Law Society of Singapore v Nalpon, Zero Geraldo Mario

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Chao Hick Tin SJ
• Judgment Date: 12 April 2022
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 4 of 2021

Law Society of Singapore

and

Nalpon, Zero Geraldo Mario

[2022] SGHC 81

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA and Chao Hick Tin SJ

Originating Summons No 4 of 2021

Court of Three Judges

Legal Profession — Disciplinary proceedings — Appropriate sanction — Section 83(1) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Disciplinary proceedings — Attorney-General making complaints to Law Society under s 85(3)(b) Legal Profession Act (Cap 161, 2009 Rev Ed) — Whether disciplinary tribunal was entitled to investigate and make determinations on additional charges — Sections 85(3)(b) and 89(4) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Disciplinary proceedings — Complaints signed off “for and on behalf of the Attorney-General” — Whether complaints made by Attorney-General personally — Section 85(3)(b) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Disciplinary proceedings — Lawyer publishing posts relating to pending court proceedings on “Public” Facebook group — Whether publications amounted to sub judice contempt of court under s 3(1)(b)(i) Administration of Justice (Protection) Act 2016 (Act 19 of 2016) — Whether due cause shown — Section 83(2)(b) Legal Profession Act (Cap 161, 2009 Rev Ed) — Section 3(1)(b)(i) Administration of Justice (Protection) Act 2016 (Act 19 of 2016)

Legal Profession — Disciplinary proceedings — Lawyer wilfully failing to comply with costs order and making publications which attempted to garner public support for his non-compliance — Whether due cause shown — Section 83(2)(h) Legal Profession Act (Cap 161, 2009 Rev Ed)

Held, granting the application in part and ordering that the respondent be suspended from practice for 15 months:

Whether the proceedings were void for non-compliance with section 85(3)(b) of the LPA

(1) The disciplinary proceedings against the respondent were not void for non-compliance with s 85(3)(b) of the LPA. A distinction should be drawn between the exercise of a power and the signification of the exercise of that power. In the present case, it was clear that the Complaints were duly made by the AG, and the Chief Prosecutor was conveying the AG's decisions to the Law Society. The AG's statutory powers under s 85(3)(b) were therefore duly exercised by the AG himself and were not delegated or devolved to another officer: at [22], [23] and [25].

(2) Section 27(2) of the Interpretation Act (Cap 1, 2002 Rev Ed) would have allowed the AG's powers under s 85(3)(b) of the LPA to be exercised by a person duly appointed to act for the AG. However, as these powers were exercised by the AG in the present case, the question of whether the Chief Prosecutor was a person duly appointed to act for the AG in this regard did not arise: at [26].

Whether the DT was entitled to investigate and make determinations in respect of the Third and Fourth Charges

(3) The DT was not empowered to investigate and make determinations in respect of the Third and Fourth Charges, because s 89(4) of the LPA was inapplicable to proceedings commenced under s 85(3)(b) of the LPA. The jurisdiction of the DT to prefer additional charges under s 89(4) would have applied if the complaint had been made in the typical manner under s 85(1) of the LPA, where the DT would have been appointed following the determination by the Council of the Law Society (“Council”) under s 87 (after considering the report of the Inquiry Committee) that there should be a formal investigation. However, the position was different where disciplinary proceedings were commenced pursuant to a complaint made by the AG under s 85(3)(b) of the LPA. This provision allowed complaints referred by specified office holders to bypass the usual procedure of an inquiry by an Inquiry Committee, because these complaints were ipso facto taken to disclose cause of sufficient gravity to warrant formal investigation by a Disciplinary Tribunal straightaway: at [32], [34] and [35].

(4) The Law Society's proposed approach to s 89(4) of the LPA would have allowed further complaints not referred by any of the specified office holders to utilise this statutory “shortcut”, even where the further complaints did not relate to the original complaint. This would truncate the statutory framework and the proper process laid out in the LPA, and would deprive the legal practitioner of the opportunity to have his case reviewed by an Inquiry Committee: at [36].

(5) It followed that the DT, which had been constituted to hear the First and Second Charges, lacked the jurisdiction to make determinations on the Third and Fourth Charges. Accordingly, its findings in respect of these two charges were set aside: at [38].

Whether due cause had been shown in relation to the First Charge

(6) The post published by the respondent in the Facebook Group on 11 February 2019 – which stated that he had discovered that a judge had plagiarised a substantial portion of the Prosecution's submissions, and attached a copy of his complaint to the Chief Justice regarding the DJ's plagiarism – had prejudged issues in pending court proceedings within the first limb of s 3(1)(b)(i) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”). At the time of this post, the MA proceedings were well underway. The extent and implications of the DJ's judicial copying were key issues which had yet to be adjudicated by the Judge in the pending MA proceedings, and this post prejudged these issues by stating the respondent's assertions as though they were irrefutable facts: at [45], [47] and [49].

(7) Such published views posed a real risk of prejudice to or interference with the pending MA proceedings within the second limb of s 3(1)(b)(i) of the AJPA. They were posted on the Facebook Group, a “Public” group with around 579 members in February 2019, and the complaint attached to the post specifically identified both the DJ and the case number of the pending MA. These publications posed a real risk of damaging the integrity and credibility of the MA regardless of whether they in fact influenced the decision of the Judge. By these deliberate publications, the respondent sought to galvanise public sentiment in his client's favour while the MA, in which the very same point had been submitted for determination, had yet to be heard. Whether a publication posed a real risk of prejudice or interference had to be determined objectively at the time of publication, regardless of whether the judge who heard the case was in fact affected: at [50] to [52].

(8) The defence in s 16(1) of the AJPA was unavailable to the respondent. First, s 16(1) provided a defence only to scandalising contempt under s 3(1)(a) of the AJPA, and not to sub judice contempt under s 3(1)(b). Second, s 16(1) only applied to the making of a report to the Chief Justice, and not to the further publication of that report: at [54].

(9) The respondent was guilty of such a breach of r 13(6)(a) of the Legal Profession (Professional Conduct) Rules 2015 (“the PCR”) as amounted to “improper conduct … as an advocate and solicitor”, as well as conduct that was “grossly improper” within s 83(2)(b) of the LPA, given his clear and wilful breach of the sub judice rule. On the totality of the facts and circumstances, the respondent's misconduct was sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA, and due cause was therefore made out in respect of the First Charge: at [55].

Whether due cause had been shown in relation to the Second Charge

(10) Non-compliance with a costs order could not, in and of itself, amount to misconduct for the purposes of a disciplinary charge. However, the position was different where the legal practitioner's wilful non-compliance with the order was accompanied by acts taken with the aim of garnering public support for that non-compliance. The legal practitioner's subjective state of mind could not only be gleaned from his own account of his motivations, but could also be inferred from the objective circumstances and the nature of the relevant conduct. Legal practitioners were, above all, officers of the court, and conduct that sought to publicly justify non-compliance with an order of court on spurious grounds was plainly misconduct unbefitting an advocate and solicitor within s 83(2)(h) of the LPA: at [59].

(11) The respondent's (initial) non-payment of the Costs in the present case fell well within this description. The AGC had clearly explained to the respondent that the AG maintained the bank account used in the discharge of his official duties under the name of the “Attorney-General's Chambers”. Yet, the respondent insisted on maintaining his position that there was no legal basis or provision which required that his cheque in payment of the Costs should be made payable to the “Attorney-General's Chambers” instead of “the Attorney-General”. Further, the respondent's publications on the Facebook Group regarding the Costs Order contained the misleading and false allegation that the AGC had requested for his payment to be made to a “separate entity”, and these publications were transparent attempts to garner public support for his continued disobedience of the Costs Order: at [59] and [61].

(12) The respondent's eventual payment of the Costs in full did not go far in ameliorating the seriousness of his conduct, because what made his conduct unacceptable was his deliberate non-payment coupled with his attempts to garner public support for his disobedience. In any event, this eventual payment was made in response to a final demand issued by the AGC more than two years and seven months after the Costs Order was made, and was not prompted by the respondent's acknowledgment of the error in his position. There was also no evidence of the respondent having made any attempt to correct or clarify his publications on the Facebook Group: at [62].

(13) The respondent's conduct in respect of the Costs...