Law Society of Singapore v Lee Wei Ling

• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Judith Prakash JCA,Belinda Ang Saw Ean JAD,Chao Hick Tin SJ
• Judgment Date: 14 March 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 59 of 2021

Law Society of Singapore

and

Lee Wei Ling and another

[2022] SGCA 22

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Belinda Ang Saw Ean JAD and Chao Hick Tin SJ

Civil Appeal No 59 of 2021

Court of Appeal

Legal Profession — Disciplinary procedures — Application for review of decision of Council of Law Society — Council of Law Society dismissing first complaint against solicitor based on Inquiry Committee's recommendations in its second report — Whether there was prima facie case made out for first complaint — Section 96 Legal Profession Act 1966 (2020 Rev Ed)

Legal Profession — Disciplinary procedures — Power of Council of Law Society — Council of Law Society (“Council”) exercising its power under s 87(1)(d) Legal Profession Act 1966 (2020 Rev Ed) to refer matter back to Inquiry Committee for further report — Whether Council entitled to exercise its power under s 87(1)(d) Legal Profession Act 1966 after Inquiry Committee had first determined to refer matter to Disciplinary Tribunal — Whether s 87(2) Legal Profession Act 1966 circumscribed power of Council where Inquiry Committee had made positive determination to refer matter to Disciplinary Tribunal — Sections 87(1)(d) and 87(2) Legal Profession Act 1966 (2020 Rev Ed)

Legal Profession — Professional conduct — Solicitor stamping “cancelled” on wills that had been superseded by subsequent wills — Whether there was prima facie case that solicitor was instructed to physically destroy wills and failed to comply with such instructions

Held, allowing the appeal:

(1) On the First Issue concerning the interpretation of s 87 of the LPA, the court applied the framework for statutory interpretation that was set out in Tan Cheng Bock v AG[2017] 2 SLR 850 (“Tan Cheng Bock”). Under that framework, first, the court would ascertain the possible interpretations of the provision, having regard to the text and context of the provision; second, the court would ascertain the legislative purpose or object of the statute; and third, the court would compare the possible interpretations of the text against the purposes or objects of the statute and choose the interpretation that best advanced the statutory object or purpose: at [32].

(2) The plain wording of s 87 of the LPA did not constrain the Council's power to act under s 87(1)(d) to refer a matter back to the IC for further consideration, upon receiving the IC's report: at [34] and [35].

(3) Both the text and context of s 87 supported the court's interpretation. Section 87(2)(a) of the LPA explicitly stated that the Council was to refer a matter to the DT where the IC so recommended in its report “read with any response or further report submitted under subsection (1A)(b)”. This meant that the obligation of the Council to refer a matter to the DT only arose when that was the recommendation of the IC, having regard to both the initial report and any subsequent report the IC might issue. Section 87(1A) of the LPA set out the timeline for any reconsideration by the IC, as an intermediate step in the process leading to s 87(2), pursuant to which the Council was to make its determination. Both the text and context of ss 87(1A) and 87(2) contemplated a situation where the IC could be asked to submit a further response: at [36] and [37].

(4) The mandatory language in s 87(2), that the Council had to determine accordingly where the IC recommended a formal investigation, only applied after the Council had considered the IC's initial report as well as any subsequent report by the IC. Hence, the plain meaning did not support the respondent's interpretation that the Council's power had been circumscribed by s 87(2): at [38].

(5) There was therefore no need to proceed past the first step of the Tan Cheng Bock framework, as the plain wording did not support the respondent's interpretation. Nonetheless, the court's interpretation that the Council was entitled to refer a matter back to the IC was in line with the legislative purpose: at [44].

(6) The parliamentary debates leading up to the amendments of the LPA in 1979 and 2008 did not suggest that Parliament intended to take away the Council's previously existing power under s 87 to refer a matter back to the IC. If Parliament had intended to take away a pre-existing power of the Council, Parliament would have made it clear in the legislative debates. Nothing to this effect was said in the debates: at [45] and [46].

(7) The specific intent of the legislative amendments leading to the current iteration of s 87 was to streamline the timelines and processes of investigations. The court's interpretation of s 87 did not detract from this purpose; the timeline set out in s 87(1A) addressed the issue of any possible delay arising from referring a matter back to the IC. Allowing the Council to refer a matter back to the IC would also be in the interest of due process, which was also a concern emphasised in the parliamentary debates: at [47].

(8) On the Second Issue, the threshold to establish a prima facie case was whether there was some evidence, which was not inherently incredible, that would establish each essential element in the alleged offence if such evidence were to be accepted as accurate. The court's role was to review the determination by the IC and the Council, and then to consider whether there was material to support charges for the possible misconduct: at [48] and [49].

(9) The Council was entitled to adopt the IC's determination to dismiss the First Complaint. There was no evidence to suggest that the Testator intended for the Wills to be destroyed physically. Ms Kwa had explained to the IC that the word “destroy” was her own word, which she used to refer to the act of invalidating a will. Ms Kwa had never destroyed a will in the presence of the Testator, but had only drawn a line through them. Further, when Ms Kwa e-mailed the beneficiaries of the Estate, she had attached the copies of superseded Wills. In so far as Ms Kwa was concerned, there was no inconsistency between using the word “destroy” in relation to the Wills and keeping the cancelled copies of the Wills. There could also be no real doubt that the Testator knew that Ms Kwa had kept the physical copies of the cancelled Wills, as he himself had asked about the contents of his prior Wills. In fact, when the Testator was presented with the seventh will, he was told that this was the same as the first will. Hence, there was no prima facie case with respect to the First Complaint: at [50] to [53].

Case(s) referred to

Advocate and Solicitor, Re An [1987] 2 MLJ 21 (distd)

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

Iskandar bin Rahmat v Law Society of Singapore [2022] 1 SLR 590, CA (refd)

Law Society of Singapore v Chia Shih Ching James [1983–1984] SLR(R) 596; [1984–1985] SLR 53 (distd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (folld)

Tan Ng Kuang v Law Society of Singapore [2020] SGHC 127 (folld)

Whitehouse Holdings Pte Ltd v Law Society of Singapore [1994] 2 SLR(R) 485; [1994] 2 SLR 476 (refd)

Facts

The executors (“the Executors”) of the estate of Mr Lee Kuan Yew (“the Testator”) made four complaints to the Law Society of Singapore (“the Appellant”) against a solicitor, Ms Kwa Kim Li (“Ms Kwa”), in relation to her conduct in the course of preparing the first to sixth wills made by the Testator (“the Wills”). The first complaint, the subject of the present appeal (“the Appeal”), was that Ms Kwa had failed to adhere to the Testator's instructions to physically destroy the Wills as and when they were superseded by a subsequent will, and specifically by the Testator's final will which was the seventh will (“The First Complaint”).

The Council of the Law Society (“the Council”) convened an inquiry committee (“IC”) to consider the four complaints. In its first report (“the First IC Report”), the IC recommended that the First Complaint be referred to a disciplinary tribunal (“DT”) for a formal investigation. The Council posed further queries and referred the matter back to the IC for further consideration. In its second report (“the Second IC Report”), after the IC had heard from Ms Kwa, it recommended that the First Complaint be dismissed as it considered that there was no prima facie case of sufficient gravity to warrant further investigation. The Council adopted the IC's recommendation in the Second IC Report and dismissed the First Complaint.

The Executors applied to a High Court judge (“the Judge”), seeking, among other things, an order that the Council be directed to refer the First Complaint to a DT. The crux of their case was that, first, the Council had no power to refer the matter back to the IC for further consideration after the IC had determined in the First IC Report that the matter should be referred to a DT. This was based on the Executors' interpretation of s 87 of the Legal Profession Act 1966 (2020 Rev Ed) (“the LPA”). Secondly, the Executors contended that there was a prima facie case of sufficient gravity against Ms Kwa, and thus the First Complaint should, in any event, be referred to a DT.

The Judge allowed the Executors' application. The Judge agreed with the Executors' interpretation and held that the Council had no power to refer a matter back to the IC for further consideration once the IC had determined that a matter be referred to a DT. In the alternative, the Judge found that the Council should have referred the matter to a DT, as there was a prima facie case that warranted a formal investigation.

The Appellant appealed against the Judge's decision, arguing that: (a) the Council was empowered to refer a matter back to the IC for further consideration under s 87(1)(d) of the LPA (the “First Issue”); and (b) there was no prima facie case of sufficient gravity with respect to the First Complaint (the “Second Issue”).

Legislation referred to

Legal Profession Act (Cap 217, 1970 Rev Ed) ss 88, 88(1)(d), 88(1A)

Legal Profession Act (Cap 161...