Case Note:SHOW CAUSE PROCEEDINGS BEFORE THE COURT OF THREE JUDGES: SOME PROCEDURAL QUESTIONS

• Citation: (2008) 20 SAcLJ 801
• Published date: 01 December 2008
• Date: 01 December 2008
• Author: GOH Yihan LLB (Hons) (National University of Singapore); Teaching Assistant, Faculty of Law, National University of Singapore

The Law Society of Singapore v Bay Puay Joo Lilian [2008] 2 SLR 316

This note examines two procedural questions flowing from the Court of Three Judges’ recent decision in The Law Society of Singapore v Bay Puay Joo Lilian[2007] SGHC 209. While the decision will almost certainly be remembered for its guidance on the admissibility of evidence obtained by way of entrapment, two further issues arise for consideration: (a) the relationship between ss 94(3)(b) and 97(1)(b) of the Legal Profession Act (Cap 161, 2001 Rev Ed), and (b) the relationship between the expressions “cause of sufficient gravity” and “due cause” as found in s 83 of the same Act.

I. Introduction

1 The Court of Three Judges recently delivered three decisions concerning three lawyers who were found guilty of touting for conveyancing work.1 The novel point of law argued across all three cases was whether evidence obtained by way of entrapment could be admitted to prove the respective cases against the lawyers concerned. While the court gave its answer to this issue by providing detailed grounds for its decision (which form fertile ground for a discussion on another occasion), there were two novel procedural points which perhaps warranted closer elaboration in one of the cases, viz, The Law Society of Singapore v Bay Puay Joo Lilian (“Lilian Bay”).2

II. The facts in Lilian Bay

2 Lilian Bay was a show cause proceeding resulting from the application by the Law Society of Singapore (“the Law Society”), pursuant to s 94(1) read with s 98(1) of the Legal Profession Act (“LPA”),3 for Ms Bay Puay Joo Lilian (“the respondent”) to show cause why she should not be dealt with under s 83 of the LPA.

3 The facts in Lilian Bay were not complicated. Sometime in February 2004, Jenny Lee Pei Chuan (“Jenny”) was engaged by a private investigation agency to investigate if certain law firms were touting for conveyancing work. Pursuant to her engagement, Jenny telephoned the respondent on 17 March 2004 claiming to be a real estate agent who needed to engage a lawyer. She followed up her telephone call with a face-to-face meeting with the respondent the next day at about 3.20pm at the premises of the respondent’s firm (“the firm”). During the meeting, Jenny asked the respondent whether she would pay a referral fee for Jenny to refer a conveyancing case to the firm. The respondent wrote “10%” on a piece of paper, and later explained that “10%” referred to 10% of the professional fees that the firm would receive for the transaction. Subsequently, Jenny mentioned the possibility of referring HDB transactions to the respondent and asked the respondent what fee she would receive if she referred such a transaction. The respondent replied that she would pay a flat referral fee of $100 per case and wrote down “$100” on a piece of paper.

4 Before the disciplinary committee (“the DC”) appointed by the Law Society, the respondent was charged with an amended charge of contravening s 83(2)(e) and/or s 83(2)(h) of the LPA. The DC found the respondent guilty as charged but concluded that the respondent’s misconduct was not of sufficient gravity for disciplinary action under s 83 of the LPA, but was instead a matter for which a penalty should be imposed under s 93(b) and so imposed a penalty of $7,000. The Law Society disagreed with the DC’s conclusion on the gravity of the respondent’s misconduct and filed the application in the present proceedings for the respondent to show cause why she should not be dealt with under the LPA.

III. The procedure issues outlined

5 As mentioned above, Lilian Bay raises interesting procedural issues in relation to disciplinary proceedings pursuant to the LPA. The novel point in this case is that the DC, while finding the respondent guilty of a charge formulated under s 83(2)(e) and/or s 83(2)(h) of the

LPA, nonetheless determined that there was no cause of sufficient gravity to refer the case to the Court of Three Judges. However, the Council of the Law Society (“the Council”) disagreed with the DC’s determination and, pursuant to s 94(3)(b) of the LPA, applied under s 98 for the show cause proceedings in which it is the respondent who is to show cause why she should not be dealt with under s 83, even though the DC below found that there was no cause of sufficient gravity in the first place.

6 At this stage, it suffices to note that there are two main procedural issues of interest. First, how justified is the Council in taking out an application under s 94(3)(b) of the LPA should it disagree with the determination of the DC? This issue arises because s 97(1)(b) of the LPA similarly gives the Council the power to apply to review the determination of the DC. The question must be whether s 94(3)(b) and s 97(1)(b) can be adequately reconciled given that each provision involves a different method of review of the DC’s determination. Within this statutory reconciliation issue is the further question of the reversal of the burden of proof. If the DC, as in this case, had found that there was no cause of sufficient gravity for the respondent to appear before the Court of Three Judges, should the Council be allowed to make an application under s 94(3)(b) and s 98 of the LPA for the respondent to show cause why she should not be subject to disciplinary action?4 Should there not be an interim step in the process whereby the Law Society still has to prove that there was cause of sufficient gravity (or “due cause”, as it were) before the respondent is called upon to show cause why she should not be dealt with under s 83 of the LPA?

7 In a similar vein, the second procedural issue which this case brings up is the question of whether the DC, upon finding that a charge formulated under s 83(2) of the LPA is made out, can nonetheless determine that there was “no cause of sufficient gravity” to refer the case to the Court of Three Judges. This involves a consideration of the relationship between two undefined and rather troublesome expressions in the LPA, viz, “due cause” (under s 83) and “no cause of sufficient gravity” (under s 97). This issue is not merely academic for its resolution determines the stage at which mitigating factors can be considered by the tribunal in passing the appropriate sanction, ie, the Court of Three Judges or the DC.5

IV. The first procedural question: The Law Society’s power to review the DC’s determination

A. Circumstances in which this particular procedural question arises

8 As already pointed out above, the show cause proceedings in Lilian Bay were a result of the application by the Council for a show cause order pursuant to s 94(3)(b) of the LPA. The relevant procedural question is thus whether this was the correct section under which the Council should have proceeded. The basis of this question is that there is a substantial overlap between ss 94(3)(b) and 97(1)(b) of the LPA. To facilitate the discussion, the relevant sections, as they are presently enacted, will first be set out:

Society to apply to court if cause of sufficient gravity exists

94(3).—If the determination of the Disciplinary Committee under section 93 is that, while no cause of sufficient gravity for disciplinary action exists under section 83, the advocate and solicitor should be reprimanded or ordered to pay a penalty, the Council shall —

…

(b) if it disagrees with the determination, without further direction or directions proceed to make an application in accordance with section 98.

Procedure for complainant dissatisfied with the Disciplinary Committee’s decision

97. —(1) Where a Disciplinary Committee has determined —

…

(b) that while no cause of sufficient gravity for disciplinary action exists under [s 83] the advocate and solicitor should be reprimanded or ordered to pay a penalty,

and the person who made the complaint, the advocate and solicitor or the Council is dissatisfied with the determination, that person, advocate and solicitor or the Council may, within 14 days of being notified of the Disciplinary Committee’s decision, apply to a Judge under this section.

[emphasis added]

9 As will be observed, both ss 94(3)(b) and 97(1)(b) of the LPA allow the Council, should it be dissatisfied with the DC’s determination that “while no cause of sufficient gravity for disciplinary action exists under section 83, the advocate and solicitor should be reprimanded or ordered to pay a penalty”, to commence proceedings to review the DC’s determination. However, while s 94(3)(b) allows the DC, without further direction or directions, to apply under s 98 for an order to show cause, s 97(1)(b) directs that a Judge is to hear the Council’s application under the section, after which the Judge can, pursuant to s 97(3), either (a) confirm the DC’s report; (b) direct the Council to make an application under s 98; or (c) direct the advocate and solicitor concerned to show cause under s 98(1).

10 Accordingly, the brief citation of ss 94(3)(b) and 97(1)(b) of the LPA above provides a glimpse of the problem: s 97(1)(b) appears to envisage an additional layer of review by a Judge before, amongst other things, an application for a show cause order can be made. However, s 94(3)(b) bypasses this layer of review by allowing the Council to make an application for a show cause order without further directions. On this note, it is acknowledged that s 97(3)(c) allows the Judge to order the advocate and solicitor to show cause, hence replicating the function under s 94(3)(b) read with s 98. However, this remains one of three options open to the Judge under s 97, whereas s 94(3)(b) allows the Council to bypass a possible additional layer of review under s 97(1)(b) read with s 97(3)(b). The question must be whether Parliament intended to vest in the Council the discretion to dispense with an additional layer of review of the DC’s determination. It is submitted that a consideration of this procedural question may clarify some perceived...