Law Society of Singapore v Tay Choon Leng John

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 20 April 2012
• Neutral Citation: [2011] SGHC 224
• Citation: [2011] SGHC 224
• Defendant Counsel: Francis Xavier SC, Mohammed Reza and Avinash Pradhan (Rajah & Tann LLP),Shashi Nathan and Tania Chin (Inca Law LLC)
• Published date: 11 October 2011
• Plaintiff Counsel: Philip Fong and Vikneswari d/o Muthiah (Harry Elias Partnership LLP)
• Hearing Date: 04 July 2011
• Docket Number: Originating Summons No 170 of 2011
• Date: 20 April 2012
• Subject Matter: Legal Profession,Disciplinary Proceedings

Chan Sek Keong CJ (delivering the judgment of the court): Introduction

This is an application by the Law Society of Singapore (“the Law Society”) made under s 98(1) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“LPA”) for Mr Andre Ravindran Saravanapavan Arul (“the Respondent”) to show cause as to why he should not be dealt with pursuant to s 83(1) of the LPA. The Law Society’s application arises from the findings of the disciplinary tribunal (“the DT”) that the Respondent was guilty of the disciplinary offence of overcharging his client in a manner which amounted to grossly improper conduct within the meaning of s 83(2)(b) of the LPA, and that cause of sufficient gravity for disciplinary action existed under s 83 of the LPA: see The Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] SGDT 2 (“the Report”).

Background

The Respondent is an advocate and solicitor of the Supreme Court of 22 years’ standing. He is the sole proprietor of the law firm known as “M/s Arul Chew & Partners” (“ACP”). He has had in his employment for the last ten years or so one Adrian Kho Ngiat Sun (“Kho”). Kho graduated with a law degree from the National University of Singapore and subsequently passed the Practical Law Course. He was qualified to be admitted to the Bar as he had also served his pupillage as required by the LPA. However, he did not hold a practising certificate. In fact, he was working as a paralegal in ACP at the material time.

The complainant is Management Corporation Strata Title Plan No 1886 (“MCST 1886”), a body corporate constituted to manage the condominium known as “West Bay Condominium” at 58 West Coast Crescent, Singapore 128039. At all material times, MCST 1886’s Management Council chairman was Mr Jaffar bin Hassan (“Mr Hassan”).

On 14 December 2007, Chew Swee Siong (“Chew”), an employee of MCST 1886’s managing agent, confessed to misappropriating about $2m of MCST 1886’s funds. In January 2008, a mutual friend of Mr Hassan and the Respondent recommended the Respondent to Mr Hassan, and this led to MCST 1886 appointing the Respondent as its solicitor to recover the misappropriated moneys from Chew, his accomplices and others who might be held responsible for the losses suffered by MCST 1886, including its auditors and its bankers (“the intended defendants”).

On 30 January 2008, MCST 1886 signed the Respondent’s warrant to act captioned “Misappropriation of the MCST’s funds and bank accounts and all related and/or ancillary matters and in respect of general advice on legal matters of the MCST 1886 (West Bay Condominium)”¹ (“the Warrant to Act”). The Warrant to Act stated that the hourly charge rate was $450 for the Respondent and $350 for Kho. It was silent regarding Kho’s status as a paralegal.

From 25 July 2008 to 13 May 2009, the Respondent rendered nine bills to MCST 1886, three of which form the subject of the amended primary charge against the Respondent for overcharging. These three bills (“the Bills”) totalled $226,308.12 and their details are as follows:

Date	Bill No.	Sum claimed	Item billed for
25 Jul 2008	0096 of 20082	$572.35	Disbursements from Jan 2008 to Apr 2008 (inclusive)
7 Aug 2008	0094 of 20083	$38,725.00	Work done from 23 Jan 2008 to 12 Mar 2008
13 May 2009	0042 of 20094	$187,010.77	Work done from 19 Mar 2008 to 23 Feb 2009

By December 2008, MCST 1886 had paid $109,297.35 (including Disbursements Bill No 0096 of 2008 for $572.35) towards payment of the Bills.⁵ On 23 February 2009, MCST 1886 discharged the Respondent as its solicitor because of the slow progress in the recovery of its losses and also because of the quantum of the Respondent’s charges. It was not disputed that up to the date of the Respondent’s discharge as MCST 1886’s solicitor, he had not sent out any letter of demand to any of the intended defendants. On 21 May 2009, MCST 1886 complained to the Law Society that it had been grossly overcharged by the Respondent for the amount of work he and Kho had done (for ease of discussion, references hereafter to work done by the Respondent should be read as including work done by Kho). This complaint resulted in the proceedings before us.

The charges

The amended primary charge based on s 83(2)(b) of the LPA, of which the Respondent was found guilty, reads as follows:

You, [the Respondent], are charged that between 25 July 2008 and 13 May 2009, at 20 Maxwell Road, #02-13/14, Maxwell House, Singapore 069113, you did charge one [MCST 1886] a total fee of $226,308.12 (including S$572.35 for disbursements) for work done by you as its solicitor for the period 23 January 2008 to 23 February 2009, as evidenced by your Interim Bill No. 0094 of 2008 dated 7 August 2008, your Disbursement Bill No. 0096 of 2008 and Bill No. [0]042 of 2009 dated 13 May 2009, which fee was far in excess of and disproportionate to what you were reasonably entitled to charge for the services you rendered to MCST 1886, and such overcharging by you amounts to a breach of Rule 38 of the Legal Profession Professional Conduct Rules, and you have thereby breached a rule of conduct made by the Council under the provisions of the [LPA] as amounts to grossly improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the [LPA].

The Respondent was charged alternatively that his conduct in claiming the total fee set out in the Bills constituted overcharging amounting to misconduct unbefitting an advocate and solicitor within the meaning of s 83(2)(h) of the LPA. The amended alternative charge provides as follows:

You, [the Respondent], are charged that between 25 July 2008 and 13 May 2009, at 20 Maxwell Road, #02-13/14, Maxwell House, Singapore 069113, you did charge one [MCST 1886] a total fee of $226,308.12 (including S$572.35 for disbursements) for work done by you as its solicitor for the period 23 January 2008 to 23 February 2009, as evidenced by your Interim Bill No. 0094 of 2008 dated 7 August 2008, your Disbursement Bill No. 0096 of 2008 and Bill No. [0]042 of 2009 dated 13 May 2009, which fee was far in excess of and disproportionate to what you were reasonably entitled to charge for the services you rendered to MCST 1886, and such overcharging by you amounts to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the [LPA].

Regarding the amended alternative charge under s 83(2)(h) of the LPA, the DT stated that since it had found the Respondent guilty of the amended primary charge under s 83(2)(b) of the LPA, it was not necessary to make a finding on the amended alternative charge. Nevertheless, it expressed the opinion that it was satisfied that the Law Society had proved beyond reasonable doubt that the amended alternative charge had been made out as well (see [93] of the Report).

The relevant statutory provisions

We set out the relevant statutory provisions here. Subsections 83(2)(b) and 83(2)(h) of the LPA provide as follows: Power to strike off roll, etc. 83. … (2) Such due cause may be shown by proof that an advocate and solicitor —

…

(b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor;

…

(h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession;

…

Rule 38 of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed) (“LP(PC)R”), in respect of which the amended primary charge was brought, provides as follows: 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. The DT hearing and the DT’s findings

The DT heard the parties over three days from 25 October 2010 to 28 October 2010. The witnesses for the Law Society were Mr Hassan, who testified on the legal work done by the Respondent, and Mr Peter Cuthbert Low (“Mr Low”), who testified as an expert on the value of the Respondent’s legal work. The Respondent testified as to the nature of the work done by him, and Mr Sivakumar Vivekanandan Murugaiyan (“Mr Murugaiyan”) testified as an expert witness on the following issues:⁶ how legal fees are charged; the practice of requiring a warrant to act as well as the terms thereof; whether it is common for interim bills to be rendered; whether legal fees chargeable by time costs include time spent by support staff and paralegals; and whether the Respondent’s charge-out rate was reasonable. Mr Murugaiyan was not asked to opine on what would have been a reasonable fee for the Respondent’s work. The Respondent’s defence to the amended primary and alternative charges was that he had rendered the Bills on the basis of his and Kho’s respective hourly rates as set out in the Warrant to Act (which the Respondent had signed after due deliberation).

It is not necessary for us to go into the detailed evidence adduced by both parties before the DT. A number of irrelevant issues were raised, such as whether MCST 1886 was informed that Kho was only a paralegal (the DT found that it was not informed (at [57] of the Report)) and whether Kho’s hourly rate of charge of $350 was too high (the DT found that it was high but did not determine what rate would have been reasonable (at [60]–[61] of the Report)). The material issue was whether the total fee of $226,308.12 charged for a 13-month period of preparatory work (including attending to...