Law Society of Singapore v Tan Buck Chye Dave

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 30 November 2006
• Neutral Citation: [2006] SGHC 216
• Date: 30 November 2006
• Subject Matter: Appropriate punishment in light of certain mitigating circumstances,Show cause action,Respondent attempting to procure conveyancing work by offering monetary reward to individuals referring such work to him,Legal Profession,Respondent pleading guilty to charges for grossly improper conduct in discharge of his professional duty brought against him by Law Society of Singapore,Section 83(2)(e) Legal Profession Act (Cap 161, 2001 Rev Ed)
• Docket Number: Originating Summons No 1352 of
• Published date: 01 December 2006
• Defendant Counsel: Patel Cyrus Jonathan (DSPP Law Corporation)
• Court: High Court (Singapore)
• Plaintiff Counsel: Shashidran Nathan and Sunil Sudheesan (Harry Elias Partnership)

30 November 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”) pursuant to s 94(1) read with s 98 of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”) for the respondent to show cause as to why he should not be dealt with under s 83(2)(e) of the Act. 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 six months and to bear the costs of the proceedings before us as well as of the Disciplinary Committee (“DC”) proceedings, to be agreed or taxed. We now give the detailed grounds for our decision.

The charges

2 There were originally four charges preferred against the respondent at the commencement of the DC hearing. However, upon the DC’s invitation to the Law Society to reconsider the second and third charges as the facts on which those charges were based could be considered as one “transaction”, the Law Society subsequently amalgamated the second and third charges into one charge. The charges, as eventually formulated by the Law Society, were as follows:

(a) First Charge:

That the Respondent is guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s.83(2)(e) of the Legal Profession Act (Cap.161, 2001 Rev Ed) in that, on 9 January 2004, during a telephone conversation with Chia Heng Huat he did attempt through the said Chia Heng Huat, to procure employment in respect of HDB conveyancing matters, by promising to give the said Chia Heng Huat a sum of $200.00 within one (1) month of the completion of each HDB property conveyancing matter, for obtaining his employment in each HDB conveyancing matter that would be referred to him by the said Chia Heng Huat.

(b) Amalgamated Second and Third Charge:

That the Respondent is guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s.83(2)(e) of the Legal Profession Act (Cap.161, 2001 Rev Ed) in that, on 14 January 2004, at a meeting with Chia Heng Huat at MOS Burger at Toa Payoh HDB Hub he did attempt through the said Chia Heng Huat, to procure his employment in respect of HDB property conveyancing matters, by promising to give the said Chia Heng Huat or the said Chia Heng Huat’s real estate agents, a sum of $200.00 in cases where his firm’s legal costs in the matter would be $2,000.00 or a sum equivalent to fifty percent (50%) of the excess of $2,000.00 in cases where his firm’s legal costs in the matter would exceed $2,000.00, for obtaining his employment in each HDB conveyancing matter that would be referred to him by the said Chia Heng Huat or the said Chia Heng Huat’s real estate agents.

(c) Fourth Charge:

That the respondent is guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s.83(2)(e) of the Legal Profession Act (Cap.161, 2001 Rev Ed) in that, on 20 January 2004, at a meeting with Mohamed Husain s/o Tahirali Thaker at Mos Burger at Toa Payoh HDB Hub he did attempt to procure his employment in respect of HDB conveyancing matters, by promising to give the said Mohamed Husain s/o Tahirali Thaker a sum of $200.00 within one (1) month of the completion of each HDB property conveyancing matter in cases where his firm’s legal costs in the matter would be $2,000.00, for obtaining his employment in each HDB conveyancing matter that would be referred to him by the said Mohamed Husain s/o Tahirali Thaker.

3 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 —

…

(e) has, directly or indirectly, procured or attempted to procure the employment of himself or any advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given;

…

[emphasis added]

The facts

4 The respondent is an advocate and solicitor of the Supreme Court of Singapore of some 18 years’ standing, having been called to the Bar on 16 March 1988. At all material times, he was a partner in a firm and his practice includes the area of conveyancing law.

5 At this juncture, it would be convenient to highlight that the respondent had admitted without qualification all the facts as set out in the Law Society’s statement of facts dated 4 March 2006, the relevant portions of which state as follows:

3. On or around 13 July 2004, Goldeneye Investigations & Security Services Pte Ltd (“GISS”) referred information to the Council of the Law Society of Singapore which touched on the conduct of the Respondent.

4. At the material time, GISS was conducting investigations on law firms, that were believed to be offering monetary incentives to real estate agents for referring Housing Development Board (“HDB”) conveyancing matters to them. GISS had appointed several of their part-time assistant investigators to conduct the investigations. The part time assistant investigators from GISS who had communications with the Respondent were as follows:

a. Chia Heng Huat (“Chia”);

b. Mohamed Husain s/o Tahirali Thaker (“Husain”); and

c. Regina Wong Ming Keat (“Wong”).

9 January 2004

5. On 9 January 2004, Chia telephoned the Respondent and introduced himself as Jeffry Tan from Coldwell Banker. Chia asked the Respondent what he (Chia) would get for referring clients to the Respondent’s Firm. The Respondent informed Chia that he (Chia) would receive payment in the amount of S$200.00. Chia then asked if the amount would be paid in cash and when such payment would be made. The Respondent replied that payment would be made in cash within one (1) month after completion. The Respondent further informed Chia that he (Chia) could contact the Respondent anytime after the expiry of one (1) month after completion to collect the sum of S$200.00.

14 January 2004

6. On 14 January 2004, Chia telephoned the Respondent and arranged a meeting with him at 2.10pm at MOS Burger at Toa Payoh HDB Hub.

7. At the meeting, the Respondent explained the conveyancing process to Chia. Following this explanation, Chia reminded the Respondent of the content of their previous telephone conversation on 9 January 2004 where the Respondent had stated that Chia would receive payment one (1) month after completion. The Respondent informed Chia that the Respondent could try to hand over the money earlier if he (the Respondent) was informed in advance as he (the Respondent) would need at least one week to process the request. The Respondent stated that this was because he would only receive the file, one week after completion.

8. The Respondent also confirmed that he would pay Chia’s real estate agents an incentive in the amount of S$200.00 in cash. The Respondent informed Chia that:

a. The average legal costs for this type of matter would be approximately S$2,000.00;

b. If the total legal costs amount to S$2,000.00, the Respondent would retain a nett amount of S$1,800.00 and pay S$200.00 to Chia and his real estate agents; and

c. If the total legal costs amounted to more than S$2,000.00, fifty percent (50%) of the excess would be given to Chia and his real estate agents.

9. The Respondent further stated that, if the legal costs for each matter amounted to a sum less than S$2,000.00, Chia and his real estate agents would get an incentive in the amount of S$200.00.

10. The Respondent subsequently agreed with Chia that for cases referred by Chia’s real estate agents, the real estate agents would only need to state Chia’s name and fax the case over to the Respondent.

19 January 2004

11. On 19 January 2004, Husain telephoned the Respondent at his office. Husain introduced himself to the Respondent as Mohd Ali, from PropNex and informed the Respondent of his (Husain’s) intention of introducing clients to the Respondent. Husain then asked the Respondent whether the Respondent paid incentives for cases that were referred to him (the Respondent). The Respondent informed Husain that it would be better if they discussed this issue in person, instead of over the telephone. The Respondent then agreed to meet Husain on 20 January 2004.

20 January 2004

12. On 20 January 2004, the Respondent met Husain at MOS Burger at Toa Payoh HDB Hub. At the meeting, the Respondent explained the HDB conveyancing procedure to Husain.

13. Subsequently, the Respondent informed Husain that if the legal costs in this matter amounted to S$2,000.00, Husain would receive payment of a commission in the amount of S$200.00 within one (1) month of the completion of the matter.

14. At all material times, the Respondent did not have any permission or authority from the Respondent’s Firm to act in the manner as stated in this Statement of Facts.

The Disciplinary Committee hearing and findings

6 Based on the above facts, a DC was appointed pursuant to s 90 of the Act to hear and investigate the complaints against the respondent on 20 May 2005.

7 As early as 22 August 2005, the respondent, in his defence, admitted to the Law Society’s case and did not deny making the offers as outlined in the original statement of the case dated 10 May 2005, which is substantially the same as the Law Society’s statement of facts dated 4 March 2006 set out above at [5]. Nevertheless, he did go on to plead that he did not subsequently go through with the offers and did not contact the “agents” any further. He also pleaded that he would be putting his mitigation before the DC at the DC hearing. At the pre-trial...