Law Society of Singapore v Ahmad Khalis bin Abdul Ghani

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeChan Sek Keong CJ
Defendant CounselDavinder Singh SC, Yarni Loi and Darius Bragassam (Drew & Napier LLC)
Subject MatterWhether respondent only in breach of ss 83(2)(b), 83(2)(h) Legal Profession Act if retainer between himself and beneficiaries existing,Respondent an advocate and solicitor acting for administrator of estate,Respondent failing to advise other beneficiaries of estate to seek independent legal advice and inform beneficiaries that he was acting solely for administrator of estate,Whether respondent's conduct amounting to misconduct unbefitting an advocate and solicitor,Respondent falsely attesting to having witnessed execution of legal documents,Show cause action,Whether respondent acting for beneficiaries pursuant to implied retainer,Legal Profession,Appropriate punishment,Sections 83(2)(b), 83(2)(h) Legal Profession Act (Cap 161, 2001 Rev Ed),Whether respondent's conduct amounting to grossly improper conduct
Plaintiff CounselGregory Vijayendran and Ameera Ashraf (Wong Partnership)
Docket NumberOriginating Summons No 819 of 2006 (Summons No 2215 of 2006)
Published date21 August 2006
Date21 August 2006

21 August 2006

Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

Introduction

1 Three preliminary – and extremely important – points ought to be made at the outset.

2 The first is that the requisite standard of professionalism an advocate and solicitor ought to display in his or her practice of the law is an objective one as determined by the court: see Law Society of Singapore v Tham Yu Xian Rick [1999] 4 SLR 168 at [17] (citing Tan Yock Lin, The Law of Advocates and Solicitors in Singapore and West Malaysia (Butterworths Asia, 2nd Ed, 1998) (“Tan”) at pp 784 and 793); Law Society of Singapore v Heng Guan Hong Geoffrey [2000] 1 SLR 361 at [24]; and Law Society of Singapore v Ng Chee Sing [2000] 2 SLR 165 at [42]. It is not dependent on the subjective perspective of the advocate and solicitor concerned. The subjective views of the advocate and solicitor, if anything, constitute a mitigating circumstance (for example, to show he was not dishonest) and would, in this respect, go only to the reduction of the sanction that would otherwise be imposed upon the advocate and solicitor concerned.

3 The second is that the public interest in deterring both the individual solicitor and other like-minded solicitors from similar conduct is paramount. In the oft-cited words of Yong Pung How CJ in Law Society of Singapore v Ravindra Samuel [1999] 1 SLR 696 (“Ravindra Samuel”) at [11]–[12]:

It is not simply a question of punishing the solicitor concerned. A further consideration must be what course should the court take to protect the public and to register its disapproval of the conduct of the solicitor. In the relevant sense, the protection of the public is not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors through the court publicly marking the seriousness of what the instant solicitor has done. The orders made must therefore accord with the seriousness of the default and leave no doubt as to the standards to be observed by other practitioners. In short, the orders made should not only have a punitive, but also a deterrent effect.

There are also the interests of the honourable profession to which the solicitor belongs, and those of the courts themselves, to consider. The administration of justice can only proceed on the basis that solicitors can place reliance upon the honesty of the solicitors with whom they deal. The public too must be able to repose confidence in a profession which plays so indispensable a part in the administration of justice. Similarly, the courts of this country must be able to depend on the honesty and integrity of all practitioners appearing before them and to expect that they will maintain the highest standards of personal honesty and integrity in their dealings with the courts.

4 Indeed, as I put it in Law Society of Singapore v Ong Ying Ping [2005] 3 SLR 583 at [63], “[t]here is, in fact, an inherent, irreducible and non-negotiable public interest in the administration of justice in its multifarious forms”.

5 The legitimacy of the administration of justice in the eyes of the public cannot be gainsaid. Respect for the law as viewed through the lenses of the public is an indispensable element in the fabric of the system of justice. Indeed, the public constitutes the ultimate body of individuals for whose benefit the law and the legal system exist. To this end, anything which undermines public confidence in the competence and/or professionalism of lawyers must not – indeed, cannot – be permitted. As we shall elaborate upon below, the focus should be the precise opposite – to enhance the standing and (more importantly) accessibility of the legal profession in the eyes of the public.

6 Thirdly, however, it must also be borne in mind that in order for charges to be preferred successfully against an advocate and solicitor, the standard of proof that must be met is high – the criminal standard of proof beyond a reasonable doubt: see Re an Advocate and Solicitor [1978–1979] SLR 240 at 249, [12] and Law Society of Singapore v Lim Cheong Peng [2006] SGHC 145 at [12]. This is only right as such charges impact adversely on the reputation as well as livelihood of the advocate and solicitor concerned.

The present case

7 The present case involves charges against the respondent pursuant to ss 83(2)(b) and 83(2)(h) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”). Four charges were preferred against the respondent. However, only the first three charges were ultimately proceeded with. The charges, as formulated by the Law Society of Singapore (“Law Society”), read as follows:

First Charge:

That the Respondent is guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s.83(2)(b) of the Legal Profession Act (Cap.161, 2001 Rev Ed) and/or of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s.83(2)(h) of the Legal Profession Act (Cap.161, 2001 Rev Ed) in that, on or about 8 August 2001, whilst acting on behalf of Rasid in obtaining letters of administration for the Estate, he failed to advise the remaining beneficiaries of the Estate that they were to seek independent legal advice on the appointment of Rasid as sole administrator of the Estate.

Second Charge:

That the Respondent is guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s.83(2)(b) of the Legal Profession Act (Cap.161, 2001 Rev Ed) and/or of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s.83(2)(h) of the Legal Profession Act (Cap.161, 2001 Rev Ed) in that on or about 6 December 2001, acting as an advocate and solicitor, he did falsely declare and acknowledge in the attestation clause of a document titled “Consent for an Order that Sureties be Dispensed With” dated 6 December 2001 (the “Consent”), that the signatories thereto (save for Muner bin Ali) did personally appear before him and voluntarily execute the Consent when in fact they did not so personally appear before him.

Third Charge:

That the Respondent is guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s.83(2)(b) of the Legal Profession Act (Cap.161, 2001 Rev Ed) and/or of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s.83(2)(h) of the Legal Profession Act (Cap.161, 2001 Rev Ed) and failed to discharge his duties as solicitor for the Estate to the Beneficiaries and/or failed to safeguard the interests of the Beneficiaries, in that he subordinated the interests of the Beneficiaries to the interests of Rasid.

Fourth Charge:

That the Respondent is guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s.83(2)(b) of the Legal Profession Act (Cap.161, 2001 Rev Ed) and/or of conduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s.83(2)(h) of the Legal Profession Act (Cap.161, 2001 Rev Ed) in that, in or about May 2002, he failed to discharge his duties as solicitor for the Bank and/or failed to safeguard the interests of the Bank by failing to advise them that Rasid held the Property sought to be mortgaged only as an administrator and/or trustee and/or that the housing loan that Rasid sought was unrelated to the administration of the estate and/or that the money disbursed under the housing loan would be utilized for purposes unrelated to the administration of the estate.

8 Section 83 itself reads as follows (it is set out in full not only to give the full context of the provision but also to emphasise the general nature of ss 83(2)(b) and 83(2)(h), which is elaborated upon later (at [75]–[82] below):

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 —

(a) has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession;

(b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor;

(c) has been adjudicated bankrupt and has been guilty of any of the acts or omissions mentioned in section 124 (5) (a), (b), (c), (d), (e), (f), (h), (i), (k), ( l) or (m) of the Bankruptcy Act (Cap. 20);

(d) has tendered or given or consented to retention, out of any fee payable to him for his services, of any gratification for having procured the employment in any legal business of himself or any other advocate and solicitor;

(e) has, directly or indirectly, procured or attempted to procure the employment of himself or any advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given;

(f) has accepted employment in any legal business through a person who has been proclaimed a tout under any written law relating thereto;

(g) allows any clerk or other unauthorised person to undertake or carry on legal business in his name, that other person not being under such direct and immediate control of his principal as to ensure that he does not act without proper supervision;

(h) has been guilty...

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