Law Society of Singapore v CNH

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 15 September 2021
• Neutral Citation: [2021] SGHC 212
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summons No 3 of 2021 (Summons No 1 of 2021)
• Published date: 18 September 2021
• Year: 2021
• Hearing Date: 06 September 2021
• Plaintiff Counsel: Ramesh s/o Selvaraj and Afzal Ali (Allen & Gledhill LLP)
• Defendant Counsel: The respondent absent.
• Subject Matter: Legal Profession,Disciplinary procedures,Civil Procedure,Service
• Citation: [2021] SGHC 212

Sundaresh Menon CJ (delivering the grounds of decision of the court):

The respondent is a solicitor who committed sexual offences against his colleague while he was a legal associate at a local law firm (the “Firm”). He pleaded guilty to and was convicted of two offences under s 509 of the Penal Code (Cap 224, 2008 Rev Ed) for insulting the modesty of his colleague. Subsequently, a disciplinary tribunal (“DT”) was convened under the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”), which found that there was cause of sufficient gravity to refer the matter to this Court. The Law Society of Singapore (the “Law Society”) then brought proceedings to establish that pursuant to s 83(2)(h) of the LPA, the respondent was guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession, and for the respondent to show cause as to why he ought not to be made to suffer one or more of the punishments provided for in s 83(1) of the LPA (the “Show Cause Proceedings”).

Arising out of the Show Cause Proceedings, the Law Society made the present application pursuant to s 98(2) of the LPA for an order for substituted service of a copy of the Originating Summons filed to commence the Show Cause Proceedings and the supporting affidavit filed therein (the “Documents”) by posting a copy of the same together with the order for substituted service at the respondent’s last known address. At the conclusion of the hearing, we allowed the Law Society’s application. We now provide the full grounds for our decision.

Factual background

The respondent was admitted to the roll of advocates and solicitors on 27 August 2016 and was in the employ of the Firm as a legal associate at the material time.

On 8 June 2020, the respondent pleaded guilty to and was convicted of sexual offences committed against a female colleague when he was a legal associate with the Firm in 2017. According to his mitigation plea filed for the purposes of sentencing, the respondent had become employed in Indonesia as an in-house counsel of a listed company from January 2020 onwards. The respondent was sentenced to four weeks’ imprisonment.

On 16 June 2020, pursuant to s 85(3) of the LPA, the Law Society received information referred to it by the Attorney-General touching upon the respondent’s conduct, together with the Attorney-General’s request that the matter be referred to a DT. On 1 September 2020, the Law Society wrote to the Chief Justice for a DT to be appointed. On 3 September 2020, the Chief Justice appointed the DT to investigate and hear the matter against the respondent.

On 2 October 2020, the Law Society sought to serve a list of the documents that it intended to rely on in the hearing before the DT at the respondent’s last known residential address (the “Premises”). This information was obtained by the Law Society from the respondent’s application made on 19 December 2017 for a Practising Certificate for Practice in a Singapore Law Practice for the year ending 31 March 2018, as well as a similar application made on 3 April 2019 for the year ending 31 March 2020. Both applications were made pursuant to s 25 of the LPA and filed with the Registrar of the Supreme Court. So too, were the Premises reflected as the respondent’s residential address in a Notice of Charge of Particulars (the “Notice”) filed sometime in 2017, informing that he had ceased practice with the Firm with effect from 16 November 2017. When service was sought to be effected, the respondent was not present at the Premises. Instead, an elderly couple informed the process server that they were the respondent’s parents, that the respondent was away from Singapore, and that they did not know when he would return. They accepted the list of documents and the accompanying cover letter but refused to sign the acknowledgment.

On 23 November 2020, the hearing before the DT was held. The respondent was neither present nor represented when his matter was heard by the DT. The DT was satisfied that the documents relied on by the Law Society in the DT proceedings had been duly served on the respondent pursuant to r 6 of the Legal Profession (Disciplinary Tribunal) Rules (2010 Rev Ed) and had been brought to his knowledge and attention. On the Law Society’s application, the DT accordingly proceeded with the hearing in the absence of the respondent.

On 8 February 2021, the DT found that the respondent’s conduct against his colleague established cause of sufficient gravity for disciplinary action under s 83(2)(h) of the LPA.

On 8 March 2021, the Law Society commenced the Show Cause Proceedings.

Leading up to and even after the present application for substituted service was filed on 16 April 2021, the Law Society had unsuccessfully attempted to effect personal service of the Documents on the respondent on the following occasions at the Premises: on 10 March 2021, at around 8.45pm; on 11 March 2021, at around 7.00pm; on 15 March 2021, at around 10.50am and 11.20am; on 15 March 2021, at around 11.20am; and on 18 August 2021, at around 7.30pm and 8.30pm.

On the first four occasions, the process server attended the Premises with a copy of the Documents and rang the doorbell several times, but there was no response. On the fifth occasion, the process server rang the doorbell at the Premises and the door was opened by an elderly man, who, upon seeing the process server, abruptly slammed the door shut. Based on photographs that another process server had taken on a prior occasion, this process server attested that this was the same elderly man who had answered the door on 2 October 2020 and who identified himself as the respondent’s father (see [6] above). The process server’s subsequent attempts to ring the doorbell met with no response. The Law Society states that it has no further information about the present whereabouts of the respondent.

Analysis

The key issue to be determined was thus whether substituted service should be granted in the present case, notwithstanding indications that the respondent had been out of jurisdiction at the time the Show Cause Proceedings were commenced.

Jurisdiction in disciplinary proceedings

We begin with some brief observations on the jurisdiction of the High Court, and in particular, in respect of disciplinary proceedings.

The jurisdiction of the General Division of the High Court to adjudicate a civil matter is provided for in s 16 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”):

Civil jurisdiction — general

16.—(1) The General Division shall have jurisdiction to hear and try any action in personam where — (a) the defendant is served with a writ of summons or any other originating process — (i) in Singapore in the manner prescribed by the Rules of Court or Family Justice Rules; or (ii) outside Singapore in the circumstances authorised by and in the manner prescribed by the Rules of Court or Family Justice Rules; or (b) the defendant submits to the jurisdiction of the General Division. (2) Without prejudice to the generality of subsection (1), the General Division shall have such jurisdiction as is vested in it by any other written law.

What is clear is that apart from instances where a defendant voluntarily submits to the jurisdiction of the General Division, and leaving aside the more specific ambit of s 16(2) of the SCJA, the General Division only has jurisdiction to hear a civil claim in personam if the defendant is duly served with a writ or originating process in the manner prescribed by law. This remains the case irrespective of whether the service of a writ or originating process is effected within Singapore or outside Singapore, as s 16(1)(a) makes clear. In other words, the touchstone of in personam civil jurisdiction is, generally speaking, that of service. And O 10 r 1(1) of the Rules of Court (2014 Rev Ed) (the “Rules”) stipulates that a writ must generally be served personally on each defendant. This serves to ensure as far as possible that the defendant has...