Law Society of Singapore v Chung Ting Fai

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 27 September 2006
• Neutral Citation: [2006] SGHC 167
• Docket Number: Originating Summons No 866 of 2006
• Date: 27 September 2006
• Published date: 29 September 2006
• Year: 2006
• Plaintiff Counsel: Irving Choh Thian Chee (Rajah & Tann)
• Citation: [2006] SGHC 167
• Defendant Counsel: C R Rajah SC (Tan Rajah & Cheah)
• Court: High Court (Singapore)
• Subject Matter: Legal Profession,Respondent knowingly preparing and advising client to sign affidavit containing false details,Respondent advocate and solicitor acting for client in divorce proceedings,Show cause action,Sections 83(1), 83(2)(h) Legal Profession Act (Cap 161, 2001 Rev Ed),Whether respondent's conduct amounting to misconduct unbefitting an advocate and solicitor,Respondent failing to advise client on availability of appeal mechanism before time frame for filing appeal expiring,Appropriate sentence in light of respondent's public service,Respondent preparing affidavit in support of extension of time to file appeal

27 September 2006

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

Introduction

1 This was an application by the Law Society of Singapore (“the Law Society”) under s 98(5) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”) to make final an order to show cause. Having heard the submissions of the respective parties, we granted the application at the conclusion of the hearing and ordered the respondent to be suspended from practice for a period of one year and to bear the costs of the proceedings before us. We now give the detailed grounds for our decision.

The charge

2 The case before us involved a sole charge against the respondent pursuant to s 83(2)(h) of the Act. So as to set the case in its appropriate context, it would be of significance to note that two charges had initially been preferred against the respondent, though only one charge was ultimately proceeded with. The first charge, as formulated by the Law Society, reads as follows:

You,

Chung Ting Fai

Admission No. 95/1989

are charged that you, on or about 15 January 2004, whilst practising as an Advocate & Solicitor of the Supreme Court of the Republic of Singapore with Messrs Chung Tan & Partners at 50 Armenian Street #03-04 Wilmer Place, Singapore 179938, did act against the clear instructions of Mr Lim Leng Koon @ Sek Zhen Chi in that you failed to obtain his consent on the terms of the draft Order of Court before filing the same in Court and you have thereby acted in contravention of Section 83(2)(h) of the Legal Profession Act (Cap 161).

3 For reasons that we will elaborate upon later, at the start of the hearing before the Disciplinary Committee of the Law Society (“DC”), counsel for the Law Society adopted the view that there was no basis upon which to proceed with the first charge and consequently withdrew it. Accordingly, the DC proceeded to hear evidence only in relation to the second charge, which reads as follows:

You,

Chung Ting Fai

Admission No. 95/1989

are charged that you, on or about early March 2004, whilst practising as an Advocate & Solicitor of the Supreme Court of the Republic of Singapore with Messrs Chung Tan & Partners at 50 Armenian Street #03-04 Wilmer Place, Singapore 179938, did prepare and advise Mr Lim Leng Koon @ Sek Zhen Chi to sign and attest a false Affidavit for use in a Court of Law and you have thereby acted in contravention of Section 83(2)(h) of the Legal Profession Act (Cap 161).

4 In the interest of completeness, it should be noted that the salient parts of s 83 of the Act read as follows:

Power to strike off roll or suspend or censure

83.—(1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the roll or suspended from practice for any period not exceeding 5 years or censured.

(2) Such due cause may be shown by proof that an advocate and solicitor —

…

(h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession;

…

[emphasis added]

5 After hearing evidence adduced on behalf of the Law Society and the respondent, the DC found that cause of sufficient gravity existed for disciplinary action to be taken against the respondent pursuant to s 83 of the Act and the present application was taken out accordingly under s 98(5) of the Act against the respondent to make absolute an order to show cause.

Background facts

6 At the outset, we note that while some parts of the factual matrix that have led to these proceedings are based on conflicting testimonies adduced by the Law Society and the respondent and therefore engender dispute, the salient facts that the charge was primarily predicated upon are straightforward and not disputed.

7 The respondent is an advocate and solicitor of the Supreme Court of Singapore of about 16 years’ standing, having been called to the Bar on 14 March 1990. At all material times, he was the managing partner in the firm of M/s Chung Tan & Partners (“the firm”).

8 The present proceedings stem from the respondent’s actions while acting for one Lim Leng Koon alias Sek Zhen Chi (“Lim”) in divorce proceedings from his wife, Hay Mee Kee (“Hay”). When the respondent was initially retained by Lim, on or about 17 October 2002, he had been instructed to consent to custody and care and control of their child to be given to Hay, but to contest all the other orders that were to be made, ie, the division of matrimonial assets as well as the quantum of maintenance (if any) that would be payable to Hay and their child.

9 During the course of the respondent’s retainer, Hay had issued an interim maintenance summons against Lim (“the summons”). In response, the respondent filed two affidavits (“the previously-filed affidavits”) on behalf of Lim. The summons was eventually resolved after it was agreed between the parties that Lim would pay an agreed sum for the maintenance of their child and an agreed quantum for costs of the hearing.

10 The decree nisi for the divorce was eventually obtained on 23 September 2003. Consequently, the ancillary matters in relation to the divorce proceedings were scheduled to be heard on 15 January 2004 (“the hearing”). Though nothing turns upon such a factual disagreement, it may be useful to note that Lim alleges that he was not informed of the hearing beforehand while the respondent avers that Lim had been so informed. However, the respondent admits that no further instructions had been taken from Lim for the purposes of the hearing as he felt that the previously-filed affidavits would have been sufficient for the judicious disposal of the matter.

11 In any event, in accordance with Lim’s initial instructions, at the hearing, one of the firm’s then legal assistants, Toh Han Pin (“Toh”), consented to custody and care and control of the child to be awarded to Hay, but contested the division of matrimonial assets as well as the quantum of maintenance that was to be payable to Hay and their child. At the end of the hearing, District Judge Jocelyn Ong (“the trial judge”) made an order in relation to the ancillary matters (“the Order”). As the actual text in para 5 of the Order played an integral role in how the dispute between the respondent and Lim arose, it would be useful, at this juncture, to reproduce the salient parts of para 5. Paragraph 5 reads as follows:

5. Orders Made (By Consent)

a. [Hay] to have sole custody, care and control of the child with reasonable access to [Lim];

b. The matrimonial flat … be sold in the open market and the net sale proceeds if any thereof, after the payment of the outstanding loan to HDB [and other expenses], be paid to [Hay] solely. In the event that the matrimonial flat is sold at a loss, such loss will be borne by both parties equally.

c. [Lim] to pay maintenance of $500.00 per month for the child of the marriage with effect from the date of the Order of Court. …

d. [Lim] to pay maintenance of $250.00 per month for [Hay] with effect from the date of the Order of Court. …

[emphasis added]

12 Given the overarching placing of the words “Orders Made (By Consent)” in para 5, a literal reading of the Order would convey the distinct, if nonetheless mistaken, impression that all the four orders made by the trial judge had been made by consent. As already noted earlier, this was not the case and the only order that had not been contested had been the issue of sole custody, care and control. According to the respondent, the error was a result of incorrect drafting of the draft order by a secretary in the firm: apparently, the secretary concerned had relied upon Toh’s notes which appeared to allude to an understanding that all the orders were made by consent. Unfortunately, neither side had noticed the mistake before the Order was engrossed and the error remained unbeknownst to either party until this matter arose.

13 Reverting to the facts that led to the drafting of the affidavit that represents the crux of the matter before us, the sequence of events between the date of the hearing and the promulgation of the said affidavit appears to be the subject of much dispute between the respondent and Lim. Accordingly, in order to place the ensuing discourse in its appropriate context, it may be useful at this juncture to set out each party’s suggested version of what happened next seriatim, beginning with Lim’s version.

Lim’s version of events

14 According to Lim, he was not informed at all as to the nature of the Order, or, indeed, that an order had been given in relation to the ancillary matters. Instead, the first he even heard of the matter was when he received a letter dated 20 February 2004 from the respondent (“the 20 February letter”) on 27 February 2004. This letter had detailed the import of the Order made by the trial judge at the hearing.

15 As he was unable to understand the import of the letter, Lim contacted the respondent, who purportedly explained, inter alia, that the Order dictated that the property be sold and that the proceeds be shared equally by both parties. As would be clear from para 5 of the Order, as reproduced at [11] above, such an elaboration would not be technically accurate, for the Order had dictated that any profits be given to Hay, while any losses would be shared equally by both parties. At that juncture, Lim accepted the Order (as he understood it from what the respondent had represented it to be) since the respondent had informed him that the firm had tried its best in contesting the matters as instructed.

16 However, a few days later, when Lim consulted a housing agent with a view to selling the matrimonial home in compliance with the Order, the agent read the contents of the letter and highlighted the inaccuracies in the respondent’s purported description of the import of the Order.

17 When confronted with the housing agent’s interpretation of the Order, Lim decided to go to the...