Law Society of Singapore v Lee Wei Ling and another

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 March 2022
• Neutral Citation: [2022] SGCA 22
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 59 of 2021
• Published date: 18 March 2022
• Year: 2022
• Hearing Date: 19 January 2022
• Plaintiff Counsel: Gregory Vijayendran SC (instructed) and P Padman (KSCGP Juris LLP)
• Defendant Counsel: Abraham S Vergis SC and Asiyah binte Ahmad Arif (Providence Law Asia LLC)
• Subject Matter: Legal Profession,Disciplinary procedures,Power of Council of Law Society,Disciplinary proceedings,Application for review of decision of Council of Law Society,Professional conduct
• Citation: [2022] SGCA 22

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

This appeal principally concerns the extent of the power of the Council of the Law Society (“the Council”) under s 87 of the Legal Profession Act 1966 (2020 Rev Ed) (“LPA”) when considering the investigation of complaints against solicitors. The appeal also raises a secondary question limited to the particular facts before us and that is whether on the evidence, a prima facie case has been established of a breach of the applicable rules of conduct in relation to a solicitor, Ms Kwa Kim Li (“Ms Kwa”) pertaining to a particular aspect of her conduct in the course of acting for a testator, Mr Lee Kuan Yew (“the Testator”), in the preparation of his wills.

Specifically, Ms Kwa, acted for the Testator and prepared six of the seven wills that he made. After the Testator’s death, the executors of his estate (“the Executors”) complained to the Law Society of Singapore (“the Law Society”) alleging that Ms Kwa had breached her duties as a solicitor. There were four complaints in all. The first complaint, which is the subject of this appeal, was that Ms Kwa had failed to adhere to the Testator’s instructions to physically destroy each of the six earlier wills, as and when they were superseded by a subsequent will, and specifically by the final will which is the seventh will (see below at [6]) (“the First Complaint”).

In relation to the First Complaint, the Inquiry Committee (“IC”) convened by the Law Society initially recommended in its first report (“the First IC Report”) that the First Complaint be referred to a Disciplinary Tribunal (“DT”) for a formal investigation. After considering that report, the Council referred the matter back to the IC for reconsideration in the light of certain questions raised by the Council. The IC, having reconsidered the matter, changed its view and instead, in its second report (“the Second IC Report”), recommended that the First Complaint be dismissed. The Executors were dissatisfied with this and so applied to the High Court for an order that the Council be directed to refer the First Complaint to the DT. The crux of the Executors’ complaint before the High Court Judge (“the Judge”) was that the Council had no power to pose further queries to the IC or to invite the IC to reconsider the matter once the IC had made a determination that the matter should proceed to the DT. On this basis and, in any case, also on their view of the evidence before the IC, the Executors contended that the IC’s findings in the First IC Report should be adopted and that the First Complaint should be referred to a DT for a formal investigation.

The Judge allowed the application in Lee Wei Ling and another v Law Society of Singapore [2021] SGHC 87 (“Lee Wei Ling HC”). The Judge found that the Council did not have the power to refer to the IC, further questions for the IC’s reconsideration of a matter, once the IC had made a determination that the matter should proceed to the DT. Accordingly, the Second IC Report should not have been issued at all or been acted upon by the Council. The Judge also found, in any case, that there was a prima facie case of sufficient gravity such that the First Complaint should be referred to a DT (Lee Wei Ling HC at [55] and [63]).

The Law Society appealed against the Judge’s decision with respect to the First Complaint. Having heard the parties’ submissions on appeal, we have come to the conclusion, with respect, that the Judge erred. We are satisfied that in such circumstances, the Council is entitled to pose further queries to the IC, and to invite its reconsideration of the matter. Further, having reviewed the evidence, we are also satisfied that the Council was correct to accept the recommendation in the Second IC Report that there is no prima facie case of sufficient gravity with respect to the First Complaint. We therefore allow the appeal in its entirety. In this judgment, we explain our reasons for coming to these conclusions.

Background

Ms Kwa, as the Testator’s solicitor, prepared a total of six wills (“the Wills”) for the Testator between 20 August 2011 and 2 November 2012. Ms Kwa was not involved in the preparation of the Testator’s last will (“the Seventh Will”). That was prepared for execution by the Testator, by or under the supervision of Ms Lee Suet Fern, who was the Testator’s daughter-in-law and wife of one of the Executors, Mr Lee Hsien Yang. The Seventh Will was executed on 17 December 2013. The Testator passed away on 23 March 2015. The executors of the Testator’s estate (“the Estate”) are two of his three children, Dr Lee Wei Ling and Mr Lee Hsien Yang (as the appeal against Dr Lee has been withdrawn, we shall refer to Mr Lee Hsien Yang as the Respondent). The Executors, along with the Testator’s other child, Mr Lee Hsien Loong, are the beneficiaries of the Estate. On 5 September 2019, the Executors lodged four complaints with the Law Society against Ms Kwa’s conduct in connection with the preparation of the Wills.

The four complaints alleged as follows: The First Complaint: Ms Kwa failed to comply with the Testator’s specific instructions to destroy the Wills; The Second Complaint: Ms Kwa had wrongfully disclosed privileged and confidential documents to Mr Lee Hsien Loong without the approval of the Executors, by way of her letters dated 4 and 22 June 2015 to all the Beneficiaries; The Third Complaint: Ms Kwa failed to keep proper contemporaneous records of all the instructions that were given by the Testator to her and all the advice that she rendered to the Testator; and The Fourth Complaint: Ms Kwa had given the Executors a false and misleading impression in her letters dated 4 and 22 June 2015, by omitting to mention certain discussions between her and the Testator in November and December 2013.

The Law Society convened the IC to examine these complaints. The IC found unanimously, in the First IC Report dated 8 May 2020, that: the First and Second Complaints had been made out on a prima facie standard, and should be referred to a DT for further investigations; and the Third and Fourth Complaints were not made out on a prima facie standard and should be dismissed.

Following the IC’s recommendations, the Council considered that it was empowered to remit the matter to the IC for reconsideration and so, pursuant to s 87(1)(d) of the LPA, it remitted the matter to the IC for further consideration on 3 July 2020, raising the following queries in respect of the First and Second Complaints: The First Complaint: The Council inquired whether “the IC considered if there is a distinction between destruction of a will and something that goes towards invalidation of a previous will”. The Council also asked that the IC “consider the subject of the solicitor keeping a record of that will for the purposes of their own file copy”, and whether there would be any wrongdoing by a solicitor who had complied with the client’s intention to revoke a will, but had not complied with an instruction to destroy all copies of that will if the solicitor wished to maintain a file copy of the same for the solicitor’s own records. The Second Complaint: The Council asked if the IC had considered whether there was a “waiver of privilege by reason of the [Executors’] making Facebook/social media posts”.

The IC subsequently issued its Second IC Report dated 3 August 2020, maintaining by a majority its original position that the Second Complaint be referred to a DT. In respect of the First Complaint, the IC held a hearing on 22 July 2020 to hear Ms Kwa’s responses to certain matters raised with her. The IC then concluded unanimously in the Second IC Report that the First Complaint be dismissed on the basis that the documentary evidence failed to demonstrate that the Testator had “expressly intended for all of his prior Wills to be physically destroyed or torn apart by [Ms Kwa]”.

The Law Society then wrote to the Executors on 7 September 2020, informing them of the Council’s acceptance of the IC’s findings, and its recommendation that a formal investigation by a DT was not necessary save in respect of the Second Complaint.

The Executors, being dissatisfied with the dismissal of the First, Third and Fourth Complaints, sought an order in the High Court to direct the Law Society to apply to the Chief Justice for the appointment of a DT for a formal investigation into the conduct of Ms Kwa in relation to each of those complaints. As stated above at [5], the present appeal centers around the First Complaint.

Relevant legal provisions

The key issue of this appeal revolves around the interpretation of s 87 of the LPA, which provides as follows:

Council’s consideration of report

87.—(1) The Council must consider the report of the Inquiry Committee and according to the circumstances of the case shall, within one month of the receipt of the report, determine — (a) that a formal investigation is not necessary; (b) that, while no cause of sufficient gravity exists for a formal investigation, the regulated legal practitioner should be — (i) ordered under section 88 to pay a penalty that is sufficient and appropriate to the misconduct committed; (ii) reprimanded or given a warning; (iii) ordered to comply with one or more remedial measures; or (iv) subjected to the measure in sub-paragraph (iii) in addition to the measure in sub-paragraph (i) or (ii); (c) that there should be a formal investigation by a Disciplinary Tribunal; or (d) that the matter be referred back to the Inquiry Committee for reconsideration or a further report. (1A) Where the Council has determined under subsection (1)(d) that a matter be referred back to the Inquiry Committee for reconsideration or a further report — (a) the Council must notify the Inquiry Committee accordingly; (b) the...