Hilborne v The Law Society of Singapore

• Court: Privy Council
• Judge: Lord Diplock
• Judgment Date: 07 March 1978
• Neutral Citation: [1978] SGPC 2
• Citation: [1978] SGPC 2
• Defendant Counsel: Robin Auld QC and lan Glick (Jaques & Co)
• Plaintiff Counsel: Stuart McKinnon (Charles Russell & Co)
• Published date: 19 September 2003
• Docket Number: Privy Council Appeal No 22 of 1976
• Date: 07 March 1978
• Subject Matter: Improper conduct,ss 84(2), 88(1)(b), 89(1) & 93 Legal Profession Act (Cap 217),Legal Profession,Penalty of $250 imposed by Law Society,Whether utterance tantamount to improper conduct,Professional conduct,Comment at close of case Court of Appeals refusal to reopen proceedings the court was 'setting a seal on dishonesty'

Cur Adv Vult

(delivering the judgment of the Board): The appellant is an advocate and solicitor in Singapore. The Council of the Law Society there decided that he had been guilty of improper conduct as such and ordered that he should incur a penalty of $250. The appellant contended that in law there was no justification for this action. He proceeded to challenge it in the High Court by the appropriate procedure of an originating summons applying to set aside the order of the Council. FA Chua J refused the application and affirmed the penalty, but gave leave to appeal to the Court of Appeal. On appeal that court (the Chief Justice, Winslow J and Kulasekaram J) dismissed the appeal. The appellant now appeals by special leave of this Board.

The alleged improper conduct of the appellant was in connection with proceedings in which the plaintiffs, represented by the appellant, sought recovery of about $2,500, the cost of furniture made by them for use at a proposed night club and restaurant, the Golden Pagoda Garden Nite-Club and Restaurant, and duly delivered at its premises. The order was placed by the first defendant in that action, Tan Eng Huat, purporting to act on behalf of the second defendants, Golden Palace Pte Ltd. Their Lordships do not think it necessary to rehearse in detail the progress of that litigation. The second defendants denied liability and before delivering a defence requested particulars of the claim, which curiously enough did not in express terms assert that the order had been placed by the first defendant on behalf of the second, but only claimed against the latter `if` the order had been so placed. There was a dispute whether particulars could be called for before delivery of defence: the second defendants intimated that they were applying for an order for particulars and for extension of time for delivery of defence: the appellant for the plaintiffs nevertheless sought and obtained judgment against the second defendants in default of defence very shortly before the return date for the second defendants` application, which was adjourned sine die to afford to the latter an opportunity to apply to set aside the default .

That application was heard by the Chief Justice on affidavit evidence. Again the details are not for present purposes important. Suffice it to say that for the second defendants it was being put forward that those defendants had no interest in the night club at the relevant time: on the contrary the premises were let to a partnership of which the first defendant was a member. The default judgment was set aside and particulars ordered. The plaintiffs appealed and on 21 January 1971 the Court of Appeal dismissed the appeal.

After that dismissal but before the order of the Court of Appeal was perfected the appellant received information, mainly from an advocate and solicitor, Mr Ong Swee Keng, which suggested to him that a false and dishonest case had been put forward by and on behalf of the second defendants in that according to Ong, a director of the second defendants, the business of the night club was at the relevant time owned and run by the latter and that the first defendant as a director (and approved in principle as managing director) had authority of the second defendants to place the order for the furniture. Again the details do not matter: suffice it to say that it is clear that the appellant considered that a false case had been presented for the second defendants, supported by affidavit evidence from an employee of Mr Chung, the solicitor of the second defendants. (Their Lordships remark that ultimately in the winding up of the second defendants the Official Receiver appears to have recognised the plaintiffs` claim.)

Armed with a statutory declaration from Mr Ong the appellant applied to the Court of Appeal to reopen the appeal, with a view to reinstating the default judgment, on the ground that the evidence now showed a dishonest case put forward for the second defendants. (This was the occasion for the comment by the appellant, as advocate for the plaintiffs, which has been concurrently held by the Council of the Law Society, by FA Chua J, and by the Court of Appeal on appeal from FA Chua J to constitute improper conduct) The Court of Appeal refused the application to reopen the appeal.

The comment made by the appellant was that by refusing to reopen the appeal the Court of Appeal `set the seal upon dishonesty`. Mr Chung having challenged the appellant to repeat his words outside court, taking the phrase as a reflection upon his firm, the appellant wrote to him on the same day a letter including the phrase

I stated to the two judges present that in my opinion in refusing to reopen this appeal, they were setting a seal on dishonesty.

In considering the question of improper conduct the first question of fact is whether this remark was made to the court after the court had finally and in terms refused to reopen the appeal, the appellant being incensed at the outcome, or whether it was in the nature of a submission in the course of seeking to persuade the court to reopen the appeal, on lines such as `If the court declines to reopen this appeal I submit that the effect will be to set a seal upon dishonesty.` In their Lordships` view it was clearly the former. They have already quoted from the appellant`s letter to Mr Chung of 13 March 1971. Mr Chung having forwarded that letter to the secretaries to the two relevant judges the Registrar of the Court on their instructions wrote to the Law Society thus:

Their Lordships are of the view that the conduct of Mr Hilborne in expressing the opinion after the decision not to reopen the appeal had been pronounced, that `in refusing to reopen this appeal they ( i.e.their Lordships) were setting a seal on dishonesty` merits investigation.

In his letter dated 24 May 1971 to the Inquiry Committee of the Law Society the appellant said:

In the event, their Lordships did not deem fit to re-open the hearing of the appeal. It seemed, and still seems, to me that for a litigant to misinform the court in circumstances such as these was dishonesty in the legal, if not the actual sense, and for a court, having been apprised of the nature of the falsity, to fail to express any disapproval of the same, let alone investigate the matter further, was tantamount to condonation of that dishonesty. It was these circumstances that led to the observation which I made.

It is true that in his affidavit in support of his application to set aside the penalty on 25 May 1972 the appellant used the phrase

it was during the course of this hearing [i.e.of the appeal] that I uttered the words ...

a phrase echoed by his counsel during the hearing before FA Chua J: though it is to be noted that counsel also said that the appellant ` was disappointed and he made this remark`...