Law Society of Singapore v Wong Sin Yee

• Judge: Sundaresh Menon CJ,Judith Prakash JA,Steven Chong JA
• Judgment Date: 07 September 2018
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 8 of 2017
• Date: 07 September 2018

Law Society of Singapore

and

Wong Sin Yee

[2018] SGHC 196

Sundaresh Menon CJ, Judith Prakash JA and Steven Chong JA

Originating Summons No 8 of 2017

Court of Three Judges

Legal Profession — Disciplinary proceedings — Advocate accused of cross-examining victim in dishonourable manner during criminal trial — Whether disciplinary tribunal correct to convict advocate on charges brought — Appropriate sanction for misconduct — Whether advocate should be suspended or struck off — Sections 83(1), 83(2)(b) and 83(2)(h) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Professional conduct — Conduct unbefitting advocate and solicitor — Advocate accused of cross-examining victim in dishonourable manner during criminal trial — Whether conduct unbefitting advocate and solicitor — Whether due cause for disciplinary action had been shown — Appropriate sanction for misconduct — Whether advocate should be suspended or struck off — Section 83(2)(h) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Professional conduct — Grossly improper conduct — Advocate accused of cross-examining victim in dishonourable manner during criminal trial — Whether conduct improper or grossly improper — Whether due cause for disciplinary action had been shown — Appropriate sanction for misconduct — Whether advocate should be suspended or struck off — Section 83(2)(b) Legal Profession Act (Cap 161, 2009 Rev Ed) — Rule 61(a) Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed)

Held, ordering that the respondent be suspended for five years:

(1) The ethical duties of counsel conducting cross-examination are informed by the PCR and the Evidence Act (Cap 97, 1997 Rev Ed). A balance had to be struck between giving the cross-examiner sufficient latitude to challenge a witness's evidence and protecting the witness from abuse. The criterion for indecent or scandalous questions was relevance to the facts in issue. Questions “intended to insult or annoy” or which were “needlessly offensive in form” were, however, to be absolutely forbidden even if they might have some bearing on the issues before the court. It was a lawyer's responsibility to exercise his or her own judgment to perform cross-examination in a respectful and honourable manner: at [28], [31], [32] and [34].

(2) The respondent's conduct of cross-examination of the victim was both irrelevant and wholly impermissible. Viewed objectively, the respondent's cross-examination did not relate to facts in issue or matters necessary to determining if the facts in issue existed. Further, it was cruel and humiliating to suggest to the victim that she was attractive, and to physically scrutinise her to the point that she felt uncomfortable and offended, only to then suggest that she was so unattractive that her testimony that she was deliberately molested could not be believed. The respondent did not lead evidence and his counsel accepted that the court had to review the evidence on an objective basis to ascertain the reason behind the course of examination he adopted. Viewing the respondent's conduct objectively, the reasonable conclusion to be drawn was that the respondent had embarked on this line of cross-examination in order to humiliate the victim. His conduct was disgraceful and a clear abuse of the privileges of cross-examination that were entrusted to an advocate. The court was therefore satisfied beyond a reasonable doubt that all the charges had been made out: at [39], [41], [43] and [45].

(3) The present case called for the imposition of a heavy sanction. Members of the public who were acting as witnesses and thus assisting in the administration of justice should not be humiliated or insulted by solicitors acting for adverse parties. If the public perceived that lawyers were given free rein to treat witnesses and complainants badly, the public would not have confidence in the integrity of the legal profession or in the way that justice was administered. Further, the respondent had a long list of antecedents which cast doubt on his ability to act in a manner befitting a member of the legal profession and fully supported a finding that there was a defect in his character. Finally, there were no mitigating factors, and the respondent remained unremorseful before the court: at [52], [54], [55] to [59].

(4) On balance, although the respondent's behaviour instilled in the court deep misgivings as to his character and suitability to practise as a lawyer at all, the court concluded that the case merited the maximum term of suspension rather than a striking off: at [61].

Case(s) referred to

Han Ngiap Juan, Re [1993] 1 SLR(R) 135; [1993] 2 SLR 81 (folld)

Kwang Boon Keong Peter v PP [1998] 2 SLR(R) 211; [1998] 2 SLR 592 (refd)

Law Society of Singapore v Ismail bin Atan [2017] 5 SLR 746 (refd)

Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466; [2000] 2 SLR 165 (folld)

Law Society of Singapore v Ravi Madasamy [2007] 2 SLR(R) 300; [2007] 2 SLR 300 (refd)

Law Society of Singapore v Ravi s/o Madasamy [2012] SGDT 12 (refd)

Law Society of Singapore v Ravi s/o Madasamy [2016] 5 SLR 1141 (folld)

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

Law Society of Singapore v Wong Sin Yee [2003] 3 SLR(R) 209; [2003] 3 SLR 209 (refd)

Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 (refd)

Ng Jun Xian v PP [2017] 3 SLR 933 (refd)

PP v Ong Jack Hong [2016] 5 SLR 166 (refd)

PP v Xu Jiadong [2016] SGMC 38 (refd)

Wong Kok Chin v Singapore Society of Accountants [1989] 2 SLR(R) 633; [1989] SLR 1129 (refd)

Wong Sin Yee v PP [2001] 2 SLR(R) 63; [2001] 3 SLR 197 (refd)

Facts

The respondent was an advocate and solicitor of the Supreme Court of Singapore of almost 20 years’ standing. The complaint concerned the respondent's conduct when he acted on behalf of a client charged with outraging the modesty of a woman. In the course of examining the victim on 3 August 2015, the respondent first pressed the victim on whether she thought she was attractive and even suggested that he thought she was. During the same line of questioning, he required the victim to stand up and subjected her to physical scrutiny. When the victim asked if this was necessary and said that she was offended by it, he told her that he would be asking her even more insulting questions. The district judge (“the District Judge”) presiding over the trial then intervened to find out what the point of the cross-examination was. It emerged that the respondent was trying to mount a case that the victim was unattractive such that his client would not have been motivated to outrage her modesty and any contact that took place was accidental. On 8 August 2016, the Attorney-General lodged a complaint against the respondent with the Law Society of Singapore (“the Law Society”).

The Law Society brought three alternative charges against the respondent under: s 83(2)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”); s 83(2)(h) of the LPA; and s 83(2)(b) of the LPA read with r 61(a) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“the PCR”). On 11 October 2017, a Disciplinary Tribunal constituted under s 90 of the LPA found all three charges proved beyond a reasonable doubt and held that there was cause of sufficient gravity for disciplinary action under s 83 of the LPA.

In the present application, the Law Society applied for an order that the respondent be made to suffer such punishment provided for in s 83(1) of the LPA. The crux of the respondent's defence was that he did not intend to insult, vilify, annoy, humiliate or intimidate the victim, but intended only to advance a line of argument which he honestly and reasonably considered to be legally relevant to his client's defence.

Legislation referred to

Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed)

Evidence Act (Cap 97,1997 Rev Ed) ss 148, 149, 150, 151, 152, 153, 154, 155, 156 (consd)

Legal Profession Act (Cap 161,2009 Rev Ed) ss 83(2)(b), 83(2)(h) (consd);ss 83(1), 83(2), 83(2)(a)

Legal Profession (Professional Conduct) Rules (Cap 161, R 1,2010 Rev Ed) r 61(a) (consd);rr 61, 61(b)

Penal Code (Cap 224,1985 Rev Ed) ss 188, 323, 509

Chandra Mohan Rethnam and Doreen Chia Ming Yee (Rajah & Tann Singapore LLP) for the applicant;

Eugene Thuraisingam and Suang Wijaya (Eugene Thuraisingam LLP) for the respondent.

7 September 2018

Judgment reserved.

Judith Prakash JA (delivering the grounds of decision of the court):

Introduction

1 Counsel are entrusted with the power to press difficult and sensitive questions in cross-examination in the faith that such power will be used to assist the court in achieving a just result. In the course of testing a witness's evidence, there is no doubt that intrusive questions may sometimes have to be asked. But at all times, it is the responsibility of counsel to conduct themselves with decency and to show due respect for the dignity of the witness as they probe the evidence. This was an unfortunate case where counsel fell so gravely short of these standards that a weighty sanction was required.

2 The complaint before us concerned the conduct of Mr Wong Sin Yee (“the Respondent”), an advocate and solicitor, when he acted on behalf of a client charged with outraging the modesty of a woman. The Law Society of Singapore (“the Law Society”) applied to this court for an order that the Respondent be made to suffer such punishment provided for in s 83(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) on the basis that a disciplinary tribunal had found him guilty of improper conduct for the way in which he cross-examined the victim. After hearing the parties on 2 May 2018, we were satisfied that the disciplinary charges against the Respondent had been made out and that cause had been shown for sanctions to be imposed. Having regard to the nature of his misconduct, his lack of remorse...