Law Society of Singapore v Udeh Kumar s/o Sethuraju

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Tay Yong Kwang JA
• Judgment Date: 27 June 2017
• Neutral Citation: [2017] SGHC 141
• Year: 2017
• Date: 27 June 2017
• Published date: 01 July 2017
• Hearing Date: 22 March 2017
• Plaintiff Counsel: Siraj Omar and Alexander Lee (Premier Law LLC)
• Defendant Counsel: Vijai Parwani (Parwani Law LLC),N Sreenivasan SC and Jason Lim (Straits Law Practice LLC) and B Uthayachanran (Essex LLC)
• Citation: [2017] SGHC 141
• Court: High Court (Singapore)
• Docket Number: Originating Summonses Nos 5 of 2016 and 1 of 2017

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

Originating Summonses No 5 of 2016 (“C3J/OS 5/2016”) and No 1 of 2017 (“C3J/OS 1/2017”) were applications brought by the Law Society of Singapore (“the Law Society”) pursuant to s 98(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) for Mr Udeh Kumar s/o Sethuraju (“the Respondent”), an advocate and solicitor of the Supreme Court of Singapore, to show cause before a court of three judges as to why an appropriate sanction under s 83(1) of the LPA should not be imposed.

After hearing the parties, we found that due cause was made out arising from the charges against the Respondent that were before us and we ordered that he be struck off the roll of advocates and solicitors. We now give the detailed reasons for our decision.

Background facts

The Respondent was a senior practitioner, having been called as an advocate and solicitor about 29 years ago on 16 March 1988. He practised as a sole proprietor in the firm S. K. Kumar & Associates until 14 April 2011. Thereafter, he practised at S. K. Kumar Law Practice LLP.

Disciplinary proceedings were commenced against the Respondent as a result of separate complaints lodged against him by (a) the Attorney-General (“AG”) and (b) the Presiding Judge of the State Courts. The complaint by the AG was made pursuant to s 85(3)(b) of the LPA on 24 April 2015 and was supplemented with further information on 9 June 2015. Arising from this complaint, the Law Society preferred 14 charges against the Respondent. Of these, the disciplinary tribunal (“the Tribunal”) found that seven had been made out; and cause of sufficient gravity was found for disciplinary action to be pursued under s 83 of the LPA in respect of five of these charges, namely the 4th, 5th, 6th, 7th and 11th charges. While no cause of sufficient gravity was found in respect of the other two charges, the Respondent was ordered to pay a penalty of $15,000 and $10,000 respectively. The Tribunal dismissed the rest of the charges. The decision of the Tribunal is reported at The Law Society of Singapore v Udeh Kumar s/o Sethuraju [2016] SGDT 6 (“Udeh Kumar (C3J/OS 5/2016)”). The five charges, for which cause of sufficient gravity was found, were the subject of C3J/OS 5/2016.

The other complaint by the Presiding Judge of the State Courts was made on 5 May 2015. It set out the conduct of the Respondent which had ostensibly resulted in “intolerable delay, disruption and inconvenience to the court, the prosecution and to his clients”. Based on this complaint, the Law Society pressed another 14 charges against the Respondent. The Tribunal found that cause of sufficient gravity was established for six of the charges against the Respondent, namely, the 1st, 2nd, 7th, 9th, 11th and 14th charges. It dismissed the remaining charges. The decision of the Tribunal is reported at The Law Society of Singapore v Udeh Kumar s/o Sethuraju [2016] SGDT 12 (“Udeh Kumar (C3J/OS 1/2017)”). The six charges for which cause of sufficient gravity was established were the subject of C3J/OS 1/2017.

With the agreement of the parties, both Originating Summonses were fixed together for hearing before us. Consequently, we considered a total of 11 charges against the Respondent (five in C3J/OS 5/2016 and six in C3J/OS 1/2017). These charges can be divided into three broad categories: First, a set of charges that concerned the alleged breach of Rule 55(b) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“PCR”) for failing to use his best endeavours to avoid unnecessary adjournments, expense and waste of the court’s time (“Group 1 Charges”). These were the subject of the 4th, 5th and 6th charges in C3J/OS 5/2016, as well as the 7th, 9th and 11th charges in C3J/OS 1/2017. Second, a set of charges concerning the alleged breach of Rule 56 of the PCR in deceiving or misleading the court by making false and inaccurate statements (“Group 2 Charges”). These were the subject of the 7th and 11th charges in C3J/OS 5/2016. Third, a set of charges relating to events that culminated in the Respondent advising his client to obtain a medical certificate under false pretences in a seeming attempt to excuse the client’s absence from court in circumstances that would amount to a subversion of the course of justice (“Group 3 Charges”). These were the subject of the 1st, 2nd and 14th charges in C3J/OS 1/2017.

Preliminary issues

Before turning to our decision in relation to each of the three groups of charges, we first make some observations on two preliminary issues that arose in the proceedings.

Whether recusal was necessary

In the course of the hearing before us, counsel for the Respondent, Mr N Sreenivasan SC (“Mr Sreenivasan”), made a passing reference to the fact that consideration had been given by the Respondent and his counsel to whether he should seek the recusal of Tay Yong Kwang JA from the bench hearing this matter on account of the fact that he had heard one of the matters which was the subject matter of one or more of the charges before us. Tay JA had granted an adjournment in that instance. Although Mr Sreenivasan made it clear that having considered the matter, the Respondent had decided not to seek the recusal, nonetheless, because the issue had been raised, we thought it appropriate to set out our views on the matter. As shall shortly become evident, it was so plainly baseless in the circumstances that we were surprised it was even mentioned.

We first observe that Tay JA did not lodge any complaint against the Respondent in that (or in any other) instance. He had instead ordered the Respondent to pay costs personally. Indeed, the Respondent relied on these very same facts to contend that the Respondent had already been punished for the conduct in question and that this therefore did not and could not warrant further punishment. We will deal with the merits of this particular contention in relation to the disciplinary proceedings later in this judgment; but having sought to call Tay JA’s disposal of the matter in question in aid of his own case, we found it odd, if not inconsistent, that the Respondent could at the same time consider that this might afford him a basis to contend that Tay JA ought not to hear the matter before us.

Second, and even more compelling, was the fact that out of an abundance of caution, we had earlier directed the Registry to seek the views of the parties as to whether either of them had any objections to Tay JA being part of the panel hearing the matter. The Registry had done so by way of a letter sent to the parties on 10 November 2016. On the same day, both parties replied confirming that they had no objections to Tay JA hearing the matter. In all the circumstances, this was an alleged concern that was entirely without basis and as we have already observed, we were somewhat surprised that any reference was made to it at all.

Whether minute sheets of hearings in the State Courts were admissible

The second preliminary issue related to the admissibility of certain minute sheets of hearings in the State Courts which were recorded and signed by various district judges (“DJs”), and which were relied on by the Law Society in making its case in C3J/OS 1/2017. These minute sheets were annexed to the affidavit of evidence-in-chief (“AEIC”) of Mr Dean Yeo Sin Haw (“Mr Yeo”), Assistant Director (Operations Management) of the Criminal Justice Division in the State Courts, who was one of the Law Society’s witnesses. The Respondent objected to any reliance being placed on these minute sheets, arguing that they were inadmissible because they constituted hearsay evidence. The Respondent’s contention was that since the Law Society had not called the makers of these minute sheets (namely, the DJs in question) to be witnesses at the hearing, the Tribunal had erred in admitting these as evidence of the truth of their contents.

At the hearing before the Tribunal, Mr Sreenivasan made a submission of no case to answer at the close of the Law Society’s case on the basis that the minute sheets were inadmissible. The Tribunal dismissed this argument on the ground that it had the power to regulate its own proceedings and that the Respondent’s objection was a technicality without substance, since there was nothing to suggest that the minute sheets were not an accurate record of what had transpired at the hearings in question. The Tribunal thus admitted the minute sheets as part of Mr Yeo’s evidence. It also considered that once the Law Society’s case had been submitted in accordance with the statutory provisions which regulated the presentation of its case, as was done here, the Tribunal was obliged to deal with the case before it (at [16] and [18] of its decision in Udeh Kumar (C3J/OS 1/2017)).

We agreed with the Tribunal’s decision that the Respondent’s objections regarding the minute sheets should be dismissed, but reached this conclusion for different reasons. We begin by observing that pursuant to Rule 23 of the Legal Profession (Disciplinary Tribunal) Rules (Cap 161, R 2, 2010 Rev Ed), the Evidence Act (Cap 97, 1997 Rev Ed) is applicable to proceedings before the Tribunal. Nonetheless, even though the minute sheets on their own, without the DJs in question being called as witnesses, would in a strict sense constitute hearsay evidence, we found that they fell within two exceptions to the hearsay rule. The first was under s 32(1)(b) of the Evidence Act, which rendered statements “made by a person in the ordinary course of a trade, business, profession or other occupation” relevant and thus admissible. In particular, the minute sheets fell within either s 32(1)(b)(i) (entries in books kept in the ordinary course of a profession or in the discharge of a professional duty) or s 32(1)(b)(iv) of the Evidence Act (documents constituting or forming part of the records of...