Law Society of Singapore v Nalpon, Zero Geraldo Mario

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 12 April 2022
• Neutral Citation: [2022] SGHC 81
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summons No 4 of 2021
• Year: 2022
• Published date: 16 April 2022
• Hearing Date: 19 January 2022
• Plaintiff Counsel: Yeap Poh Leong Andre SC and Timothy Ng Xin Zhan (Rajah & Tann Singapore LLP)
• Defendant Counsel: Zero Geraldo Mario Nalpon (Nalpon & Co)
• Subject Matter: Legal Profession,Contempt of court,Disciplinary proceedings,Professional conduct,Breach,Grossly improper conduct,Show cause action
• Citation: [2022] SGHC 81

Chao Hick Tin SJ (delivering the judgment of the court): Introduction

This is an application by the Law Society of Singapore (“the Law Society”) pursuant to s 98(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) for an order that Mr Zero Geraldo Mario Nalpon (“Mr Nalpon”) be made to suffer punishment under s 83(1) of the LPA for his conduct in relation to Magistrate’s Appeal No 9269 of 2018 (“the MA”) and subsequent events. Mr Nalpon is an advocate and solicitor of 26 years’ standing and is the sole proprietor of Nalpon & Co. Disciplinary Tribunal 1 of 2020 (“the DT”), which was convened to investigate the complaints against Mr Nalpon, found him guilty of the charges preferred by the Law Society and determined that cause of sufficient gravity for disciplinary action existed under s 83 of the LPA.

Arising from the facts of this case are three important questions: first, the proper procedure to be followed when the disciplinary process is initiated by a complaint made by the Attorney-General (“the AG”) as prescribed in s 85(3)(b) of the LPA; second, the propriety of publishing social media posts relating to pending court proceedings; and third, whether (and if so when) non-compliance with a civil costs order may amount to a disciplinary breach.

Criminal proceedings against Mr Nalpon’s client

Mr Nalpon acted for the accused in the case Public Prosecutor v Lim Chee Huat [2018] SGDC 272, where on 5 September 2018 District Judge Mathew Joseph (“the DJ”) convicted the accused on a charge of drug consumption under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). On 12 September 2018, the accused filed his notice of appeal against his conviction and sentence. In view of the notice of appeal filed, the DJ wrote and released his written Grounds of Decision on 18 October 2018 (hereinafter referred to as “the DJGD”). The appeal (hereafter referred to as “the Magistrate’s Appeal” or “the MA”), at which Mr Nalpon again represented the accused, was heard on 1 March 2019 by a Judge of the General Division of the High Court (“the Judge”). On 24 May 2019, the Judge dismissed the accused’s appeal in Lim Chee Huat v Public Prosecutor [2019] 5 SLR 433 (“HC Judgment”). However, the Judge found that the DJ had failed to fully appreciate the material that was tendered before him, as there was substantial reproduction of the Prosecution’s submissions in the DJGD and an absence of an assessment of the submissions from both sides, such that the Judge could not accord any deference to the DJ’s findings (HC Judgment at [52]–[56]).

In February 2019 and again in May 2019, Mr Nalpon published material relating to the MA proceedings on a “Public” Facebook group named “Law Society versus Zero Nalpon” (“the Facebook Group”). These acts formed the subject of the first charge against Mr Nalpon (“the First Charge”).

Non-publication direction and costs order against Mr Nalpon

On 21 February 2019, leave was granted to the AG to issue a non-publication direction under s 13(1) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”) directing Mr Nalpon to cease publishing the material he had published on the Facebook Group in February 2019 (“the NPD”). Mr Nalpon removed this material on 23 February 2019.

Mr Nalpon’s application to set aside the NPD was dismissed on 29 April 2019 and, pursuant to an order made on the same date, he was ordered to pay the AG’s costs fixed at $2,600, inclusive of disbursements (“the Costs Order” and “the Costs”). On 7 June 2019, Mr Nalpon provided a cheque to the Attorney-General’s Chambers (“AGC”), made payable to “The Attorney-General”. Several days later, on 13 June 2019, a Deputy Public Prosecutor (“DPP”), Mr Senthilkumaran Sabapathy (“Mr Sabapathy”), informed Mr Nalpon that the cheque would need to be re-issued and made out to the “Attorney-General’s Chambers”, or, in the alternative, Mr Nalpon could make payment of the Costs in cash in person to an authorised representative of the AG at the AGC. Mr Nalpon did neither. However, at the hearing before us, we were informed by the parties that Mr Nalpon had made payment of the Costs in December 2021. This was done by means of an un-crossed cheque made in favour of “The Attorney-General” on 29 December 2021, which was encashed into the AGC’s bank account on 11 January 2022.

Mr Nalpon’s (initial) non-payment of the Costs and related publications on the Facebook Group formed the subject of the second charge against him (“the Second Charge”).

Complaints

On 17 and 20 June 2019, pursuant to s 85(3)(b) of the LPA, two complaints against Mr Nalpon (each a “Complaint”, and collectively, “the Complaints”) were lodged with the Law Society, with a further request that the matters be referred to a Disciplinary Tribunal. The Complaints, written under the AGC’s letterhead, set out the facts giving rise to the First and Second Charges. Paragraphs 1 and 2 of each Complaint stated that the “Attorney-General” referred the complaint to the Law Society and requested for the matter to be referred to a Disciplinary Tribunal. Both Complaints were signed off by Mr Tan Kiat Pheng, the Chief Prosecutor of the AGC (“CP Tan”), in the following manner:

TAN KIAT PHENG

CHIEF PROSECUTOR

for and on behalf of the ATTORNEY-GENERAL

SINGAPORE

Charges

The Law Society initially proceeded on only the First Charge, an alternative to the First Charge (which is not material for present purposes), and the Second Charge. The details of these two charges are as follows: The First Charge, which was brought under s 83(2)(b) of the LPA and cited r 13 of the Legal Profession (Professional Conduct) Rules 2015 (“the PCR”), related to Mr Nalpon’s alleged publication of material concerning the MA proceedings which amounted to a contempt of court and/or was calculated to interfere with a fair trial of the case and/or prejudice the administration of justice. The Second Charge, which was brought under s 83(2)(h) of the LPA, related to Mr Nalpon’s alleged wilful failure to comply with the Costs Order; Mr Nalpon’s publication of a false allegation that the AGC had requested for payment to be made to a separate entity other than the AG; and Mr Nalpon’s publication of the exchange of correspondence between himself and the AGC on this matter.

On 9 March 2020, Mr Nalpon filed a preliminary application to the DT seeking an order to strike out the Complaints. On 16 March 2020, Mr Nalpon filed his Defence in the DT proceedings.

According to the Law Society, on or around 9 March 2020, it came to the attention of its director, Mr K Gopalan (“Mr Gopalan”), that Mr Nalpon had allegedly published material relating to the DT proceedings on the Facebook Group from January to March 2020. In publishing this material, Mr Nalpon had also made several comments regarding the DT proceedings and the parties involved therein.

On 10 April 2020, the Law Society applied for leave to amend its Statement of Case to prefer the following additional charges against Mr Nalpon relating to these further publications and comments (“the Third and Fourth Charges”): The third charge (brought under s 83(2)(b) and, in the alternative, s 83(2)(h) of the LPA), which related to Mr Nalpon’s alleged publication of material concerning the DT proceedings which was calculated to interfere with the fair trial of a case and/or prejudice the administration of justice, in breach of the Law Society’s Practice Direction 6.1.1 on Media Comments and Internet / Social Media Posts (“PD 6.1.1”) and/or r 13 of the PCR. The fourth charge (brought under s 83(2)(b), and in the alternative, s 83(2)(h) of the LPA), which related to Mr Nalpon’s alleged publication of material containing adverse and/or discourteous remarks on the conduct or character of the Law Society, its solicitors, the DT Secretariat and/or the DT, in breach of PD 6.1.1 and/or r 13 of the PCR.

Disciplinary proceedings and the DT’s determination

On 19 October 2020, the DT dismissed Mr Nalpon’s striking out application, but granted the Law Society’s application for leave to amend its Statement of Case (“the DT’s Decision”).

Thereafter, the hearing before the DT took place on 14 and 15 December 2020 (“the DT Hearing”). At the close of the Law Society’s case, Mr Nalpon made a submission of no case to answer on two grounds: (a) first, that the proceedings were void because the wrong party had filed the Complaints (namely, CP Tan instead of the AG), in breach of s 85(3)(b) of the LPA; and (b) second, that the complainant was not called to give evidence and most of the documents (including the Complaints) had not been admitted into evidence.

The DT rejected Mr Nalpon’s submission of no case to answer as it was satisfied that the Law Society had established a prima facie case apropos each of the Charges. The DT then invited Mr Nalpon to enter his defence, but he declined to give any evidence-in-chief, and the proceedings were thereafter brought to a close.

In its report dated 14 June 2021 (“the DT’s Report”), the DT set out its grounds for rejecting Mr Nalpon’s submission of no case to answer, and found Mr Nalpon guilty on all four charges (without making any findings on their alternatives). The DT determined that cause of sufficient gravity for disciplinary action existed under s 83 of the LPA.

The parties’ cases

The Law Society submits that the DT’s determination should be affirmed, and urges this court to find that cause of sufficient gravity for disciplinary action under s 83 of the LPA exists in respect of each of the four charges. It seeks sanctions of “the highest and most severe level” against Mr Nalpon under s 83(1) of the LPA, to properly reflect the true severity of his misconduct.

Mr Nalpon’s main submissions in response can be summarised as follows: First, that the Complaints are void because they were not filed by the AG in compliance with s 85(3)(b) of the LPA. Second, that the...