Law Society of Singapore v Kangatharan s/o Ramoo Kandavellu

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Steven Chong JA
• Judgment Date: 28 November 2018
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 5 of 2018
• Date: 28 November 2018

Law Society of Singapore

and

Kangatharan s/o Ramoo Kandavellu

[2018] SGHC 265

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Steven Chong JA

Originating Summons No 5 of 2018

Court of Three Judges

Legal Profession — Disciplinary procedures — Direct application to Court of Three Judges — Advocate and solicitor convicted of criminal offence under s 37J(2) Income Tax Act (Cap 134, 2014 Rev Ed) — Advocate and solicitor admitted to dishonesty in commission of offence — Fraud or dishonesty not constituent element of offence — Whether s 94A(1) Legal Profession Act (Cap 161, 2009 Rev Ed) satisfied even where fraud or dishonesty not constituent element of offence — Section 37J(2) Income Tax Act (Cap 134, 2014 Rev Ed) — Section 94A(1) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Professional conduct — Advocate and solicitor admitted to dishonesty that was integral to offence that he was convicted of — Whether advocate and solicitor should be struck off roll — Section 83(2)(a) Legal Profession Act (Cap 161, 2009 Rev Ed)

Held, ordering that the respondent be struck off the roll of advocates and solicitors of the Supreme Court:

(1) Fraud or dishonesty were not constituent elements of s 37J(2) of the ITA. All that s 37J(2) required was for the criminal act to be performed “without reasonable excuse”, which was plainly less egregious than performing the same criminal act fraudulently or dishonestly. Thus, it was not necessary for the respondent to have behaved fraudulently or dishonestly in order for the charge to be made out: at [7] and [8].

(2) Section 94A(1) of the LPA reflected an exception to the ordinary stepped disciplinary process as it obliged the Law Society to make an application directly to the Court of Three Judges when an advocate and solicitor had been convicted of an offence involving fraud or dishonesty: at [10] and [17].

(3) Section 94A(1) of the LPA should not be restricted to situations where an advocate and solicitor has been convicted of an offence which featured fraud or dishonesty as a constituent element. That would cause the provision's applicability to turn on the exercise of prosecutorial discretion, which has a different focus from disciplinary proceedings under the LPA. Rather, the applicability of s 94A(1) depended on the substance of the wrongdoing. This was aligned with the provision's focus on protecting the public and upholding confidence in the integrity of the legal profession. Where fraud or dishonesty was established as a matter of fact, these objectives would be furthered by expediting, rather than delaying, the disciplinary process. Further, the provision's words did not limit the search for fraud or dishonesty to the constituent elements of the offence: at [18] to [21].

(4) Section 94A(1) of the LPA would be engaged so long as the facts surrounding or underlying the commission of the offence disclosed fraud or dishonesty, subject to the qualification that: (a) the facts in question had to have been finally proved or admitted at the time of the advocate and solicitor's conviction, such that the court would not have to undertake a separate factual inquiry; and (b) those facts had to be closely connected to the charge and the conviction and not be wholly extraneous to them: at [23].

(5) On the facts, s 94A(1) was properly engaged and the court had jurisdiction to hear and decide the matter. It was plain that the respondent had admitted to the relevant dishonest conduct without qualification in the SOF, and those facts were closely connected with the offence that the respondent was charged with: at [24].

(6) On the basis of the respondent's conviction for an offence involving fraud and dishonesty, due cause had been shown against the respondent under s 83(2)(a) of the LPA: at [25].

(7) Striking the respondent off the roll under s 83(1)(a) of the LPA was the appropriate sanction as the dishonesty evidenced in the SOF was integral to the circumstances surrounding the commission of the offence of which the respondent had been convicted. Additionally, the respondent's conduct was egregious and demonstrated a fundamental disregard for the law and a severe lack of integrity: at [26].

Case(s) referred to

Deepak Sharma v Law Society of Singapore [2016] 4 SLR 192 (refd)

Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (distd)

Fong Chee Keong v Professional Engineers Board, Singapore [2016] 3 SLR 221 (refd)

Law Society of Singapore v Chia Choon Yang [2018] 5 SLR 1068 (folld)

Law Society of Singapore v Nathan Edmund [1998] 2 SLR(R) 905; [1998] 3 SLR 414 (refd)

Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 (refd)

Wee Soon Kim Anthony v Law Society of Singapore [1988] 1 SLR(R) 455; [1988] SLR 510 (refd)

Facts

The respondent was convicted of a single charge under s 37J(2) of the Income Tax Act (Cap 134, 2014 Rev Ed) (“ITA”) for providing the Comptroller of Income Tax with false information without reasonable excuse in a bid to support his claim under the Productivity and Innovation Credit (“PIC”) scheme. In the statement of facts (“SOF”) which the respondent had admitted to without qualification, it was stated, amongst other things, that the respondent had been involved in a scam to defraud the Government, made false statements to the Inland Revenue Authority of Singapore (“IRAS”) knowing that the statements were false, and pursued his PIC claim even though it was rejected while maintaining the falsehoods in the process. However, fraud or dishonesty were not constitutive elements under s 37J(2) of the ITA nor do they appear on the face of the charge brought against the respondent. On the basis of the respondent's conviction, the Law Society of Singapore (“Law Society”) brought an application under s 98(1)(a) read with s 94A(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) that the respondent suffer such punishment as was provided under s 83(1) of the LPA.

Legislation referred to

Income Tax Act (Cap 134, 2014 Rev Ed) s 37J (consd); ss 37(2), 37J(1), 37J(2), 37J(3), 37J(4)

Legal Profession Act (Cap 161, 2009 Rev Ed) s 94A(1) (consd); ss 83(1), 83(1)(a), 83(2)(a), 98(1)(a)

Colin Liew (Essex Court Chambers Duxton(Singapore Group Practice)) for the applicant;

Respondent (in person) absent.

28 November 2018

Sundaresh Menon CJ (delivering the judgment of the court ex tempore):

Introduction

1 This is an application by the Law Society of...