [Note 49] in which one of the charges preferred against the respondent, also under s. 83(2)(h) of the LPA, was based on statements made by him in a blog post which contained allegations against the AG, the Deputy Solicitor General and the AGC and its officers. It was also raised and considered recently in another set of disciplinary proceedings, The Law Society of Singapore v Ravi s/o Madasamy [2020] SGDT 8 [Note 50 ], which likewise concerned statements in an article published and posted on the online website www.onlinecitizen.com containing what was alleged to be baseless attacks against the impartiality and integrity of State Prosecutors in Singapore. 103. In the context of the 1st Charge, in which the complaint against the Respondent is grounded on statements made by him concerning the AGC (and its officers), the AG and the office of the Public Prosecutor as well, we likewise accept that the principles underpinning the concept of fair criticism and the factors to be taken into account thereunder as laid down by the Court of Appeal in Shadrake Alan v Attorney-General, is a relevant consideration in determining whether the charge has been made out. In this connection, we note the observations of the 43 Court of Three Judges in Re Gopalan Nair [1992] 2 SLR(R) 969 (at [48]) that “[t]he office of the AG, like that of a judge, is an essential pillar of our legal system”. [Note 51] 104. As far as the actual text and contents of the Interview Statements are concerned, we are of the view that the meaning to be ascribed thereto, and what the Respondent had intended to convey thereby, have to be considered in the light and context of all the facts and circumstances leading up to the Interview; in particular, the observations made by the Court of Appeal in the Review Judgment. 105. We also accept that the broad approach to be taken, in determining whether the Interview Statements can be considered fair criticism, should be in the manner explained by the High Court in the first instance decision of Attorney-General v Shadrake Alan [2011] 2 SLR 445 as follows (at [72]): “… It is not necessary to establish an unassailable basis for the criticism made against it or even a basis which is objectively more reasonable than not. The reason, and I should emphasise this, is because a court, in deciding whether the defence of fair criticism is made out, is not required or concerned to determine whether the criticism was proved or disproved as a fact. In my view, it is sufficient for the defendant to give some rational basis for the criticisms he makes. However, the cogency of the rational basis required to support the allegation would increase correspondingly with the seriousness of the allegation made.” (emphasis added) 44 106. Accordingly, the question of whether any of the statements comprised in the Interview Statements constitutes fair criticism, as contended by the Respondent, depends in the final analysis on whether the Respondent had any rational basis for making the same, having regard in particular to the seriousness of the allegations levelled. It is, strictly speaking, not necessary for us to assess the truth or otherwise of these statements, and/or whether they have been proved or disproved factually. 107. Bearing in mind the above guiding principles, we turn now to consider the First Statement in the Interview Statements viz “… the Public Prosecutor has been overzealous in his prosecution and that has led to the death sentence …”. We pause here to note that the word “zealous” (an adjective of the noun “zeal” – which means, inter alia “such desire displayed in pursuit of an objective, or in advancing a cause”), according to the New Shorter Oxford Dictionary 8th Ed Volume 2 at page 3758, means “[f]ull of zeal, active in the promotion of a person or cause” or “[Of] an action etc.: marked by zeal”, which may be equated to being enthusiastic in the pursuit of an objective. 108. It cannot be disputed that the word “prosecution” in the First Statement is a reference to the Prosecution’s Appeal to the Court of Appeal against the decision of Lee J convicting Gobi of the Amended Charge. It is therefore necessary to consider the conduct of the Appeal by the Prosecution, as disclosed and analysed by the Court of Appeal in the Review Judgment. This, in turn, requires an examination of the nature of the case run by the Prosecution at first instance 45 before Lee J in the High Court, which is conveniently summarized by the Court of Appeal in the Review Judgment. 109. To recapitulate, Gobi had claimed trial to a capital charge of importing the Drugs, an offence under s. 7 of the MDA. At his trial in the High Court, the sole issue was whether he had rebutted the presumption of knowledge under s. 18(2) of the MDA. Lee J accepted Gobi’s defence that he believed the Drugs to be a mild one of “disco drugs” mixed with chocolate, rather than diamorphine, which is a controlled drug under Class A of the First Schedule to the MDA. In the circumstances, Lee J held that Gobi had rebutted the s. 18(2) presumption and accordingly acquitted him of the Capital Charge under s. 7 of the MDA. However, Lee J found that on the basis of the Applicant’s own defence, he was guilty of an offence of attempting to import a controlled drug under Class C of the First Schedule to the MDA. Lee J therefore convicted the Applicant of a reduced non-capital charge in these terms (ie. the Amended Charge) and sentenced him to 15 years’ imprisonment and 10 strokes of the cane. 110. In the Review Judgment (and in the Oral Judgment delivered in Court), the Court of Appeal found that based on the questions put by the Prosecution to Gobi at the trial before Lee J, and the Prosecution’s response when asked by Lee J to clarify its case, as well as the structure of its closing submissions, the Prosecution’s case at the trial was one of wilful blindness and not actual knowledge, and that it sought to establish this through the s. 18(2) presumption (at [105], [109] & [115]). 46 111. The Court of Appeal in the Review Judgment noted that there was a change in the Prosecution’s case in the Appeal because it is undisputed that the Prosecution’s case in the earlier Appeal before the Court of Appeal was one of actual knowledge, and that such change in the case it ran in the earlier Appeal prejudiced Gobi, for the following reasons: a. Gobi’s evidence at trial was that Vinod, the person for whom he was delivering the Drugs, had told him that the Drugs were “a mild form of drugs mixed with chocolate for [use] in discos” and would not attract the death penalty, and that he believed that this was true in the light of the subsequent assurance of his friend, Jega, that the Drugs were “not … very dangerous” and “should not be a problem” (see the Review Judgment at [120]). b. The question that was put by the Prosecution to Gobi was that he “had no reason to trust Vinod when [Vinod] told [him] that the drugs [he was] bringing in were only chocolate drugs” (see the Review Judgment at [105(a)]). c. The Prosecution failed to put to Gobi that he did not in fact believe what Vinod and Jega had told him about the nature of the Drugs (see the Review Judgment at [105(b)]). d. Based on the Prosecution’s response when asked by Lee J to clarify its case, it is clear that the Prosecution’s position was not that Gobi 47 disbelieved Vinod or Jega, but that, objectively speaking, he had no reason to believe them. Accordingly, Lee J understood the Prosecution’s case to be that Gobi trusted Vinod’s and Jega’s assurances as to the nature of the Drugs, even though he ought not to have done so (see the Review Judgment at [109] & [116]). e. As a result, Gobi was never squarely confronted with the case that he did not in fact believe what he had been told by Vinod and Jega, and so could not have responded to such a case. In these circumstances, it was ultimately prejudicial for Gobi to have been faced with a case of actual knowledge in the earlier Appeal, premised on the contention that he did not in fact believe the assurances he had been given by Vinod and Jega as to the nature of the Drugs (see the Review Judgment at [120]). 112. In the Review Judgment, the Court of Appeal also took the opportunity to further emphasise the importance of the Prosecution running a consistent case so as to give the accused a fair chance of knowing the case that is advanced against him and what evidence he has to adduce (and to what standard of proof) in order to meet that case, and that the Prosecution is not permitted to seek a conviction on a factual premise which it has never advanced, and which it has in fact denied in its case against the accused person (see the Review Judgment at [119]). 113. The role and duty of the Prosecution in criminal proceedings were also considered and explained by the Court in Re Parti Liyani [2020] [Note 52]. In the words of Sundaresh Menon CJ (at [38] & [39]): 48 “It is a basic proposition that the Prosecution is under a fundamental duty to assist in the administration of justice, and must present the evidence against an accused person fairly and impartially, and without malice, fear or favour, in accordance with the law (see rr 15(1) and 15(2) of the PCR). Furthermore, r 15(6) of the PCR imposes a duty on the Prosecution to inform the court of any apparent error, whether of fact or of law, and any apparent omission of fact or procedural irregularity which ought to be corrected. … prosecutors are ministers of justice who must always act in the public interest and it is generally unnecessary for the Prosecution to adopt a strictly adversarial position in criminal proceedings … (see Public Prosecutor v Wee Teong Boo and other appeal and another matter [2020] 2 SLR 533) 114. In Public Prosecutor v Wee Teong Boo, the Court of Appeal cited the following extract from a speech delivered extra-judicially by Steven Chong JCA to legal service officers and assistant public prosecutors (at [137]): [Note 53] “The accused, the Court and the community are entitled to expect that in performing his function in presenting the case against an accused person, the Prosecutor will act with fairness and detachment with the sole and unadulterated objective to establish the whole truth in accordance with the law. … The role of the Prosecutor therefore excludes any notion of winning or losing a case. … His role is to seek and achieve justice, and not merely to convict. The role is to be discharged with an ingrained sense of dignity and integrity.” 115. It cannot be gainsaid that where the offence(s) for which the accused person is charged carries the death penalty and what may be expressed as the near- 49 irretrievable finality of punishment, as in the case of the criminal proceedings against Gobi, it is even more imperative and essential that the Prosecution strictly and scrupulously observes its role, functions and duties as outlined above. 116. Having regard to the above findings and observations made by the Court of Appeal in the Review Judgment and in the Oral Judgment, as well as the Court’s exposition on the role and duty of the Prosecution in criminal proceedings, we are of the view that it cannot be said that the First Statement is devoid of any reasonable, rational or objective basis. 117. As emphasised strongly and found by the Court of Appeal in the Review Judgment, there was a change in the case that the Prosecution ran in the Appeal, compared to the case that it ran at the trial, and it was the different case run by the Prosecution in the Appeal which, factually speaking, ultimately resulted in the Court of Appeal setting aside Gobi’s conviction on the Amended Charge and convicting him on the Capital Charge. 118. In the circumstances, we consider that it was not unreasonable or irrational for the Respondent in making the Interview Statements to have entertained and voiced by way of opinion, through his use of the term “overzealous” (which in our view does not inherently carry or imply any negative or offensive connotation), to characterise what appeared to him to be the Prosecution’s attitude and conduct in pursuing and securing Gobi’s conviction on the Capital 50 Charge, in a manner which (as found by the Court of Appeal in the Review Judgment) constituted an impermissible departure from the case that it ran at trial, ultimately resulting (factually speaking) in the death sentence being imposed on Gobi. 119. In doing so, the Respondent in the course of the Interview had indeed referred to and recounted the factual circumstances leading up to the setting aside of Gobi’s conviction on the Capital Charge, including the fact that it was precipitated by the change of law pertaining to the issue of whether the doctrine of wilful blindness can be the subject of the presumption under s. 18(1) of the MDA arising from the Court of Appeal’s decision in Adili, and that the Public Prosecutor ran a different case in the High Court and the Court of Appeal in its prosecution of Gobi. This satisfies the requirement spelt out by the Court of Appeal in Wham Kwok Han Jolovan v Attorney General and others (at [44]) that the facts and materials relied on to form the rational basis should be referred to in the post containing the fair criticism. 120. We also note that in the sentence immediately preceding the First Statement, the Respondent had made reference to the role of the Prosecution in prosecuting accused persons, especially on a charge which carries the death penalty, emphasising that it was “extremely important” that the Prosecution is fair to both sides ie. the State and the accused person (echoing the exhortations of Steven Chong JCA in his extra-judicial speech referred to at [114] above). It is clear to us that it was in that specific context that the Respondent had used the word 51 “overzealous” to express and convey his view of how the Prosecution had conducted the Appeal against Gobi. 121. As for the Second Statement in the Interview Statements viz “And one of the things which is troubling in this decision today, is that the Court noted that the Attorney General, or the Public Prosecutor ran a different case in the High Court and the Court of Appeal. Then that begs the questions and calls into the fairness of the administration of justice in Gobi's case by the Prosecution...”, we reiterate at the outset that it is a fact, as found by the Court of Appeal in the Review Judgment, that the Prosecution “ran a different case in the High Court and the Court of Appeal”. 122. We find that the Respondent likewise had a reasonable, rational and objective basis to form and express his view that he found this to be “troubling”, which word bears the ordinary meaning of “causing stress or anxiety” and also does not carry any negative connotation, and to further state as his opinion that it “calls into question the fairness of the administration of justice in Gobi’s case by the prosecution”, given that the life of the accused person was at stake. It bears reiterating that it forms no part of our inquiry to determine whether this statement can be proved or disproved as a fact. Suffice for us to highlight that even the Court of Appeal itself before the review hearing was troubled over this issue, to the extent of raising pointed questions on the same and, we may respectfully say unusually, directing the parties in CM 3 to file further written submissions thereon. [Note 54] 52 123. Turning finally to the Third Statement in the Interview Statements viz “... because the Prosecution as the Court observed, ran a different case in the High Court and the Court of Appeal. So therefore, the Prosecution, essentially the fairness of the Prosecution, is called into question by the Court itself.", the first part concerning the different case run by the Prosecution in the High Court and the Court of Appeal, which essentially repeats part of the Second Statement, is factual in nature. As for the second part, we find that there is some reasonable, rational and objective basis for the Respondent to have formed and articulated the view that essentially “the fairness of the Prosecution” in its conduct of the Appeal against Gobi had been “called into question by the Court”, in that the Court of Appeal in the Review Judgment did find that “the Prosecution’s change in the case that it ran on appeal, as compared to the case that it ran at the trial, prejudiced [Gobi]” (at [120]). Having regard to the overall context in which the Interview Statements were made, we are of the view that through his use of the word “fairness”, the Respondent was in substance and reality referring to and commenting on the conduct of the earlier Appeal in the Court of Appeal by the Prosecution, ie. the Prosecution in running a different case, and not the general conduct of the members of the Prosecution (or the AGC or AG for that matter) per se. 124. In the premises, we are unable to accept the Law Society’s submission that the Interview Statements constitute or contain false or misleading allegations, and/or that in making the same, the Respondent had intended to convey that the Public Prosecutor and/or the AG had acted in bad faith, maliciously 53 and/or improperly, and to discredit the AGC and/or its legal officers, or to otherwise cast any aspersions on these individuals or the office they occupy. As noted by the High Court in the first instance judgment of AttorneyGeneral v Shadrake, to make out the defence of fair criticism, it is not necessary to establish an unassailable basis for the criticism. Accordingly, the focus of our inquiry is not to determine whether the Interview Statements were proved or disproved as a fact and, in particular, whether they are false and misleading allegations as contended by the Law Society and whether the Respondent had intended to convey the meaning or message sought to be attributed to him. 125. In this connection, the Respondent was cross-examined on his making of the Interview Statements at the DT Hearing on 29 July 2021. He steadfastly and unshakeably maintained, which we accept, that he never said anywhere or made the imputation that the AGC had acted in bad faith, maliciously or improperly, and that what he was saying is that there was a breach on the part of the public prosecutor, as ministers of justice, of its duty to act with fairness in the administration of justice. [Note 55] 126. All things considered, we are of the view that the Interview Statements made by the Respondent constitute fair criticism. We also find that there is nothing which conclusively shows or compellingly suggests that the Respondent was acting otherwise than in good faith in making the Interview Statements. In this connection, Counsel for the Law Society has submitted that the Interview 54 Statements cannot have been made by the Respondent in good faith for the following reasons: a. the Respondent had without any rational basis levelled accusations that the Prosecution had acted in bad faith / maliciously / improperly / unfairly which led to the imposition of the death penalty on Gobi; b. the Respondent chose to make the Interview Statements in a public forum, well knowing that it would reach a larger audience; and c. the Respondent should have shown more due care and attention before making such serious allegations against the Prosecution and on a public forum, particularly where he had not had sight of the Court of Appeal’s written judgment. 127. With all due respect, we do not see much merit in any of the above grounds. In the first place, nowhere in the Interview Statements did the Respondent explicitly accuse the Prosecution of having acted in bad faith, maliciously or improperly, and, as noted at [125] above, we accept that the Respondent also did not implicitly convey, or intend or seek to convey, any such meaning or message either in making the Interview Statements. 128. As for the fact that the Interview Statements were made in a public forum, we are of the view that the outcome of the review hearing culminating in the 55 Review Judgment which involved the death penalty was very much a matter of topical public interest as the Court of Appeal had reviewed its earlier decision and seen it fit to quash the death penalty it imposed in the earlier Appeal. Accordingly, the giving by the Respondent of the Interview and his making of the Interview Statements in a public forum does not negate the element of good faith. The Respondent had a reasonable and objective basis for making the Interview Statements to inform the public of the outcome of the Court of Appeal’s decision in reviewing its earlier one, and he did not in bad faith or maliciously or improperly cast or intend to cast any such aspersions on the AGC or its officers, nor discredit them as alleged. The Law Society in its crossexamination of the Respondent or by the Respondent’s affidavit was unable to show that it was otherwise. 129. To conclude, we find that the Interview Statements which form the basis of the 1st Charge constitute fair criticism by the Respondent. It follows that the elements constituting the 1st Charge have not been proven beyond reasonable doubt by the Law Society, as the Respondent cannot be said or regarded to have conducted himself in a manner unbefitting an advocate and solicitor in making the Interview Statements. 130. In the circumstances, we determine and find that the 1st Charge has not been made out. The Respondent as such is not guilty of the misconduct as charged. 56 B. 2nd Charge and Alternative 2nd Charge 131. The Law Society’s case against the Respondent under the 2nd Charge and Alternative 2nd Charge, which rely on the same grounds as particularised in the said charges, is that in stating in the Facebook Statements that the “government lawyers who handled Gobi’s case are the wrongdoers”, and that he had instructions to commence proceedings against the AG, the DAG and Mr Faizal who “have to be accountable to Gobi” and “be subject to rigorous crossexamination and public scrutiny of their conduct of Gobi’s case”, and posting these statements on his Facebook page (ie. the First Facebook Post), the Respondent made a baseless accusation of misconduct and/or threat to commence legal proceedings against his fellow legal practitioners and he:- a. is thereby guilty of improper conduct under s. 83(2)(i) of the LPA read together with Rule 7(2) of the PCR (2nd Charge); and/or alternatively, b. has thereby committed an act amounting to misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA (Alternative 2nd Charge). 57 132. In respect of the 2nd Charge, s. 83(2)(i) of the LPA [Note 56] applies to a situation where an advocate and solicitor:- (b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any of the following as amounts to improper conduct or practice as an advocate and solicitor: (i) any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of this Act; 133. Rule 7(2) of the PCR provides that “[a] legal practitioner must treat other legal practitioners with courtesy and fairness”. 134. Accordingly, the first issue which arises for determination under the 2nd Charge or the Alternative 2nd Charge is whether, in referring to the “government lawyers” (ie. the persons who had conduct of the Appeal in Gobi’s case) as “wrongdoers”, in what sense was that word used when the Respondent stated that he had received instructions to commence proceedings against the AG, the DAG and Mr Faizal and that they “have to be accountable to Gobi … in court and be subject to rigorous cross-examination and public scrutiny of their conduct in Gobi’s case”, and whether as such the Respondent had breached his duty to treat these individuals with courtesy and fairness and was thereby guilty of improper conduct. 58 135. We will therefore first address the meaning of “wrongdoers” and what the Respondent had intended to convey through his use of this word to describe the “government lawyers” in the Facebook Statement. The Law Society’s contention is that this word contained a “baseless accusation of misconduct and/or threat to commence legal proceedings against his fellow legal practitioners”, as in its ordinary meaning such word implied that the AG and the officers of the AGC had engaged in serious misconduct or even illegality. The Respondent, on the other hand, clarified in his evidence under cross-examination at the DT Hearing on 29 July 2021 [Note 57] and in his RWS at [38] that what he meant was that these individuals had committed a “civil wrong”. He further asserted that his characterization of the AGC officers having conduct of Gobi’s case as “wrongdoers” constituted fair criticism (see his RAEIC at [71]). 136. In his RAEIC (at [71]), the Respondent had further explained that his use of the phrase “government lawyers” also encompassed the acts of “officers from the AGC in relation to the judicial review proceedings” ie. in OS 111 and OS 181 and, in particular, the Reservation Statement, as a factor lending weight to his characterization of the AGC officers having conduct of Gobi’s case as wrongdoers. 137. Having reviewed the entire text of the First Facebook Post in which the Facebook Statements are contained and considered the context in which these statements were made, we are of the view that the Respondent did not refer and could not have been referring to the acts / conduct of the AGC officers having 59 conduct of OS 111 and OS 181 in his use of the phrase “government lawyers” therein. This is because the Respondent in the First Facebook Post was responding directly to the AGC’s demand for an apology in the AGC Letter in respect of the Interview Statements, which concerned solely the Prosecution’s conduct of the Appeal in Gobi’s case, and there is no reference to or mention of any of the matters pertaining to OS 111 and OS 181. 138. Having considered the submissions made on behalf of the Law Society, we however accept as reasonable the Respondent’s explanation that by “wrongdoers” he meant that the individuals he had in mind had committed a civil wrong. In A Dictionary of Modern Legal Usage by Bryan A Gaenar (1987, Oxford University Press), the word “wrongdoer” is defined as “one who violates the law. The term is used of tortfeasors as well as for criminals…”. In Black’s Law Dictionary (10th Edition), the same meaning is ascribed to this word. The Respondent’s evidence was that he did not mean or intend to convey that they were guilty of serious misconduct / illegality. This is borne out by the fact that, amongst other things, in the very next paragraph of the First Facebook Post, the Respondent had gone on to state that he had already taken instructions to commence legal proceedings against the AG, the DAG and Mr Faizal, which he in fact did by way of a civil Suit 1068, alleging civil wrongs in the tort of misfeasance in public office and breach of statutory duty on the part of these individuals. There is no reference to any criminal proceedings or the prospect / possibility thereof. 60 139. Under cross-examination, the Respondent steadfastly maintained his position:[Note 58] Q ---on the 20th October, you posted it on your Facebook, and you said that the government lawyers are wrongdoers. A Wrongdoers, meaning they are acting as potential defendants. Q And you said you were going to commence proceedings against them because they have to be held accountable in Court and subject to public scrutiny, yes? A Yes, owing to miscarriage of justice. Q Were you not then referring to the wrongdoing that you were set--you set out in the claim that was filed eventually in Suit 1068? A You see, it is not my claim. Q On behalf of Mr Gobi. A On behalf of the rights of Gobi, as his counsel … But my point is when I made that statement, I didn’t say anywhere that the AGC was malicious. Q Right. A The AGC is overreacting to my statement. 61 Q Okay, you disagree you were implying that they acted maliciously, is that right? A … whether you want to call it bad faith or malicious, I didn’t have those words in mind. I was saying, basically, that they should be fair in the manner in which they not only treated me as--as---as counsel, … … Q Okay so you were not trying to imply that the public prosecutor was acting in bad faith or maliciously, yes? A I was saying that the public prosecutor was a wrongdoer to the extent that they have conduct the---the---they---the---there was a breach of their fairness in terms of they are ministers of justice and administration of justice in the context of running a different case… Q Okay, so what you were--- A When I said wrongdoers – now, let me be very clear – I’m saying that they are defendants. Q Okay. A They have committed a wrong, means civil wrong. 62 140. We now turn to the second issue, that the Respondent having admitted that he meant that the “government lawyers” had committed a “civil wrong” ie. a tortious act, whether he was then justified in making the further statement and publishing it on Facebook that he had received instructions to commence proceedings against the AG, the DAG and Mr Faizal, and that they “have to be accountable to Gobi” and “be subject to rigorous cross-examination and public scrutiny of their conduct of Gobi’s case”. The Law Society’s case is that this public statement constitutes a threat to commence legal proceedings against the AG and the members of the AGC who had conduct of the Appeal as fellow legal practitioners. 141. In his defence, the Respondent sought to draw a distinction between a statement by a legal practitioner to commence proceedings in his personal capacity against another legal practitioner, on the one hand, and a statement to commence legal proceedings against another legal practitioner on behalf of a client, on the other. 142. Whilst we do not consider this further statement by the Respondent to constitute a threat to commence legal proceedings, but simply a statement of his intention to do so (which was ultimately carried out), we entirely agree with the Law Society that the Respondent should have communicated such intention privately to the AGC in the course of his ongoing exchange of correspondence with them (or separately to each of the individuals against whom the intended legal proceedings were directed), instead of announcing it in a public forum such as Facebook. 63 143. Furthermore, to the extent that the Respondent was alleging misconduct on the part of these individuals through his characterization of them as “wrongdoers” and against whom he had received instructions to commence legal proceedings, the right and proper course of action would be for him, if at all, to refer the matter to the appropriate body to deal with it. 144. In this connection, we agree with and are guided by the observations made in the following commentary on Rule 7(2) of the PCR in Jeffrey Pinsler SC, Legal Profession (Professional Conduct) Rules 2015 – A Commentary (Academy Publishing, 2016) (“Pinsler”) cited in The Law Society’s Closing Submissions (at [65b.]): [Note 59] “A lawyer’s duty as a professional also requires him to act responsibly when he makes a complaint, or represents a client who wishes to make a complaint, concerning the alleged misconduct of another lawyer. The complaint must be substantiated and properly communicated to the Law Society. It is not proper for a lawyer to make allegations about another whether they are true or not … The learned Chief Justice [in Law Society of Singapore v Ravi s/o Madasamy [2015] 3 SLR 1187 at [36]] stated: “to accuse another solicitor of misconduct is a serious matter that should not be taken lightly. In this connection, it would generally be inappropriate for a solicitor to allege misconduct on the part of another solicitor for a purpose other than to lodge a formal complaint with the Law Society.”” 64 145. We also agree with the position taken by the Law Society that in making the Facebook Statements, the Respondent had failed to abide by what is prescribed in The Law Society of Singapore, Practice Direction 6.1.1 – Media Comments and Internet / Social Media (31 January 2019), which provides, inter alia, that members of the legal profession representing parties in legal proceedings who comment on those proceedings in the public via posts on websites, blogs, social media or social messaging platforms should (amongst other things) refrain from making inappropriate comments or improper disclosures and avoid adverse remarks on the conduct or character of the opposing party. [Note 60] 146. As for the point sought to be made by the Respondent that his further statement was simply to commence legal proceedings on behalf of a client and this should be distinguished from a situation of a legal practitioner threatening to commence legal proceedings in his personal capacity against another legal practitioner, we are of the view that this does not assist him. A similar situation arose in The Law Society of Singapore v Terence Tan Bian Chye, where a solicitor wrote to another law firm on behalf of his client (ie. not in that solicitor’s personal capacity) alleging misconduct on the part of the law firm in the following terms: “[w]e note that you have not been able to respond to any of our charges of misleading the court. Again, to you, misleading the court seems to be a minor matter … Accordingly our clients will be reporting the cases of deception by your firm to the Law Society. We are representing our clients and taking their instructions, …”. The solicitor was found by the Disciplinary Tribunal to be in 65 breach of, inter alia, Rule 47 of the PCR (the previous iteration of the current Rule 7(2) of the PCR), which held as follows (at [27]-[28]):- “Accusing another law firm of practicing deception and of misleading the court are serious allegations that ought not to be made. Even if there were reasons for the allegations the proper thing to do is to refer the matter to the appropriate body to deal with it”. … justification is no defence to the mischief intended to be prevented by Paragraph 24(d), and indeed the entire Paragraph 24, of the PD and Rule 47 of the PCR. Otherwise, every other advocate and solicitor can say he was justified in writing such letters and defeat the whole purpose of this particular PD and PCR”. 147. In relation to the Respondent’s argument that the mere conveyance of a client’s intention to commence legal action against a fellow legal practitioner cannot, without more, amount to a threat or discourtesy in the solicitor’s personal capacity, we are of the view that even if there is merit in this submission, it is also of no assistance to him on the facts and in the circumstances of the present case. The statement made by him regarding the commencement of legal proceedings against the AG, the DAG and Mr Faizal has been considered and assessed by us in the light of his own evidence at the hearing as stated at [139] above, and also as clearly premised on his characterization of these individuals as “wrongdoers” in the immediately preceding paragraph in the Interview Statements. 66 148. Dealing finally with the Respondent’s defence that his use of the word “wrongdoers”, although meant in the “civil” sense, to describe the AGC officers having conduct of Gobi’s case constitute fair criticism, we reject the same and in doing so accept the Law Society’s submissions that based on the observations made in Pinsler and The Law Society of Singapore v Terence Tan Bian Chye (as set out at [144] & [146] above) (ie. that it is not proper for a solicitor to make allegations of misconduct about another solicitor whether they are true or not and that justification is no defence to the mischief intended to be prevented by Rule 47 of the PCR), this is likewise of no avail to the Respondent. 149. In the result, we are of the view that in making the Facebook Statements, taken as a whole, the Respondent had fallen short of his duty as prescribed under Rule 7(2) of the PCR to treat his fellow legal practitioners with the requisite level of courtesy and fairness. 150. In the circumstances, we determine and find that the 2nd Charge is made out by the Law Society. 151. Accordingly, we find the Respondent guilty of improper conduct as an advocate and solicitor, in the course of acting for his client, under s. 83(2)(b)(i) of the LPA read with Rule 7(2) of the PCR, in that he offended by failing to treat his fellow legal practitioners as mentioned above with courtesy and respect. 152. In light of our determination and finding that the 2nd Charge has been made out, it is unnecessary for us to make findings on the Alternative 2nd Charge. 67 C. 3rd Charge and Alternative 3rd Charge 153. The Law Society’s case against the Respondent under the 3rd Charge and Alternative 3rd Charge is that in further stating in the Facebook Statements that he will also “commence proceedings against law society if it does not do its part to protect lawyers … if it entertains any further complaints or participates in any harassment by AG to harass me in doing my job”, and posting this statement as part of the First Facebook Post, the Respondent made a threat to commence legal proceedings against the Law Society and/or a baseless insinuation that the Law Society misuses its statutory powers and he:- a. is thereby guilty of improper conduct under s. 83(2)(i) of the LPA read together with Rule 8(3)(b) of the PCR (3rd Charge); and/or b. has thereby committed an act amounting to misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA (Alternative 3rd Charge). 154. Rule 8(3)(b) of the PCR provides that “[a] legal practitioner must not act towards any person in a way which is fraudulent, deceitful or otherwise contrary to the legal practitioner’s position as a member of an honourable profession”. 155. The issue which arises for determination under the 3rd Charge is whether, in making these statements against and concerning the Law Society, the 68 Respondent had acted in a manner contrary to his position as an advocate and solicitor and was thereby guilty of improper conduct. 156. As highlighted by the Law Society in the LSCS (at [80]), one of the guiding principles undergirding Rule 8(3)(b) of the PCR, as prescribed under Rule 8(1)(a), is that a legal practitioner who deals with any person must be honest and courteous. We are also guided by the following commentary on Rule 8(3) in Pinsler highlighting examples of when and how this rule is engaged, which deal with abuse of public officers and persons with official functions (cited in the LSCS at [81]):- “Lawyers have also been fined using threatening language against a legal officer of the HDB, for threatening a court interpreter, for being offensive to public prosecutors, for writing threatening letters, for making offensive remarks about the President of the Shariah Court in a written submission, for disrespectful conduct towards the Commissioner of Labour (including an allegation that the Commissioner was biased), for writing offensive letters to the Medical Council, for writing a threatening letter to a third party on a personal matter on the firm’s letterhead…” 157. In Re Gopalan Nair (at [45]), the Court of Three Judges noted that “the writing of offensive or abusive letters could subject a solicitor to disciplinary action”, referring to the publication by Sir Thomas Lund, A Guide to the Professional Conduct and Etiquette of Solicitors p 70, in which it is stated that “writing of offensive and improper letters by a solicitor, whether to a client, another 69 solicitor, a government department, or any other member of the public, is professionally improper conduct”. 158. We are of the view that the statement by the Respondent that he will commence proceedings against the Law Society if it “entertains any further complaints” or “participates in any harassment by AG” not only carries a clear threat directed at the Law Society, but also contains an unwarranted accusation that the Law Society is or will be complicit in any alleged “harassment by AG”, all of which constitute conduct falling short of the Respondent’s duty to act and deal courteously with the Law Society as required under Rule 8(1)(a) of the PCR. We also agree that the severity of the Respondent’s conduct is exacerbated by the fact that such threat was made in a public forum. 159. We further accept the Law Society’s submission that it is not open to the Respondent to rely on the defence of fair criticism. As highlighted in LSCS (at [83b.]), the Law Society is legally required by statute to act on complaints from the AG under s. 85(3) of the LPA. Accordingly, the Respondent had no basis whatsoever to threaten legal proceedings against the Law Society for so acting, or to suggest or insinuate that the Law Society was “participating” or otherwise complicit in any such complaint(s) made or to be made by the AG and thereby misusing its statutory powers under the LPA. 160. As for the Respondent’s argument of differential treatment being accorded to his statement to commence legal proceedings against the Law Society and the Reservation Statement, in support of his defence of fair criticism, we agree with 70 the Law Society that this is misconceived. As pointed out by the Law Society, no mention is made of the Reservation Statement, or of the lack of action taken by the Law Society arising therefrom, in the First Facebook Post. 161. Further and in any event, as pointed out in Pinsler and The Law Society of Singapore v Terence Tan Bian Chye, it was open to the Respondent to refer the matter to the appropriate body to deal with it, but he did not do so. In our view, this is telling and betrays the fact that in the Respondent’s own estimation, there is nothing in or arising from the Reservation Statement which warranted any action to be taken by the Law Society. 162. In the circumstances, we determine and find that the 3rd Charge has been made out. In light of this, it is unnecessary for us to make findings on the Alternative 3rd Charge. 4th Charge and Alternative 4th Charge 163. The Law Society’s case against the Respondent under the 4th Charge and Alternative 4th Charge is that in sending the Response Letter to the AGC in which he reiterated that he had instructions from Gobi and his family to commence legal proceedings against the AG, the DAG, and members of the Prosecution who had carriage of the matter in the Appeal and Criminal Motion, and in uploading the said letter on his Facebook page for public viewing (ie. the Second Facebook Post), the Respondent:- 71 a. is thereby guilty of improper conduct under s. 83(2)(i) of the LPA read together with Rule 7(2) of the PCR (4th Charge); and/or b. has thereby committed an act amounting to misconduct unbefitting an advocate and solicitor under s. 83(2)(h) of the LPA (Alternative 4th Charge). 164. It is common ground that the Respondent relies, in his defence to the 4th Charge and Alternative 4th Charge, on the same grounds as for his defence to the 2nd Charge and Alternative 2nd Charge. The Law Society is likewise relying on the same matters and advancing the same arguments as in the 2nd Charge and Alternative 2nd Charge, save to add that in reiterating in the Response Letter that he had instructions to commence proceedings against the AG, the DAG and the members of the Prosecution having conduct of the Appeal and the Criminal Motion, the Respondent had further aggravated matters. 165. Accordingly, for the same reasons as we have explained and relied upon at [131] to [152] above in arriving at our conclusions and findings on the 2nd Charge, we determine and find that the 4th Charge is made out, and it is unnecessary for us to make findings on the Alternative 4th Charge. V. Appropriate punishment 166. Having found the Respondent guilty of the 2nd Charge, the 3rd Charge and the 4th Charge and Alternative 4th Charge, we turn now to consider what would be the appropriate sanction(s) to be imposed. 72 167. In this connection, s. 93(1) & (2) of the LPA provide as follows:- Findings of Disciplinary Tribunal 93. —(1) After hearing and investigating any matter referred to it, a Disciplinary Tribunal shall record its findings in relation to the facts of the case and according to those facts shall determine that — (a) no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be); (b) while no cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be), the regulated legal practitioner should be — (i) ordered to pay a penalty that is sufficient and appropriate to the misconduct committed; (ii) reprimanded; (iii) ordered to comply with one or more remedial measures; or (iv) subjected to the measure in sub-paragraph (iii) in addition to the measure in sub-paragraph (i) or (ii); or (c) cause of sufficient gravity for disciplinary action exists under section 83 or 83A (as the case may be). (2) Where a Disciplinary Tribunal makes a determination under subsection (1)(b)(i), (ii) or (iv) or (c), the Disciplinary Tribunal may make an order for payment by any party of costs, and may, in such order, specify the amount of those costs or direct that the amount be taxed by the Registrar. 168. Notwithstanding our finding that the Respondent is guilty of improper conduct under s. 83(2)(b)(i) of the LPA, we consider that such improper conduct does not disclose cause of sufficient gravity to warrant disciplinary action under s. 83 of the LPA, as the charges made out do not involve dishonesty (with all its cognate 73 meanings), trustworthiness or moral turpitude, or a conviction for a criminal offence. 169. As emphasized by the Court of Three Judges in Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 (at [24]): “The starting point, therefore, is that the Supreme Court (in the form of the court of three Judges) is the ultimate tribunal having control over all advocates and solicitors. However, it should be appreciated that it does not follow from this fact per se that the court of three Judges must necessarily hear all cases where the Disciplinary Tribunal finds that the advocate and solicitor’s conduct falls within one or more of the limbs of s 83(2) of the Act … In our view, it is only the most serious cases that must be heard by the court of three Judges.” 170. However, we are of the view that the Respondent should be ordered to pay a penalty sufficient and appropriate to such improper conduct pursuant to s. 93(1)(b)(i) of the LPA. 171. In arriving at this conclusion, we took into consideration the following mitigating circumstances: a. as highlighted by the Respondent in his RAEIC (at [28]) (which we accept), if not for the Respondent’s representation of Gobi in the review proceedings which culminated in the Review Judgment, Gobi would have been executed and there would have been a grave miscarriage of justice; and 74 b. in the course of acting for Gobi, the Respondent had to contend with what we accept he genuinely perceived to be a threat arising from the Reservation Statement, which the Court of Appeal in Gobi a/l Avedian v Attorney-General [2020] 2 SLR 883 did find “might reasonably have been construed as intimidating”. 172. Having carefully considered the matter, we determine that for the 2nd Charge and the 4th Charge, a collective penalty of S$4,000 would be sufficient and appropriate in respect of the improper conduct of which the Respondent has been found guilty. 173. As for the 3rd Charge, we determine that a penalty of S$2,000 would be sufficient and appropriate. 174. As a guideline, we refer to The Law Society of Singapore v Ravi s/o Madasamy [2012] SGDT 12, where the Respondent was found guilty of misconduct under s. 83(2)(h) of the LPA for making various allegations against a Judge in the course of a hearing in which he appeared as a litigant in person (eg. accusing the Judge of being prejudiced racially), and ordered by the Disciplinary Tribunal to pay a penalty of S$3,000. 75 VI. Costs 175. We also order the Respondent to pay to the Law Society costs in the amount of S$3,000 (inclusive of disbursements) pursuant to s. 93(2) of the LPA. VII. Summary 176. In summary, our findings and determination are as follows: a. the Respondent is not guilty in respect of the 1st Charge; b. the Respondent is guilty of improper conduct as charged under the 2nd Charge, the 3rd Charge and the 4th Charge; in light of this, it is unnecessary for us to make findings on their alternative charges; c. pursuant to s. 93(1)(b)(i) of the LPA, while no cause of sufficient gravity for disciplinary action exists under s. 83 of the LPA, the Respondent should be ordered to pay a total penalty of S$6,000 in respect of the said charges that he has been found guilty, which is sufficient and appropriate to the misconduct committed; and d. pursuant to s. 93(2) of the LPA, the Respondent pay costs in the amount of S$3,000 (inclusive of disbursements) to the Law Society. 20th 77 [Note 1] Agreed Bundle of Documents Volume 2 (“ABD 2”) Tab 57 [Note 2] The Law Society’s Bundle of Authorities (“LSBOA”) Tab 2 [Note 3] LSBOA Tab 13 [Note 4] LSBOA Tab 14 [Note 5] LSBOA Tab 4 [Note 6] ABD 2 Tab 49 [Note 7] ABD 2 Tab 51 & Tab 52 [Note 8] Exhibit “L-1” [Note 9] Exhibit “L-1” [Note 10] LSBOA Tab 9 [Note 11] ABD 2 Tab 57 p. 276-282 [Note 12] ABD 2 Tab 57 p. 284-285 [Note 13] ABD 2 Tab 67 [Note 14] ABD 2 Tab 57 p. 276-279 [Note 15] Respondent’s Written Submissions Annex B [Note 16] ABD 2 Tab 55 [Note 17] ABD 2 Tab 68 [Note 18] ABD 2 Tab 56 [Note 19] ABD 2 Tab 57 p. 370 [Note 20] ABD 2 Tab 59 & Tab 60 [Note 21] Agreed Bundle of Documents Volume 1 (“ABD 1”) Tab 13 [Note 22] ABD 1 Tab 18 [Note 23] LSBOA Tab 8 78 [Note 24] Respondent’s Affidavit of Evidence in Chief (“RAEIC”) at [62]-[63] [Note 25] RAEIC at [64] [Note 26] RAEIC at [65] [Note 27] Respondent’s Bundle of Authorities (“RBOA”) Tab L [Note 28] RAEIC at [66] [Note 29] RAEIC at [68] [Note 30] RAEIC at [69] [Note 31] RAEIC at [70]-[71] [Note 32] RAEIC at [73]-[74] [Note 33] RAEIC at [76] [Note 34] RBOA Tab D [Note 35] RAEIC at [78]-[80] [Note 36] LSBOA Tab 2 [Note 37] LSBOA Tab 3 [Note 38] LSBOA Tab 3 [Note 39] Notes of Evidence of hearing on 29 July 2021 (“NE 29.07.21”) at 61:8 to 62:11 [Note 40] NE 29.07.21 at 58:14-16, 60:5-7 & 60:15-18 [Note 41] NE 29.07.21 at 76:23 to 78:1 [Note 42] NE 29.07.21 at 58:28-31 & 59:4-5 [Note 43] LSBOA Tab 11 [Note 44] LSBOA Tab 19 [Note 45] LSBOA Tab 16 [Note 46] LSBOA Tab 6 79 [Note 47] LSBOA Tab 1 [Note 48] LSBOA Tab 20 [Note 49] LSBOA Tab 17 [Note 50] LSBOA Tab 18 [Note 51] LSBOA Tab 15 [Note 52] RBOA Tab K [Note 53] RBOA Tab J [Note 54] ABD 2 Tab 49 [Note 55] NE 29.07.21 at 58:28-29, 59:28-31, 60:5-8 & 62:1-11 [Note 56] LSBOA Tab 2 [Note 57] NE 29.07.21 at 60:15-18 [Note 58] NE 29.07.21 at 58:14 to 59:7 & 60:3-18 [Note 59] LSBOA Tab 21 [Note 60] LSBOA Tab 23 | 2025-04-11T04:00:42+00:00 | https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2025/ | In the Matter of Ravi s/o Madasamy (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-apr-2025/ | 1216 |
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