Law Society of Singapore v Tay Eng Kwee Edwin

• Judgment Date: 30 July 2007
• Date: 30 July 2007
• Docket Number: Originating Summons No 64 of 2007
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Tay Eng Kwee Edwin

Defendant

[2007] SGHC 114

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Originating Summons No 64 of 2007

High Court

Legal Profession–Professional conduct–Breach–Lawyer failing to maintain any books or accounts for one year–Lawyer unrepresented and absent from disciplinary committee proceedings and show cause hearing–Whether lawyer's conduct amounting to grossly improper conduct–Appropriate penalty–Section 83 (2) (b) Legal Profession Act (Cap 161, 2001 Rev Ed)–Rule 11 Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed)

The Law Society of Singapore (“the Law Society”) applied for the respondent, who was an advocate and solicitor of the Supreme Court of Singapore of about 12 years' standing, to show cause why he should not be punished for not drawing up or maintaining any books of accounts required by r 11 of the Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed) (“the SA Rules”) for a period of one year. The breaches were uncovered when the Law Society made enquiries after the respondent was declared bankrupt. The Council of the Law Society intervened into the client account of the respondent's sole proprietorship and on 1 April 2005, the respondent officially ceased practice.

The respondent admitted to the Inquiry Committee his failure to maintain the requisite accounts and books, and was subsequently charged under s 83 (2) (b) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“LPA”). The respondent was neither present nor represented when his matter was heard by a disciplinary committee of the Law Society (“DC”), but upon being satisfied that proper service of the notice of the hearing had been effected on the respondent, the DC proceeded with the hearing and determined that cause of sufficient gravity prevailed for disciplinary action to be taken against the respondent pursuant to s 83 of the LPA. Believing the respondent to be residing outside Singapore, the Law Society obtained an order to serve the show cause application on the respondent's last-known address.

Held, granting the application and striking the respondent off the roll of solicitors:

(1) The respondent had been properly notified of the show cause proceedings and had expressly renounced the need for personal service: at [16].

(2) The SA Rules had to be strictly observed and enforced in their entirety so as to preserve public confidence that moneys held or maintained by solicitors would be safeguarded and legitimately disbursed. Proof of wilful conduct was not necessary to establish a breach of the SA Rules; liability was strict, indeed absolute: at [17] and [18].

(3) If a solicitor was found to be dishonest, the court would invariably direct that his name be struck off the roll. Even though the respondent might not have been actually dishonest in the present case, his deliberate, wilful and prolonged omission to maintain the mandated bookkeeping records in disregard of the SA Rules was deplorable. The respondent had fallen far short of the required standards of integrity, probity and trustworthiness expected of officers of the court. His conduct manifested a patent defect of character: at [20] and [22].

(4) Since only persons of good character could be admitted to the roll, it had to follow that an advocate and solicitor with an obvious character defect should be struck off the roll: at [27].

(5) It was not enough for solicitors who had breached the SA Rules to claim in mitigation that no actual loss had been occasioned. The fact that no accounts whatsoever had been maintained made it inherently difficult to determine whether any loss had indeed occurred: at [28].

(6) The following considerations were taken into account in striking the respondent off the roll: (a) the respondent's deliberate omission to maintain his books and accounts; (b) his continuing to receive moneys whilst practising under such conditions; (c) his concealment of his transgressions until the Law Society began investigating the basis of his bankruptcy; and (d) his bankruptcy status which rendered the penalties of censure and suspension from practice entirely meaningless: at [31].

Attorney-General for the Commonwealth, Ex parte (1972) 20 FLR 234 (refd)

Bolton v Law Society [1994] 1 WLR 512 (refd)

Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR (R) 320; [2005] 4 SLR 320 (distd)

Law Society of Singapore v Ravindra Samuel [1999] 1 SLR (R) 266; [1999] 1 SLR 696 (refd)

Law Society of Singapore v Tan Sok Ling [2007] 2 SLR (R) 945; [2007] 2 SLR 945 (distd)

Solicitor, In re A (1962) 3 MC 323 (refd)

Legal Profession Act (Cap 161, 2001 Rev Ed)s 83 (2) (b) (consd);ss 72,74, 83,83 (2) (j), 94,98, 98 (2),First Schedulepara 1 (1) (c)

Legal Profession (Disciplinary Committee Proceedings) Rules (Cap 161, R 2,2003 Rev Ed)rr 16, 19

Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed)r 11 (consd);rr 3,7, 11 (1),11 (2),11 (2A),11 (2B),11 (3),11 (4)

Bhargavan Sujatha (Peter Low Partnership) for the applicant

The respondent absent.

V K Rajah JA

(delivering the grounds of decision of the court):

1 This was an application by the Law Society of Singapore (“the Law Society”) for the respondent to show cause why he should not be punished for a very serious professional transgression. At the conclusion of the hearing, we ordered the respondent be struck off the roll of solicitors (“the roll”) on 25 April 2007 for breach of r 11 of the Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed) (“the SA Rules”). The reasons for our decision are set out below.

Factual background

2 Having been admitted as an advocate and solicitor of the Supreme Court of the Republic of Singapore on 29 July 1995, the respondent was an advocate and solicitor of some 12 years' standing. Upon his admission to the Bar, the respondent practised very briefly at two law firms before setting up his own legal practice, M/s Edwin Tay & Co, on 2 May 1996, a sole proprietorship.

3 The respondent was declared a bankrupt on 30 December 2004 over an unpaid debt of $10,655.99 due to Oversea-Chinese Banking Corporation Limited, the petitioning creditor. The bankruptcy proceedings precipitated a chain of enquiries that in turn unearthed serious accounting breaches on the part of the respondent.

4 Sometime in late December 2004, the Law Society received information that bankruptcy proceedings were pending against the respondent. In accordance with customary procedure, Ms Prabha Dube (“Ms Dube”) and Ms Yashodhara Dhoraisingam (“Ms Dhoraisingam”), Director of Professional Standards and Chief Executive Officer of the Law Society respectively, at the material time, met the respondent on 29 December 2004. At this meeting the respondent informed Ms Dube and Ms Dhoraisingam that he had not drawn up or maintained any of the books of accounts required by r 11 of the SA Rules since January 2004. Ms Dhoraisingam immediately notified the Council of the Law Society (“the Council”) of this disturbing revelation.

5 The Council promptly determined that the respondent had contravened...