Jeyaratnam JB v The Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Lord Ackner
• Judgment Date: 21 November 1988
• Neutral Citation: [1988] SGPC 1
• Docket Number: Privy Council Appeal No 10 of 1988
• Date: 21 November 1988
• Published date: 19 September 2003
• Year: 1988
• Plaintiff Counsel: Martin Thomas QC and Robert Britton (Penningtons Ward Bowie)
• Citation: [1988] SGPC 1
• Defendant Counsel: Robert Reid QC and Goh Joon Seng (Linklaters & Paines)
• Court: Privy Council
• Subject Matter: Professional conduct,Convictions 'vitiated' by mistakes,Whether petition for presidential pardon only prospect of redress,Criminal Procedure and Sentencing,Criminal Law,Effect of disposal of cheques according to donors' instructions,s 80(2)(a) Legal Profession Act (Cap 161),Legal Profession,s 421 Penal Code (Cap 103, 1970 Ed),Civil Procedure,s 199 Penal Code (Cap 103, 1970 Ed),Dishonest or fraudulent removal of property to prevent distribution among creditors,Offences,Voluntary donations to political party,appellants have good defence to charge for false declaration,Appeal,Whether court may go behind convictions,Making false declaration with respect to political party's accounts,Appeals,Trial judge's findings of fact,Whether circumstances sufficiently exceptional to warrant going behind convictions,Power of appellate court to reverse trial judge's findings of fact,Appellate court's function,Striking off the roll upon conviction for offences

On 19 October 1987 the High Court of Singapore ordered that the appellant be struck off the roll of advocates and solicitors of the Supreme Court of Singapore. On 25 October 1988 their Lordships allowed the appellant`s appeal from that order indicating that they would give the reasons for their decision later. This they now do.

The background

The Workers` Party of Singapore is a political party in the ordinary sense, but is also, unlike English political parties, a body having legal personality under Singapore law. The appellant is the secretary-general of the Workers` Party. In 1972 the Workers` Party sued Tay Boon Too (Tay), a member of Parliament, for slander in respect of words spoken in the 1972 general election campaign. The action failed and the Workers` Party were ordered to pay Tay`s costs. A liability under this order for a sum exceeding $17,000 remained unsatisfied.

In the 1980 general election the appellant himself stood unsuccessfully as a Workers` Party candidate for Parliament. Madam Chiew Kim Kiat (Mdm Chiew), the mother of the appellant`s election agent, brought an election petition against the appellant`s successful opponent alleging electoral irregularities. The petition was dismissed with costs.

In 1981 the appellant was elected to Parliament in a by-election and became the sole member in opposition to the ruling People`s Action Party. At the general election in 1984 he was re-elected.

The crucial events of 1982

By the beginning of 1982 the judgment debt for the balance of Tay`s costs, after the lapse of more than six years, had become unenforceable by execution without the leave of the court. Early in 1982 bankruptcy proceedings were instituted against Mdm Chiew in respect of the unpaid balance of her liability for costs incurred in the unsuccessful election petition proceedings. The salient events in 1982 are best recounted in chronological order.

On 19 January the appellant received by post a cheque drawn by Dr Ivy Chew Wan Heong (Dr Chew) for $2,000 made payable to the Workers` Party (the $2,000 cheque). This was then endorsed by the appellant and Wong Hong Toy (Wong), the chairman of the Workers` Party, in favour of Mdm Chiew`s solicitors as a contribution to help meet her liability for costs in respect of the election petition proceedings. On 23 January Tay`s solicitor wrote to the appellant`s firm, as solicitors for the Workers` Party, demanding payment of the costs due to Tay. On 3 February Tay applied to the court for leave to execute for the unpaid costs. On 17 February the $2,000 cheque was handed to Madam Chiew`s solicitors. On 22 February Tay was granted leave to execute and the court made a garnishee order in his favour on the Workers` Party`s bank account. On 8 March the garnishee order was made absolute and the bank paid over the balance of $18.47 standing to the credit of the Workers` Party`s account. On 10 March the appellant and Wong received a cheque for $200 drawn by Ping Koon Yam (Ping) in favour of the Workers` Party with the word `bearer` crossed out (the $200 cheque). Ping then altered the cheque to a bearer cheque by overriding the cancellation of the word `bearer`. The cheque was paid into Wong`s personal account. Wong drew $200 in cash from the account and handed it to Mdm Chiew`s solicitors as a contribution towards her liability for costs. On 12 March, the date fixed for the hearing of the bankruptcy petition against Mdm Chiew, her solicitors were able to discharge her outstanding liability for costs by handing over to the petitioner`s solicitors $2,655 including the proceeds of the $2,000 and $200 cheques and other money collected for her by the Workers` Party.

On 22 May Tay applied to the court for the appointment of a receiver by way of equitable execution. On the same day Willie Lim Tian Sze (Willie Lim) made a donation to the Workers` Party in the form of a crossed cheque for $400 payable to the Workers` Party (the $400 cheque). On 1 June the Official Receiver was appointed by the court as receiver of the Workers` Party`s assets. Some days later Willie Lim was invited by Wong in the presence of the appellant to alter the $400 cheque and agreed to do so. He uncrossed the cheque and made it payable not to the Workers` Party but to cash.

On 21 July the Official Receiver wrote to A Balakrishnan, the treasurer of the Workers` Party, asking for the accounts of the Workers` Party for 1980, 1981 and up to 3 June 1982, and for all the relevant account books, vouchers and other accounting documents for this period. Balakrishnan complied with this request and, in response to a further request, filed an affidavit verifying the accounts for the period 1 January to 16 June 1982. The accounts contained no entries referring to the transactions represented by the cheques previously referred to.

The Official Receiver then requested the appellant and Wong, as secretary-general and chairman of the Workers` Party, to make a statutory declaration to confirm the accounts. A document purporting to be a joint statutory declaration verifying the accounts was submitted to the appellant and Wong in a form drafted by the Official Receiver and they duly went through the formalities of making the declaration. It is common ground, however, that the document was not a statutory declaration at all, since it did not contain the vital words `and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the Statutory Declarations Act 1835`. On 6 August the Official Receiver swore his own affidavit, which was duly lodged in the court, verifying his own account of the receivership and exhibiting, inter alia, the declaration by the appellant and Wong in support of his own statement of information and belief that the exhibited accounts of the Workers` Party were true.

The criminal proceedings

Arising out of these events the appellant and Wong were jointly charged with three offences and each was separately charged with a fourth offence. The three joint charges were laid under s 421 of the Singapore Penal Code (Cap 103, 1970 Ed) which provides:

Whoever dishonestly or fraudulently removes, conceals, or delivers to any person, or transfers or causes to be transferred to any person, without adequate consideration, any property, intending thereby to prevent, or knowing it to be likely that he will thereby prevent, the distribution of that property according to law among his creditors or the creditors of any other person, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.

These charges (the cheque charges) related to the disposal of the $2,000, $200 and $400 cheques respectively. The ingredients of each of these offences which the prosecution needed to prove were:

(1) that the cheque was the property of the Workers` Party;

(2) that the accused jointly transferred it without adequate consideration;

(3) that they did so intending or knowing that it would be likely to prevent the distribution of the property according to law amongst the creditors of the Workers` Party, meaning thereby the payment of the proceeds of the cheque to the creditor Tay;

(4) that in so doing they acted fraudulently.

The fourth separate charge against each accused was laid under s 199 of the Penal Code which provides:

Whoever, in any declaration made or subscribed by him, which declaration any court of justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.

These charges (the accounts charges) related to the purported statutory declaration. The falsity alleged was the omission in the accounts which the declaration verified of any entry relating to the cheques which were the subject of the cheque charges. In this sense the accounts charges were parasitic upon the cheque charges. It was alleged that the accused had, so to speak, compounded their fraudulent dealings with the cheques by failing to own up to them when they were required to verify the accounts. But an offence under s 199 is much graver than an offence under s 421. It is treated as equivalent to an offence of perjury under s 193 and is punishable by up to seven years` imprisonment.

The first trial

These charges came for trial before Senior District Judge Michael Khoo. He gave written reasons for his decision on 30 March 1984.

Judge Khoo ruled at the close of the prosecution case that there was no case to answer on the accounts charges on the ground that the purported statutory declaration, lacking the essential words of affirmation, was not within s 199. He rejected a submission that it was a document, which `any court of justice` was `bound or authorized to receive as evidence of any fact` because it could be, as it was, exhibited to the affidavit of the Official Receiver in the receivership proceedings in support of his own accounts. Judge Khoo refused various applications by the prosecution to substitute amended charges for the accounts charges under s 199.

Judge Khoo acquitted both accused of the charges in respect of the $2,000 and $200 cheques. He held that in each case the prosecution had failed to prove that the cheque was, at the material time, the property of the Workers` Party. In the case of the $2,000 cheque he accepted the evidence of the appellant that he had received a note from Dr Chew with the cheque authorizing him to use it as he thought fit, and that after deciding to use the money to help Mdm Chiew meet her liability for costs he had confirmed with Dr Chew that he could use the money as he wished. The receipt and disposal of the $2,000 cheque were reported to a meeting of the executive...