Iskandar bin Rahmat v Law Society of Singapore

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Judith Prakash JCA,Steven Chong JCA,Quentin Loh JAD
• Judgment Date: 08 January 2021
• Neutral Citation: [2021] SGCA 1
• Citation: [2021] SGCA 1
• Defendant Counsel: P Padman and Lim Yun Heng (KSCGP Juris LLP)
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Subject Matter: Disciplinary proceedings,Jurisdiction,Disciplinary jurisdiction,Courts and Jurisdiction,Review application,Legal Profession
• Published date: 13 January 2021
• Docket Number: Civil Appeal No 9 of 2020 (Summons No 44 of 2020)
• Hearing Date: 22 October 2020

Sundaresh Menon CJ (delivering the judgment of the majority consisting of Judith Prakash JCA, Steven Chong JCA, Quentin Loh JAD and himself): Introduction

All advocates and solicitors are officers of the Supreme Court and are subject to its control pursuant to ss 82 and 83 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”). Complaints against a solicitor are made to the Law Society of Singapore (“the Law Society”) and are to be dealt with according to the processes set out in Part VII of the LPA. The disciplinary process culminates in an application made to “a court of 3 Judges of the Supreme Court” constituted under s 98(7) of the LPA (“the C3J”). But before then, the complaint must be assessed by various bodies constituted under the LPA. Each of these assessments is done sequentially. Where any of these bodies declines to refer it to the next stage, an aggrieved complainant may apply for that decision to be reviewed by a judge.

In the present case, such a complaint was considered by an Inquiry Committee which issued a report recommending that the complaint be dismissed. The Council of the Law Society (“the Council”), after considering the report, determined that no formal investigation was necessary and dismissed the complaint. The complainant applied to a judge (“the Judge”) under s 96 of the LPA to review the Council’s determination. The Judge, having done so, affirmed the Council’s determination.

The question before us in this application is whether such a decision of the Judge can be appealed to this court. Relying on an earlier decision of this court in Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (“Top Ten Entertainment”), the Law Society argues that we do not have the jurisdiction to hear an appeal against a decision of a judge in disciplinary proceedings under the LPA. The Law Society has therefore applied to strike out the appeal filed by the complainant against the Judge’s decision. In our judgment, on this point, Top Ten Entertainment was wrongly decided and there is in fact a right of appeal to this court against a decision made pursuant to s 96 of the LPA. We therefore dismiss the application to strike out the appeal for the reasons that we set out below.

Background

In 2015, Mr Iskandar bin Rahmat (“Mr Iskandar”) was tried on two charges of murder under s 300(a) of the Penal Code (Cap 224, 2008 Rev Ed). Mr Iskandar was represented at trial by six counsel, who are advocates and solicitors of the Supreme Court and had been appointed as his defence counsel pursuant to the Legal Assistance Scheme for Capital Offences.

On 4 December 2015, Tay Yong Kwang J (as he then was) convicted Mr Iskandar on both charges and sentenced him to suffer death (see Public Prosecutor v Iskandar bin Rahmat [2015] SGHC 310). Mr Iskandar’s appeal against his conviction and sentence was dismissed on 3 February 2017 (see Iskandar bin Rahmat v Public Prosecutor and other matters [2017] 1 SLR 505). He was represented by different counsel on appeal.

On 14 February 2018, Mr Iskandar wrote to the Law Society to file a complaint against his trial counsel alleging that they had failed to comply with his instructions in the conduct of his defence. He followed up on the initial complaint with two further letters dated 5 April 2018 and 7 May 2018. The Inquiry Committee was appointed on 3 August 2018. As part of the inquiry, the Inquiry Committee obtained written explanations from the trial counsel and heard from four of them at a hearing on 23 October 2018. The Inquiry Committee also spoke to Mr Iskandar at Changi Prison Complex, where he is held, on 10 December 2018 and 10 January 2019. Mr Iskandar raised nine allegations regarding the conduct of the trial but the details of these allegations are not relevant for the purposes of the present application.

In its report dated 7 February 2019, the four-member Inquiry Committee unanimously recommended that no formal investigation by a Disciplinary Tribunal was necessary and the complaint should be dismissed. The Law Society informed Mr Iskandar by a letter dated 20 March 2019 that the Council had considered the findings of the Inquiry Committee and determined that no formal investigation was necessary, and the Law Society would not take further action on the complaint.

The decision below

On 7 June 2019, Mr Iskandar filed HC/OS 716/2019 pursuant to s 96 of the LPA seeking a review of the Council’s determination and an order directing the Law Society to apply to the Chief Justice for the appointment of a Disciplinary Tribunal. Mr Iskandar’s contention was that the Inquiry Committee had breached the rules of natural justice and reached the wrong conclusion on the merits of all nine heads of complaint.

The Judge dismissed the application on 10 October 2019 (see Iskandar bin Rahmat v Law Society of Singapore [2020] SGHC 40 (“GD”) at [2]). As the Council had adopted the reasons of the Inquiry Committee, the Judge observed that while she was not reviewing the Inquiry Committee’s conclusions directly, she was effectively required to assess the Inquiry Committee’s report to consider if the Council’s determination should be departed from: GD at [9]. The Judge held that the one-day delay on the part of the Inquiry Committee in issuing its report did not occasion any prejudice to Mr Iskandar and did not invalidate the report, and Mr Iskandar’s allegations that there had been breaches of natural justice were unfounded: GD at [12]–[13]. The Judge also considered in detail the merits of the nine allegations put forward by Mr Iskandar regarding the conduct of his trial and affirmed the Inquiry Committee’s finding that there was no prima facie case of ethical breach or other misconduct by his trial counsel that warranted formal investigation and consideration by a Disciplinary Tribunal. She observed that, contrary to the allegations, the prosecution and the trial defence team had been praised for “their highly professional attitude and their full cooperation with the process of justice” by the trial judge: GD at [82]. Mr Iskandar filed an appeal in CA/CA 9/2020 against the Judge’s decision.

The present application

On 18 March 2020, the Law Society filed CA/SUM 44/2020 to strike out the appeal on the basis that there is no right of appeal against any order made by a review judge under ss 95, 96 and 97 of the LPA. The Law Society rested its case on the decision of this court in Top Ten Entertainment ([3] supra). It submitted that the court’s analysis was principled and ought to be followed. Mr P Padman (“Mr Padman”), counsel for the Law Society, highlighted that by the time of an appeal against the order of a judge under s 96, the complaint would have been heard by a Review Committee, investigated by an Inquiry Committee, considered by the Council, and reviewed by a judge. He submitted that in these circumstances, an appeal to the Court of Appeal seemed wholly unnecessary and extravagant.

Mr Iskandar opposed this application on the ground that the Law Society had failed to address the merits of his appeal and that Top Ten Entertainment was wrongly decided. He argued that the court in Top Ten Entertainment did not have the benefit of counsel’s submissions on the issue of a right of appeal and its conclusion was therefore unsafe. He also contended that the court was wrong to conclude that proceedings under Part VII of the LPA did not fall within the civil jurisdiction of the High Court as the application had been commenced by originating summons and the Law Society had submitted to the jurisdiction of the High Court. Finally, he highlighted that there was nothing in the LPA to exclude a right of appeal against a decision pursuant to s 96.

On 15 September 2020, the Court of Appeal heard CA/SUM 5/2020 (“SUM 5”), which was an application in a different appeal, CA/CA 227/2019 (“CA 227”), to strike out that appeal. That was a complainant’s appeal against the decision of a judge pursuant to s 97 of the LPA to affirm the Disciplinary Tribunal’s determination, after a formal investigation into a complaint against a solicitor, that no cause of sufficient gravity for disciplinary action existed. The solicitor had applied to strike out the appeal on the authority of Top Ten Entertainment. Prior to the hearing, the court directed the parties (being the complainant and the solicitor) to file submissions on two questions: Is the Court of Appeal seised of jurisdiction to hear the appeal in CA 227, with particular reference to the two threshold requirements set out in Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Re Nalpon Zero”)? Is the Supreme Court’s disciplinary jurisdiction over advocates and solicitors part of the civil jurisdiction of the court, with particular reference to ss 16(1) and 16(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”)?

Judgment was reserved in that application. On the same day, Mr Ravi s/o Madasamy (“Mr Ravi”) was appointed as counsel for Mr Iskandar in the present appeal. Mr Ravi informed the court that Mr Iskandar wished to intervene in SUM 5 as that application engaged the same issues as the Law Society’s present application. While Mr Iskandar’s request to intervene was denied, we allowed Mr Ravi to file further written submissions and the Law Society to reply to the same.

Mr Ravi submitted that the appeal should not be struck out. First, he argued that this court was not bound by Top Ten Entertainment ([3] supra). Second, he argued that pursuant to Arts 4 and 93 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) and principles he said existed within the proper conception of the rule of law, the court had the power to hear the appeal. He also appeared to draw an analogy with the scope of judicial review over proceedings under the LPA that was upheld in the context of decisions of the Review Committee in Deepak Sharma v Law Society of Singapore...