Law Society of Singapore v Liew Boon Kwee James

• Jurisdiction: Singapore
• Judgment Date: 04 December 2007
• Date: 04 December 2007
• Docket Number: Originating Summons No 220 of 2007 (Summons No 792 of 2007)
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Liew Boon Kwee James

Defendant

[2007] SGHC 209

Chan Sek Keong CJ

,

Tay Yong Kwang J

and

Andrew Ang J

Originating Summons No 220 of 2007 (Summons No 792 of 2007)

High Court

Legal Profession–Show cause action–Lawyer attempting to procure conveyancing work by offering monetary reward to individuals referring such work to him–Lawyer pleaded guilty to charges for grossly improper conduct in discharge of his professional duty brought against him by Law Society of Singapore–Appropriate punishment in light of certain mitigating circumstances–Sections 83 (2) (d), 83 (2) (e) Legal Profession Act (Cap 161, 2001 Rev Ed)

Jenny Lee Pei Chuan (“Jenny”) was engaged by a private investigation agency to investigate suspected touting by other law firms for conveyancing work. Jenny spoke to Tan, the client services manager of the respondent's firm (“the firm”), on 16 February 2004 on referring conveyancing work to the firm for a fee. On 17 February 2004, Jenny met Tan at the firm and agreed to instruct the firm to act in the purchase of a house. Following this meeting, the firm proceeded with the preliminary conveyancing work in connection with the sale. On 24 February 2004, Jenny informed Tan that the sale had been aborted and paid a settled amount of $350 in legal fees. As promised, Tan paid Jenny the sum of $250 as a referral fee. Unknown to Tan, the telephone conversation of 16 February 2004 and the conversations at the meetings of 17 and 24 February 2004 had been recorded by Jenny using an audio-video recorder.

The respondent was thereafter brought before a disciplinary committee (“the DC”) appointed by the Law Society of Singapore (“the Law Society”) and charged on amended charges for contravening ss 83 (2) (d) and 83 (2) (e) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”), as well as on alternative charges for contravening s 83 (2) (h) of the Act. The respondent put forward the defence that Tan acted without the respondent's knowledge, consent or authority. The respondent also objected to the admissibility of the audio-video recordings relied upon by the Law Society on the ground that they were “entrapment evidence”. Later, the DC determined that the Law Society had proved its case with respect to the amended charges preferred against the respondent and found that cause of sufficient gravity for disciplinary action existed. The Law Society then made the application in the present proceedings for the respondent to show cause as to why he should not be disciplined in accordance with the Act.

Held, making absolute the show cause order and suspending the respondent from practice for a period of 12 months:

(1) The respondent's complaint that the DC had failed to evaluate the evidence properly had no substance. The DC was able to point to a mass of circumstantial evidence that cumulatively pointed “inevitably and inexorably” to the guilt of the respondent: at [12] and [13].

(2) The respondent's arguments in relation to the authenticity and reliability of the audio-video recordings (and the related transcripts) had no merit. As for the respondent's arguments in relation to the admissibility of the audio-video tapes and the related transcripts, they failed for two reasons. First, the respondent had not contended that the evidence obtained by Jenny against him was either illegally or improperly obtained. Secondly, there was no allegation that Jenny instigated or pressurised Tan into agreeing to pay the referral fee or that but for such instigation Tan would not have agreed to pay such fee: at [17].

(3) The DC was correct in rejecting the respondent's request to find out the identity of Jenny's investigation agency's client. The evidence of the motive of the “protected client” was irrelevant in disciplinary proceedings: at [19].

(4) The DC was correct in finding that the Law Society had discharged the burden of proving that the respondent had personally authorised or consented to the conduct of Tan on 17 February 2004 when he agreed to pay Jenny a referral fee: at [20] and [21].

(5) The respondent's argument that the Law Society had not discharged the burden of proof beyond a reasonable doubt had no merit. The circumstantial evidence on which the DC relied showed that the respondent was guilty of the disciplinary charges: at [22] to [24].

(6) There was nothing wrong in principle with the decision of the DC to draw an adverse inference against the respondent for failing to give evidence on oath. In this respect, the respondent's affidavit and Tan's statutory declaration could not be regarded as evidence for the purpose of the DC proceedings since those were oral proceedings and affidavits filed in such proceedings were not evidence unless the parties agreed otherwise. Thus, if Tan had been acting on a frolic of his own, the respondent could have said so on oath, but he elected not to do so. He could also have called Tan to testify in his defence: at [27] and [28].

(7) Having regard to the discretionary power of the DC under s 103 of the Act to make an order of the costs of and incidental to all proceedings under ss 98, 100 or 102 of the Act against the respondent, the respondent's complaint about the award of excessive hearing costs was dismissed: at [29].

(8) Accordingly, the amended charges preferred against the respondent were proved against the respondent and the show cause order was made absolute. As for the penalty to be imposed, there was some evidence that the scale of touting that the respondent had engaged in through Tan was more serious than what the lawyer in Law Society of Singapore v Bay Puay Joo Lilian [2008] 2 SLR (R) 316 was found to have done. Furthermore, the referral fees were actually paid out. In the circumstances, a period of suspension from practice of 12 months with immediate effect was appropriate: at [30] and [31].

How Poh Sun v PP [1991] 2 SLR (R) 270; [1991] SLR 220 (refd)

Law Society of Singapore v Bay Puay Joo Lilian [2008] 2 SLR (R) 316; [2008] 2 SLR 316 (refd)

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

Oh Laye Koh v PP [1994] SGCA 102 (folld)

Regina v Looseley [2001] 1 WLR 2060 (refd)

Regina v Sang [1980] AC 402 (refd)

SM Summit Holdings Ltd v PP [1997] 3 SLR (R) 138; [1997] 3 SLR 922 (refd)

Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR (R) 934; [2006] 4 SLR 934,HC (refd)

Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR (R) 377; [2007] 4 SLR 377,CA (refd)

Legal Profession Act (Cap 161,2001 Rev Ed)ss 83 (2) (d), 83 (2) (e) (consd);ss 83,83 (2) (h),94 (1), 98,100, 102,103

Prem Gurbani (Gurbani & Co) for the applicant

S Magintharan (Netto & Magin LLC) for the respondent.

Judgment reserved.

Chan Sek Keong CJ

(delivering the judgment of the court):

Introduction

1 This is 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 James Liew Boon Kwee (“the respondent”) to show cause as to why he should not be dealt with under s 83 (2) (e) or s 83 (2) (h) of the Act and s 83 (2) (d) or s 83 (2) (h) of the Act.

2 By way of background, it must be mentioned that the respondent in this case is the third advocate and solicitor who has been referred to this court by the Law Society for disciplinary offences involving promises to pay and/or the payment of referral fees to a real estate agent as remuneration for referrals of conveyancing work. The other cases were Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR (R) 239 (“Phyllis Tan”) andLaw Society of Singapore v Bay Puay Joo Lilian [2008] 2 SLR (R) 316 (“Lilian Bay”). There is also an appeal to the Court of Appeal based on similar facts, viz, Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR (R) 377. The respondent was ensnared by the same estate agent, one Jenny Lee Pei Chuan (“Jenny”), in one of a series of sting operations set up by one or more conveyancing lawyers to obtain evidence of such activities against law firms suspected of being engaged in this kind of unprofessional conduct.

Background

The charges

3 The respondent was brought before a disciplinary committee (“the DC”) appointed by the Law Society on the following amended charges:

Amended Charge 1

That you, Liew Boon Kwee, an Advocate and Solicitor of the Supreme Court of the Republic of Singapore, are charged that, on 17 February 2004, your employee Tan Jeok Kiow, with your authority and consent, attempted...