Law Society of Singapore v Yap Bock Heng Christopher

• Judgment Date: 25 September 2014
• Date: 25 September 2014
• Docket Number: Originating Summonses Nos 1149 of 2013 and 157 of 2014
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Yap Bock Heng Christopher

Defendant

[2014] SGHC 188

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Originating Summonses Nos 1149 of 2013 and 157 of 2014

Court of Three Judges

Legal Profession—Show cause action—Whether Court of Three Judges could impose consecutive periods of suspension—Whether Court of Three Judges could impose suspension periods exceeding five years in total—Legal Profession—Solicitor-client relationship—Transactions with client—Respondent borrowing money from client who was not independently advised—Whether this was breach of fiduciary norms of conduct—Whether dishonesty was required for suspension—Whether default sentence should be suspension—Legal Profession—Solicitor's accounts—Respondent persistently failing to produce accounting records—Whether default sentence should be fine, suspension or striking off—Legal Profession (Solicitor's Accounts) Rules (Cap 161, R 8, 1999 Rev Ed)

These are two originating summonses initiated by the Law Society of Singapore (‘the Law Society’) pursuant to s 94 (1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the LPA’) for the respondent, Yap Bock Heng Christopher, to be dealt with under s 83 of the same.

Originating Summons No 1149 of 2013 pertained to a loan that the respondent had improperly obtained from a client. The respondent was representing his nephew, who was incarcerated in Indonesia. On one trip to Indonesia in April 2009, the respondent requested for a $34,000 loan and promised to repay it within two weeks. The respondent did not advise his nephew to obtain independent legal advice before granting the loan. The respondent tried to avoid contact when the loan was due, and threatened to claim legal fees for prior work done. These bills totalled $118,000. On taxation, the respondent claimed $148,000; this amount was taxed down to $20,000. The nephew also had to engage another lawyer to recover the loan. The respondent had, as of the date of the hearing, only repaid $700. On 23 September 2013, a disciplinary tribunal constituted under s 90 of the LPA concluded that there was cause of sufficient gravity for the respondent to be disciplined under s 83 of the same.

Originating Summons No 157 of 2014 pertained to respondent's failure to produce certain classes of accounting documents. The deadline for the production of the requisite documents was extended four times at the request of the respondent. Finally, on 6 December 2012, the Law Society resolved to intervene in the respondent firm's client account. On 16 December 2013, a separately constituted disciplinary tribunal found that there was cause of sufficient gravity for the respondent to be disciplined under s 83 of the LPA.

Held, allowing OS 1149/2013 and sentencing the respondent to a suspension of two years and allowing OS 157/2014 and sentencing the respondent to a suspension of three years:

(1) Fines should be imposed for disciplinary offences too serious to be punished with censures, but insufficiently serious for a suspension. Law Society of Singapore v Andre Ravindran Saravanapavan Arul[2011] 4 SLR 1184 should not be read as exhaustively stipulating the circumstances in which a fine or suspension would be appropriate: at [25] and [26] .

(2) It would be wrong to draw the line at dishonesty. Where there was clear dishonesty, a fine would be manifestly inadequate and a striking off the roll would generally be the order of the day, but the absence of dishonesty did not necessarily lead to the conclusion that the penalty imposed should only be a fine. It was the overall gravity of the misconduct that determined whether a fine or the more severe punishment of suspension should be imposed: at [27] .

(3) A client was vulnerable vis-à-vis his solicitor because the latter enjoyed a position of influence over the client, and the client might find it difficult to deny a loan simply because of the trust and confidence he had reposed in the solicitor. A solicitor also stood in a fiduciary relationship to his client and the core of this relationship was the duty of fidelity, and one purpose of the disciplinary process was to uphold such norms of fiduciary conduct. Whilst a solicitor who borrowed from his client who was not independently advised might not have been dishonest, he was certainly taking advantage of his position to obtain a benefit for himself in breach of his duty of fidelity: at [28] and [29] .

(4) It was irrelevant, both as a matter of liability and as a mitigating factor, that the client had suffered no loss as a result of a prohibited borrowing transaction. However, where a solicitor had not repaid the loan and the client was left worse off, this would be taken as an aggravating factor: at [30] .

(5) A failure to adhere to the Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed) (‘the SA Rules’) might not entail the violation of norms of fiduciary conduct. The offence embraced a range of culpability depending on the fact-situation. The entire object of the SA Rules for solicitors was to ensure that clients' money was properly recorded and accounted for. When a solicitor's accounts were not in order, it could not be known if clients' money had been misplaced, or used for inappropriate purposes. A one-off technical breach would call for a fine but systematic and deliberate flouting in an effort to obfuscate diversion of moneys for personal use would call for a striking off: at [31] and [32] .

(6) Blatant non-compliance with the SA Rules was a serious form of misconduct, even if the solicitor had not diverted clients' money for personal use: at [33] .

(7) At common law, consecutive sentences had always been permitted for criminal matters. The provisions of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) that allowed a court to impose consecutive sentences were a codification of the common law. The Court of Three Judges was a specially constituted court exercising a unique disciplinary jurisdiction under the LPA. By analogy from the common law on criminal matters, a court exercising its disciplinary jurisdiction had the power to impose consecutive periods of suspension: at [36] , [38] and [39] .

(8) In the light of s 83 (1) (b) of the LPA, the Court of Three Judges could not in any circumstances impose a suspension period exceeding five years in total. If multiple distinct offences were before the Court of Three Judges, the court would naturally view the misconduct in totality and determine the appropriate sentence. Where proceedings were brought before the Court of Three Judges whilst a solicitor was serving a term suspension imposed earlier for a different set of misconduct, the Court could not impose a five-year suspension to commence after the first period of suspension. However if the second set were to come before the Court after the first suspension had already been served, the Court could impose a suspension of up to five years if appropriate: at [39] to [41] .

(9) There were several aggravating factors for the respondent's prohibited borrowing transaction with his nephew which called for a lengthier period of suspension: the respondent requested for the loan while his nephew was incarcerated in an Indonesian jail, placing tremendous psychological pressure on the nephew; the respondent avoided contact to avoid repaying the loan; in response to being chased for repayment, the respondent threatened to, and presented several bills which were taxed down to $20,000; the respondent had only repaid $700 of the $34,000 loan: at [42] .

(10) The respondent's failures to produce and maintain accounting records were grave and systemic: the respondent admitted that he did not adhere to the accounting rules in order to save costs; he only found somebody to ‘do [his] book over the weekend free of charge’ seven months after the first request was made; and the respondent had, to the date of the hearing, still not remedied the breaches. The failure to comply was for more than one and a half years, and could not be viewed as a one-off lapse. This called for a reasonable length of suspension: at [43] and [45] .

[Observation: Cases which predated the 2008 amendments to the LPA were of limited assistance because the Court of Three Judges in those cases might very well have chosen to impose a fine in lieu of suspension, had the option of doing so been available then: at [24] .]

Bolton v Law Society [1994] 1 WLR 512 (refd)

Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 (folld)

Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] 4 SLR 1184 (refd)

Law Society of Singapore v Chiong Chin May Selena [2013] SGHC 5 (refd)

Law Society of Singapore v Devadas Naidu [2001] 1 SLR (R) 65; [2001] 2 SLR 112 (folld)

Law Society of Singapore v Lim Yee Kai [2001] 1 SLR (R) 30; [2001] 1 SLR 721 (refd)

Law Society of Singapore v Tay Choon Leng John [2012] 3 SLR 150 (refd)

Law Society of Singapore v Tay Eng Kwee Edwin [2007] 4 SLR (R) 171; [2007] 4 SLR 171 (folld)

Law Society of Singapore v Uthayasurian Sidambaram [2009] 4 SLR (R) 674; [2009] 4 SLR 674 (folld)

Nalpon Zero Geraldo Mario, Re [2013] 3 SLR 258 (folld)

Ng Eng Ghee v Mamata Kapildev Dave [2009] 3 SLR (R) 109; [2009] 3 SLR 109 (folld)

R v Albury [1951] 1 KB 680 (folld)

R v John Wilkes, Esq (1770) 4 Burr 2527; 98 ER 327 (folld)

Shan Rajagopal, Re [1994] 2 SLR (R) 60; [1994]...