Andrew Phang Boon Leong JCA:
As the old adage goes, one must be careful lest one misses the wood for the trees. Another guiding principle is that one must look to the substance – rather than merely the form – of the proceedings concerned.
In an application for the transfer of an appeal from the Appellate Division of the High Court (“AD”) to the Court of Appeal, the “overarching inquiry” is whether it is more appropriate for the Court of Appeal to hear the appeal (see Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] 2 SLR 440 (“Noor Azlin”) at [45]). The present application is one such application. The applicant, who seeks remuneration for work done in relation to legal disputes which his clients were involved in, argues that legal issues raised by his appeal against the judgment of the General Division of the High Court in Choo Cheng Tong Wilfred v Phua Swee Khiang and another [2021] SGHC 154 would be more appropriately heard by the Court of Appeal.
In support of his application, the applicant raises numerous arguments pursuant to the matters set out in O 56A r 12(3), read with O 56A r 12(1) of the Rules of Court (2014 Rev Ed) (“ROC”) and s 29D(2)(c)(ii) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed). However, at bottom, his case really concerns the interpretation as well as application of certain provisions of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“Act”). The fundamental issue he raises relates to what constitutes acting “as an advocate and solicitor” within the meaning of the Act. At trial, the judge, applying the tests in Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd and another [1988] 1 SLR(R) 281 (“Turner”), found that the applicant’s work consisted of acting “as an advocate and solicitor” within the meaning of the Act; therefore, he was barred by the Act from claiming remuneration for any such work done while he was an unauthorised person within the meaning of the Act. The applicant now argues, amongst other ancillary issues relating to the interpretation and application of the Act, that the judge had erred by applying the tests in Turner, and that a new understanding of what constitutes acting “as an advocate and solicitor” should be fashioned from developments in other jurisdictions.
It is important at this juncture to draw a distinction between what the existing law is and what the law ought to be. What the existing law is is well-established: see Turner. The applicant identifies Turner as a decision of some age, but age is a neutral point; indeed, there are many established decisions that are of very considerable vintage and which often constitute the foundation in relation to their respective areas of the law.
The applicant sets his sights higher, and pitches his arguments in the realm of what the law ought to be. However, in general, in an area governed principally by legislation, any submission that the law ought to be different must be effected with regard to the proper interpretation of that legislation, bearing in mind the existing case law. As I have just observed, the principles governing the relevant provisions of the Act were...
