Law Society of Singapore v Low Yong Sen

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 08 October 2008
• Neutral Citation: [2008] SGHC 170
• Citation: [2008] SGHC 170
• Defendant Counsel: Respondent in person
• Plaintiff Counsel: Tan Jee Ming (Tan Jee Ming & Partners) and Srinivasan V N (Heng, Leong & Srinivasan)
• Published date: 13 October 2008
• Docket Number: Originating Summons No 352 of 2008 (Summons No 1565 of 2008)
• Date: 08 October 2008
• Subject Matter: Show cause action,Appropriate sanction for gross overcharging,Rule 26(a) Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed),"An interest in any matter",Rules 26(a) and 38 Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed),Words and Phrases,Whether respondent was guilty of failure to disclose interest,Whether overcharging amounted to grossly improper conduct,Whether respondent was guilty of gross overcharging,Legal Profession,Relevant circumstances to be taken into consideration

8 October 2008

Chao Hick Tin JA (delivering the grounds of decision of the court):

Introduction

1 The respondent, Low Yong Sen, is a lawyer of 15 years’ standing, having been admitted to the Singapore Bar on 20 March 1993. A complaint was made against him by one Dr Rayman Gao Zhiqiang (“Dr Gao”), who alleged that the respondent had overcharged him in a conveyancing transaction. After the inquiry committee appointed by the Law Society of Singapore (“the Law Society”) had issued its report, the Council of the Law Society referred the complaint for formal investigation by a disciplinary committee (“the DC”). The Law Society preferred four charges against the respondent before the DC, and the DC found the respondent guilty of two – the first and the fourth charges (see The Law Society of Singapore v Low Yong Sen [2008] SGDC 3 (“the DC’s decision”)). The Law Society then applied for an order for the respondent to show cause as to why he should not be dealt with pursuant to s 83 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“LPA”) in respect of the two charges he was found guilty of by the DC. We heard the application on 30 July and 4 August 2008 and held that the respondent was only guilty of the first charge for which we imposed a punishment of six months’ suspension from practice. We ruled that he was not guilty of the fourth charge. We now give our reasons.

Facts

2 The respondent was the sole proprietor of M/s Y S Low & Partners since 16 March 1995, focusing mainly on family law and corporate secretarial work. He was assisted in his practice by his brother, Mr Michael Low Pong Seng (“Mr Michael Low”), who was also his secretary. According to Mr Michael Low, he was formerly an accounts assistant. On 9 March 1995, he started a business called “High Business Services” (“HBS”), which rendered services relating to the incorporation of companies and accounting. He was the sole proprietor of HBS until 8 May 1998 when he apparently transferred the ownership of the business to two of his relatives, Low Ban Lai and Ho Nyuk Lan, although he continued to run the business as its manager. The DC found that the purported change in ownership was merely cosmetic and that, in fact, Mr Michael Low continued to be the beneficial owner of HBS (see the DC’s decision at [3]).

3 The respondent’s firm was located at 101 Upper Cross Street #04-40 People’s Park Centre, Singapore 058357. This was also the business address of HBS as registered with the Accounting and Corporate Regulatory Authority (“ACRA”), although Mr Michael Low claimed that this address was just the “registered” or mailing address of HBS and that he operated the business of HBS mainly from home (see the DC’s decision at [4]).

4 In late 2005, Dr Gao and his wife, Mdm Li Pin (“Mdm Li”), engaged the respondent to act for them in relation to the purchase of a terrace house at 45 Verde Grove, Singapore 688577. The terrace house was purchased for $723,000, to be paid partly in cash and partly from funds in the Central Provident Fund (“CPF”) accounts of Dr Gao and Mdm Li. By the respondent’s own admission, this was the first private property transaction he had undertaken since 1997. It was also the respondent’s evidence that he engaged a freelance conveyancing secretary called Mr Alan Tan Cheng Tee (“Mr Alan Tan”) to assist him in his litigation work and to undertake title searches and legal requisitions in relation to conveyancing matters. There was also an arrangement between Mr Michael Low and Mr Alan Tan for the latter to use HBS as a vehicle to bill for his services.

5 For acting in this conveyance, the respondent rendered a bill dated 6 February 2006 to both Dr Gao and Mdm Li for a total sum of $27,990, made up of the following:

(a)	Professional fees	$3,000
(b)	Disbursements
	(i) Valuation report	$550
	(ii) Title, cause book, bankruptcy and writ of seizure and sale searches	$850
	(iii) Legal requisitions to eight government departments	$1,850
	(iv) Road/drainage interpretation plans	$250
	(v) Stamp fees	$21,690
	(vi) Lodgment fees	$450
	(vii) Transport, fax, telephone, photocopy charges and other incidentals	$350
	Sub-total	$28,990
(c)	Less: Payment to account	($1,000)
	Total	$27,990

6 There was no dispute that there had been a miscalculation in the amount of stamp fees as stated on the bill. The correct formula for calculating the stamp fees payable was 3% of the sale price less $5,400. What occurred was that the respondent failed to deduct the $5,400. Upon this error being pointed out by the lawyers for the CPF Board, a sum of $5,321.70 ($5,400 less $78.30) was soon refunded by the respondent to Dr Gao and Mdm Li. Excluding the stamp fees payable on the purchase, the total sum of the other disbursements charged added up to $4,300.

7 Dr Gao was unhappy with the fees and disbursements charged by the respondent, as well as the $78.30 that had been deducted from the stamp fees refund. Being unable to resolve the issue with the respondent, he lodged a complaint with the Law Society on 27 February 2006, alleging that the respondent had agreed to charge a net fee of $2,000 for the conveyance (ie, inclusive of both professional fees and disbursements). Instead, the respondent had billed Dr Gao and Mdm Li $3,000 for professional fees and $4,300 for disbursements. They also said that, according to their own investigations, the respondent had overcharged them for the disbursements. Finally, Dr Gao expressed unhappiness at the fact that $78.30 had been deducted from the stamp fees refund as “handling fees”.

8 The complaint was referred by the Law Society to an inquiry committee, in the course of which the respondent agreed to and did make a refund of $2,526.13 to Dr Gao and Mdm Li for disbursements that had been overcharged, although it was not clear how this sum was derived (see the DC’s decision at [12]).

The four charges

9 Before the DC, the respondent faced the following four charges relating to:

(a) overcharging in relation to both the professional fees of $3,000 and the disbursements of $4,300;

(b) accepting instructions in a field of practice in which the respondent possessed insufficient knowledge, skill or experience to competently represent Dr Gao and Mdm Li in the transaction;

(c) delegating and relying on the opinion of an unauthorised person to advise the respondent on title, legal requisitions and other necessary searches; and

(d) acting in conflict of interest or, alternatively, failing to disclose to the clients that HBS was owned or operated by persons related to the respondent.

The respondent denied all the charges.

10 After considering the evidence and the arguments, the DC concluded that only the first and the fourth charges had been made out. It further determined that cause of sufficient gravity existed for disciplinary action to be taken against the respondent pursuant to s 83 of the LPA.

The first charge

11 The first charge read as follows:

You, Low Yong Sen of M/s Y S Low & Partners are charged that on or about 6 February 2006, at 101 Upper Cross Street #04-40 People’s Park Centre, Singapore 058357, you did charge Mr Rayman Gao Zhiqiang and Madam Li Pin in acting for them in respect of the purchase and CPF application relating to a property situate at 45 Verde Grove, Singapore, for work done by you as [their] solicitor for a professional fee of S$3,000.00 and disbursements of S$4,300.00 as evidenced by your Bill No. YSL 2408/06, which fee and disbursements were far in excess of and disproportionate to what you were entitled to charge for the services you rendered and such overcharging by you amounts to grossly improper conduct in the discharge of your professional duty within the meaning of S83(2)(b) of the Legal Profession Act (Cap 161).

12 Although the Law Society did not articulate the charge as such, it was plain that it was proceeding under r 38 of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed) (“PCR”), which reads:

Gross overcharging

38. An advocate and solicitor shall not render a bill (whether the bill is subject to taxation or otherwise) which amounts to such gross overcharging that will affect the integrity of the profession.

13 It was the Law Society’s case initially that both the professional fees and the disbursements charged were excessive. However, the DC took the view that the Law Society had abandoned this ground in its closing submission, and, in any event, that the $3,000 charged by the respondent for professional fees did not constitute overcharging (see the DC’s decision at [24]–[27]). Nonetheless, the Law Society maintained that the sum of $4,300 charged by the respondent for disbursements was far in excess and disproportionate to what the respondent was entitled to charge. According to the Law Society’s expert witness, Mr Ernest Yogarajah Balasubramaniam (“Mr Balasubramaniam”), the fair amount chargeable by the respondent for the disbursements should have been around $1,385.62. The amounts charged and the fair amounts chargeable are summarised in the following table:

No	Item	charged ($)	amount ($)	overcharged
1	Valuation report	550.00	550.00	0%
2	and sale searches	850.00	471.50	80.28%
3	Legal requisitions	1,850.00	193.62	855.48%
4	Road interpretation plans	250.00	56.05	346.03%
5	Lodgment fees	450.00	64.45	598.21%
6	and other incidentals	350.00	50.00	600%
Total disbursements		4,300.00	1,385.62	210.33%

14 The respondent did not dispute Mr Balasubramaniam’s testimony and, on the face of the evidence, it was patently clear that the disbursements charged by the respondent were far in excess and disproportionate to what he was entitled to charge (see the DC’s decision at [39]–[41]). However, the respondent claimed the...