Law Society of Singapore v Tan Guat Neo Phyllis

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 04 December 2007
• Neutral Citation: [2007] SGHC 207
• Date: 04 December 2007
• Subject Matter: Lawyer attempting to procure conveyancing work by offering monetary reward to individuals referring such work to her,When Court of Three Judges will interfere with such findings of fact,Sections 83(2)(e), 83(2)(h) Legal Profession Act (Cap 161, 2001 Rev Ed),Appropriate punishment in light of certain mitigating circumstances,When does an interpretation give effect to legislative intent,Abuse of process,Abuse and unconstitutional exercise of prosecutorial discretion,Whether prosecution founded on entrapment an abuse of process warranting stay of proceedings,Evidence obtained by means of private entrapment,Statutes,Legal Profession,Whether such evidence inadmissible,Show cause action,Evidence Act (Cap 97, 1997 Rev Ed),Constitutional Law,Section 2(2) Evidence Act (Cap 97, 1997 Rev Ed),Disciplinary Committee's findings of fact,Disciplinary procedures,Statutory Interpretation,Purposive interpretation of Evidence Act (Cap 97, 1997 Rev Ed),Whether motive of law firm instigating sting operation relevant,Attorney-general,Whether court having discretion to reject evidence considering terms of Evidence Act (Cap 97, 1997 Rev Ed),Admissibility of evidence,Classification as a facilitative statute,Exception in SM Summit Holdings Ltd v PP,Lawyer pleaded guilty to charges for grossly improper conduct in discharge of her professional duty brought against her by Law Society of Singapore,Whether prosecutorial discretion subject to judicial review,Prosecutorial discretion,Exception in SM Summit Holdings Ltd v PP reconsidered,Section 23 Evidence Act (Cap 97, 1997 Rev Ed),Evidence,Whether evidence inadmissible because it was illegally or improperly obtained
• Docket Number: Originating Summons No 2386 of 2006 (Summons No 121 of 2007)
• Published date: 06 December 2007
• Defendant Counsel: Davinder Singh SC and Darius Bragassam (Drew & Napier LLC)
• Court: High Court (Singapore)
• Plaintiff Counsel: K Muralidharan Pillai, Soong Wei Jie Julian and Jerome Arul Robert (Rajah & Tann)

4 December 2007 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 Tan Guat Neo Phyllis (“the respondent”) to show cause as to why she should not be dealt with under s 83(2)(e) or s 83(2)(h) of the Act. By way of background, it should be stated that this is the first 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 them referral fees. There was also an appeal based on similar facts to the Court of Appeal against the High Court’s refusal to grant leave for judicial review of the disciplinary committee’s decision to admit evidence obtained via one such sting operation in disciplinary proceedings (viz, Wong Keng Leong Rayney v Law Society of Singapore [2007] SGCA 42 (“Rayney Wong CA”)).

Background

The charges

2 The respondent in the present case is an advocate and solicitor of about 27 years’ standing. She was incriminated in one of the sting operations mentioned above, following which the Law Society preferred against her one charge of professional misconduct under s 83(2)(e) and an alternative charge under s 83(2)(h) of the Act. The charges (as amended) were as follows:

Amended Charge

You, Tan Guat Neo, Phyllis … are charged that you, on or about 12 15 March 2004, whilst practising as an Advocate & Solicitor … with Messrs Fong Partners & Associate … did attempt to procure the employment of yourself as an advocate and solicitor in respect of the conveyancing for the sale of No. 33 Lengkok Mariam, Singapore 509135 [(“the Property”)] … through the instruction of one Lee Pei Chuan Jenny … having promised remuneration for obtaining such employment, to wit, a $200/- gift voucher from Takashimaya, and you have thereby acted in contravention of Section 83(2)(e) of the Legal Profession Act (Cap 161).

Amended Alternative Charge

You, Tan Guat Neo, Phyllis … are charged that you, on or about 12 15 March 2004, whilst practising as an Advocate & Solicitor … are guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession, to wit, you did attempt to procure the employment of yourself as an advocate and solicitor in respect of the conveyancing for the sale of [the Property] … through the instruction of one Lee Pei Chuan Jenny … having promised remuneration for obtaining such employment, to wit, a $200/- gift voucher from Takashimaya, and you have thereby acted in contravention of Section 83(2)(h) of the Legal Profession Act (Cap 161).

The facts

3 The facts of the case are straightforward. Sometime in February 2004, a number of solicitors from various law firms (“the instructing solicitors”) hired a private investigation firm, namely, Dong Security & Investigation Agency (“Dong Security”), to try to obtain evidence that the respondent’s firm had been engaging in touting for conveyancing work. Dong Security engaged one Jenny Lee Pei Chuan (“Jenny”), a part-time private investigator and part-time real estate agent, to run the operation. Jenny proceeded with her task by telephoning the respondent on 15 March 2004 and represented herself as a real estate agent from Linkvest Network Properties (“Linkvest”) who might want to engage the respondent to act for her client in the purchase of a property. Jenny recorded this conversation on her audio recorder (“the audio recording”) without the knowledge of the respondent. The parties met later that very same afternoon, whereupon Jenny gave the respondent the name of the purchaser and the address of the property. However, the purchaser was fictitious as Jenny had made up the transaction. Again, unknown to the respondent, Jenny also made a video recording of this meeting (“the video recording”).

4 Four days later (ie, on 19 March 2004), Jenny met up with the respondent again to inform her that the transaction had been aborted. She paid the respondent $350 for work done and was given a receipt for the payment. Jenny likewise brought her video recorder along to record the meeting, but eventually failed to do so as the cable connecting the video recorder to the pinhole camera had somehow become dislodged. The video had nothing more than 20 minutes of blank footage (“the failed video recording”).

5 After this meeting, Jenny made a complaint against the respondent to the Law Society in connection with her (the respondent’s) offer to pay a referral fee for procuring conveyancing work.

The disciplinary committee hearing and findings

The Law Society’s case

Contents of the audio recording and the video recording

6 At the hearing before the disciplinary committee (“the DC”) appointed by the Law Society, the Law Society produced both the audio recording and the video recording as part of the evidence against the respondent. The salient parts of the transcript of the audio recording read as follows (“J” is Jenny and “R” is the respondent):

[J]: Ah, my, my, my buyer actually, they have a particular lawyer to use, but then somebody told me about you, right? Referred me to you, so I just want to check before I give you the case, ah, refer the case to you. Ah, is there any benefits or incentive for we agents or not?

[R]: We just give some vouchers.

[J]: What vouchers, ahh? What kind of voucher?

[R]: Takashimaya vouchers, Takashimaya shopping vouchers.

[J]: Oh, shopping, shopping vouchers, ahh, shopping, shopping voucher, okay, ah, the one, there’s, there’s, um, a rule, um, um, like say a particular amount, a fixed amount of thing?

[R]: Oh no, it depends, it will sometimes be two hundred dollars.

…

[J]: Oh, I see, okay, then this voucher thing, the moment I close the case, you give me? Or I have to wait?

[R]: Can I give it to you (INDISTINCT) there are both of you, right. Therefore it is easier, yah.

[J]: (INDISTINCT) once it is close[d], you just give after?

[R]: After, can.

[J]: Okay, so, err …

[R]: You want Robinson, Takashimaya?

[J]: Er, Takashimaya, Takashimaya would be a bigger ways [sic], right?

[R]: Pardon?

[J]: A bigger ways [sic] to shop right now. Right?

[R]: Yeah correct.

[J]: Yeah. So Taka, lah, anything, lah. It’s okay.

[R]: So you just, ah, fax it and then tell me what kind of voucher, yeah, I’ll know.

[emphasis added]

7 The relevant portion of the transcript of the video recording disclosed the following exchange between Jenny and the respondent:

[J]: That’s the e-mail, Okay, just now over the phone you told me about it. The …

[R]: Voucher …

[J]: Ar.

[R]: claim .... by … Jenny … Okay can. Takashimaya.

[J]: Erm … that will be … ?

[R]: We don’t have it now.

[J]: I know but how much?

[R]: 200.

[J]: Okay when will that? When will I get the … ?

[R]: HDB [Housing Development Board].

[J]: Oh in HDB?

[R]: Ya, HDB. We don’t give it here. All HDB. Can?

[J]: Can[.]

[emphasis added]

The attendance note

8 In addition to these recordings, the Law Society also produced as evidence a contemporaneous attendance note of the meeting (“the attendance note”) made by the respondent which she had earlier disclosed to the inquiry committee when it was inquiring into Jenny’s complaint. Of particular significance in this context is the notation made by the respondent in the note as follows: “Voucher claim by Jenny Lee – Takashimaya $200”.

The respondent’s case

9 The respondent’s pleaded defence to the disciplinary charges against her was, initially, a bare denial that she had made any offer or gift to Jenny to procure conveyancing work from her. However, at the commencement of the proceedings before the DC, the respondent relied on the alternative defence that she had already obtained the said conveyancing work before any purported attempt to make any such offer or gift.

10 In closing her defence, the respondent made the following additional submissions to the DC:

(a) the evidence obtained from the audio recording and the video recording ought to be excluded as it operated unfairly against her;

(b) even if the evidence was not excluded, it was not safe to rely on the video recording in vacuo (without the relevant context); and

(c) if the DC had any reasonable doubt as to the reliability of the audio recording and the video recording, then the failed video recording alone did not contain sufficient evidence to prove the charges.

11 These submissions were advanced on the basis that the contents of the audio recording had been tampered with and surreptitiously edited in such a way as to give the impression that the respondent had discussed the giving of referral fees or vouchers. It was suggested that this was done by splicing certain statements from the video recording into the audio recording in order to convey the impression that there had been mention of such matters.

12 To support this allegation, the respondent highlighted that Dong Security had not been able to produce the digital recorder used to record the audio recording, and also that one Harry Chua (“Harry”), Dong Security’s operations manager, had given a contradictory account of why he could not produce that digital recorder. In his affidavit of evidence-in-chief, Harry said that the digital recorder had been smashed into pieces in the course of subsequent field work, whereas, in an earlier letter dated 4 July 2005 from the Law Society’s solicitors to the respondent’s solicitors, it was stated that the digital recorder had been discarded as it had malfunctioned. The respondent further pointed out that although Harry also claimed in his affidavit of evidence-in-chief that the notebook computer used to store the audio recording had “crashed”, no evidence was produced to show that the notebook computer had been sent for...