Law Society of Singapore v Shanmugam Manohar

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 25 August 2021
• Neutral Citation: [2021] SGHC 201
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summons No 7 of 2020
• Year: 2021
• Published date: 28 August 2021
• Hearing Date: 12 April 2021,08 June 2021
• Plaintiff Counsel: Aaron Lee Teck Chye, Chong Xue Er Cheryl and Low Ee Ning (Allen & Gledhill LLP)
• Defendant Counsel: Ragbir Singh s/o Ram Singh Bajwa (Bajwa & Co) and Vengadesh s/o Kumaravelu (Bajwa & Co)
• Subject Matter: Legal Profession,Disciplinary proceedings,Res Judicata,Issue estoppel,Extended doctrine of res judicata,Criminal Procedure and Sentencing,Statements,Admissibility,Evidence,Admissibility of evidence,Witness statements
• Citation: [2021] SGHC 201

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

Originating Summons No 7 of 2020 (the “OS”) is an application by the Law Society of Singapore for an order that the respondent, Shanmugam Manohar, be sanctioned under s 83(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). The OS arises out of disciplinary proceedings commenced by the applicant, in which it preferred the following four main charges (“Charges”) against the respondent: The first and second main charges (the “1st Charge” and “2nd Charge” respectively) concern payments made by the respondent to one Ng Kin Kok (“Ng”) for referring claims arising out of five motor accidents to the respondent. The third and fourth main charges (the “3rd Charge” and “4th Charge” respectively) concern the respondent’s failure to communicate directly with the referred clients at the appropriate stages of the respective engagements, especially at the time of the signing of the warrant to act (“WTA”).

The key evidence that was adduced against the respondent comprised police statements recorded from him and some other persons in the course of police investigations pursuant to s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). The present case affords us the opportunity to consider for the first time the conditions under which such police statements recorded in the context of criminal proceedings may be admissible in disciplinary proceedings and/or other non-criminal proceedings generally. In particular, we will consider the ambit of s 259 of the CPC, which provides as follows:

Witness’s statement inadmissible except in certain circumstances

259.—(1) Any statement made by a person other than the accused in the course of any investigation by any law enforcement agency is inadmissible in evidence, except where the statement — (a) is admitted under section 147 of the Evidence Act (Cap. 97); (b) is used for the purpose of impeaching his credit in the manner provided in section 157 of the Evidence Act; (c) is made admissible as evidence in any criminal proceeding by virtue of any other provisions in this Code or the Evidence Act or any other written law; (d) is made in the course of an identification parade; or (e) falls within section 32(1)(a) of the Evidence Act. (2) Where any person is charged with any offence in relation to the making or contents of any statement made by him to an officer of a law enforcement agency in the course of an investigation carried out by that officer, that statement may be used as evidence in the prosecution.

The crucial question before us is which of the two following interpretations of s 259 of the CPC is to be preferred: That the provision applies to criminal proceedings only (“Narrow Interpretation”) and therefore has no relevance at all to the admissibility of witness statements in non-criminal proceedings. That s 259 of the CPC governs the use that may be made as well as the admissibility of such witness statements in all proceedings generally (“Broad Interpretation”).

We set out the background facts leading to the present disciplinary proceedings before turning to that question. We will also address other relevant issues raised by the parties and the consequential orders pertaining to the disposal of this matter.

Background Investigations leading to the discovery of the alleged misconduct

The respondent is an advocate and solicitor of more than 27 years’ standing. He was admitted to the Bar on 9 February 1994 and is a partner of M/s K Krishna & Partners (the “Firm”).

According to the applicant, the respondent’s alleged misconduct was first uncovered in the course of investigations undertaken by the Commercial Affairs Department (“CAD”) into a motor insurance fraud scheme in which Ng had assisted one Woo Keng Chung (“Woo”) to file a fraudulent motor insurance claim. During these investigations, the CAD recorded a statement from Ng dated 6 April 2016 (“Ng’s Statement”) pursuant to s 22 of the CPC. In his statement, Ng had mentioned his practice of approaching potential motor accident claimants to sign WTAs appointing various law firms to act on their behalf. Ng would then submit the documents to the relevant law firm and be paid a commission if the ensuing claim was successful.

Ng was subsequently convicted of and sentenced on 31 August 2017 for one count of abetment of cheating in relation to Woo’s motor insurance injury claim. On the same day, the Attorney-General’s Chambers (“AGC”) directed the CAD to investigate Ng’s claim that he had been paid commissions by law firms for referrals, in order to ascertain whether the conduct of those involved had any disciplinary implications.

Senior Investigation Officer Lie Dai Cheng (“SIO Lie”) received the AGC’s directions and proceeded under s 22 of the CPC to record:

a statement from Ng dated 14 September 2017 (“Ng’s Further Statement”);

a statement from the respondent dated 20 September 2017 (“respondent’s Statement”); and

a statement from one K Krishnamoorthy, a partner in the Firm, dated 12 December 2017 (“Krishna’s Statement”).

These three statements are collectively referred to as the “Contested Statements” because their admissibility in the present disciplinary proceedings is contested. After recording the said statements, the CAD concluded that no further criminal offence of cheating or conspiracy to cheat was disclosed. It then forwarded its recommendations together with the Contested Statements to AGC. It is evident, in our judgment, that the CAD’s principal concern was with investigating any possible criminal offences. This is a point that we will return to later in this judgment.

On 2 July 2018, the Attorney-General (“AG”) made a complaint concerning the respondent’s conduct to the applicant. After several exchanges, the AGC also forwarded Ng’s Statement and the Contested Statements (collectively, the “Statements”) to the applicant in connection with and in support of the complaint.

As alluded to earlier, the Statements comprise the key evidence against the respondent in the present disciplinary proceedings. According to the applicant, the Statements revealed the following: Between 2014 and 2015, Ng referred four clients to the respondent in exchange for referral fees. These clients are referred to as “Client 1”, “Client 2”, “Client 3” and “Client 4” (being Woo) respectively. Ng was paid $800 for each of his referrals of Clients 1, 2 and 4 and $600 for his referral of Client 3. In early 2016, Ng referred a fifth client (“Client 5”), to the respondent and was paid $800 for the referral. At the time that each of the Clients signed their respective WTAs, neither the respondent nor anyone else from the Firm was present. Instead, the signing of each WTA was witnessed only by Ng, who would subsequently deliver the document to the respondent at a later time when the Clients were not present.

Arising from the AG’s complaint, the applicant brought the four main Charges as well as corresponding alternative charges against the respondent. Based on the applicant’s case, the WTAs for Clients 1 to 4 were signed (and the relevant referral fees were paid) between March 2014 and July 2015. As such, the charges relating to Clients 1 to 4 are brought under the version of the LPA and the Legal Profession (Professional Conduct) Rules (2010 Rev Ed) which were in force prior to legislative amendments made on 18 November 2015. We refer to these as the “LPA 2011” and “PCR 2011” respectively. On the other hand, the matters relating to Client 5 occurred in 2016 and are thus dealt with by charges brought under the version of the LPA and the Legal Profession (Professional Conduct) Rules 2015 which were in force subsequent to the amendments of 18 November 2015. We refer to these as the “LPA 2015” and “PCR 2015” respectively.

The 1st Charge against the respondent deals with the payment of referral fees for Clients 1 to 4. The 2nd Charge deals with the payment of referral fees for Client 5. The said charges (and their alternatives) are summarised as follows:

Charge	Legislative Provision	Misconduct targeted by the legislative provision
1st Charge	s 83(2)(e) LPA 2011	Procuring employment through a person (to whom remuneration has been given or promised to be given)
2nd Charge	s 83(2)(e) LPA 2015
Alternative 1st charge	s 83(2)(b) LPA 2011 read with r 11A(2)(b) PCR 2011	Breach of professional conduct rule (against rewarding a referror) amounting to improper conduct or practice
Alternative 2nd charge	s 83(2)(b)(i) LPA 2015 read with r 39(2)(b) PCR 2015
Further Alternative 1st charge	s 83(2)(h) LPA 2011	Misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession
Further Alternative 2nd charge	s 83(2)(h) LPA 2015

The 3rd Charge deals with the respondent’s alleged failure to communicate directly with Clients 1 to 4 to obtain or confirm their instructions in the process of providing advice and at all appropriate stages of the matter, including:

…at the outset of the relationship where a signed warrant to act was obtained from the client through a third party Ng Kin Kok without the presence of [the respondent] and/or any employee of [the respondent’s Firm].

The 4th Charge deals with the respondent’s alleged failure to do the same with Client 5. Both the 3rd and 4th Charges (as well as their alternatives) are summarised below:

Charge	Legislative Provision	Misconduct targeted by the legislative provision
3rd Charge	s 83(2)(b) LPA 2011 read with r 11A(2)(f) PCR 2011	Breach of professional conduct rule (requiring direct communication with client at all appropriate stages) amounting to improper conduct or practice
4th Charge	s 83(2)(b)(i) LPA 2015 read with r

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