Law Society of Singapore v Bay Puay Joo Lilian

• Jurisdiction: Singapore
• Judgment Date: 04 December 2007
• Date: 04 December 2007
• Docket Number: Originating Summons No 2298 of 2006 (Summons No 295 of 2007)
• Court: High Court (Singapore)

Law Society of Singapore

Plaintiff

and

Bay Puay Joo Lilian

Defendant

[2007] SGHC 208

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

Andrew Ang J

Originating Summons No 2298 of 2006 (Summons No 295 of 2007)

High Court

Evidence–Admissibility of evidence–Exception in SM Summit Holdings Ltdv PP–Whether exception applicable in present case–Legal Profession–Show cause action–Lawyer attempting to procure conveyancing work by offering monetary reward to individuals referring such work to her–Lawyer pleaded guilty to charges for grossly improper conduct in discharge of her professional duty brought against her by Law Society of Singapore–Appropriate punishment in light of certain mitigating circumstances–Sections 83 (2) (e), 83 (2) (h) Legal Profession Act (Cap 161, 2001 Rev Ed)

Jenny Lee Pei Chuan (“Jenny”) was engaged by a private investigation agency to investigate if certain law firms were touting for conveyancing work. Pursuant to her engagement, Jenny telephoned the respondent claiming to be a real estate agent who needed to engage a lawyer. She followed up her telephone call with a face-to-face meeting with the respondent the next day at the premises of the respondent's firm (“the firm”). During the meeting, Jenny asked the respondent whether she would pay a referral fee for Jenny to refer a conveyancing case to the firm. The respondent wrote “10%” on a piece of paper, and later explained that “10%” referred to ten per cent of the professional fees that the firm would receive for the transaction. Subsequently, Jenny mentioned the possibility of referring Housing and Development Board (“HDB”) transactions to the respondent and asked the respondent what fee she would receive if she referred such a transaction. The respondent replied that she would pay a flat referral fee of $100 per case and wrote down “$100” on a piece of paper.

Before the disciplinary committee (“the DC”) appointed by the Law Society of Singapore (“the Law Society”), the respondent was charged with an amended charge of contravening s 83 (2) (e) and/or s 83 (2) (h) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”). The DC found the respondent guilty as charged but concluded that the respondent's misconduct was not of sufficient gravity for disciplinary action under s 83 of the Act, but was instead a matter for which a penalty should be imposed under s 93 (b) and so imposed a penalty of $7,000. The Law Society disagreed with the DC's conclusion on the gravity of the respondent's misconduct and filed the application in the present proceedings for the respondent to show cause why she should not be dealt with under the Act.

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

(1) The exception in SM Summit Holdings Ltd v PP [1997] 3 SLR (R) 138 (“Summit”) did not substantially fit the facts in the present case. On the facts of this case, it was not clear how Jenny's alleged unlawful conduct (abetment) could constitute an essential ingredient of the respondent's allegedly corrupt offer made to Jenny. In any case, the facts did not show that the respondent had made a corrupt offer to Jenny within the terms of s 5 of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed). Furthermore, in Summit, the copyright and trade mark offences were criminal offences whereas, in the present case, the “charged offences” were only disciplinary infractions which were not criminal offences: at [33] and [35].

(2) The DC had not failed to apply the criminal standard of proof only because it omitted to say expressly that it did apply such a standard. There was accordingly no reason to disturb the DC's finding that the respondent had the requisite intention: at [37].

(3) While there was procurement on the part of Jenny, the respondent, by succumbing to Jenny's offers, was also effectively attempting to procure employment for herself with respect to Jenny's clients. As the DC had found, this was just the reverse side of the same coin: at [39].

(4) The law did not preclude an attempt to do something which was impossible. The essence of an attempt was the intention to commit the offence. Accordingly, the fictitious and non-existent employment which the respondent allegedly agreed or promised to remunerate Jenny did not preclude the respondent from being found guilty of the amended charge: at [43] and [44].

(5) In deciding the appropriate punishment after making absolute the show cause order, it would be observed that the respondent had not readily pleaded guilty despite the overwhelming evidence against her. However, the present case was not as serious as past cases wherein the arrangements were carried out for some time and money was paid for procuring legal work. In the circumstances, an appropriate penalty would be nine months' suspension from practice, effective immediately: at [49]and [50].

Attorney-General's Reference (No 1 of 1975) [1975] QB 773 (refd)

Chua Kian Kok v PP [1999] 1 SLR (R) 826; [1999] 2 SLR 542 (folld)

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

Law Society of Singapore v Lau See-Jin Jeffrey [1999] 1 SLR (R) 724; [1999] 2 SLR 215 (distd)

Law Society of Singapore v Lee Cheong Hoh [2001] 1 SLR (R) 197; [2001] 2 SLR 80 (distd)

Law Society of Singapore v Tan Buck Chye Dave [2007] 1 SLR (R) 581; [2007] 1 SLR 581 (distd)

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

R v Castiglione [1963] NSWR 1 (refd)

R v Sang [1980] AC 402 (refd)

Ridgeway v The Queen (1995) 184 CLR 19 (refd)

SM Summit Holdings Ltd v PP [1997] 3 SLR (R) 138; [1997] 3 SLR 922 (not folld)

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) (e), 83 (2) (h) (consd);ss 83,83 (2), 90,93 (b),94 (1),94 (3) (b),98

Penal Code (Cap 224,1985 Rev Ed)s 511

Prevention of Corruption Act (Cap 241, 1993 Rev Ed)s 5

Daniel John (Goodwins Law Corporation) for the applicant

Mirza Mohamed Namazie and Chua Boon Beng (Mallal & Namazie) 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 Bay Puay Joo Lilian (“the respondent”) to show cause as to why she should not be dealt with under s 83 (2) (e) and/or s 83 (2) (h) of the Act. The respondent is an advocate and solicitor of the Supreme Court of Singapore of some 27 years' standing. At the material time, the respondent was a practising advocate and solicitor and a partner in the law firm of M/s Bay Tan and Partners (“the firm”) and handled conveyancing matters in the course of her work as a solicitor.

2 By way of background, it should be stated that this is the second disciplinary case that has been referred to this court arising from a series of well-executed sting operations designed to obtain evidence of touting by certain law firms suspected of procuring conveyancing work from real estate agents by giving referral fees. The first case was Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR (R) 239 (“Phyllis Tan”). There is also an appeal to the Court of Appeal arising out of an application for leave for judicial review based on similar facts, viz, Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR (R) 377 (“Rayney Wong CA”).

Background

The charge

3 Before the disciplinary committee (“the DC”) appointed by the Law Society, the respondent was charged with an amended charge of contravening s 83 (2) (e) and/or s 83 (2) (h) of the Act. Specifically, the charge was that at around 3.20pm on or about 18 March 2004, at the firm's premises, the respondent attempted to procure the employment of herself to act in a conveyancing matter or matters, by offering to pay one Jenny Lee Pei Chuan (“Jenny”):

(a) a percentage-based referral fee of 10% of the respondent's professional fees in a private property purchase to be referred to her; and/or

(b) a flat referral fee of $100 in Housing and Development Board (“HDB”) sale or purchase cases referred to her in future,

and that she had thereby breached s 83 (2) (e) and/or s 83 (2) (h) of the Act.

Agreement as to documents

4 Before the DC, counsel for the Law Society and for the respondent agreed to admit in evidence (a) the agreed bundle of documents; and (b) the respondent's bundle of documents. The agreed bundle of documents comprised the following: (a) the agreed statement of case (excluding the amended charge); (b) the complaint of Jenny contained in her statutory declaration dated 15 April 2004; and (c) the agreed transcript of the video recording made by Jenny of her meeting with the respondent (“the Agreed Transcript”).

5 Both counsel also agreed to the following:

(a) that the documents in the agreed bundle were authentic and that in the event of any inconsistency between any statement in Jenny's statutory declaration and the agreed statement of case, the statement in the latter document would prevail; and

(b) that they would dispense with cross-examination of the relevant witnesses and rely entirely on the admitted documents to prove their respective cases.

It should be noted that in the DC proceedings, the respondent informed the DC that she would not be arguing that the Agreed Transcript should be excluded on the ground that it was in the nature of entrapment evidence or that it had been illegally or improperly obtained.

The facts

6 According to the agreed statement of case, sometime around 29 February 2004, Jenny, a part-time private investigator and part-time real estate agent, was engaged by a...