Law Society of Singapore v Chong Wai Yen Michael

• Jurisdiction: Singapore
• Judgment Date: 16 January 2012
• Date: 16 January 2012
• Docket Number: Originating Summons No 364 of 2011
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Chong Wai Yen Michael and others

Defendant

[2012] SGHC 9

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Originating Summons No 364 of 2011

High Court

Legal Profession—Disciplinary procedures—Disciplinary Tribunal's findings of fact based upon hearsay evidence

Legal Profession—Professional conduct—Grossly improper conduct

Legal Profession—Show cause action—Lawyers procuring conveyancing work by offering monetary reward to individuals for referrals of such work

Originating Summons No 364 of 2011 was an application by the Law Society of Singapore (‘the Law Society’) pursuant to s 94 (1) read with s 98 (1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the Act’) to this court for orders that Michael Chong Wai Yen, Kenneth Tan Chong Peng, Yap Kok Kiong and Siow Jit Thong (‘the first respondent’, ‘the second respondent’, ‘the third respondent’ and ‘the fourth respondent’ respectively or ‘the four respondents’ collectively, as the case may be) be sanctioned under s 83 (1) of the Act.

The Corrupt Practices Investigations Bureau (‘CPIB’) investigated allegations that five law firms had given gratifications to a company named Asprez Loans Connections Pte Ltd (‘Asprez’) in consideration for Asprez referring conveyancing related matters to them. Asprez was set up on the instruction of the third respondent by his former business development manager. The investigations revealed that the main function of Asprez was to procure conveyancing business by promise of payment of referral fees to real estate agents. In return, the real estate agents were expected to refer clients to Asprez. Upon the agreement of each estate agent, the latter would select a lawyer from Asprez's panel of lawyers to attend to the conveyancing aspects of each transaction so referred by him/her. The firms of the four respondents were, at different periods, on Asprez's panel of lawyers. At the end of its investigation CPIB referred the matter to the Law Society.

Charges were subsequently preferred by the Law Society against the four respondents for making payments to Asprez in consideration of the latter's referrals of conveyancing work. A Disciplinary Tribunal (‘DT’) heard the guilty pleas of the first, second and third respondents and conducted a full hearing in respect of the fourth respondent. The DT found that causes of sufficient gravity for disciplinary action existed under s 83 of the Act against the four respondents pursuant to s 93 (1) (c) of the Act.

At the hearing before this court, the fourth respondent maintained his position taken before the DT that the charges preferred against him had not been proven. It was thus necessary for the court to consider whether the DT's findings in respect of the charges against the fourth respondent were substantiated.

In the course of these proceedings, two legal issues were raised by counsel for the third respondent. The first was the contention that all three charges against the third respondent were essentially based upon the same conduct complained of. As such, it was argued, the third respondent should not be sentenced on the basis of the number of charges against him. The second legal issue was whether costs of the present proceedings should be awarded to the Law Society.

Held, granting the Law Society's application and suspending the first, second and fourth respondents from practice for a period of 30 months each, and striking off the third respondent from the roll:

(1) It was true that in finding the fourth respondent guilty of the charges, the DT had relied upon two main pieces of evidence which were hearsay: at [8], [9], [12] and [13].

(2) Nevertheless, the admissible evidence against the fourth respondent revealed that the Law Society had established a prima facie case against the fourth respondent. Accordingly, the evidential burden shifted to the fourth respondent to disprove that payments were made to Asprez in consideration of referrals of conveyancing legal work: at [15] to [18].

(3) The fourth respondent's evidence did not suffice in discharging the evidential burden. His evidence was nebulous and evasive. It was evident that the fourth respondent had entered into an agreement with Asprez for the purpose of the latter referring conveyancing work to the former, and that the payments from the fourth respondent to Asprez were made pursuant to the agreement for such referrals. In the result, the charges against the fourth respondent had been proven beyond a reasonable doubt: at [19] to [29].

(4) The misconduct committed by the four respondents in these proceedings involved the most severe of illicit referral agreements that had been dealt with by this court. The systematic manner in which referrals were obtained by the four respondents in the present case, via Asprez, was unprecedented and audacious: at [58].

(5) The culpabilities and mitigating factors of the first and second respondents were largely similar. Bearing in mind that for an isolated act of misconduct in Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR (R) 239(‘Phyllis Tan’) a penalty of 15 months suspension was imposed, it followed that a much more severe penalty should be imposed on the first and second respondents. Therefore both the first and second respondents were ordered to be suspended for a period of 30 months each: at [60] and [61].

(6) The culpability of the third respondent far exceeded the other three respondents. The third respondent had previously been reprimanded for similar misconduct and never seemed to have learned. In the circumstances, and in the interest of upholding the integrity of the profession, the third respondent was ordered to be struck off the roll: at [63] to [65].

(7) While the fourth respondent, unlike the other respondents, claimed trial to the charges, his challenge based on the inadmissibility of part of the Law Society's evidence was not entirely without merit. All considered, the fourth respondent was suspended, like the first and second respondents, for a period of 30 months: at [66] and [67].

(8) An analysis of the three charges brought against the third respondent reveals certain common elements. It was clear that the real wrongdoing of the third respondent in respect of all three charges was in sharing legal fees earned with someone who was not entitled to enjoy any portion of the fees: at [47].

(9) The third respondent's argument, that costs should not be ordered against him because the Law Society should not have referred this matter to the court of 3 Judges, was wholly devoid of merit and showed a lack of understanding of the disciplinary process under the Act. The third respondent's argument would subvert the disciplinary process under the Act and consequently usurp the jurisdiction of the court of 3 Judges to impose the appropriate punishment for the misconduct in question: at [74].

[Observation: The practice of preferring multiple charges based upon the same misconduct should be eschewed: at [48].]

Law Society of Hong Kong v Solicitor [2009] HKEC 271 (refd)

Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 (refd)

Law Society of Singapore, The v Michael Chong Wai Yen [2011] SGDT 6 (refd)

Law Society of Singapore, The v Ong Poh Pway Lina [2002] SGDSC 1 (refd)

Law Society of Singapore v Tan Buck Chye Dave [2007] 1 SLR (R) 581; [2007] 1 SLR 581 (refd)

Law Society of Singapore v Tan Chwee Wan Allan [2007] 4 SLR (R) 699; [2007] 4 SLR 699 (refd)

Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR (R) 239; [2008] 2 SLR 239 (refd)

Law Society of Singapore, The v Yap Kok Kiong [2006] SGDSC 14 (refd)

Tan Khee Koon v PP [1995] 3 SLR (R) 404; [1995] 3 SLR 724 (folld)

Evidence Act (Cap 97,1997 Rev Ed)

Interpretation Act (Cap 1,1985 Rev Ed) s 41 (consd)

Interpretation Act (Cap 1,2002 Rev Ed) s 40 (consd)

Legal Profession (Disciplinary Tribunal) Rules (Cap 161, R 2, 2010 Rev Ed) r 23 (1)

Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed) r 11 B

Legal Profession (Professional Conduct) (Amendment) Rules 2001

Legal Profession (Professional Conduct) (Amendment) Rules 2005

Legal Profession (Publicity) Rules (Cap 161, R 13, 2000 Rev Ed)

Legal Profession Act (Cap 161,2001 Rev Ed) ss 83 (2) (e) , 83 (2) (h) , 93 (1) (b)

Legal Profession Act (Cap 161, 2009 Rev Ed) s 93 (1) (consd) ; ss 83, 83 (1) , 83 (2) (b) , 83 (2) (e) , 83 (2) (h) , 93, 93 (1) (b) , 93 (1) (c) , 94, 94 (1) , 98, 98 (1)

Chandra Mohan Rethnam and Hauw Hui Ying Gillian (Rajah & Tann LLP) for the applicant

Wong Siew Hong (Infinitus Law Corporation) for the first and second respondents

Wong Hin Pkin Wendell and Kueh Xiu Ying (Drew & Napier LLC) for the third respondent

Yeo Hock Cheong and Joseph Tan Chin Aik (Hock Cheong & Co) for the fourth respondent.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 Originating Summons No 364 of 2011 was an application by the Law Society of Singapore (‘the Law Society’) pursuant to s 94 (1) read with s 98 (1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the Act’) to this court for orders that Michael Chong Wai Yen, Kenneth Tan Chong Peng, Yap Kok Kiong and Siow Jit Thong (‘the first respondent’, ‘the second respondent’, ‘the third respondent’ and ‘the fourth respondent’ respectively or ‘the four respondents’ collectively, as the case may be) be sanctioned under s 83 (1) of the Act. Having heard submissions from all parties, we granted the application and ordered that the third respondent be struck off the roll, and that each of the remaining respondents be suspended for a period of thirty months. We further ordered that the costs of the proceedings before us be borne by all the four respondents, with the costs of proceedings below pertaining to the fourth respondent to be taxed if not agreed and to be borne by...