Law Society of Singapore v CNH

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Tay Yong Kwang JCA
• Judgment Date: 15 September 2021
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 3 of 2021 (Summons No 1 of 2021)

Law Society of Singapore

and

CNH

[2021] SGHC 212

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA and Tay Yong Kwang JCA

Originating Summons No 3 of 2021 (Summons No 1 of 2021)

Court of Three Judges

Legal Profession — Disciplinary procedures — Service — Applicant seeking order for substituted service of documents filed in show cause proceedings — Whether substituted service should be granted notwithstanding indications that respondent had been out of jurisdiction at time show cause proceedings were commenced — Section 98 Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Disciplinary proceedings — Jurisdiction — Whether court's jurisdiction over advocates and solicitors for purpose of disciplinary proceedings was founded on service — Section 16(2) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Held, granting the application:

(1) Apart from instances where a defendant voluntarily submitted to the jurisdiction of the General Division of the High Court (“General Division”), and leaving aside the more specific ambit of s 16(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), the General Division only had jurisdiction to hear a civil claim in personam if the defendant was duly served with a writ or originating process in the manner prescribed by law. In other words, the touchstone of in personam civil jurisdiction was, generally speaking, that of service: at [14].

(2) The court's jurisdiction in respect of disciplinary proceedings was somewhat different. Because the disciplinary jurisdiction of the court did not concern in personam actions, it did not come within the civil jurisdiction that was set out in s 16(1) of the SCJA. The LPA provided the statutory foundation for the court's civil jurisdiction in disciplinary proceedings, this being written law within the meaning of s 16(2) of the SCJA. The LPA also made it clear that advocates and solicitors were officers of the court. This presupposed and connoted that those so appointed had obligations and responsibilities in upholding the legal framework, and having the attendant privileges conferred under the LPA came with attendant professional obligations. This rendered an advocate and solicitor subject to the control of the court: at [15] to [17].

(3) The court's jurisdiction over advocates and solicitors for the purpose of disciplinary proceedings was not founded on service, as was the case for in personam civil jurisdiction, but rather it was founded on the LPA and on the very status of a person as an advocate and solicitor, and hence an officer of the court. In the context of the disciplinary jurisdiction, the court's interest was to retain flexibility over the process by which it could effectively act against its officers while balancing the interests of justice. The court's concern with service was therefore to ensure that the respondent did or should reasonably have notice of proceedings, in keeping with the expectations of natural justice: at [18].

(4) Where a solicitor was or was believed to be within Singapore, the default rule was that service should be effected in accordance with the Rules of Court (2014 Rev Ed) (the “Rules”), as stated in s 98(3) of the LPA. Where a solicitor was believed to be outside of Singapore, directions could be sought as to how service could be affected, pursuant to s 98(2) of the LPA, and in such instances, the court did not need to be bound by the strictures of the Rules. While the Rules could be followed “as nearly as the circumstances permit”, s 98(10) of the LPA ultimately allowed the court to retain the necessary discretion to determine the appropriate directions to be given in the light of all the circumstances of each particular case, and to balance the interests of justice: at [19] to [26].

(5) There appeared to have been some indication of a deliberate attempt to avoid personal service, beginning with the respondent's parents accepting the list of documents for the DT proceedings but refusing to sign the accompanying acknowledgment. On subsequent occasions, the respondent's parents had either not opened the door at the Premises, or had refused to engage with the process server, resorting even to shutting the door once they saw the process service. Numerous attempts were made to contact the respondent at his personal e-mail address and his personal mobile number, but all were met with no reply. These facts thus favoured an order for substituted service: at [27] to [29].

Case(s) referred to

Consistel Pte Ltd v Farooq Nasir [2009] 3 SLR(R) 665; [2009] 3 SLR 665 (refd)

Iskandar bin Rahmat v Law Society of Singapore [2021] 1 SLR 874 (refd)

Law Society of Singapore v Ang Boon Kong Lawrence [1992] 3 SLR(R) 825; [1993] 1 SLR 522 (refd)

Law Society of Singapore v Ong Cheong Wei [2018] 3 SLR 937 (refd)

Law Society of Singapore v Tay Eng Kwee Edwin [2007] 4 SLR(R) 171; [2007] 4 SLR 171 (refd)

Law Society of Singapore v Udeh Kumar s/o Sethuraju [2017] 4 SLR 1369 (refd)

Public Trustee v By Products Traders Pte Ltd [2005] 3 SLR(R) 449; [2005] 3 SLR 449 (refd)

Siemens AG v Holdrich Investment Ltd [2010] 3 SLR 1007 (refd)

Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (refd)

Facts

The respondent was a solicitor who committed sexual offences against his colleague while he was a legal associate at a local law 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 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 Legal Profession Act (Cap 161, 2009 Rev Ed) (“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 an application under 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 (the “Premises”).

Legislation referred to

Legal Profession Act (Cap 161, 2009 Rev Ed) ss 25, 29(1), 82(1), 82A, 83(1), 83(2)(h), 85(3), 98, 98(1), 98(2), 98(3), 98(10), 187(3)

Legal Profession (Disciplinary Tribunal) Rules (2010 Rev Ed) r 6

Legal Profession (Solicitors' Accounts) Rules (1999 Rev Ed) r 11

Penal Code (Cap 224, 2008 Rev Ed) s 509

Rules of Court (2014 Rev Ed) O 10 r 1(1), O 11 r 1

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 16, 16(1), 16(1)(a), 16(2)

Ramesh s/o Selvaraj and Afzal Ali (Allen & Gledhill LLP) for the applicant;

Respondent absent.

15 September 2021

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

1 The respondent is a solicitor who committed sexual offences against his colleague while he was a legal associate at a local law...