Law Society of Singapore v Sum Chong Mun and another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 11 April 2017
• Neutral Citation: [2017] SGHC 80
• Defendant Counsel: Chenthil Kumarasingam (Oon & Bazul LLP),Lim Kia Tong (Hin Tat Augustine & Partners)
• Docket Number: Originating Summons No 6 of 2016
• Date: 11 April 2017
• Hearing Date: 10 February 2017
• Plaintiff Counsel: Edric Pan XingZheng, Chu Hua Yi and Nerissa Tan Yin Shi (Dentons Rodyk & Davidson LLP)
• Published date: 18 April 2017
• Citation: [2017] SGHC 80
• Court: Court of Appeal (Singapore)
• Year: 2017

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

The respondents, Sum Chong Mun (“Sum”) and Kay Swee Tuan (“Kay”), were advocates and solicitors of over 30 years’ standing each at the material time of their alleged professional misconduct.

Sum signed as certificate issuer and as witness to the signature of the donor Ng Kong Yeam @ Woo Kwang Yean (“the Donor”) under a form (“the Form”) which created a lasting power of attorney (“LPOA”) pursuant to the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“the MCA”). However, he did not personally witness the signature of the Donor or carry out his duties as certificate issuer.

Kay is the sister of Mdm Kay Swee Pin (“KSP”), who had cohabited with the Donor from 1995–2013. KSP and the Donor were not legally married. They had a daughter named Eva Mae (“Eva”). Separately, the Donor also had a legitimate family in Malaysia.

Kay procured Sum to certify and witness the Form when the signature of the Donor had already been affixed to the Form. Further, Kay knew that Sum would not be witnessing the Donor’s execution of the Form or carrying out his duties as certificate issuer.

Sum faced two charges and two alternative charges, under s 83(2)(b) and s 83(2)(h), respectively, of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”). These related to his alleged failure to discharge his duties as a certificate issuer of the LPOA of the Donor, and his false attestation as witness to the signature of the Donor on the Form when the Donor did not personally sign before him. The two charges read as follows:

1st Charge [ Alternative 1st Charge ]

That you, Sum Chong Mun, are guilty of grossly improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161) [are guilty of misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161)] in that you, on or around 28 December 2011, failed to discharge your duties as a certificate issuer of the lasting power of attorney (LPA No. 30047BE12) of Ng Kong Yeam @ Woo Kwang Yean as required under the Mental Capacity Act (Cap. 177A, 2010 Rev Ed) by not ensuring that:

(a) The donor understood the purpose of the instrument and the scope of the authority conferred under it; (b) No fraud or undue pressure was used to induce the donor to create an LPOA; and (c) There was nothing else that would prevent an LPOA from being created by the instrument.

2nd Charge [ Alternative 2nd Charge ]

That you, Sum Chong Mun, are guilty of grossly improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161) [are guilty of misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161)] in that you, on or around 28 December 2011, falsely signed as witness to the signature of Ng Kong Yeam @ Woo Kwang Yean as it appeared on the form to create a lasting power of attorney (LPA No. 30047BE12) when the said Ng Kong Yeam @ Woo Kwang Yean did not so personally sign before you.

Kay faced one charge and one alternative charge, under s 83(2)(b) and s 83(2)(h), respectively, of the LPA (“s 83(2)(b)” and “s 83(2)(h)”). These related to her request and procurement of Sum to sign the Form as certificate issuer and as witness when she had known that Sum would not be witnessing the execution of the Form or carrying out his duties as certificate issuer. As amended, the charge and the alternative charge read as follows:

Amended Charge [ Amended Alternative Charge ]

That you, Kay Swee Tuan, are guilty of grossly improper conduct in the discharge of your professional duty as amounts to improper conduct within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap. 161) [Kay Swee Tuan, are guilty of misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap. 161)] in that you, sometime in December 2011, had requested and did procure one Sum Chong Mun (“Sum”), a fellow advocate and solicitor, to act as certificate issuer and sign as witness to the signature of Ng Kong Yeam @ Woo Kwang Yean (the “Donor”) as it appeared on the form (the “Form”) to create a lasting power of attorney (LPA No. 30047BE12) (the “LPOA”), when in fact the signature of the Donor had already been pre-affixed to the Form and you knew that Sum would not be witnessing the Donor’s execution of the Form or carrying out his duties as certificate issuer, and further by wilfully, recklessly or negligently leading Sum to believe that you had personally witnessed the Donor execute the Form, thereby causing Sum to act as certificate issuer and sign as a witness to the pre-affixed signature of the Donor when in fact the Donor had not personally affixed his signature on the Form and you had not personally witnessed the Donor executing the Form

On 14 June 2016, a Disciplinary Tribunal (“the DT”) comprising Mr Cavinder Bull SC and Ms Christine Sekhon determined that cause of sufficient gravity for disciplinary action had been disclosed against Sum (pursuant to s 83(2)(b)) and against Kay (pursuant to s 83(2)(b) or alternatively under s 83(2)(h)). The Law Society of Singapore (“the Law Society”) thus commenced the present originating summons seeking orders that Sum and Kay be sanctioned under s 83(1) of the LPA (“s 83(1)”). The report of the DT can be found at The Law Society of Singapore v 1) Sum Chong Mun 2) Kay Swee Tuan [2016] SGDT 5 (“the DT Report”).

Before us, Sum accepted that due cause for disciplinary action had been shown against him. Kay, however, challenged her charge and alternative charge.

On 10 February 2017, we found due cause for disciplinary action had been shown against both Sum and Kay. We ordered that Sum be suspended for one year with effect from 1 April 2017, and that Kay be suspended for 30 months with immediate effect. We also ordered Sum and Kay to bear the costs of the Law Society.

We now give the detailed grounds for our decision.

Factual background

In early December 2011, KSP asked Kay to be the certifier of an LPOA that the Donor wished to execute. Kay agreed, and thereafter met the Donor and KSP to discuss the making and registering of an LPOA. At the meeting, the Donor signed a form (“the Rejected Form”) to register an LPOA with KSP and Eva as his donees (“the Donees” and, individually, “a Donee”). Kay signed the Rejected Form as certificate issuer and as witness. The Rejected Form was then lodged with the Office of the Public Guardian (“OPG”), but was rejected because a certificate issuer of an LPOA could not be related to a donee thereunder. KSP then asked Kay to approach another person to be the certificate issuer.

Subsequently, KSP prepared the Form, which comprised a completely new set of documents, to replace the Rejected Form. In the Form, KSP signed the Donor’s signature on behalf of the Donor. KSP and Eva also signed the Form as co-Donees, in the presence of two witnesses. Thereafter, KSP handed the Form to Kay. KSP told Kay that one of the main reasons why the Rejected Form had not been accepted by the OPG was that the certificate issuer was KSP’s sister. KSP asked if Kay could approach one of her colleagues to act as the certificate issuer instead.

On or around 27 December 2011, Kay approached Sum and asked him to “re-certify” the Form. Kay told Sum that the Donor was her brother-in-law and that she could not be the certificate issuer because she was related to the Donees. Kay also told Sum that the Donor had completed and signed the Form. Kay added that she had explained the contents of the LPOA to the Donor and that he had understood them, and that she had personally witnessed the Donor’s signature on the Form.

Kay left the Form with Sum after meeting him.

On or around 28 December 2011, Sum signed the Form in two places. First, at Part D of the Form, as witness to the signature of the Donor. Second, he signed at Part E of the form, as certificate issuer who certified the following three requirements: that the Donor understood the purpose of the LPOA and the scope of the authority conferred under it; that no fraud or undue pressure was being used to induce the Donor to create the LPOA; and that there was nothing else that would prevent the LPOA from being created. We shall refer to these three requirements as “the Part E Requirements”.

Sum did not personally witness the Donor’s signature on the Form, nor did he speak to the Donor prior to signing the Form.

Sum did not ask for and did not receive any payment for certifying and witnessing the Form. After Sum returned the Form to Kay, Kay sent the Form to KSP, who submitted it to the OPG. The OPG accepted the Form, and the Donor’s LPOA was registered on 15 February 2012.

The challenge to the Donor’s LPOA

On or around August 2013, Sum was contacted by the Police, who asked whether he had witnessed the Donor executing the Form when he had certified it. Sum informed Kay about the call, and Kay arranged for a meeting, which was attended by Kay, Eva, KSP, Sum, and Mr Wilfred Yeo (Sum’s friend who was also an advocate and solicitor). This was the first time that Sum met and spoke to KSP and Eva. At this meeting, Sum was informed that the Donor had a legitimate family and was not legally married to KSP, and that therefore Kay was not the Donor’s sister-in-law. He was also told that Kay had not actually witnessed the Donor complete or execute the Form. KSP said that she had signed the Donor’s signature on the Form because the Donor...