Law Society of Singapore v Jasmine Gowrimani d/o Daniel

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 07 May 2010
• Neutral Citation: [2010] SGHC 143
• Plaintiff Counsel: Francis Xavier SC and Chou Tzu (Rajah & Tann LLP)
• Docket Number: Originating Summons No 1450 of 2009
• Date: 07 May 2010
• Hearing Date: 26 February 2010
• Subject Matter: Words and Phrases,Legal Profession
• Published date: 17 May 2010
• Citation: [2010] SGHC 143
• Defendant Counsel: Vinodh Coomaraswamy SC, Kenneth Choo (Shook Lin & Bok LLP) and N Sreenivasan (Straits Law Practice LLC)
• Court: High Court (Singapore)
• Year: 2010

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

This application to show cause arose from a complaint to the Law Society of Singapore (“the Law Society”) against the respondent, an advocate and solicitor of some 16 years’ standing (“the Respondent”), by one Mdm Sumathi d/o S Ramachandran (“the Complainant”). According to the Complainant, a teacher at a Singapore primary school (“the School”), the Respondent had threatened and abused her verbally during a private meeting at the School (“the Meeting”). The Meeting had been specifically convened to resolve certain issues relating to the Respondent’s younger sister, a pupil at the School.

After a two-day hearing in September, the Disciplinary Tribunal rendered its report on 30 November 2009 (“the Report”). In it, the Disciplinary Tribunal stated that the Respondent’s conduct, although not occurring in her professional capacity, nonetheless constituted cause of sufficient gravity pursuant to s 93(1)(c) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) so as to warrant a reference to this court. The Disciplinary Tribunal further stated in its Report (at [38]) that it did not possess the discretion to refrain from referring matters to the court of three Judges, once all the elements of a disciplinary charge had been made out.

We were not concerned with the substantive merits of the Law Society’s case against the Respondent. Instead, on a preliminary issue, we agreed with the views of both the Law Society and the Respondent that the Disciplinary Tribunal had misdirected itself in fettering its own discretion to deal with the Respondent’s misconduct. Indeed, for the reasons set out below, this application was misconceived and, in fact, referred inappropriately by the Disciplinary Tribunal to this court. Before we proceed to consider these reasons, however, a brief summary of the procedural history of the case would be in order.

Procedural history

On 4 September 2008, the Complainant lodged a complaint with the Law Society in respect of the Respondent’s alleged misconduct at the Meeting. Subsequently, the Law Society preferred the following charge (“the Charge”) against the Respondent:

Charge

You, Jasmine Gowrimani d/o Daniel, Admission No. 250/1994 are charged that you, being an Advocate and Solicitor of the Supreme Court of the Republic of Singapore, had conducted yourself in a manner that amounts to misconduct unbefitting of 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 (Chapter 161), to wit, by threatening to ensure that [the Complainant] “will not be in the teaching profession anymore”; by banging your fist on the table and the door of the meeting room; and by uttering the following abusive words to [the Complainant], during a meeting at [the School] on 15 July 2008:-

a. “She is such a swine” (shouted twice); b. “I don’t know how many husbands you have but our own family ladies doesn’t (sic) roll round with men” (at least once) and c. “This woman cannot have one father; she must have several fathers”.

On 18 May 2009, the Disciplinary Tribunal was appointed to hear and investigate the complaint against the Respondent. After a two-day hearing on 22 and 23 September 2009, the Disciplinary Tribunal submitted the Report on 30 November 2009.

Apart from making certain findings of fact that this court is presently not concerned with, the Disciplinary Tribunal also pronounced on the issue of its own discretion to refer – or not to refer – cases to the court of three Judges. The Disciplinary Tribunal stated (at [38] of the Report) as follows:

There is an intriguing discussion in the article “Show Cause Proceedings Before the Court of Three Judges: Some Procedural Questions” (2008) 20 SAcLJ 801 (at [37]-[47]) by Goh Yihan, concerning whether a Disciplinary Committee [presently known as the Disciplinary Tribunal] can determine that there is no cause of sufficient gravity despite finding the respondent guilty of all the ingredients of “due cause” under s 83(2) of the Act. According to the learned author, Disciplinary Committees have in the past taken the view that although all the ingredients of the charge under s 83(2) of the Act are fulfilled, they nonetheless have the power to take into account mitigating factors so as to find that no cause of sufficient gravity existed. He says that this is a “prevalent practice”. We would have adopted this practice and invoked s 93(1)(b) of the Act in the present case. Whilst we have taken a dim view of the Respondent’s conduct in relation to the Meeting, it may be said that the conduct was not of such gravity or seriousness as to necessitate referring it to the Court of Three Judges and that a stern reprimand or an appropriate penalty seems apt. For sure, the conduct is quite removed from that end of the spectrum of human frailties where dishonesty and moral turpitude reside. However, we are persuaded by the contention in the article that, as provided in s 83 of the Act, all advocates and solicitors are ultimately subject to the control of the court and that when a charge under s 83(2) of the Act is made out (that is, “due cause” is established), a finding of cause of sufficient gravity for disciplinary action is mandated under s 93(1) of the Act and the Disciplinary Tribunal has no power or discretion to nevertheless find that no such cause exists. Nevertheless, we agree with the learned author that the position should be clarified by the Court of Three Judges. [emphasis added]

Put simply, it appears that the Disciplinary Tribunal decided that, based on the arguments advanced by Goh Yihan (“Goh”) in his article (as cited by the Disciplinary Tribunal in the Report (see the preceding paragraph)), “Show Cause Proceedings Before the Court of Three Judges: Some Procedural Questions” (2008) 20 SAcLJ 801 (“the Article”) (at paras 37–47), it had no choice but to refer the matter of the Respondent’s misconduct to the court of three Judges once the elements of the Charge had been made out. From the Disciplinary Tribunal’s perspective, pursuant to ss 93(1)(c) and 94(1) of the Act, once “due cause” had been made out – in this case under s 83(2)(h) of the Act – it would have no discretion not to transmit the Respondent’s case upwards.

The rationale for Goh’s view is set out primarily at paras 40–41, 45 and 47 of the Article, as follows: 40 The issue here is whether there is a difference between the expressions “no cause of sufficient gravity” and “due cause”, such that while the solicitor concerned is found to be guilty of all the ingredients of a “due cause” under s 83, he nonetheless can escape the disciplinary powers of the Court of Three Judges should the [Disciplinary Tribunal] decide that there was “no cause of sufficient gravity”. The distinction is further borne out by provisions such as ss 93(1)(b) and 94(3), which appear to distinguish the meanings between “due cause” and “no cause of sufficient gravity”. Put another way, these sections seem to suggest that while there may well be a “cause”, this can either be “not of sufficient gravity” or “of sufficient gravity”, in which case it is a “due cause”. The question must then be asked: Is this a conceptually sustainable distinction bearing in mind the framework (quite apart from the literal sense) of the statute? 41 Prima facie, it is submitted that this interpretation (ie, the distinction outlined) cannot be conceptually supported. In the first place, s 83(1) of the LPA states expressly that all advocates and solicitors “shall be subject to the control of the Supreme Court”. It does not say that all advocates and solicitors are subject to the self-regulatory disciplinary framework of their peers, ie, the [Disciplinary Tribunal]. By not referring an advocate and solicitor who has been found guilty of a charge formulated pursuant to s 83(2) of the LPA, the [Disciplinary Tribunal] is in effect usurping the disciplinary powers of the Court of Three Judges. Taken to its logical conclusion, a solicitor guilty of a grievous “due cause” (for which the Court of Three Judges will surely impose a heavy sentence) can escape the consequences of his actions if the [Disciplinary Tribunal] nonetheless decides that “no cause of sufficient gravity” exists. This cannot be the case since the purpose of the Court of Three Judges is to “vest ultimate control of the discipline of advocates and solicitors in the court in order to provide a measure of independence and impartiality”.

…

45 [I]t is submitted that the [Disciplinary Tribunal] upon finding that the respondent is guilty of the charge against her, which encompasses all the ingredients of a “due cause” under s 83(2)(e), should have proceeded to refer the case to the Court of Three Judges, without more. In other words, the words “no cause of sufficient gravity” only apply to cases where there is no “due cause”, and this is when the objective ingredients of the specified due causes under s 83(2) are not made out. There is no middle ground wherein the [Disciplinary Tribunal] can find that there is a “due cause” (or rather, that the ingredients of a “due cause” are made out) but yet, in its subjective determination, decide that this is “not of sufficient gravity”. It is further submitted that the [Disciplinary Tribunal] should not determine that there was “no cause of sufficient gravity” when “due cause” was clearly shown to exist under s 83(2)(e), bearing in mind that it is the Court of Three Judges in which ultimate disciplinary powers are emplaced. If anything, it is for the Court of Three Judges to decide whether the respondent’s conduct, while falling within one of the “due causes”, merits lesser punishment. The residual powers for the [Disciplinary Tribunal] to...