Law Society of Singapore v Leong Pek Gan

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 07 November 2016
• Neutral Citation: [2016] SGHC 250
• Plaintiff Counsel: Dhillon Dinesh Singh and Wang Jingyi (Allen & Gledhill LLP)
• Docket Number: Originating Summons No 4 of 2015
• Date: 07 November 2016
• Hearing Date: 03 October 2016
• Subject Matter: Legal Profession,Disciplinary Proceedings,Professional Conduct,Breach
• Published date: 09 November 2016
• Defendant Counsel: Michael Khoo SC, Josephine Low and Chiok Beng Piow Andy (Michael Khoo & Partners)
• Citation: [2016] SGHC 250
• Court: Court of Appeal (Singapore)
• Year: 2016

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

In this originating summons, the Law Society of Singapore (“the Law Society”) applied for the respondent (“the Respondent”), an advocate and solicitor of more than 30 years’ standing, to show cause as to why she should not be dealt with under s 83(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”).

In our written judgment dated 19 August 2016 (in Law Society of Singapore v Leong Pek Gan [2016] SGHC 165), we found that due cause for disciplinary action had been shown, and directed the parties (at [101]) to submit written arguments on the issue of the appropriate sanction to be imposed on the Respondent. On 3 October 2016, we heard the parties and ordered the Respondent to be suspended for a period of two-and-a-half years with effect from 1 December 2016. We now set out the grounds of our decision.

Brief facts

To provide some context to our decision, we shall first set out in brief the salient background facts. The Respondent was engaged to act for the parties on both sides of a transaction (“the Transaction”) which was, on its face, for the sale and purchase of a property (“the Property”). The Transaction was structured as follows. The owners of the Property (“the Vendors”) would grant the intended purchaser (“the Purchaser”) an option, exercisable anytime within six months, to purchase the Property at a price of $651,000 (“the Option”). At the same time, the Vendors would grant a power of attorney (“the POA”) in favour of one Benson Ho (“Ho”), the managing director and a shareholder of the Purchaser. The POA conferred on Ho broad powers to deal with the Property and was stated to be “irrevocable until the Property is sold and all monies paid to [Ho]”.

A complaint against the Respondent was lodged with the Law Society, the essence of which was that she had acted for the parties on both sides of an unlicensed moneylending transaction and had preferred the interests of the moneylender (viz, the Purchaser) in the process. Four charges were brought against the Respondent, namely: (a) failing to advise the Vendors of the potential conflict of interests arising from her acting for them as well as for the Purchaser/Ho in respect of the Transaction, and of her duty as an advocate and solicitor in the event that such conflict materialised; (b) preferring the interests of the Purchaser/Ho over those of the Vendors; (c) tendering advice to the parties when she knew or had reasonable grounds to believe that they were requesting the advice to advance an illegal purpose; and (d) failing to report the Transaction, which she knew or had reasonable grounds to suspect involved unlicensed moneylending in contravention of the Moneylenders Act (Cap 188, 2010 Rev Ed) (“the MLA”), a form of criminal conduct reportable under s 39(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“the CDSA”).

We found that all the aforesaid charges were established beyond reasonable doubt. In particular, we were satisfied that the Transaction involved unlicensed moneylending in contravention of the MLA. Although the Transaction itself was cast in the form of a sale and purchase of real property, the overwhelming evidence made it clear that it was nothing more than a thinly disguised loan that was secured by the Option and the POA. The Purchaser was thus presumed to be a moneylender under s 3 of the MLA, and we found that the presumption had not been rebutted. We were also satisfied that the Respondent knew or at least had reasonable grounds to believe that the Transaction involved unlicensed moneylending, given the glaring red flags that were present. It followed from this that we held, in addition, that the Respondent had failed to report the Transaction, which she knew or had reasonable grounds to suspect involved a form of criminal conduct caught by s 39(1) of the CDSA. We turn now to explain our reasons for the sanction that we imposed on the Respondent.

The parties’ submissions on the appropriate sanction to be imposed on the Respondent

Section 83(1) of the LPA, which sets out the sanctions that may be imposed on advocates and solicitors against whom due cause for disciplinary action has been shown, reads as follows:

Power to strike off roll, etc.

83.—(1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown — (a) to be struck off the roll; (b) to be suspended from practice for a period not exceeding 5 years; (c) to pay a penalty of not more than $100,000; (d) to be censured; or (e) to suffer the punishment referred to in paragraph (c) in addition to the punishment referred to in paragraph (b) or (d).

…

In determining the appropriate sanction to impose on an errant solicitor, it is helpful to bear in mind that there are three objectives of disciplinary action in this regard, namely: (a) punishment of the errant solicitor for his misconduct; (b) deterrence against similar defaults by other like-minded solicitors in future; and (c) protection of public confidence in the administration of justice: see, for example, the decision of this court in Law Society of Singapore v Manjit Singh s/o Kirpal Singh and another [2015] 3 SLR 829 at [76]. Members of the legal profession must bear in mind that transgressions of their professional obligations not only attract personal consequences, but may also have much broader repercussions on the profession as a whole. In Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR(R) 320, a decision of this court, V K Rajah J (as he then was) described what is at stake with his usual acuity: the collective standing and reputation of the legal profession hinges primarily on the public perception of, and the confidence reposed in, its members, and the profession cannot afford to compromise its standing and reputation (at [39]).

The Law Society referred to two precedents in which, so it submitted, a two-year suspension was imposed: Law Society of Singapore v Vardan Vasantha Lakshmi [2007] 1 SLR(R) 240 (“Vasantha”) and The Law Society of Singapore v Yoong Tat Choy Joseph [1993] SGDSC 9 (“Joseph Yoong”). It sought a minimum three-year suspension in respect of the Respondent on the basis that the present case contained factors that were significantly more aggravating than those in these two precedents. We note that the Law Society also raised the possibility of striking the Respondent off the roll on the basis that she had been shown to have fallen below the required standards of integrity, probity and trustworthiness.

On the other hand, the Respondent accepted that “a period of suspension will be an element of her punishment”, and urged the court to exercise leniency and impose a minimum sentence. She highlighted the following as mitigating circumstances: (a) her long unblemished record in her practice as an advocate and solicitor; and (b) the circumstances in which her wrongdoings took place. The Respondent also argued that she was less culpable than the solicitor in Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 477 (“Tan Phuay Khiang”) and, on this basis, submitted that the sentence imposed on her should accordingly be more lenient than...