Law Society of Singapore v Ganesan Krishnan

• Judge: Chao Hick Tin JA
• Judgment Date: 13 February 2003
• Neutral Citation: [2003] SGHC 22
• Court: High Court (Singapore)
• Published date: 07 October 2003
• Subject Matter: Appropriate penalty,Show cause action,Legal Profession Act (Cap 161, 2000 Rev Ed) ss 83(1), 83(2)(h),Conduct unbefitting advocate and solicitor,Legal Profession
• Citation: [2003] SGHC 22
• Plaintiff Counsel: Wong Siew Hong (Infinitus Law Corporation)
• Year: 2003
• Defendant Counsel: Zaheer K Merchant and Leong Wai Nam (Madhavan Partnership)

1 This was an application by the Law Society of Singapore under s 98 of the Legal Profession Act (Cap 161) (‘the Act’) to make absolute an order to show cause pursuant to the Disciplinary Committee’s determination that there was cause of sufficient gravity for disciplinary action to be taken against Mr Ganesan Krishnan under s 83(1) of the Act. Having heard the submissions of counsel for the Law Society as well as those of Mr Ganesan, we were unanimously of the opinion that Mr Ganesan should be suspended from practice for a period of three years. We now give our reasons.

The facts

2 Mr Ganesan was an Advocate and Solicitor of the Supreme Court of Singapore of some 25 years’ standing, having been called to the Bar on 19 January 1977. At all material times, he was practising as a sole proprietor under the name ‘G Krishnan & Co’.

3 The present disciplinary proceedings arose out of a complaint made to the Law Society of Singapore (‘the Law Society’) by Mr Abdul Rahim bin Japri and his wife, Mdm Ayatti Binti Kepol. Mr Ganesan was initially charged with grossly improper conduct under s 83(2)(b) of the Act for falsely certifying that the complainants had appeared before him on 7 December 2000 to sign a power of attorney and that he had verified their identities when they had in fact not appeared before him. The power of attorney was in favour of Poh Keng Ann (Poh), a servant or agent of DK Credit Pte Ltd (‘DK Credit’) and gave Poh the power to act as attorney in regard to the sale of the complainants’ Housing and Development Board (‘HDB’) flat. According to the complainants, they had borrowed a total sum of $21,000 from DK Credit, a licensed moneylender, by putting up their flat as security. DK Credit appointed a housing agent to sell the complainants’ HDB flat. The complainants, however, subsequently only received about $21,000 from the sale of the flat when the sale proceeds were in fact $117,425. On enquiry, they were informed by the HDB that a power of attorney had been lodged, the execution of which had been witnessed by Mr Ganesan. It authorised Poh to collect the sale proceeds of the flat. The complainants’ position was that they had signed all loan and sales documents at the office of DK Credit and had never appeared before Mr Ganesan.

4 The charge against Mr Ganesan, however, was later amended to one of conduct unbefitting a solicitor pursuant to s 83(2)(h) of the Act based on answers that Mr Ganesan’s then counsel, Mr Hassan Almenoar, provided on 25 January 2002 to a letter dated 7 December 2001 from counsel for the Law Society, Mr Wong Siew Hong. In his letter, Mr Almenoar admitted on Mr Ganesan’s behalf that Mr Ganesan had failed to advise the complainants to seek independent legal advice when they appeared before him to execute the power of attorney. The Law Society accepted that the complainants had indeed appeared before Mr Ganesan and reformulated the charge as follows:

That you, Krishnan Ganesan, are guilty of conduct unbecoming of an advocate & solicitor in the discharge of your duties as an advocate & solicitor, contrary to s 83(2)(h) of the Legal Profession Act (Cap 161, 2000) in that you, whilst you were acting for one DK Credit Pte Ltd in preparing a power of attorney which was subsequently lodged in the Registry of the Supreme Court of Singapore as Power of Attorney No 8994 of 2000, failed to advise Mr Abdul Rahim bin Japri and Mdm Ayatti Binti Kepol, the donors of the power of attorney, to seek independent legal advice on the purport and implication of the said power of attorney.

5 Mr Ganesan pleaded guilty to the charge based on an agreed statement of facts that read as follows:

(i) The respondent, Ganesan Krishnan, is an advocate & solicitor of 25 years’ standing - having been called to the Bar on 19 January 1977.

(ii) The respondent’s client in this case is DK Credit Pte Ltd (hereinafter "DK"), a licensed moneylender. The respondent has acted for DK in a number of other transactions and DK had instructed GK [ie Mr Ganesan] to prepare a power of attorney from the complainants Mr Abdul Rahim bin Japri and Mdm Ayatti Binti Kepol in favour of one Poh Keng Ann, to empower the said Poh Keng Ann to sell the complainants’ Flat HDB Flat (sic) at 29 Balam Road #11-13 Singapore 370029 and to receive the monies from the sale. The respondent knew that the said Poh Keng Ann is (sic) a representative of DK.

(iii) Mr Abdul Rahim bin Japri and Mdm Ayatti Binti Kepol appeared before the respondent on 7 December 2000 and executed the power of attorney which had been prepared by the respondent, and which was subsequently lodged in the Supreme Court of Singapore as Power of Attorney No. 8994 of 2000.

(iv) The respondent, bearing in mind that the transaction involved an HDB flat and that DK Credit is a licensed moneylender, ought to have advised Mr Abdul Rahim bin Japri and Mdm Ayatti Binti Kepol to seek independent legal advice but had failed to do so. As such he is guilty of conduct unbecoming of an advocate & solicitor in the discharge of his duties as an advocate & solicitor, contrary to s 83(2)(h) of the Legal Profession Act (Cap 161, 2000).

The Law Society’s submissions before the Disciplinary Committee

6 The Law Society acknowledged that the damages and losses allegedly suffered by the complainants had yet to be quantified. Investigations by the police as well as the Registrar of Moneylenders were still pending. To its knowledge, the complainants had not initiated civil proceedings.

7 Nevertheless, the Law Society put forward five main submissions why Mr Ganesan should be made to show cause.

8 First, the Disciplinary Committee was obliged to refer the matter to the court of three Judges upon Mr Ganesan’s admission of guilt: Law Society of Singapore v Arjan Chotrani Bisham [2001] 1 SLR 684.

9 Second, Mr Ganesan had breached r 27 of the Legal Profession (Professional Conduct) Rules.

10 Third, Mr Ganesan failed to adhere with what the Law Society deemed would be good and prudent practice when preparing a power of attorney. Based on the authority of Royal Bank of Scotland v Etridge [2001] 3 WLR 1021, the Law Society submitted that

as a general guideline, it would be good practice for the solicitor preparing the Power of Attorney to have at the very least, a private consultation with the donor to ascertain the background of the case before him. If the facts of the case is such that the solicitor feels that independent legal advice is appropriate, he ought to advise the donor. If the donor declines this suggestion, then that advise (sic) ought to be put in writing and the donor signs, in the presence of an independent witness, that this advice has been brought to his or her attention and that he or she waives this right.

This, the Law Society submitted, would also be consistent with the spirit of r 28 of the Legal Profession (Professional Practice) Rules (sic).

11 Fourth, the Law Society submitted that Mr Ganesan knew or should have known that DK Credit was taking security over an HDB flat, especially since the documents filed by Mr Ganesan showed that he had acted for DK Credit in some 16 transactions over a period of some three months. The Law Society assumed that these transactions must have been of a similar nature. Mr Ganesan knew or should have known that the present transaction was questionable because HDB flats could not be used as security for debts (s 50 et seq of the Housing and Development Act (Cap 129).

12 Fifth, Mr Ganesan knew or should have known that DK Credit was seeking to take security in the name of its nominee, Poh, in contravention of s 8 of the Moneylenders Act (Cap 188, 1985 Ed). This would suggest that Mr Ganesan had abetted a criminal offence.

Counsel for Mr Ganesan’s submissions before the Disciplinary Committee

13 Before the Disciplinary Committee, Mr Almenoar made three submissions. First, he submitted that r 27 of the Legal Profession (Professional Conduct) Rules had no application on the facts of the case. Second, he contended that Law Society of Singapore v Arjan Chotrani Bisham [2001] 1 SLR 684 did not stand for the proposition that the Disciplinary Committee was obliged to refer the case to the court of three Judges. Third, the Disciplinary Committee should ignore any imputations of dishonesty because the charge contained no such allegation. Mr Almenoar further submitted a plea in mitigation.

The Disciplinary Committee’s determination

14 The Disciplinary Committee dismissed the Law Society’s submission that it was obliged to refer the matter to the court of three Judges on the basis that this option was only one of three offered by s 93(1) of the Act. It accepted Mr Almenoar’s submission that r 27 of the Legal Profession (Professional Conduct) Rules had no application on the facts of the case. It also refused to consider any allegations of fraudulent or dishonest behaviour because they did not form part of the charge, the Law Society’s case or the agreed statement of facts until Mr Wong made his closing submissions.

15 In deciding what sanction to impose, the...