Law Society of Singapore v Tan Sok Ling

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 23 March 2007
• Neutral Citation: [2007] SGHC 37
• Date: 2007
• Published date: 03 April 2007
• Year: 2007
• Plaintiff Counsel: Suresh Damodara (David Lim & Partners)
• Citation: [2007] SGHC 37
• Defendant Counsel: Respondent in person
• Court: High Court (Singapore)
• Subject Matter: Appropriate sentence where lawyer not acting dishonestly but out of gross inefficiency and incompetence,Whether lawyer's conduct contravening Legal Profession Act and warranting disciplinary action,Lawyer transferring moneys due to him from client's account to his firm's account resulting in overdrawn client's account,Section 83(2)(j) Legal Profession Act (Cap 161, 2001 Rev Ed), rr 3, 7 Legal Profession (Solicitors' Accounts) Rules (Cap 161, R 8, 1999 Rev Ed),Legal Profession,Show cause action,Lawyer failing to pay moneys into client's account

23 March 2007

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”) to make absolute an order to show cause. Having heard the submissions of the Law Society and those of the respondent in mitigation, 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. We now give the detailed grounds for our decision.

Background facts and charges

2 The respondent is an advocate and solicitor of the Supreme Court of the Republic of Singapore of about 14 years’ standing. He was admitted to the roll on 20 March 1993 and was, at all material times the sole proprietor of the firm Tan S L & Partners (“his firm”).

3 The respondent faced 11 charges for breaches of the Legal Profession (Solicitors’ Accounts) Rules (Cap 161, R 8, 1999 Rev Ed) (“Solicitors’ Accounts Rules”) within the meaning of s 83(2)(j) of the Act. Of the 11 charges, two related to breaches of r 3, while nine related to breaches of r 7 of the Solicitors’ Accounts Rules.

4 The respondent had admitted to all 11 charges from the outset and did not dispute the statement of facts as submitted by counsel for the applicant, Mr Suresh Damodara. So as to set the case in its proper context, it would be significant to note the following:

(a) Breaches in relation to the first to fifth charges concerned moneys due to the respondent, transferred from the client’s account to his firm’s account when there was no balance in the client’s account. These errors have since been rectified.

(b) Breaches in relation to the sixth and seventh charges concerned moneys not paid into the client’s account. These have since been reimbursed.

(c) Breach in relation to the eighth charge concerned moneys due to the respondent, transferred from the client’s account to his firm’s account, resulting in $2,152 being overdrawn from the client’s account. This error has since been rectified.

(d) Breaches in relation to the ninth to eleventh charges concerned moneys due to the respondent, transferred from the relevant client’s accounts to his firm’s account on 12 November 2003. However, the respective amounts were only received from the said clients at later dates and the bills for those amounts were drawn at even later dates.

(e) The above breaches have not resulted in any loss to any client.

5 In the interest of completeness, the relevant portions of the above-named rules are set out as follows:

Client accounts

3. —(1) Subject to rule 9, every solicitor who holds or receives client’s money, or money which under rule 4 he is permitted and elects to pay into a client account, shall without delay pay such money into a client account.

(2) Any solicitor may keep one client account or as many such accounts as he thinks fit.

Moneys which may be drawn from client account

7. —(1) There may be drawn from a client account —

(a) in the case of client’s money —

(i) money properly required for a payment to or on behalf of the client;

(ii) money properly required in full or partial reimbursement of money expended by the solicitor on behalf of the client;

(iii) money drawn on the client’s authority;

(iv) money properly required for or towards payment of the solicitor’s costs where a bill of costs or other written intimation of the amount of the costs incurred has been delivered to the client and the client has been notified that money held for him will be applied towards or in satisfaction of such costs; and

(v) money to be transferred to another client account;

…

(2) In the case of client’s money and trust money referred to in paragraph (1) (a) and (b), the money so drawn shall not exceed the total of the money held for the time being in the client account on account of the client or trust.

Further, the salient portions 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 —

…

(j) has contravened any of the provisions of this Act in relation thereto if such contravention warrants disciplinary action;

…

6 After hearing counsel for the applicant and the respondent in mitigation, the Disciplinary Committee (“DC”) found that there existed cause of sufficient gravity for disciplinary action against the respondent under s 83 of the Act on all 11 charges.

Findings of the DC

7 The DC noted the respondent’s claims that the breaches of the Solicitors’ Accounts Rules were due to mistakes, oversight and omissions on his part and that of his staff. The DC acknowledged that the breaches did not cause any loss to any client as confirmed by the Accountant’s Report and that the respondent deeply regretted the breaches.

8 The DC accepted that the issue before it was whether the breaches were such as to warrant show cause proceedings against the respondent under s 83(2) of the Act. To this end, the DC affirmed, citing Law Society of Singapore v Lim Yee Kai [2001] 1 SLR 721 at [17] (“Lim Yee Kai”), that “[m]embers of the public must have confidence in the integrity of the accounting system of solicitors and must have trust that their solicitors can properly maintain their client’s accounts accurately. It is of vital importance that solicitors should be scrupulously diligent in keeping and maintaining proper accounts of such moneys. … Where rules relating to accounts are breached, disciplinary action is warranted under s 72(3) or 83(2)(j) of the Act”.

9 On a closer look at the Accountant’s Report and the respondent’s mitigation plea, the DC found that the respondent was not “scrupulously diligent in keeping and maintaining proper accounts”. In such circumstances, the DC did not accept that the breaches of r 7 were merely technical in nature and therefore found them grave enough to warrant show cause proceedings.

10 Further, the DC noted from the Second Section of the Accountant’s Report that the respondent took several weeks to raise bills after the transfer from his client’s account to the firm’s account in relation to three of the r 7 breaches. The DC felt that there was no excuse for this undue delay and the respondent did not provide any explanation for this delay either. In respect of the other six breaches of r 7, the DC found that there was no indication as to when the reimbursements were received from the clients and when the bills, if any, were raised.

11 Moving on to the breaches of r 3 of the Solicitors’ Accounts Rules, the DC found that based on Law Society of Singapore v Prem Singh [1999] 4 SLR 157 (“Prem Singh”) and Re Lim Kiap Khee; Law Society of Singapore v Lim Kiap Khee [2001] 3 SLR 616 (“Lim Kiap Khee”), a breach of the said rule was a serious disciplinary offence. In conclusion, the DC found that the respondent was delinquent in keeping and maintaining a proper client’s account. In the absence of any meaningful explanation from the respondent, the DC found that there existed cause of sufficient gravity for disciplinary action against the respondent under s 83 of the Act on all 11 charges.

The appropriate sentence

12 In so far as the appropriate sentence was concerned, Mr Damodara stated that the Law Society would leave the decision entirely to the discretion of the court.

13 However, Mr Damodara helpfully pointed to the fact that the prior decisions involving breaches of the Solicitors’ Accounts Rules were distinguishable from the situation in the present proceedings. We agree with him. As importantly, we would like to commend Mr Damodara for his assistance even though the points made were actually in the respondent’s favour. This is in the spirit of fair play and in the best traditions of the Bar. And the following observations of this court in Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR 308 at [40] are, in this regard, particularly apposite:

[O]ne major ideal underlying the practice of the law is that, even (or, perhaps, especially) under an adversarial system, counsel concerned can join in “legal combat” and still display the nobility of the law. Indeed, as Whyatt CJ also put it in the Singapore High Court decision of Shaw & Shaw Ltd v Lim Hock Kim (No 2) [1958] MLJ 129 at 130–131:

The Court appreciates fully the difficulties which confront counsel from time to time in the discharge of their dual duty to their clients and to the Court, and it may be of assistance to them in the solution of such difficulties when they arise, to recall the guiding principles laid down in this matter by Judges of great learning and wisdom. Of the duty of an advocate to his client, it will suffice to quote the eloquent language of Chief Justice Cockburn cited by McCardie J. in an address delivered in the Middle Temple:-

My noble and learned friend Lord Brougham, ... said that an advocate should be fearless in carrying out the interests of his client, but I couple that with this qualification and this restriction, that the arms which he wields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interests of his clients per fas and not per nefas. It is his duty to the utmost of his power to seek to reconcile the interests he is bound to maintain and the duty it is incumbent upon him to discharge with the eternal and immutable interests of truth and justice.

And in China Insurance Co (Singapore) Pte Ltd v Liberty Insurance Pte Ltd [2005] 2 SLR 509, [the court also] had occasion to observe thus (at [64]):

Although we operate within an adversarial system which, by its very nature, mandates counsel on each side...