Law Society of Singapore v Yeo Khirn Hai Alvin

• Judge: Valerie Thean J
• Judgment Date: 08 January 2020
• Court: High Court (Singapore)
• Docket Number: Originating Summonses Nos 810 and 812 of 2019
• Date: 08 January 2020

Law Society of Singapore

and

Yeo Khirn Hai Alvin and another matter

[2020] SGHC 3

Valerie Thean J

Originating Summonses Nos 810 and 812 of 2019

High Court

Legal Profession — Disciplinary procedures — Whether review applications out of time — Whether s 91A Legal Profession Act (Cap 161, 2009 Rev Ed) was a strict time-limited ouster clause — Whether court had power to grant extension of time — Whether extension of time should be granted — Section 91A Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Disciplinary proceedings — Complaint made against lawyer — Whether complaint included mental capacity issues or limited to overcharging — Whether charges addressed mental capacity issues

Legal Profession — Disciplinary proceedings — Exercise of statutory duties — Whether Law Society fulfilled duty to frame charges that reflected gravamen of complaint — Whether disciplinary tribunal fulfilled duty to hear and investigate complaint — Whether determination should be set aside on ground of illegality — Sections 93(1) and 97(4)(b)(ii) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Disciplinary proceedings — Whether fresh hearing should be ordered — Whether new disciplinary tribunal should be appointed

Held, setting aside the Determination and directing the Law Society to apply to the Chief Justice for the appointment of another disciplinary tribunal to hear and investigate the Complaint:

(1) The Complaint included mental capacity issues and was not limited to overcharging. This was evident from the text of the Complaint, read in context with the correspondence leading to the Complaint which was enclosed. Specifically, the mental capacity issues concerned the adequacy of the steps taken by the respondent and WP to ensure that Mdm A was capable of instructing WP and agreeing to the fees charged by WP: at [33] and [49].

(2) The charges did not engage the mental capacity issues and it followed that the DT would not have heard and investigated these issues. It was apparent from the face of the Determination that the mental capacity issues were not investigated. This stemmed in part from the DT's determination that mental capacity issues were not within the scope of the Complaint, and the Law Society's decision to withdraw the charges pertaining to Mdm A's mental capacity. Furthermore, counsel for the Law Society accepted that the Law Society's case was run on the basis that evidence of mental capacity was not relevant to the proceedings before the DT: at [50] and [51].

(3) Section 93(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) stipulated that a DT was required to hear and investigate the “matter” referred to it. The “matter” that had to be heard and investigated was the complaint, and in a typical case, it was assumed that the matter would be the complaint as properly framed by the Law Society in the charge. The Law Society had a concomitant duty to frame charges that reflected the gravamen of the complaint and that were within the scope of the complaint. Where the Law Society had erred in framing the charge, the DT's determination was liable to be set aside: at [59], [66(a)], [77] and [78].

(4) The DT had a duty to hear and investigate the complaint. The DT also had a duty to hear and investigate the charges. The two duties were not mutually exclusive and were complementary to one another, as it was to be expected that the charges reflected the gravamen of the complaint and fell within the scope of the complaint: at [66(b)].

(5) The charges did not reflect the gravamen of the Complaint. The mental capacity charges were withdrawn by the Law Society and, in any event, did not accurately reflect the mental capacity issues that the CA were concerned with: at [79(a)] and [83].

(6) The charges were also based on the wrong edition of the PCR. It was the PCR 2010, and not the PCR 2015, that was applicable as the substance of the conduct that was to be heard and investigated by the DT occurred before the PCR 2015 was in force: at [87].

(7) Since the charges were erroneous, it followed that the Determination was also erroneous and this sufficed to set aside the Determination: at [79(a)].

(8) In addition, as the charges were defective and did not reflect the substance of the Complaint, the DT lacked jurisdiction in hearing and investigating the charges and making a determination thereon. A second aspect of the DT's misapprehension of its jurisdiction was that it had made an erroneous determination that mental capacity issues were not within the scope of the Complaint: at [79(b)].

(9) The ground of irrationality was not applicable as the charges were wholly defective and the Law Society's case was run on the basis that evidence of Mdm A's mental capacity was not relevant to the proceedings before the DT. Similarly, the ground of procedural impropriety was not applicable. It was not tenable to suggest that the DT refused to hear such evidence when the Law Society did not proffer the evidence: at [94] and [97].

(10) The analysis of whether there was overcharging had to take into account the mental capacity issues. Since the issues were not distinct, the Determination had to be set aside in full: at [52] and [98].

(11) A fresh hearing would be consistent with the legislative framework and the public interest that complaints against lawyers be fully heard and investigated: at [99].

(12) A new DT should be appointed to hear and investigate the matter. While there was no doubt that the same DT would conscientiously consider the matter afresh if the matter was remitted to it, there could be a wider issue of public perception if the same DT in such circumstances reached the same conclusion. It followed from this rationale that fresh counsel should be appointed to represent the Law Society, who would be required to adduce material evidence pertaining to the mental capacity issues and run the Law Society's case on that new basis: at [103].

(13) The 14 days' time window for the AG to bring a review application under s 97(1) of the LPA did not start running from the time the judicial office holder was notified of the determination. The word “including” in s 92 of the LPA implied that the AG stood as a separate individual to the judicial office holder: at [109].

(14) Under the timeframe provided by the LPA, the Law Society ought to have notified the AG of the Determination by 12 June 2019 and the AG was required to file the application by 26 June 2019. Since the AG brought OS 812/2019 on 25 June 2019, the AG did not require an extension of time: at [112].

(15) There was no dispute that the Law Society required an extension of time to bring OS 810/2019. In this regard, s 91A of the LPA was not a strict time-limited ouster clause which prevented the court from exercising jurisdiction if the application was brought outside the 14 days' time window. Section 91A of the LPA referred to ss 82A and 98 and both provisions did not contain any time limits. The legislative purpose of s 91A was simply to defer judicial review, such that a DT's findings and determination could only be reviewed after the proceedings were completed: at [118] to [120].

(16) The court had the power to grant an extension of time. This power was derived from s 18 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) read with para 7 of the First Schedule. The powers stated in the First Schedule were applicable notwithstanding that the court was exercising its disciplinary jurisdiction under Pt VII of the LPA rather than its civil jurisdiction under ss 16 and 17 of the SCJA: at [129] and [131].

(17) In determining if an extension of time should be granted, it was relevant to consider the factors which an appellate court would consider when deciding whether to grant an extension of time to appeal against a decision of the lower court. This was because a DT's determination was made after a trial on charges and this was similar to court proceedings. In addition, in a s 97 review application, the applicant could also seek to invoke the court's appellate jurisdiction. The same criteria should apply whether an applicant in a s 97 review application sought to invoke the court's supervisory and/or appellate jurisdiction, for reasons of coherence and consistency: at [134].

(18) The relevant factors were the length of the delay, the reasons for the delay, the merits of the application and the prejudice to the respondent if the extension of time was to be granted. In the present case, although there was a delay of close to two weeks, there were strong merits to the application to set aside the Determination. Further, the court was also entitled to take into account the prejudice to the applicant and the public interest. This was particularly relevant given the public interest in regulating advocates and solicitors who might be guilty of misconduct. Accordingly, the Law Society was granted an extension of time to file OS 810/2019: at [135] and [137].

Case(s) referred to

ARW v Comptroller of Income Tax [2019] 1 SLR 499 (refd)

BKR, Re [2015] 4 SLR 81 (refd)

Board of Education v Rice [1911] AC 179 (refd)

Chia Shih Ching James v Law Society of Singapore [1985–1986] SLR(R) 209; [1984–1985] SLR 53 (refd)

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (refd)

Deepak Sharma v Law Society of Singapore [2016] 4 SLR 192 (refd)

Law Society of Singapore v Disciplinary Committee [2000] 2 SLR(R) 886; [2000] 4 SLR 413 (refd)

Law Society of Singapore, The v Jasmine Gowrimani d/o Daniel [2009] SGDT 6 (refd)

Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 (refd)

Law Society of Singapore, The v Ravi Madasamy [2006] SGDSC 8 (refd)

Law Society of Singapore v Ravi Madasamy [2007] 2 SLR(R) 300; [2007] 2 SLR 300 (refd)

Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (refd)

Law Society of Singapore, The v Yeo Khirn Hai Alvin [2019] SGDT 3 (refd)

...