Legal Profession
| Publication year | 2019 |
| Date | 01 December 2019 |
| Author | Khelvin XU LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Partner, Rajah & Tann Singapore LLP. |
| Published date | 01 December 2019 |
| Citation | (2019) 20 SAL Ann Rev 587 |
21.1 Apart from disciplinary cases involving dishonesty, shortfalls in the handling of client money, and insufficient diligence (and, regrettably, such cases arise every year), 2019 was notable for cases involving more uncommon facts and issues of law.
21.2 In Asplenium Land Pte Ltd v Lam Chye Shing,1 the High Court substantively considered, for the first time, the Evidence Act2 (“EA”) provisions which extend legal professional privilege to communications with in-house counsel. In HC/S 37/2015, the plaintiff (“CKR”) obtained discovery orders against the defendants (“the RLB Defendants”), who filed a supplementary list of documents. Asplenium then filed an originating summons to restrain CKR and the RLB Defendants from disclosing, receiving, and/or using some documents listed in the supplementary list of documents. Asplenium claimed that it was entitled to assert, over some of the documents, legal advice privilege under s 128A(1) of the EA because they were communications between its in-house legal counsel (“Hwang”) and its project manager (“Sia”) in relation to a particular project (“the Item 3 Documents”).
21.3 The High Court held that Hwang was a “legal counsel” within the meaning of s 128A of the EA. Hwang was previously practicing law, his designation was “Director, Legal and Business Development” and his role in relation to Asplenium was of a purely legal nature. Further, there was no requirement under s 3(7)(a) of the EA for Hwang to be employed exclusively to provide legal advice. The Item 3 Documents were sent to Hwang in his capacity as an in-house legal counsel to seek his advice, input, and opinion where necessary.
21.4 Next, the High Court considered whether Hwang was a legal counsel of Tuan Sing, which was a related corporation to Asplenium under the Companies Act3 (“CA”). If so, he would also be regarded as legal counsel of Asplenium under s 128A(4) of the EA read with s 6 of the CA. The issue was complicated by the fact that Hwang was formally employed by Nuri (another company) but was also performing legal work for Tuan Sing, which paid to Nuri roughly half of Hwang's salary under a cost-sharing arrangement.
21.5 The High Court held that the dispute turned on whether Hwang was “employed” by Tuan Sing, that is, whether there was a master-servant or employer-employee relationship between them. The High Court went into an in-depth exploration of the working arrangements between Hwang and Tuan Sing, and the various factors relevant to the identification of an employment relationship, and concluded that an employment relationship existed between Hwang and Tuan Sing.
21.6 CKR then argued that the Item 3 Documents were not privileged because Sia (the project manager) was (a) an employee of Tuan Sing and not Asplenium; and/or (b) not authorised to deal with Aspleniums lawyers. However, the High Court held that privilege could be sustained whether Sia was employed by Asplenium or Tuan Sing, and that Sia, as the project manager in charge of the project, was implicitly authorised to seek and receive legal advice from Hwang.
21.7 Finally, CKR argued that Asplenium could not assert privilege because (a) it had waived privilege by copying the Item 3 Documents to the quantity surveyor for the project (“Lam”), who was not an employee of Asplenium; and (b) it was Lam, not Asplenium, who was being asked to disclose the documents. The High Court held that there was no waiver, whether express or implied, arising merely from the Item 3 Documents being copied to Lam. While it was Lam (and not Asplenium or its employees) who was being asked to disclose the documents, the High Court granted an injunction to prevent the unauthorised use in court proceedings of information contained in privileged material, which would in most instances be of a confidential nature.
21.8 CKR's appeal was dismissed by the Court of Appeal with no written grounds of decision rendered. This case is interesting, because while CKR raised several technical arguments to support its proposition that the Item 3 Documents did not fall within the ambit of s 128A of the EA, the High Court took a more broad-brush approach that took into account the commercial reality — that companies often rely on in-house
21.9 In Re Salwant Singh s/o Amer Singh,4 the applicant had been sentenced (upon appeal) to 20 years' preventive detention in 2003. In 2019, the applicant sought leave for an investigation into his complaint of misconduct against three legal service officers, who were the deputy public prosecutors (“DPPs”) who had been involved in prosecuting him. The applicant claimed that the DPPs carried out “premediated [sic] and malicious prosecution” by charging him for offences that they knew he had not committed.
21.10 Under s 82A of the Legal Profession Act5 (“LPA”), leave must be granted by the Chief Justice before commencing investigation into misconduct complaints against legal service officers. This inquiry involves a two-stage process:
(a) First stage: The Chief Justice must be satisfied that there is a prima facie case for an investigation into the complaint.
(b) Second stage: The Chief Justice needs to consider if there are any relevant factors that might influence his/her decision on whether leave should be granted.
21.11 As regards the first stage, the Chief Justice held that there was no prima facie case for an investigation because:
(a) The applicant's veracity was questionable because of his significant delay in raising the issues, and the grounds he relied upon evolved over time.
(b) Even if the Chief Justice accepted the applicant's case that he did not commit the 188 offences in question (purportedly because of a discrepancy in the dates), these offences had not been proceeded against him, but had been taken into consideration. There would still have been 572 charges (out of a total of 760 charges) taken into consideration which justified
the sentence he received. Further, the Court of Appeal had imposed 20 years' preventive detention on the applicant for the protection of the public, and not because of the precise number of charges taken into consideration. The alleged wrong charges therefore did not affect the applicant's conviction and sentence, and undermined his suggestion that the DPPs had deliberately fabricated the charges in order to secure his conviction and/or a harsher sentence.(c) There was no evidence that the DPPs were aware of the alleged inconsistency in the dates of the charges that the applicant was complaining of.
21.12 While it was unnecessary for the Chief Justice to proceed to the second stage, the Chief Justice nevertheless held that the application would have failed at the second stage given the inordinate delay in the applicant bringing the complaint. The significant delay would lead to substantial prejudice to the DPPs because it would likely affect their recollection of the case and access to relevant records. Further, given the inherent weakness of the complaint, there was no overriding interest in directing a further investigation. There was also no prejudice suffered by the applicant because even if his allegations were accepted, they did not affect the foundation of his conviction or sentence.
21.13 The Law Society of Singapore v Koh Tien Hua6 was the latest in series of decisions involving a client's complaint against his lawyer in matrimonial proceedings. On 12 May 2016, the complainant client had lodged a complaint with the Law Society. The inquiry committee recommended that a formal investigation by a disciplinary tribunal (“DT”) was not necessary, save that the respondent lawyer should pay a $2,500 penalty in respect of one of the heads of complaint. Council of the Law Society accepted the recommendations. Dissatisfied, the complainant filed an originating summons asking that the High Court direct the Law Society to apply to the Chief Justice for the appointment of a DT pursuant to s 96(4)(b) of the LPA. The High Court granted the application partially (in Loh Der Ming Andrew v Law Society of Singapore7). This case set out the DT's findings.
21.14 The charges before the DT were grouped into three broad categories of allegations:
(a) Group 1: that the respondent breached r 56 of the Legal Profession (Professional Conduct) Rules 20108 in deceiving or misleading the court by making false and inaccurate statements;
(b) Group 2: that the respondent agreed to consent orders without the complainant's consent, culminating in the filing of a notice of appeal; and
(c) Group 3: that the respondent failed to provide sufficient legal advice on (i) appealing various orders; and (ii) how consent orders would impact the possibility for an appeal.
21.15 In relation to various Group 1 charges, the DT found that the complainant had not proven beyond reasonable doubt that the respondent had knowingly misled the court, and that there was an equally strong case that the respondent had merely been careless. However, in relation to two charges under Group 1:
(a) On 27 July 2015, the respondent had stated to the court that he was “unable to get [his] client's confirmation” in relation to a settlement. However, the respondent had not communicated with the complainant between 7 July 2015 (on which they had last met) and 27 July 2015, and as such, the phrase was...
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