Law Society of Singapore v Ezekiel Peter Latimer

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 09 April 2019
• Neutral Citation: [2019] SGHC 92
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summons No 4 of 2018
• Year: 2019
• Published date: 12 April 2019
• Hearing Date: 17 January 2019
• Plaintiff Counsel: Mahendra Prasad Rai (Cooma & Rai)
• Defendant Counsel: Chenthil Kumar Kumarasingam and Goh Peizhi Adeline (Oon & Bazul LLP)
• Subject Matter: Legal Profession,Disciplinary proceedings,Conflict of interest,Professional conduct,Grossly improper conduct
• Citation: [2019] SGHC 92

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

Ezekiel Peter Latimer (“the respondent”) was called to the Singapore bar on 25 May 1996. At the time of the proceedings before the disciplinary tribunal (“DT”) that was appointed to investigate a complaint against him, he was an advocate and solicitor of the Supreme Court of Singapore of 21 years’ standing and practised as a sole proprietor in the firm Peter Ezekiel & Co.

The complainant, Sunil Prasad (“Sunil”), was the respondent’s client. He had been charged and was eventually convicted of an offence under s 22(1)(d) of the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“the EFMA”), for making a false declaration to the Ministry of Manpower (“MOM”) in his application for a work permit (“AWP”). The false declaration pertained to the amount of his salary. Sunil’s employer counter-signed Sunil’s AWP and was also charged with an offence under s 22(1)(d) read with s 20(1)(a) of the EFMA. The disciplinary charges against the respondent arose out of allegations of conflict of interest that stemmed from the respondent’s concurrent representation of both Sunil and his employer. The issues that this gave rise to present us with the opportunity to examine how these cases should be dealt with in the context of professional disciplinary proceedings.

Facts

We begin by outlining the brief facts concerning the criminal charge against Sunil, for which the respondent was engaged to represent Sunil, as background to the allegations of conflict of interest that were raised against the respondent.

Sunil is an Indian national, who was recruited by representatives from Dipsi Productions (S) Pte Ltd (“the Company”) to work in Singapore as a performing artiste at a restaurant. Mistry Diptiben Kasturchand (“Dipti”) was a director and representative of the Company. Sunil was told that his monthly salary would be between 50,000 Indian Rupees (“INR”) and INR60,000. However, he did not know how much this amounted to in Singapore dollars at that time. On the then prevailing exchange rate of INR48.5 to S$1, it worked out to between S$1030 and S$1237.

On 5 August 2014, while Sunil was still in India, Dipti prepared and lodged Sunil’s AWP with the MOM in her capacity as the Company’s representative. In the AWP, Sunil’s fixed monthly salary was reflected as S$1,800. An in-principle approval was thereafter granted by MOM and Sunil was permitted to come to Singapore.

After arriving in Singapore, on 8 September 2014, Sunil signed the AWP, which was also counter-signed by Dipti as a director of the Company.

Officers from the MOM raided Sunil’s workplace sometime in October 2014. Both Sunil and Dipti were subsequently charged in August 2015 under s 22(1)(d) of the EFMA, with making a false declaration in the AWP as to Sunil’s fixed monthly salary.

Sunil and Dipti each engaged the respondent as counsel in relation to the charge that had been brought against each of them under the EFMA. The respondent represented both of them concurrently at some point in time.

The disciplinary charges against the respondent arose out of allegations that he had placed himself in a position of conflict of interest and had preferred the interest of Dipti over that of Sunil in the course of his concurrent representation of them both. Sunil subsequently discharged the respondent from acting for him and lodged a complaint with the Law Society of Singapore (“the applicant”). He had, in the meantime, sought assistance from a non-governmental organisation (“NGO”) and eventually pleaded guilty to the charge under the EFMA on 23 June 2016. He was fined S$6,000 for the offence.

A significant aspect of the applicant’s case against the respondent related to a Letter of Representation which the respondent had sent to the Attorney-General’s Chambers (“AGC”) on 9 November 2015 on Sunil’s behalf (“the Representations”). The applicant claimed that in preparing that letter on Sunil’s behalf, the respondent had in fact advanced the interest of Dipti in preference to or ignoring the interest of Sunil, by omitting or inaccurately stating in the Representations key aspects of the instructions that Sunil had conveyed to him.

Charges

On 20 July 2017, the DT was appointed pursuant to s 90(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) to hear and investigate the complaint against the respondent. The applicant brought four charges against the respondent before the DT. However, at the DT hearing, the applicant withdrew the third charge and renumbered the fourth charge as the third charge. We summarise the three charges that were proceeded with as follows: First charge: That while acting for Sunil in respect of the criminal charge that he was facing, the respondent failed to advance Sunil’s interests unaffected by his own interest and/or the interest of Dipti, by acting in or preferring his own interest and/or the interest of Dipti, which amounted to: grossly improper conduct in the discharge of his professional duty as an advocate and solicitor of the Supreme Court of Singapore under s 83(2)(b) of the LPA; or in the alternative, a breach of a rule of conduct amounting to improper conduct and practice as an advocate and solicitor under s 83(2)(b) of the LPA read with rr 25(a) and/or 25(b) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“the LPPCR”) (“first alternative charge”); or in the further alternative, misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under s 83(2)(h) of the LPA. Second charge: That while acting for Sunil in respect of the criminal charge that he was facing, and knowing that the instructions given by Sunil were opposed to those given by Dipti, the respondent failed to decline to advise Dipti and failed to advise Dipti to obtain independent legal advice, which amounted to: grossly improper conduct in the discharge of his professional duty as an advocate and solicitor of the Supreme Court of Singapore under s 83(2)(b) of the LPA; or in the alternative, a breach of a rule of conduct amounting to improper conduct and practice as an advocate and solicitor under s 83(2)(b) of the LPA read with r 30(1) of the LPPCR; or in the further alternative, misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under s 83(2)(h) of the LPA. Third charge: That while acting for Sunil in respect of the criminal charge that he was facing, the respondent included an explanation, in the Representations to the AGC, as to how the offence was committed, which explanation did not reflect the actual instructions that the respondent had received from Sunil, and the respondent thereby knowingly deceived or misled the AGC or other person or body associated with the court proceedings, which amounted to: grossly improper conduct in the discharge of his professional duty as an advocate and solicitor of the Supreme Court of Singapore under s 83(2)(b) of the LPA; or in the alternative, a breach of a rule of conduct amounting to improper conduct and practice as an advocate and solicitor under s 83(2)(b) of the LPA read with r 56 of the LPPCR (“third alternative charge”); or in the further alternative, misconduct unbefitting of an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under s 83(2)(h) of the LPA.

The disciplinary proceedings The parties’ cases before the DT

One of the key issues which the DT had to determine was the content of Sunil’s instructions to the respondent, and in particular, whether the Representations drafted by the respondent accurately conveyed to the AGC Sunil’s instructions to him. In the Representations, the respondent informed the AGC that: Sunil had asked Dipti before signing the AWP, why the AWP reflected his salary as S$1,800 per month when he would only in fact receive about S$1,200 per month. Dipti explained that the sum of S$1,800 reflected the total amount that Dipti would be spending on him, having taken into account the expenses already or to be incurred for his meals, lodging and airfare. Based on what he had been told by Dipti, Sunil thought that it was not incorrect or dishonest of him to declare that his monthly salary was S$1,800 per month because he equated what his employer was spending on him with his monthly salary.

That case, in effect, proceeded on the basis that Sunil knew all along that the AWP reflected an amount higher than the amount he would in fact be receiving, but that he was content to proceed on this basis because he thought the difference had been properly accounted for by Dipti. However, the applicant’s case before the DT was that the Representations (as summarised at [12] above) misstated key aspects of Sunil’s instructions to the respondent. According to the applicant, Sunil’s instructions to the respondent were as follows: When Sunil signed the AWP, he genuinely believed that he would be paid S$1,800 as his monthly salary. He was not aware at that time that he was going to be paid a lower salary of S$1,200. Sunil only found out that his salary was lower, that is, S$1,200, after the MOM raid, when he was asked to sign a salary voucher by Dipti. When he then asked why the salary voucher was for S$1,200 and not S$1,800, he was told by Dipti that he would receive only S$1,200 as the sum of S$1,800 that had been declared in the AWP included the accommodation, airfare and food expenses that she bore for him. Sunil had been deceived into signing the AWP which stated that his fixed monthly salary was S$1,800 when Dipti had only intended to pay him S$1,200. The applicant submitted, on this basis, that the case presented to the AGC by the respondent was materially different from the instructions conveyed to him by...