Law Society of Singapore v Syn Kok Kay

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 10 January 2023
• Neutral Citation: [2023] SGHC 7
• Court: Court of Appeal (Singapore)
• Hearing Date: 11 October 2022
• Docket Number: Originating Application No 2 of 2022
• Plaintiff Counsel: Sean Francois La'Brooy and Faustina Joyce Fernando (Selvam LLC)
• Defendant Counsel: Giam Chin Toon SC and Teo Hui Xian Astrid (Wee Swee Teow LLP)
• Subject Matter: Legal Profession,Disciplinary proceedings
• Published date: 13 January 2023

Steven Chong JCA (delivering the judgment of the court): Introduction

This is an application by the Law Society of Singapore (“the Law Society”) for the respondent, Mr Syn Kok Kay, to be sanctioned under s 83(1) of the Legal Profession Act 1966 (2020 Rev Ed) (“LPA”), in respect of: his overcharging of a client, by charging $1,340,000 for work which was taxed at $288,000; and his non-compliance with an order of court, in failing to deliver a bill of costs for taxation for more than a year without just cause.

Having heard the parties and having considered their submissions, we find that there is due cause for the respondent to be sanctioned and that the appropriate sanction is a term of suspension of three years and nine months.

This case offers a timely opportunity for this court to consider a number of issues: the consolidation and elaboration of the principles relevant to the overcharging of solicitor’s fees and the updating of the relevant precedents, which were decided under the repealed Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed) (the “PCR 2000”); the considerations underlying the sanction of a solicitor for non-compliance with a court order; and whether a period of suspension from practice for a bankrupt solicitor should commence immediately, or upon the discharge of the bankruptcy.

Background Matters leading up to the Disciplinary Tribunal’s hearing

The respondent is a solicitor of 29 years’ standing, having been called to the Singapore Bar on 22 March 1993. At all material times, he was the sole proprietor of Patrick Chin Syn & Co.

In or around 2015, the respondent was engaged by JWR Pte Ltd (“JWR”) to sue Mr Edmond Pereira (“Mr Pereira”) and Edmond Pereira Law Corporation in HC/S 992/2015 (“Suit 992”) for professional negligence relating to a previous suit in which Mr Pereira had represented JWR. The amount claimed against Mr Pereira was $8.9bn. Suit 992 was dismissed by the High Court in May 2019.

For his services in Suit 992, the respondent charged JWR a total of $1,364,089.80, comprising $24,089.80 in disbursements and $1,340,000 in professional fees. Bills were rendered on a regular, approximately monthly basis to JWR over a period from December 2015 to April 2019. Almost invariably, the bills relating to professional fees were not itemised, and comprised only round dollar figures which were merely described as being charged “[t]o account for … further costs”. Nevertheless, JWR paid these disbursements and fees in full.

Subsequently, JWR filed HC/OS 989/2019 to seek an order to tax the rendered bills. On 24 October 2019, Tan Siong Thye J ordered taxation of the professional fees, and the respondent was ordered to deliver a bill of costs within 14 days (ie, by 7 November 2019) (the “Taxation Order”) (see JWR Pte Ltd v Syn Kok Kay (trading as Patrick Chin Syn & Co) [2019] SGHC 253).

The respondent failed to do so, instead he filed an appeal against Tan J’s decision on 8 November 2019. This appeal was dismissed by the Court of Appeal on 9 January 2020 for want of leave to appeal. A request by the respondent on 16 January 2020 to make further arguments was denied on 30 January 2020.

Still, the respondent did not file his bill of costs until 18 November 2020 – more than a year after the deadline of 7 November 2019 stipulated by Tan J. This was followed by an amended, more detailed bill of costs on 5 February 2021.

At the taxation hearing before Assistant Registrar Crystal Tan on 9 February 2021, the costs for work done other than for taxation were taxed down to $288,000 from $1,340,000. Given that JWR had paid the fees in full previously, the respondent was to refund the difference of $1,052,000. The respondent’s application for a review of AR Tan’s decision was dismissed by Tan J on 12 April 2021.

To date, the respondent has yet to return the $1,052,000. To enforce the repayment of this sum, JWR served the respondent with a statutory demand on 2 June 2021. After failing to reach a satisfactory compromise, JWR applied for a bankruptcy order against the respondent on 30 July 2021. The respondent was adjudged bankrupt on 30 September 2021, and has yet to discharge his bankruptcy.

The hearing and the Disciplinary Tribunal’s decision

From this background, arising out of a complaint made by JWR, the Law Society formulated and proceeded with three charges against the respondent. Summarised, these are: The “First Charge”: that the respondent overcharged JWR by charging $1,340,000 for work taxed at $288,000, breaching r 17(7) read with r 17(8) of the Legal Profession (Professional Conduct) Rules 2015 (“PCR 2015”) and thereby being guilty of improper conduct under s 83(2)(b) of the LPA. The “Second Charge”: that the respondent failed to comply with the Taxation Order within the stipulated time frame, and thereby amounting to misconduct unbefitting an advocate or solicitor under s 83(2)(h) of the LPA. The “Third Charge”: that the respondent retained the sum of $1,052,000, being the difference between the sum of $1,340,000 charged and taxed sum of $288,000, without proper basis, and thereby amounting to misconduct unbefitting an advocate or solicitor under s 83(2)(h) of the LPA.

The legislation referred to in the charges is set out below:

ss 83(2)( b ) and 83(2)( h ) of the LPA

83.— …

…

(2) Subject to subsection (7), such due cause may be shown by proof that an advocate and solicitor —

…

(b) has been guilty of fraudulent or grossly improper conduct in the discharge of his or her professional duty or guilty of such a breach of any of the following as amounts to improper conduct or practice as an advocate and solicitor: (i) any usage or rule of conduct made by the Professional Conduct Council under section 71 or by the Council under the provisions of this Act; (ii) Part 5A or any rules made under section 70H; (iii) any rules made under section 36M(2)(r);

…

(h) has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession;

…

rr 17(7) and 17(8) of the PCR 2015

17.— …

…

(7) A legal practitioner must not charge any fee or disbursements, or render a bill (whether or not subject to assessment) for an amount, which constitutes overcharging, even if there is a fee agreement that permits the charging of the fee, disbursements or amount. (8) For the purposes of paragraph (7), there is overcharging if a reasonable legal practitioner cannot in good faith charge the fee, disbursements or amount, taking into account all of the following matters: (a) the legal practitioner’s standing and experience; (b) the nature of the legal work concerned; (c) the time necessary to undertake the legal work; (d) the instructions and requirements of the client concerned; (e) any other relevant circumstances.

The respondent pleaded guilty to all three charges. In The Law Society of Singapore v Syn Kok Kay [2022] SGDT 10 (the “Report”), the Disciplinary Tribunal found that there was cause of sufficient gravity for referral to the Court of Three Judges in respect of the First Charge and the Second Charge: In respect of the First Charge, the Disciplinary Tribunal considered that, notwithstanding the agreed position that there was no fraud or dishonesty, there was a prima facie basis to find that the respondent had acted unethically in presenting bills which were far in excess of what he should have reasonably charged (at [20] of the Report). In respect of the Second Charge, the respondent attributed the delay to his unfamiliarity with taxation proceedings and his appeal against the Taxation Order. The Disciplinary Tribunal considered that his incompetence, even if accepted at face value, did not reduce the gravity of his conduct, which lay in his failure to comply with the Taxation Order and the prejudice it caused JWR by delaying its recovery of the excess fees (at [23] of the Report).

As for the Third Charge, it was the respondent’s position before the Disciplinary Tribunal that he was unable to make repayment at the material time. The Law Society did not dispute this position. However, it argued that the respondent’s ability to make repayment was irrelevant to the charge as it was his legal obligation to do so. Further, it noted that these facts were not within its knowledge, and that it was not for the Law Society to speculate. The Disciplinary Tribunal ultimately took the view that the respondent’s failure to pay was “due to his impecuniosity when his obligation to repay crystallised”, which alone did not present a prima facie case of due cause for disciplinary action. Consequently, the Disciplinary Tribunal decided not to refer the Third Charge to the Court of Three Judges, but to reprimand the respondent instead (at [29]–[30] of the Report).

The present application

The Law Society proceeded to file the present application for the respondent to show cause, in respect of the First and Second Charges, as to why he should not be made to suffer sanction under s 83(1) of the LPA. It is the Law Society’s position that the overall sanction that should be imposed is a term of two years’ suspension, with immediate effect.

The issues in this application

The following questions are to be answered in relation to each charge: Is there due cause for the respondent to be sanctioned under s 83(1) of the LPA? If so, what is the appropriate sanction?

Further, if we find that a term of suspension is warranted, we must consider the effect the respondent’s undischarged bankruptcy has on that term of suspension.

Finally, the consideration of whether due cause has been made out in respect of the respondent’s overcharging and his non-compliance with an order of court provides an opportunity for a more comprehensive review of...