Gnaguru s/o Thamboo Mylvaganam v Law Society of Singapore

• Jurisdiction: Singapore
• Judgment Date: 29 February 2008
• Date: 29 February 2008
• Docket Number: Originating Summons No 1573 of 2007
• Court: High Court (Singapore)

Gnaguru s/o Thamboo Mylvaganam

Plaintiff

and

Law Society of Singapore

Defendant

[2008] SGHC 34

Andrew Phang Boon Leong JA

,

Tan Lee Meng J

and

Tay Yong Kwang J

Originating Summons No 1573 of 2007

High Court

Legal Profession–Reinstatement on roll of advocates and solicitors–Second attempt at reinstatement–Application made 13 years and two months after striking off–Lawyer struck off after conviction for offence implying defect of character–Whether lawyer fit to be restored on roll–Section 102 Legal Profession Act (Cap 161, 2001 Rev Ed)

The applicant was an advocate and solicitor of some eight years' standing when he was convicted under s 174 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed). The disciplinary committee of the Law Society of Singapore (“the Law Society”) found that the offence for which the applicant had been convicted implied a defect of character which made him unfit for the legal profession within the meaning of s 83 (2) (a) of the Legal Profession Act (Cap 161, 1990 Rev Ed). Subsequently, at the show cause proceedings, the applicant was struck off the roll.

The applicant first applied for reinstatement (“the first application”) ten years after being struck off the roll. In considering the first application, the court was satisfied that the application was not premature. However, the court found that the applicant lacked real evidence to substantiate his claims of rehabilitation. Accordingly, the applicant's first application failed.

The applicant filed his second application for reinstatement (“the second application”) three years and two months after the first application was rejected, and this was the application that was before the present court. Notably, one of the letters of commendation tendered by the applicant together with the second application was by one Mr Daniel Tint Lwin (“Daniel”). Daniel had written the letter of commendation praising the applicant's contributions as technical advisor to the Kingdom of Cambodia's Royal Academy for Judicial Professions. However, at the time the applicant was offered the above appointment, the applicant made no mention of the fact that he had been struck off the roll. Accordingly, Daniel, in his subsequent affidavit, stated that had the organisations known that the applicant was a disbarred lawyer, they would not have offered him the appointment. As such, Daniel withdrew the letter of commendation.

In the light of the applicant's failure to disclose the fact of his striking off from the roll, some members of the council of the Law Society questioned the completeness of the applicant's rehabilitation. However, the majority decided not to object to the second application provided the applicant undertook to abide by five conditions (“the Conditions”), which would be added to his practising certificate.

The Conditions were: (a) the applicant would not practise as a sole proprietor for a period of two years; (b) for a period of two years, the applicant would not seek or accept employment as an advocate and solicitor from a sole proprietor unless the latter was a “senior category” member under the classification adopted by the Law Society; (c) the applicant would not hold and receive moneys or act as a signatory to any client's account; (d) the applicant would, by 31 December 2008, attend ten hours of training under the Law Society's “Continuing Professional Development” scheme, of which two hours would involve professional ethics or responsibilities; and (e) the applicant would, by 31 December 2008, perform 25 hours of voluntary pro bono service with the Law Society's pro bono services department.

The Attorney-General had initially objected to the second application due to Daniel's affidavit withdrawing his letter of commendation. However, as the applicant agreed not to rely on the references which mentioned his participation in the programme and also agreed to the Conditions imposed by the Law Society, the Attorney-General was no longer objecting to the second application.

Held, allowing the application:

(1) In deciding whether the applicant had been fully rehabilitated, two main periods of time needed to be considered: (a) the period from the time the applicant was struck off the roll to the time of the first application; and (b) the period between the time of the first and second application: at [26] and [30].

(2) In relation to the period between the time of the first and second application, the applicant had been gainfully employed throughout this (as well as the first) period and had also successfully completed an external Masters of Law programme offered by the University of London. More importantly, his references in respect of the present application were a far cry from those which he tendered for the first application. This time round, his references included those from six senior members of the Bar (of between 16 and 27 years' experience), who attested to the applicant's honesty, integrity and trustworthiness, as well as the fact that he had been truly rehabilitated. Further, neither the Law Society nor the Attorney-General objected to the present application (although the former did not object on condition that the applicant undertook to abide by the conditions it imposed). However, one issue that arose was whether, in the circumstances and the context concerned (namely, of voluntary work in the form of teaching the technical and legal use of the English language), the applicant ought nevertheless to have disclosed his status as a disbarred lawyer. Whilst it might have been ideal if the applicant had done so, his non-disclosure did not evince a defect in character, given the nature of the above programme (which did not involve, either directly or indirectly, the practice of law and which was voluntary in nature): at [30], [31] and [36].

(3) Even at the time of the first application, the court was of the view that the applicant's mistake in addressing a district judge at a pre-trial conference (despite being struck off the roll) was “a minor incident” and therefore did not take it into account in assessing the substantive merits of that first application. It was also significant to note that the conduct of the applicant in addressing the district judge involved the actual practice of law, whereas his participation in the programme did not: at [36].

(4) In the light of all the material facts and circumstances, the offence committed by the applicant, although serious, could be distinguished from the misconduct of other errant lawyers who had likewise been struck off the roll. The reinstatement of the applicant would not diminish public confidence in the general reputation and standing of the legal profession: at [43].

(5) Reinstatement to the roll would not be granted as a matter of course. On the contrary, such reinstatement would be the exception rather than the rule. In that regard, the court would scrutinise each application carefully, bearing in mind that the very fact that the applicant concerned was struck off the roll in the first place meant that there had necessarily been extremely serious professional misconduct on his or her part: at [44].

(6) The present application was unusual inasmuch as the applicant had very nearly satisfied the court in the first application. Further, the court had on that occasion found that the applicant's misconduct, “though reprehensible, was nonetheless essentially a misguided attempt at helping his clients”. Such misconduct could be easily distinguished from more serious and reprehensible conduct - for example, the criminal misappropriation of clients' funds. Looked at in this light, the circumstances in the present application were sui generis, and would therefore be of little - or even no - precedent value in so far as future reinstatement applications were concerned: at [44].

Chan Chow Wang, Re [1983-1984] SLR (R) 55; [1982-1983] SLR 413 (refd)

Gnaguru s/o Thamboo Mylvaganam, Re [1994] SGHC 229 (refd)

Gnaguru s/o Thamboo Mylvaganam, Re [2004] SGHC 180 (refd)

Knight Glenn Jeyasingam v Law Society of Singapore [2007] 3 SLR (R) 704; [2007] 3 SLR 704 (refd)

Narindar Singh Kang v Law Society of Singapore [2007] 4 SLR (R) 641; [2007] 4 SLR 641 (refd)

Nirmal Singh s/o Fauja Singh, Re [2001] 2 SLR (R) 494; [2001] 3 SLR 608 (refd)

Ram Kishan, Re [1992] 1 SLR (R) 260; [1992] 1 SLR 529 (refd)

Legal Profession Act (Cap 161,1990 Rev Ed)ss 83 (1),83 (2) (a),98 (1)

Legal Profession Act (Cap 161,2001 Rev Ed)s 102 (consd);s 102 (1)

Penal Code (Cap 224,1985 Rev Ed)ss 109, 174

Prevention of Corruption Act (Cap 241, 1993 Rev Ed)s 5 (a)

Solicitors' Accounts Rules1967 (S 119/1967)

Vergis S Abraham and Clive Myint Soe (Drew & Napier LLC) for the applicant

Lok Vi Ming SC and Koh Kia Jeng (Rodyk & Davidson LLP) for the respondent

Mavis Chionh (Attorney-General's Chambers) for the Attorney-General.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of the court):

Introduction

1 This is the second attempt by Gnaguru s/o Thamboo Mylvaganam (“the Applicant”) to be reinstated to the roll of advocates and solicitors of the Supreme Court of Singapore (“the Roll”) pursuant to s 102 (1) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”). The Applicant had been struck off the Roll on 31 August 1994 as a result of his conviction under s 174 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) (“the PC”), which fell within the meaning of s 83 (2) (a) of the Legal Profession Act (Cap 161, 1990 Rev Ed) (“the 1990 Act”). After hearing the submissions of the respective parties, we allowed the application. We now give the reasons for our decision.

Factual background

2 The Applicant is 55 years of age. He was called as a barrister-at-law of England in 1984, and was subsequently admitted as an advocate and solicitor of the Supreme Court of Singapore on 11 December 1985. In early 1986, the Applicant commenced...