Boey Pang Sim Richard v Law Society of Singapore

• Jurisdiction: Singapore
• Judgment Date: 26 November 2015
• Date: 26 November 2015
• Docket Number: Originating Summons No 527 of 2015
• Court: High Court (Singapore)

Boey Pang Sim Richard

Plaintiff

and

Law Society of Singapore

Defendant

[2015] SGHC 302

George Wei J

Originating Summons No 527 of 2015

High Court

Legal Profession — Disciplinary proceedings — Plaintiff’s complaint to Law Society was dismissed — Plaintiff applied for order that Law Society be directed to apply to Chief Justice for appointment of Disciplinary Committee — Whether order should be granted — Section 96 Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Professional conduct — Lawyer was engaged to defend suit brought by employee of former client — Whether plaintiff was person “involved in or associated with” former client — Whether two matters were related — Rule 31(1) Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed)

Legal Profession — Professional conduct — Plaintiff alleged that lawyer had demanded and coerced him to sign affidavit of evidence-in-chief — Whether lawyer had taken unfair advantage of plaintiff — Rule 53A Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed)

Facts

Sometime in 2012, Mr Balachandran was engaged to defend Exceltec Property Management Pte Ltd (the plaintiff’s employer at the material time) against third party proceedings brought in relation to a personal injury incident that occurred in 2009 (“the Personal Injury Suit”). The plaintiff participated in those proceedings as a material witness of fact.

In the following year, Mr Balachandran was engaged to defend Mr Loi Boey Khew (“Mr Loi”), the plaintiff’s superior in Exceltec, in a defamation suit brought by the plaintiff (“the Defamation Suit”). In that suit, the plaintiff alleged that Mr Loi had suggested to other employees of Exceltec that the plaintiff had been unprofessional and irresponsible in the performance of his duties.

The plaintiff lodged a complaint against Mr Balachandran (“the Complaint”), with the Law Society of Singapore (“the Law Society”). The Complaint comprised three allegations of misconduct, namely:

(a) that Mr Balachandran had placed himself in the position of a conflict of interest;

(b) that Mr Balachandran provided untrue and misleading statements when preparing his client’s defence; and

(c) that Mr Balachandran took unfair advantage of the plaintiff.

The Review Committee dismissed the second allegation and directed an Inquiry Committee (“the Committee”) to look into the rest of the allegations. The Committee recommended the dismissal of the remaining allegations and the recommendation was accepted by the Council of the Law Society. Dissatisfied with the Council’s decision, the plaintiff applied for an order directing the Law Society to apply to the Chief Justice for the appointment of a Disciplinary Tribunal under s 96 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”).

Held, dismissing the application:

(1) On hearing an application under s 96 of the LPA, the role of the court was that of an appellate court supervising a subordinate tribunal, rather than that of a court exercising original jurisdiction. The court was empowered to affirm the determination of the Council or direct the Law Society to apply to the Chief Justice for the appointment of a Disciplinary Tribunal. It also had the power to make such order as to costs as was just: at [13].

(2) The allegation of a conflict of interest was without merit. The Personal Injury Suit and the Defamation Suit did not constitute related matters within the meaning of r 31(1) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“PCR”) since the events relied on in the Personal Injury Suit had no bearing on the issues in the Defamation Suit. Thus, there was no risk that Mr Balachandran would pass on confidential information acquired in the Personal Injury Suit: at [80].

(3) The allegation of unfair advantage was unfounded. The plaintiff had selectively provided documents in his complaints that made it appear as though Mr Balachandran was taking advantage of him by making him sign an affidavit of evidence-in-chief (“AEIC”) without giving him any choice. The one page of the AEIC that the plaintiff submitted was part of a discussion draft and was not intended to be signed (nor could it have been signed in that state): at [85].

[Observation: The proscription in r 31(1) of the PCR extended to persons “involved in or associated with” the former client. A person might fall within the ambit of the rule if:

(a) his fortunes were so intertwined with the actual client that he might properly be described as someone as good as a client; or

(b) he had divulged information above and beyond what he was required to: at [67].]

Case(s) referred to

Almecon Industries Ltd v Nutron Manufacturing Ltd [1994] FCJ 1209 (refd)

Alrich Development Pte Ltd v Rafiq Jumabhoy [1994] 3 SLR(R) 38; [1994] 3 SLR 1 (refd)

Banks, Re 584 P 2d 284 (1978) (refd)

Firm of Solicitors, Re A [1992] QB 959 (refd)

Gainers Inc v Peter H Pocklington 21 Alta LR (3d) 363 (refd)

Grimwade v Meagher [1995] 1 VR 446 (refd)

Law Society of Singapore v Seah Li Ming Edwin [2007] 3 SLR(R) 401; [2007] 3 SLR 401 (refd)

Lee Kam Sun v Ho Sau Lin [1999] 4 MLJ 509 (refd) MacDonald Estate v Martin [1991] 1 WWR 705 (refd) Meehan v Hopps 301 P 2d 10 (1956) (refd)

Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 (refd)

Richard Hoare v Norhayati Binte Abdul Jali [2011] SGDC 58 (refd)

Seet Melvin v Law Society of Singapore [1995] 2 SLR(R) 186; [1995] 2 SLR 323 (refd)

Stanley v Advertising Directory Solutions Inc [2007] BCJ 1674 (refd) Tay Ang Choo Nancy v Yeo Chong Lin [2010] SGHC 126 (refd) Vorobiev Nikolay v Lush John Frederick Peters [2011] 1 SLR 663 (folld)

Wee Soon Kim Anthony v Law Society of Singapore [2007] 1 SLR(R) 482; [2007] 1 SLR 482 (refd)

Wong Kok Chin v Singapore Society of Accountants [1989] 2 SLR(R) 633; [1989] SLR 1129 (refd)

Legislation referred to

Legal Profession Act (Cap 161, 2009 Rev Ed) ss 2, 2(1), 71, 87, 96, 96(4) Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) r 31(1) (consd); rr 31, 31(4), 53A

Plaintiff in person;

Joseph Liow Wang Wu (Straits Law Practice LLC) for the defendant.

26 November 2015

Judgment reserved.

George Wei J:

Introduction

1 This is an application brought pursuant to s 96 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) for an order directing the Law Society of Singapore (“the Law Society”) to apply to the Chief Justice for the appointment of a Disciplinary Tribunal (as defined in s 2 of the LPA).

Background

2 The applicant, Richard Boey Pang Sim (“Mr Boey”), made a complaint to the Law Society against Mr Jawharilal Balachandran (“Mr Balachandran”) of M/s Ramdas & Wong. In his complaint, Mr Boey raised the following allegations of misconduct:

(a) first, that Mr Balachandran placed himself in the position of a conflict of interest (“the first complaint”);

(b) second, that Mr Balachandran provided untrue and misleading statements when preparing his client’s defence (“the second complaint”); and

(c) third, that Mr Balachandran took unfair advantage of Mr Boey (“the third complaint”).

3 The Review Committee directed the Council of the Law Society (“the Council”) to dismiss the second complaint and further directed the remaining complaints to be referred for further investigation.

4 An Inquiry Committee (“the Committee”) was constituted to inquire into the conduct of Mr Balachandran vis-à-vis the remaining complaints. After careful consideration, the Committee was of the unanimous view that there was no necessity for a formal investigation by a Disciplinary Tribunal and recommended that the complaints against Mr Balachandran be dismissed. The Committee’s recommendation was considered and accepted by the Council. Mr Boey’s complaints were accordingly dismissed.

5 Being dissatisfied with the Council’s decision to dismiss his complaints, Mr Boey applied under s 96 of the LPA for an order directing the Law Society to apply to the Chief Justice for the appointment of a Disciplinary Tribunal.

6 To be clear, Mr Boey does not appear to quarrel with the Review Committee’s decision to dismiss his second complaint. Thus, only the first and third complaints are relevant to the present application.

Material events

7 Sometime in 2012, a personal injury action was brought by a man who slipped and fell in a commercial building, Petro Centre (“the Personal Injury Suit”). The said incident had occurred in 2009. The action was brought against the cleaners and the management corporation (“MCST”) of that building. The MCST’s insurers had repudiated the MCST’s insurance policy in respect of that incident on the ground that the insurers had not been notified of the incident. Following that, the MCST joined its managing agent, Exceltec Property Management Pte Ltd (“Exceltec”), as a third party to the suit on the basis that it was Exceltec’s responsibility to inform the MCST’s insurers of the incident.

8 Mr Balachandran was engaged by Exceltec’s insurer (an insurance company known as Tenet Sompo Insurance Pte Ltd (“Tenet Sompo”)) to defend Exceltec in the third party proceedings. Exceltec’s pleaded defence was that Mr Boey, an employee of Exceltec, had faxed the incident notice to the MCST’s insurers. As such, Mr Boey participated in the Personal Injury Suit as a material witness of fact. Leave was obtained on 10 April 2014 for Mr Boey to attend trial under subpoena, and to dispense with his affidavit of evidence-in-chief (“AEIC”).

9 In the following year (ie, 2013), Mr Boey brought a defamation suit against his superior in Exceltec, Mr Loi Boey Khew (“Mr Loi”) (“the Defamation Suit”). Mr Boey alleged that Mr Loi had written an internal e- mail to other employees of Exceltec suggesting that Mr Boey was unprofessional and irresponsible in the performance of the duties that he owed to Exceltec.

10 Mr Balachandran was engaged to defend Mr Loi in the Defamation Suit. Mr Loi’s pleaded defences included qualified...