Law Society of Singapore v Mahadevan Lukshumayeh and Others

• Judge: Chan Sek Keong CJ
• Judgment Date: 08 July 2008
• Neutral Citation: [2008] SGHC 106
• Defendant Counsel: Thangavelu (Straits Law Practice LLC),Fourth respondent in person,Vergis S Abraham and Clive Myint Soe (Drew & Napier LLC),Rajan Nair (Rajan Nair & Partners)
• Citation: [2008] SGHC 106
• Published date: 10 July 2008
• Year: 2008
• Subject Matter: Sections 82A and 83 Legal Profession Act (Cap 161, 2001 Rev Ed),Whether s 82A or s 83 of the Legal Profession Act (Cap 161, 2001 Rev Ed) applicable,Show cause action,Practising as advocate and solicitor without valid practising certificate,Legal Profession,Appropriate sanction to be meted out
• Plaintiff Counsel: Han Wah Teng and Tan Cheow Hung (Keystone Law Corporation)
• Court: High Court (Singapore)

8 July 2008 Judgment reserved.

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

Introduction

1 This application by the Law Society of Singapore (“the Law Society”) arose from disciplinary proceedings against the respondents which were commenced on 19 April 2007 by an application to the Chief Justice (via Originating Summons No 608 of 2007 (“OS 608/2007”)) for leave to be granted for a disciplinary committee to be appointed to investigate complaints of misconduct against the respondents. Leave was granted on 18 May 2007. The disciplinary committee appointed on 25 July 2007 (“the Disciplinary Committee”) heard the Law Society and the respondents on 17 October 2007. In its report dated 27 December 2007 (“the DC Report”), the Disciplinary Committee stated that cause of sufficient gravity for disciplinary action against all four respondents existed. This led to the Law Society’s application in the present originating summons (ie, Originating Summons No 149 of 2008 (“OS 149/2008”)) for an order that the respondents be called to show cause as to why they should not be struck off the roll of advocates and solicitors (“the roll”), prohibited from applying for a practising certificate, censured or otherwise punished pursuant to s 82A(10) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”). An order to show cause was made on 14 February 2008 (“the Show Cause Order”). The Law Society then filed the present summons (ie, Summons No 926 of 2008) for a final order to be made pursuant to the Show Cause Order.

2 The Law Society argues that the respondents are guilty of practising without valid practising certificates, and that this constitutes conduct unbefitting advocates and solicitors as officers of the Supreme Court or as members of an honourable profession (see s 82A(3)(a) of the Act). This is the first time that misconduct of this nature has been brought before this court. All four respondents admitted to the charges against them, and the only issue here is the appropriate sanction that ought to be meted out to each respondent. At the end of the hearing on 16 May 2008, we reserved our judgment to give consideration to the particular circumstances of each of the four respondents. We have come to the conclusion that the appropriate sanction for each respondent would be a prohibition from applying for a practising certificate for the following lengths of time:

(a) in respect of the first respondent, 18 months;

(b) in respect of the second respondent, nine months;

(c) in respect of the third respondent, six months; and

(d) in respect of the fourth respondent, 15 months.

3 We now give the reasons for our decision with respect to each respondent separately. Indeed, as counsel for the Law Society, Mr Tan Cheow Hung (“Mr Tan”), correctly pointed out in his submissions to this court, it is clear that the severity of each respondent’s misconduct “appears to vary substantially and the penalties ought to differ accordingly”.[note: 1]

The jurisdictional point

4 Before turning to consider each respondent’s situation seriatim, we deal with a point which was raised by counsel for the third respondent, Mr Rajan Nair (“Mr Nair”). This was that the present proceedings should have been initiated, not under s 82A of the Act, but, rather, under s 83 of the Act. Mr Nair did not, however, press the point and none of the other respondents raised this particular issue at all. Indeed, as the Disciplinary Committee noted at para 9 of the DC Report, “[d]uring the hearing before the Disciplinary Committee … the Law Society and all the [r]espondents accepted that the proceedings against [the respondents] should be governed by the s 82A … procedure” [emphasis added].Mr Nair’s argument to the effect that proceedings ought not to have been commenced under s 82A of the Act was premised almost wholly on the decision of the disciplinary committee of the Law Society in The Law Society of Singapore v Nadarajan Theresa [1994] SGDSC 9 (“Nadarajan Theresa”). In that case, the respondent lawyer had practised as an advocate and solicitor without a valid practising certificate between April 1993 and May 1993. The Law Society brought against her two charges of being in breach of s 32(1) of the Legal Profession Act (Cap 161, 1994 Rev Ed) (“the 1994 LPA”) by holding herself out as being qualified to practise as an advocate and solicitor of the Supreme Court although she did not have in force a practising certificate during the material period. For such misconduct, the respondent was liable to be struck off the roll or suspended from practice or censured as provided for under s 83(1) of the 1994 LPA read with s 83(2)(j) of that statute. The detailed facts were set out by the disciplinary committee as follows (see Nadarajan Theresa at [12]):

It was not disputed by the Respondent that she had by letters written from 6th April 1994 to 26th May 1994 relating to 2 property transactions carried out the acts of an advocate and solicitor in writing to the Commissioner of Residential Property and the Land Dealings (Approval) Unit as solicitor for a purchaser and [had] also inter alia [written] to a bank as its solicitor, a law firm as solicitors for purchasers, to the purchasers as their solicitor, and to the Management Corporation as solicitor for purchasers. However the Respondent by her affidavit dated 26.9.94 explained that she had with effect from 7th May 1993 transferred her law practice to M/s Salehah & Co.; that since 15th March 1993, she was bereaved over the death of her adopted infant daughter and went through periods of depression; that arising out of her grief and depression she was not fully responsible for her acts; that she had nothing to gain by her action and that she had not caused any loss to anyone.

5 In so far as the preliminary point relating to the jurisdiction of the disciplinary committee was concerned, the majority of the disciplinary committee was of the view that it did possess jurisdiction in the matter, notwithstanding s 82A of the 1994 LPA (which is substantially similar to s 82A of the Act). In particular, s 82A(1) of the 1994 LPA read as follows:

This Part [ie, Pt VII of the 1994 LPA, which is headed “Disciplinary Proceedings”], with the exception of this section and sections 82, 90, 91, 98 to 102, 104, 105 and 106, shall not apply to any legal officer or any advocate and solicitor who does not at the time of the misconduct have in force a practising certificate (referred to in this section as a non-practising solicitor).

6 There was, however, a minority view in Nadarajan Theresa which held that the respondent did indeed fall within s 82A(1) of the 1994 LPA, but that, because of the relevant savings provision in s 31(1) of the Legal Profession (Amendment) Act 1993 (Act 41 of 1993) (“the 1993 Amendment Act”), the matter could nevertheless be heard by the disciplinary committee pursuant to s 83 of the 1994 LPA. The disciplinary committee then proceeded to decide (at [13] of Nadarajan Theresa) that:

[I]n normal circumstances, the Respondent’s action in doing the work of an advocate and solicitor without a practising certificate would be improper conduct warranting disciplinary action. However, having regard to the mitigating circumstances of the case, the Committee is of the view that no cause of sufficient gravity exists for disciplinary action under Section 83(1) of the [1994 LPA]; that such improper conduct merits a severe reprimand of the Council [of the Law Society] under Section 94(3) of the [1994 LPA]. The Committee is fortified in coming to this conclusion by the decision of the court in [Re Advani [1988] SLR 258] where it was held that in disciplinary proceedings under the [Legal Profession Act (Cap 161, 1985 Ed)], in considering the penalty to be imposed for grossly improper conduct, the emotional state of the respondent, and whether the offending action was made for gain or whether it ha[d] caused loss [were] pertinent factors. In the present case, the offending events took place during the period when the Respondent was going through a phase of grief and depression arising out of the death of her adopted infant daughter; furthermore the Respondent had during that period taken steps to close her law practice by transferring her files to another law firm. It was noted that nobody suffered any loss nor did the Respondent gain anything from this breach.

7 The reasoning of both the majority as well as the minority in Nadarajan Theresa with regard to the preliminary point on jurisdiction is encompassed within the following extracts from the case (id at [3]–[11]), as follows:

3 The issue is whether the Respondent who was charged with holding herself out as qualified to practise as an advocate and solicitor when she did not hold a practising certificate is an “advocate and solicitor who does not at the time of the misconduct have in force a practising certificate” (“a [non-practising] solicitor”). The … Committee came to the view that it ha[d] jurisdiction in the matter. However, the Committee members differed in their reasoning in coming to this conclusion. The majority Committee view (Ms Ruth Kao and Mr Khoo Oon Soo) was that Section 82A of the [1994 LPA] did not apply to the Respondent. [The majority’s] reasoning is that under Section 82A(1) a non-practising solicitor is defined as “any advocate and solicitor who does not at the time of the misconduct have in force a practising certificate”.

4 The definition contemplates a situation where: –

(a) a misconduct has been committed by an advocate and solicitor and

(b) when the misconduct was committed, the advocate and solicitor did not have in force a practising certificate.

The misconduct must therefore arise from circumstances other than not having in force a practising certificate. Not having in force a practising certificate should not be the misconduct and should therefore not amount to a [misconduct].

5 It is only those advocates and solicitors who...