Law Society of Singapore v Chia Chwee Imm Helen Mrs Helen Thomas

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 June 2021
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1163 of 2020

Law Society of Singapore

and

Chia Chwee Imm Helen Mrs Helen Thomas

[2021] SGHC 140

Sundaresh Menon CJ

Originating Summons No 1163 of 2020

General Division of the High Court

Legal Profession — Disciplinary procedures — Complaint against respondent being investigated by Inquiry Committee — Inquiry Committee finding that respondent's misconduct was committed when she did not have practicing certificate — Whether Law Society had standing to make application under s 82A Legal Profession Act (Cap 161, 2009 Rev Ed) for leave to investigate complaint of misconduct against non-practicing solicitor — Section 82A Legal Profession Act (Cap 161, 2009 Rev Ed)

Held, allowing the Present Application:

(1) There was no merit in the Respondent's procedural objection. The Law Society, in addition to the Client, had standing to bring the Present Application under s 82A of the LPA. This conclusion rested on four prongs: at [21].

(2) First, it appeared from a plain reading of the relevant provisions of the LPA and the Legal Profession (Disciplinary Tribunal) Rules (2010 Rev Ed) (“the DT Rules”) that there were no limits on the categories of persons who could make an application under s 82A of the LPA; nor, specifically, was there any basis in those provisions to exclude the Law Society from making such an application: at [25] to [28].

(3) Second, although the Respondent was correct in contending that the Law Society had no disciplinary control over non-practising solicitors, this meant only that the Law Society could not, of its own motion, commence disciplinary proceedings against such solicitors in the same way that it could, of its own motion, commence disciplinary proceedings against practising solicitors. Instead, the Chief Justice's leave had to be obtained before disciplinary proceedings against non-practising solicitors could be initiated. This was conceptually distinct from the question of the Law Society's standing to bring an application under s 82A of the LPA for leave to investigate a non-practising solicitor's alleged misconduct. In fact, that the Law Society had to make such an application was consistent with the legislative intent behind the enactment of s 82A, which was to vest disciplinary control over non-practising solicitors in the Chief Justice: at [31] to [33].

(4) Third, there was a line of established authorities where, on the application of the Law Society under s 82A of the LPA, leave was granted for a DT to be convened to investigate a non-practising solicitor's alleged misconduct: at [34].

(5) Fourth, the purpose of disciplinary proceedings against both practising and non-practising solicitors was to secure the high standards and good reputation of the legal profession. Consistent with this, the Law Society's statutory purposes included: (a) maintaining and improving the standards of conduct and learning of the legal profession; and (b) protecting and assisting the public in all matters relating to the law. To advance these statutory purposes, it was logical to hold that the Law Society was able to bring applications under s 82A of the LPA for leave to investigate complaints of misconduct against non-practising solicitors, especially where the putative client of the solicitor concerned (“the putative client”) was unwilling or unable to do so: at [37], [38], [41] and [42].

(6) As the relevant provisions of the LPA and the DT Rules did not appear to limit the categories of persons who could make an application under s 82A of the LPA, persons other than the Law Society and the putative client would conceivably also be able to make such an application. This could give rise to vexatious applications by “busybodies” having little to no connection with the non-practising solicitor concerned. One possible safeguard against this potential for abuse would be to impose a requirement of “sufficient interest” before an application under s 82A could be made. Both the Law Society and the putative client, and also at least the Attorney-General, would be taken to have a “sufficient interest” in this regard: at [28], [39] and [43].

(7) Applying the two-step framework for determining whether leave should be granted for an investigation to be made into a non-practising solicitor's alleged misconduct, both steps clearly led to the conclusion that the Present Application should be allowed: at [48].

(8) At the first step of the framework, there was a prima facie case for an investigation into the Client's complaint in relation to two distinct acts of misconduct: (a) the Respondent's contravention of s 33 of the LPA by falsely pretending to be authorised to act as an advocate and solicitor between 17 December 2016 and 30 May 2018, when she was in fact an undischarged bankrupt and thus disqualified from holding a practising certificate; and (b) the Respondent's acceptance of the loans from the Client and her mother, which prima facie constituted misconduct under s 83(2)(h) of the LPA and possibly also contravened r 23 of the Legal Profession (Professional Conduct) Rules 2015: at [50] to [55].

(9) At the second step of the framework, there were four factors in favour of granting leave to investigate the Client's complaint: (a) the severity of the allegations of misconduct and the strength of the evidence against the Respondent; (b) the lack of any delay on the Law Society's part in taking out the Present Application; (c) the absence of prejudice to the Respondent from the prior proceedings before the IC, which were separate and distinct from the Present Application; and (d) the lack of any evidence to substantiate the Respondent's claim that she had been suffering from depression at the material time, which claim should in any event be left to be considered by the DT when it was empanelled: at [56] to [61].

Case(s) referred to

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

Fordham, Michael QC, Re [2015] 1 SLR 272 (refd)

Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR(R) 308; [2006] 4 SLR 308 (refd)

Law Society of Singapore v Gopalan Nair [2011] 4 SLR 607 (refd)

Law Society of Singapore v Heng Guan Hong Geoffrey [1999] 3 SLR(R) 966; [2000] 1 SLR 361 (refd)

Law Society of Singapore v Mahadevan Lukshumayeh [2008] 4 SLR(R) 116; [2008] 4 SLR 116 (folld)

Law Society of Singapore v Ravi s/o Madasamy [2015] 3 SLR 1187 (folld)

Nalpon Zero Geraldo Mario, Re [2012] 3 SLR 440 (refd)

Parti Liyani, Re [2020] 5 SLR 1080 (folld)

Salwant Singh s/o Amer Singh, Re [2019] 5 SLR 1037 (folld)

Weare, a Solicitor, Re; Re The Solicitors Act, 1888[1893] 2 QB 439 (refd)

Facts

The Law Society of Singapore (“the Law Society”) applied under s 82A of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) for leave to investigate a complaint of misconduct against the respondent (“the Respondent”), who was a non-practising solicitor at the material time, and for a Disciplinary Tribunal (“DT”) to be appointed for that purpose (“the Present Application”).

The Present Application originated from a complaint made to the Law Society by a former client of the Respondent (“the Client”). The complaint was founded on, among other things, the fact that between 17 December 2016 and 30 May 2018, the Respondent was an undischarged bankrupt and therefore did not have a practising certificate.

According to the Client, she was unaware of this when she engaged the Respondent in or around December 2016 to advise and represent her in matrimonial proceedings concerning the care and custody of her child. It was only on 18 December 2017, just over a week before the Client's care and custody application was to proceed to mediation, that the Respondent informed the Client that she was an undischarged bankrupt, and was therefore unable to represent the Client in the mediation. As the Client was anxious to have the Respondent represent her, she purportedly agreed to lend the Respondent a sum of $40,000 to enable the Respondent to discharge her bankruptcy so that she could continue to represent the Client. Approximately two months later, in February 2018, the Respondent also allegedly borrowed a sum of $20,000 from the Client's mother.

As things turned out, the mediation of the Client's care and custody application did not take place because the Respondent could not attend on the Client's behalf, and the application was instead fixed for hearing. Unknown to the Client, at the time the application was subsequently heard in April 2018, the Respondent was still an undischarged bankrupt and did not have a valid practising certificate. Another lawyer from the firm at which the Respondent claimed to be practising, rather than the Respondent herself, thus appeared on the Client's behalf at the hearing. The application failed at first instance.

Subsequently, the relationship between the Client and the Respondent deteriorated as a result of the Respondent's failure to repay the loans from the Client and her mother, as well as the Client's unhappiness over the Respondent's handling of her care and custody application. In September 2018, the Client engaged new solicitors to handle her appeal in respect of that application. The appeal concluded successfully in August 2019, and in September 2019, the Client lodged a complaint against the Respondent with the Law Society.

As the Law Society thought that the Client's complaint had been made against the Respondent in her capacity as a regulated legal practitioner, an Inquiry Committee (“IC”) was constituted in December 2019. The IC found that the Respondent had breached s 33 of the LPA by falsely pretending that she was duly authorised to practise as an advocate and solicitor between December 2016 and May 2018, when she did not in fact have a valid practising certificate. Because the Respondent was not authorised to practise as an advocate and solicitor during this period, the IC did not make further findings on the other matters complained of by the Client, especially in relation to...