Law Society of Singapore v Syn Kok Kay
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ,Tay Yong Kwang JCA,Steven Chong JCA |
Judgment Date | 10 January 2023 |
Docket Number | Originating Application No 2 of 2022 |
Court | High Court (Singapore) |
[2023] SGHC 7
Sundaresh Menon CJ, Tay Yong Kwang JCA and Steven Chong JCA
Originating Application No 2 of 2022
Court of Three Judges
Legal Profession — Disciplinary proceedings — Commencement of period of suspension — When period of suspension should commence where solicitor was undischarged bankrupt — Section 83(1)(b) Legal Profession Act 1966 (2020 Rev Ed)
Legal Profession — Disciplinary proceedings — Whether due cause for disciplinary action established — Appropriate sanction — Applicable principles to determine gravity of overcharging — Section 83(1) Legal Profession Act 1966 (2020 Rev Ed)
Legal Profession — Disciplinary proceedings — Whether due cause for disciplinary action established — Appropriate sanction — Non-compliance with court order — Section 83(1) Legal Profession Act 1966 (2020 Rev Ed)
Held, granting the application and ordering that the respondent be suspended from practice for a period of three years and nine months:
Overcharging
(1) Only sufficiently serious instances of overcharging would constitute due cause for sanction. In evaluating the gravity of overcharging, the court would consider: (a) the extent of the overcharging; (b) the intention of the solicitor during the period of overcharging; (c) the solicitor's conduct following the overcharging; and (d) other generally aggravating and mitigating offender-specific factors, such as the seniority of the solicitor or the presence of antecedents: at [26] and [38].
(2) When considering the extent of overcharging, the court would consider both the quantum of the overcharge and the disproportionality of the overcharge. The more disproportionate the ratio between the sum overcharged and the sum which could have been reasonably charged, the firmer the suspicion would be that there was unethical behaviour on the part of the solicitor: at [30].
(3) The presence of dishonesty or deceit would be seen as severely aggravating. This included dishonesty related to the overcharging even if not specifically directed at the client. While the inquiry into whether a solicitor had overcharged was an objective one, the solicitor's intention and state of mind were relevant when determining the seriousness of the overcharging: at [31] and [32].
(4) Restitution was a mitigating factor in so far as it redressed the detriment suffered by the client and demonstrated remorse. However, a solicitor who made full and expeditious restitution would still have failed in his duty to charge fairly in the first place and have tarnished the image of the profession. Restitution would therefore not wipe the slate clean. A wilful refusal to make restitution would aggravate the solicitor's initial misconduct: at [33].
(5) The unwillingness of a solicitor to offer a bill of costs for taxation might be taken as indicative of lack of remorse. A proactive presentation of a bill of costs for taxation would mitigate as it signified the solicitor's willingness to resolve the matter quickly and impartially: at [34] to [36].
(6) There was due cause for the respondent to be sanctioned in respect of the First Charge. In this case, the extent of the overcharging was egregious. On the material before the court, the irresistible conclusion was that the respondent intentionally and unethically took advantage of JWR. Further, his conduct following the overcharging did not assist him. There was an extensive delay in his presentation of his bill of costs for taxation, he failed to make restitution, and he disposed of certain assets during his disciplinary proceedings at an undervalue to conceal them from his creditors. The court placed little weight on the respondent's plea of guilt in the disciplinary proceedings given that he was unable to practice at the time as an undischarged bankrupt, and it would have been immensely difficult to challenge the First Charge in light of the amount taxed off: at [40] to [46].
(7) The enhancement of a sanction from fine to suspension was not constrained to cases involving cheating or deceiving the client. The display of other ethical failings in the course of overcharging a client might attract a heavier sanction as well. Where dishonesty had been proven in relation to overcharging, striking off would be the presumptive penalty: at [48].
(8) The appropriate sanction for the First Charge was a suspension of three years. In the present case, the respondent's conduct bordered on dishonesty and warranted a suspension from practice. For overcharging redolent of dishonesty, a stronger response was warranted to deter less scrupulous solicitors from trying their luck: at [49] to [52].
Non-compliance with court order
(9) Non-compliance with a court order entailed disrespect to the court and potential prejudice to any party the order was meant to benefit. However, not every instance of non-compliance by a solicitor would necessarily be serious enough to warrant disciplinary sanction. The court would consider the degree of disrespect and/or prejudice, as well as any other pertinent aspects of the non-compliance: at [54].
(10) The appropriate sanction for the Second Charge was a suspension of nine months. The process of taxing a solicitor's bill was meant to ensure a financial outcome that was fair to both solicitor and client. As much as possible, it should be done expeditiously to resolve disputed fees. The respondent's conduct resembled wilful non-compliance, or at the very least negligence. His conduct strongly suggested that he was intentionally putting off JWR. Thus, the respondent's delay in presenting his bill of costs embodied a disservice to and a disrespect of his client, inimical to both the fundamental compact between solicitor and client and the honourable manner in which solicitors are required to conduct themselves: at [56] to [58].
Commencement of suspension
(11) The total period of suspension imposed was three years and nine months. At the time of the order, the respondent was an undischarged bankrupt. When a solicitor was declared bankrupt, his practicing certificate ceased to be in force and he could only resume practice once his bankruptcy was discharged. A period of suspension running in parallel to this inability to practice might be ineffective in achieving the aims of disciplinary sanctions, namely the protection of the public, the upholding of public confidence, general and specific deterrence, and punishment of the solicitor. In cases involving a solicitor who was an undischarged bankrupt, it was appropriate to order the suspension to commence upon the solicitor's discharge of the bankruptcy: at [60] to [64].
Han Ngiap Juan, Re [1993] 1 SLR(R) 135; [1993] 2 SLR 81 (refd)
JWR Pte Ltd v Syn Kok Kay [2019] SGHC 253 (refd)
Lau Liat Meng, Re [1992] 2 SLR(R) 186; [1992] 2 SLR 203 (refd)
Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] 4 SLR 1184 (folld)
Law Society of Singapore v Ang Chin Peng [2013] 1 SLR 946 (refd)
Law Society of Singapore v Chia Choon Yang [2018] 5 SLR 1068 (refd)
Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR(R) 320; [2005] 4 SLR 320 (refd)
Law Society of Singapore v Ezekiel Peter Latimer [2020] 4 SLR 1171 (refd)
Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 (refd)
Law Society of Singapore v Low Yong Sen [2009] 1 SLR(R) 802; [2009] 1 SLR 802 (folld)
Law Society of Singapore v Naidu Priyalatha [2022] SGHC 224 (refd)
Law Society of Singapore v Nalpon, Zero Geraldo Mario [2022] 3 SLR 1386 (refd)
Law Society of Singapore v Ravi s/o Madasamy [2016] 5 SLR 1141 (refd)
Law Society of Singapore, The v Syn Kok Kay [2022] SGDT 10 (refd)
Loh Der Ming Andrew v Koh Tien Hua [2022] 3 SLR 1417 (refd)
Marshall David, Re [1971–1973] SLR(R) 554; [1972–1974] SLR 132 (distd)
Mr Syn Kok Kay (the “respondent”) was a solicitor of 29 years' standing. At all material times, he was the sole proprietor of Patrick Chin Syn & Co.
For services rendered to a client, JWR Pte Ltd (“JWR”), the respondent charged $1,340,000 in professional fees from December 2015 to April 2019. JWR paid these fees in full, but went on to seek taxation of the billed amount. The respondent was ordered to deliver his bill of costs by 7 November 2019 but did so only on 18 November 2020. The respondent's professional fees were eventually taxed down to $288,000. He did not return the difference of $1,052,000 to JWR and was adjudged bankrupt following a bankruptcy application brought by JWR. At the time of the hearing, the respondent remained an undischarged bankrupt.
The Law Society of Singapore (the “Law Society”) brought charges against the respondent in respect of his overcharging (the “First Charge”) and his failure to comply with the court-ordered timeline for the delivery of his bill of costs (the “Second Charge”). The disciplinary tribunal found that there was cause of sufficient gravity for disciplinary action. The Law Society then applied for the respondent to be sanctioned under s 83(1) of the Legal Profession Act 1966 (2020 Rev Ed).
Legal Profession (Professional Conduct) Rules (2000 Rev Ed) r 38
Legal Profession (Professional Conduct) Rules 2015 rr 17(7), 17(8)
Legal Profession Act 1966 (2020 Rev Ed) s 83(1) (consd);
ss 26(1)(e), 26(9)(b), 83, 83(1)(b), 83(2), 83(2)(b), 83(2)(h)
Sean Francois La'Brooy and Faustina Joyce Fernando (Selvam LLC) for the applicant;
Giam Chin Toon SC and Teo Hui Xian Astrid (Wee Swee Teow LLP) for the respondent.
10 January 2023
Judgment reserved.
Steven Chong JCA (delivering the judgment of the court):
1 This is an application by the Law Society of Singapore (the “Law Society”) for the respondent, Mr Syn Kok Kay, to be sanctioned under s 83(1) of the Legal Profession Act 1966 (2020 Rev Ed) (“LPA”), in respect of:
(a) his overcharging of a client, by charging $1,340,000 for work which was taxed...
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