Law Society of Singapore v Choy Chee Yean

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 25 May 2010
• Neutral Citation: [2010] SGHC 162
• Plaintiff Counsel: Michael Khoo SC and Josephine Low (Michael Khoo & Partners)
• Docket Number: Originating Summons No 131 of 2010
• Date: 25 May 2010
• Hearing Date: 05 April 2010
• Subject Matter: Legal Profession
• Year: 2010
• Citation: [2010] SGHC 162
• Defendant Counsel: Sundaresh Menon SC, Aurill Kam, Paul Tan and Tan Liang Ying (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Published date: 04 June 2010

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an application by the Law Society of Singapore (“the Law Society”) pursuant to section 98(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) for an order that the Respondent be made to suffer such punishment as provided for in section 83(1) of the Act.

The Respondent was admitted to the roll of advocates and solicitors of the Supreme Court of Singapore (“the roll”) on 20 March 1993 and, at all material times, he practised as a Partner in a leading Singapore law firm (“the firm”). On 21 April 2008, the Respondent pleaded guilty, in the District Court of the Hong Kong Special Administrative Region, to a charge of burglary contrary to ss 11(1)(b) and (4) of the Hong Kong Theft Ordinance (Cap 210) (“the HK Theft Ordinance”). The charge stated that on 17 January 2008, the Respondent had entered a hotel room in Hong Kong and stolen a bag, a blue tooth earphone, a charger, an iPod, a mobile phone, a mobile phone SIM card as well as a Palm Pilot (PDA). These items were valued by the police to be worth HK$9,500. On 23 April 2008, the Hong Kong District Court convicted and sentenced the Respondent to 12 months imprisonment, suspended for two years.

On 24 April 2008, the Respondent wrote to inform the Law Society of his conviction and stated that he had voluntarily suspended himself from practice. Since 2 January 2009, he has been employed by the firm in a non-practising capacity. On 3 July 2009, a Disciplinary Tribunal (“the Tribunal”) was appointed to hear and investigate the complaint against the Respondent pursuant to s 90(1) of the Act.

The Law Society was of the view that the offence committed by the Respondent would, if committed in Singapore, be an offence contrary to s 380 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). The Law Society formulated the following charge against the Respondent, as follows (though see now below at [8]):

You, [the Respondent], an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or about 17th January 2008 at the Novotel Citygate Hotel, Hong Kong, having entered Room 1935 as a trespasser, stole a bag, a blue tooth earphone, a charger, an i-Pod, a mobile phone, a mobile phone SIM card, and a Palm Pilot PDA, which was an offence of burglary committed under section 11(1)(b) and (4) of the Hong Kong Theft Ordinance Cap. 210, and you have thereby committed an act of misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court of Singapore or as a member of an honourable profession contrary to section 83(2)(h) of the Legal Profession Act (Cap 161).

Sections 83(1) and 83(2)(h) of the Act provide as follows:

(1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown — (a) to be struck off the roll; (b) to be suspended from practice for a period not exceeding 5 years; (c) to pay a penalty of not more than $100,000; (d) to be censured; or (e) to suffer the punishment referred to in paragraph (c) in addition to the punishment referred to in paragraph (b) or (d).

(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

…

The criminal proceedings in Hong Kong

On 17 January 2008, the Respondent arrived in Hong Kong on a business trip and checked into Room 1939 of the Novotel Citygate Hotel. The occupant of Room 1935 had left the room at 10.45pm and was unsure whether he had properly closed the door of his room. At 11.50pm, when the occupant of Room 1935 returned to his room, he found some items missing. He immediately contacted the hotel staff who subsequently viewed the video recording of the CCTV which monitored the corridor outside that room. The Respondent was seen in the video to be at the door of Room 1935 five times. There was no image of the Respondent entering the room due to the position of the camera. There were two occasions when the Respondent was out of sight for about one minute. He was later seen walking with some items in his left hand towards Rooms 1938 and 1939. Room 1938 was unoccupied while Room 1939 was occupied by the Respondent. The lobby manager, along with the hotel’s security manager and some police officers, went to the Respondent’s room. They searched his room and discovered the missing items under the Respondent’s bed. A fingerprint was lifted on the outside of the door at Room 1935 and was found to match the fingerprint impression of the right middle finger of the Respondent.

The Respondent was subsequently charged with the offence of burglary under ss 11(1)(b) and (4) of the HK Theft Ordinance. Section 11 of the HK Theft Ordinance reads as follows:

(1) A person commits burglary if- …(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

…

(4) Any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.

Section 2 of the HK Theft Ordinance equates the meaning of “steal” with that of “theft”. Section 2 reads as follows:

(1) A person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.

…

[emphasis added]

The Respondent subsequently appointed a leading criminal lawyer, Mr Andrew Bruce SC, to represent him in the criminal proceedings before the Hong Kong District Court. He also consulted two psychiatrists in Hong Kong. They were Dr Stephen Ng Wai Mang (“Dr Ng”) and Dr Lo Chun Wai (“Dr Lo”), respectively. Both the psychiatrists diagnosed the Respondent as suffering from Major Depressive Disorder. On 21 April 2008, the Respondent pleaded guilty to the charge and did not dispute the elements of the charge. However, in mitigation, the Respondent submitted that he was suffering from Major Depressive Disorder at the time of the offence which affected his judgment and awareness of his conduct. Dr Ng and Dr Lo were called to give evidence. As already mentioned, the Hong Kong District Court convicted and sentenced the Respondent to 12 months imprisonment, suspended for two years.

The proceedings before the Disciplinary Tribunal in Singapore

At the proceedings before the Tribunal on 22 September 2009, the Law Society tendered the following Amended Charge upon receiving representations from the Respondent (“the Amended Charge”):

You, [the Respondent], an Advocate and Solicitor of the Supreme Court of Singapore, are charged that you, on or about 21st April 2008, were convicted by the District Court of the Hong Kong Special Administrative Region of an offence of burglary under section 11(1)(b) and (4) of the Hong Kong Theft Ordinance Cap. 210, the particulars of the offence in Hong Kong being that you - “on the 17th day of January 2008, in Hong Kong, having entered as a trespasser part of a building known as Room 1935, Novotel Citygate Hotel, No. 51, Man Tung Road, Tung Chung, Lantau Island, New Territories, stole therein one bag, one blue tooth earphone, one charger, one iPod, one mobile phone, one mobile phone SIM card and one palm pilot”.

and you have thereby committed an act of misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court of Singapore or as a member of an honourable profession contrary to section 83(2)(h) of the Legal Profession Act (Cap 161).

The Law Society also removed all references to the Penal Code from its Statement of Claim. The understanding between the Law Society and the Respondent was set out in a letter from the firm dated 10 September 2009 to counsel for the Law Society, as follows:¹ a) even if the Law Society agrees that dishonesty is not one of the elements of the charge levied against [the Respondent] the Law Society is not (and should not be seen to be) agreeing that [the Respondent] was not dishonest; b) all that the Law Society is saying is that the law does not require it to prove dishonesty to succeed in its charge that [the Respondent] was guilty of conduct unbefitting an advocate and solicitor and that as such, the Law Society will not be seeking to prove dishonesty as an element of the charge; c) whether [the Respondent] was or was not dishonest is, so far as the Law Society is concerned, a matter which remains open for consideration on the basis of the evidence before the Court of Three Judges when deciding on the appropriate sanction to be imposed on [the Respondent] notwithstanding that the Law Society is not seeking to prove dishonesty for the purpose of securing a conviction on the charge and d) although the conviction of [the Respondent] in Hong Kong is not conclusive evidence of his dishonesty, it is a fact that [the Respondent] pleaded guilty to an offence which under Hong Kong law contains an element of dishonesty. This is a fact which [counsel for the Respondent is] not disputing although [the firm] will be arguing that the significance of this fact to the issue of whether [the Respondent] was in fact dishonest will depend on all the evidence that will be before the Court of Three Judges including [the Respondent’s] evidence as to his state of mind and motivation/reasons for deciding to plead guilty to the offence in Hong Kong.

The Respondent pleaded guilty to the Amended Charge. However, he informed the Tribunal that he would be leading evidence on the...