Law Society of Singapore v Lee Suet Fern (alias Lim Suet Fern)

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 20 November 2020
• Neutral Citation: [2020] SGHC 255
• Date: 20 November 2020
• Docket Number: Originating Summons No 2 of 2020
• Published date: 25 November 2020
• Plaintiff Counsel: Koh Swee Yen and Queenie Angeline Lim Xiaoyan (WongPartnership LLP)
• Defendant Counsel: Kenneth Tan SC, Soh Wei Chi (Kenneth Tan Partnership) and Walter Woon SC (RHTLaw Asia LLP) (instructed), Vergis S Abraham and Asiyah binte Ahmad Arif (Providence Law Asia LLC)
• Hearing Date: 13 August 2020
• Court: Court of Appeal (Singapore)
• Subject Matter: Legal Profession,Professional conduct,Breach,Solicitor-client relationship

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This is an application by the Law Society of Singapore (“the Law Society”) for an order pursuant to s 98(1)(a) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) that the respondent, Mrs Lee Suet Fern (alias Lim Suet Fern) (“the Respondent”), be subject to the sanctions provided for under s 83(1) of that Act. At the time of the proceedings before the disciplinary tribunal (“the DT”), the Respondent was an advocate and solicitor of the Supreme Court of Singapore of 37 years’ standing and practised as a director of Morgan Lewis Stamford LLC, a law corporation.

After hearing the parties and considering their submissions, the DT concluded that there was cause of sufficient gravity for disciplinary action to be taken against the Respondent (see The Law Society of Singapore v Lee Suet Fern (Lim Suet Fern) [2020] SGDT 1 (“GD”)). The Law Society accordingly filed the present originating summons for this court to dispose of the matter. On the question of sanctions, the Law Society sought a striking off order against the Respondent pursuant to s 83(1)(a) of the LPA.¹

Having considered the parties’ submissions, and having reviewed the DT’s GD, we differ from certain findings made by the DT. In particular, for the reasons set out in this judgment, we consider that the Respondent did not receive instructions or directions directly from her putative client. We also do not find that there was an implied retainer between the Respondent and her putative client. Nonetheless, we agree with the DT that the Respondent is guilty of misconduct unbefitting an advocate and solicitor. Given the circumstances and nature of her misconduct, we find it appropriate to suspend the Respondent from practising as a solicitor for a period of 15 months. We now explain the reasons for our decision.

The background facts

The present application concerns the Respondent’s participation, principally on 16 and 17 December 2013, in the preparation and execution of what became the last will of her father-in-law, the late Mr Lee Kuan Yew (“the Testator”). Most of the facts before us were uncontroversial and supported by contemporaneous evidence. Where the facts were contentious, given that these are disciplinary proceedings which have the potential to adversely impact the Respondent’s livelihood and reputation, we apply the standard of proof beyond a reasonable doubt: see Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR(R) 308 (“Ahmad Khalis”) at [6], Law Society of Singapore v Wan Hui Hong James [2013] 3 SLR 221 (“James Wan”) at [46]–[52] and Law Society of Singapore v Udeh Kumar s/o Sethuraju [2013] 3 SLR 875 at [47].

The Testator’s first six wills

We begin by setting out some key events that preceded and are relevant to our ensuing discussion and analysis of the events surrounding the execution of the Testator’s last will. Between 20 August 2011 and 2 November 2012, the Testator executed six wills (referred to as the “First Will” to the “Sixth Will” respectively). Each of these was prepared by Ms Kwa Kim Li (“Ms Kwa”), a partner in the law firm, Lee & Lee. The wills reflected the Testator’s evolving wishes with regard to the bequest of his estate. Some of the key changes in the terms of his various wills are summarised below: In the First Will, which was dated 20 August 2011, the Testator granted a one-third share of his estate to each of his three children, namely, Mr Lee Hsien Loong (“Mr LHL”), Dr Lee Wei Ling (“Dr LWL”) and the Respondent’s husband, Mr Lee Hsien Yang (“Mr LHY”). It was agreed between the children that each of them would take a specific property of the Testator’s, rather than have his properties jointly held in their names.² Pursuant to this agreement, the Testator’s house at 38 Oxley Road (“the Oxley House”) was bequeathed to Mr LHL, while Dr LWL and Mr LHY received various other properties owned by the Testator. The First Will also granted Dr LWL the right to reside rent-free at the Oxley House for as long as she desired,³ and stipulated the Testator’s wish that the Oxley House be demolished either upon his passing or after Dr LWL had moved out, whichever was later (“the Demolition Clause”).⁴ In addition, there was a clause providing for the valuation of the Testator’s properties, with such valuation to be undertaken as at the date of his death (“the Valuation Clause”).⁵ In the Second Will, which was dated 21 December 2011, Dr LWL’s right to reside at the Oxley House was removed.⁶ In the Third Will, which was dated 6 September 2012, each child’s one-third share of the Testator’s estate was altered, such that Mr LHL and Mr LHY each received three shares absolutely, while Dr LWL received four shares that were held upon trust for her life, and after her death, upon trust for Mr LHL and Mr LHY in equal shares.⁷ In the Fourth Will, which was dated 20 September 2012, the Testator reverted in substance to his Second Will, such that each child’s one-third share in the estate was reinstated,⁸ save that the Valuation Clause was removed.⁹ In the Fifth Will, which was dated 4 October 2012, Dr LWL was once again granted the right to reside at the Oxley House (which had been removed in the Second Will, and which was not reinstated in the Third and Fourth Wills). However, this right was made subject to the consent of Mr LHL, who was bequeathed the Oxley House as part of his one-third share of the Testator’s estate, and, unlike the First Will, there was no mention that it was a right to reside at the Oxley House “free of rent”.¹⁰ The Demolition Clause, which had featured in the first four wills, was removed.¹¹ In the Sixth Will, which was dated 2 November 2012, the Testator changed the shares in which his estate would be left to his children. This will provided for a total of seven shares, with Mr LHL and Mr LHY to receive two shares each, and Dr LWL, three shares (1/7 more than her brothers).¹² As with the Fifth Will, there was no Demolition Clause in the Sixth Will.

It is not clear on the evidence whether the Testator’s children knew about the precise contents of each of the six wills. But, for the purposes of the present proceedings, it is not necessary for us to come to a firm view on this, save to note that it was not disputed that all three of them were aware that they were beneficiaries under each of the Testator’s wills.¹³

The circumstances surrounding the execution of the Last Will

Sometime after the execution of the Sixth Will on 2 November 2012, the Testator’s health deteriorated markedly. Between September and October 2013, he was hospitalised for an extended period with a number of medical issues, the details of which are not material.

The Testator’s discussions with Ms Kwa in late 2013

Following his discharge from hospital, the Testator initiated discussions with Ms Kwa on or around 29 November 2013 about making some changes to the Sixth Will. Certain aspects of their discussions were recorded in a series of emails beginning on 30 November 2013. In her email of that date, Ms Kwa summarised some of the key provisions of the Sixth Will. This included the bequest of the Oxley House to Mr LHL as part of his share of the estate. As noted earlier, the Testator’s children had evidently agreed that each of them would be left specific properties from the Testator’s estate, rather than have his various properties jointly held in their names. In the same email, Ms Kwa also recalled that the Testator had raised the possibility of the Oxley House becoming “de-gazetted” after his passing, in which event the value of that property might escalate. The Testator was concerned to ensure that if that happened, Dr LWL and Mr LHY should also benefit from any increased value. Ms Kwa outlined various options to address this concern.¹⁴

It appears that there were further discussions between the Testator and Ms Kwa, although these are not reflected in the email chain before us. On 12 December 2013, Ms Kwa wrote to the Testator again, noting his wish to revert to leaving equal shares of his estate to each of his children. In other words, unlike what had been provided for in the Sixth Will, Dr LWL would not be left an additional share. Ms Kwa also noted the Testator’s wish that a codicil be prepared to effect this. Ms Kwa stated that she would prepare the codicil for the Testator to sign “this week, or when [he was] ready”. Finally, she stated that “[r]egarding the Oxley [House], [she had] some thoughts and [would] call [the Testator] later” that day to discuss.¹⁵

The Testator replied to Ms Kwa on 13 December 2013 at 10.50pm, stating that “[the] codicil [was also] to specify that two carpets … go to [Mr LHY]”.¹⁶

The email correspondence between Ms Kwa and the Testator ceased with the Testator’s 10.50pm email on 13 December 2013, which was a Friday. The Respondent was not involved or copied in any of the foregoing discussions. As at 13 December 2013, which was three days before the Testator received from the Respondent a draft of what became his last will, the Testator’s professed intention that had been discussed over a two-week period with his solicitor, Ms Kwa, was to execute a codicil to his Sixth Will that would: (a) revert to leaving his estate to his three children in equal shares; and (b) make provision for two carpets to be bequeathed to Mr LHY. While there had been discussions about making provision for any escalation of the value of the Oxley House in the event that it was “de-gazetted”, there had been no discussions about replacing the Sixth Will with another will, nor about reinstating either the First Will as a whole or the Demolition Clause in particular.

The events on 16 December 2013

No evidence was led as to what transpired over the weekend of 14 and 15 December 2013. On 16 December 2013, the Respondent sent an email to the Testator at 7.08pm, copying her husband, Mr LHY,...