Loh Der Ming Andrew v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 17 October 2017
• Neutral Citation: [2017] SGHC 256
• Plaintiff Counsel: The applicant in person
• Docket Number: Originating Summons No 350 of 2017
• Date: 17 October 2017
• Hearing Date: 27 June 2017
• Subject Matter: Professional conduct,Legal profession,Disciplinary proceedings
• Year: 2017
• Defendant Counsel: Prabhakaran Narayanan Nair (Derrick Wong & Lim BC LLP)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 256
• Published date: 24 October 2017

Woo Bih Li J: Introduction

Mr Andrew Loh Der Ming (“the Applicant”), discontent with professional services rendered to him by Mr Koh Tien Hua of Harry Elias Eversheds LLP (“Mr Koh”), filed complaints under ss 75B and 85(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) with the Law Society of Singapore (“the Law Society”). These complaints were referred to an Inquiry Committee (“the IC”). The IC recommended, in relation to one head of complaint that Mr Koh had acted against the Applicant’s instructions, that a penalty of $2,500 be imposed with no need for a formal investigation. Other heads of complaint were dismissed. Council of the Law Society (“the Council”) adopted the IC’s recommendations.

Dissatisfied with the Council’s decision, the Applicant filed an application under s 96 of the LPA for the High Court to direct the Law Society to apply to the Chief Justice for the appointment of a Disciplinary Tribunal (“DT”) in respect of his complaints. Before me, the Applicant proceeded on three of the seven heads of complaint raised in his original letter of complaint to the Law Society. On the evidence, I find that the Applicant has established sufficient grounds to show that two of the three heads of complaint warrant further investigation and consideration by a DT. Accordingly, I grant the application.

The background The Divorce Suit

This application stems from the Applicant’s divorce suit, vide, FC/D 3672 of 2014 (“the Divorce Suit”), filed against his ex-wife (“the Defendant”) on the ground of adultery between her and another man (“the Co-Defendant”). The Divorce Suit commenced in April 2014 and ended in June 2016.

The Defendant was represented by JLC Advisers LLP. She withdrew her Defence in the Divorce Suit on 26 March 2015.¹

The Co-Defendant was represented by Nicholas & Tan Partnership LLP. On 30 August 2014, the Co-Defendant filed his defence denying that he had committed adultery.² He maintained this position even after the Defendant had withdrawn her defence. In addition, the Co-Defendant filed two applications against the Applicant respectively seeking (collectively, “the Divorce Applications”):³ a non-disclosure order (FC/SUM 2128 of 2015); and an order to strike out the Applicant’s claim against the Co-Defendant or, alternatively, to strike out portions of the Applicant’s Statement of Particulars (“the SOP”) (FC/SUM 2009 of 2015).

These Divorce Applications were scheduled to be heard in the Family Court on 27 July 2015. The Applicant filed his own replies and affidavits in response to these applications on 3 July 2015. Thereafter, the Applicant decided to engage a lawyer’s assistance due to the increasing complexity of the matter.

Pre-hearing instructions to Mr Koh

The Applicant first met Mr Koh on 25 August 2014 at the recommendation of a mutual friend. The Applicant was accompanied by his cousin. At that meeting, the Applicant and Mr Koh discussed the Divorce Suit and the Applicant gave Mr Koh the particulars and contacts of the counterparties and their counsel.⁴ Mr Koh explained his fees and made a photocopy of the Applicant’s NRIC. Mr Koh later confirmed, by his letter to the IC dated 29 August 2016, that he had performed a conflict of interest search before agreeing to meet the Applicant on 25 August 2014. However, at the time of the meeting, the Applicant did not appoint Mr Koh as his solicitor or give any instruction to Mr Koh.

Close to a year later, after the Co-Defendant filed the Divorce Applications, the Applicant e-mailed Mr Koh on 6 July 2015 to seek the latter’s help with the Divorce Suit until either the Co-Defendant’s Defence was withdrawn or the matter proceeded to trial.⁵ Mr Koh accepted the appointment. By this time, the Defendant’s Defence had already been withdrawn.⁶

On 7 July 2015, the Applicant met Mr Koh and signed the warrant for Mr Koh to act for him.⁷ During this meeting, Mr Koh informed the Applicant that the Co-Defendant’s counsel had previously discussed this case with him on a general basis with no names mentioned, but assured the Applicant that there was no conflict of interest.⁸

Thereafter, the Applicant sent several e-mails to Mr Koh stating his position in relation to the Divorce Applications and suggesting arguments that may be made. In particular, the Applicant’s e-mail dated 14 July 2015 to Mr Koh contained a “first cut” of his responses to the Co-Defendant’s striking out application (see above at [5(b)]). The Applicant proposed to concede on eight of the 61 challenged particulars and clarified that he would “defer to [Mr Koh’s] counsel on the final list”.⁹ Mr Koh did not reply to this or the other e-mails sent by the Applicant.

On 15 July 2015, Mr Koh’s paralegal e-mailed the Applicant to inform him that (a) the court hearing for the Divorce Applications had been fixed for 9.30 am on 27 July 2015, (b) the Court had by letter directed both the Applicant and the Co-Defendant to file skeletal submissions by 24 July 2015, and (c) “[Mr Koh] will prepare [the skeletal submissions] and attend Court on your behalf”.¹⁰ The Applicant acknowledged receipt of the e-mail on the same day.¹¹

Between this exchange and the hearing on 27 July 2015, the Applicant sent three further e-mails to Mr Koh: E-mail dated 16 July 2015, in which the Applicant asked Mr Koh what Mr Koh would be putting forward in the skeletal submissions.¹² E-mail dated 24 July 2015 (Friday), in which the Applicant referred to Mr Koh’s earlier comment that Mr Koh would discuss the issue of “amendment of pleadings” with the Co-Defendant’s counsel prior to the hearing on 27 July 2015 (coming Monday), and requested for updates in that regard.¹³ E-mail dated 26 July 2015 (Sunday), in which the Applicant expressed anxiety over the hearing, reiterated his desire to retain as much of the pleadings as possible, and stated that Mr Koh could call him anytime during the hearing “if any issues come out, which require more instructions from me”.¹⁴

Mr Koh did not reply to any of the e-mails stated in [12].

Hearing of the Divorce Applications

On 27 July 2015, the Divorce Applications were heard before Assistant Registrar Eugene Tay (“AR Tay”). At the scheduled commencement time of 9.30 am, Mr Koh was not present even though the Co-Defendant’s counsel was. Upon being reached by mobile phone, Mr Koh rushed to court and turned up at around 10.10am – a delay of around 40 minutes. He apologised to AR Tay, explaining that he thought that the hearing was fixed at 2.30 pm later in the afternoon.¹⁵ Thereafter, the following exchange took place between AR Tay and Mr Koh:¹⁶

Mr Koh:	I spoke to my Learned Friend. Trying to reach settlement in terms of pleadings. But I am unable to get my client’s confirmation. We can proceed. I will make oral submissions.
Ct:	Directions given for skeletals to be filed.
Mr Koh:	I was hoping my client would agree with my proposed course of action. The way I read the file, there is really no need to go into a full blown litigation, just on question of pleadings.

Later in the hearing, AR Tay asked Mr Koh for his client’s position on the striking out application, to which Mr Koh replied as follows:¹⁷

Ct:	For the record, contesting everything that Co-Defendant Counsel is intending to strike out?
Mr Koh:	Yes. No instructions to agree. …

The hearing then proceeded into a line-by-line examination of the Co-Defendant’s challenges to the Applicant’s SOP. During this exchange, Mr Koh conceded several amendments to the SOP and agreed for these amendments to be recorded as “by consent”. In total, based on the NEs, 19 amendments were recorded as “by consent”.¹⁸ For ease of reference, this aspect of the Court’s order will be referred to as the “Consent Order”. The Court also ordered amendments in respect of certain other paragraphs, and for costs to be in the cause (collectively, “the Striking Out Order”).

In relation to the non-disclosure application (see above at [5(a)]), Mr Koh made various oral submissions resisting the application. He also appeared to have tendered to the Court four looseleaf authorities.¹⁹ Upon deliberation, AR Tay granted the Co-Defendant’s application and made no orders as to costs (“the Non-Disclosure Order”).²⁰

It should be noted that on 24 July 2015, pursuant to the Court’s direction (see above at [11]), the Co-Defendant’s counsel filed skeletal submissions of 53 pages in respect of the Divorce Applications. On the day of the hearing on 27 July 2015, he also tendered to the Court a bundle of authorities (“BOA”) of more than 300 pages. The Applicant was neither informed of nor provided a copy of the submissions or the BOA filed by the Co-Defendant. He was only sent a copy of the submissions by Mr Koh’s paralegal later on 28 July 2015,²¹ and a copy of the BOA apparently only five days before the date of an appeal hearing.²²

Instructions to appeal

On 28 July 2015, the Applicant was informed of the outcome of the Divorce Applications by e-mail from Mr Koh’s paralegal in which Mr Koh was carbon-copied.²³ In particular, a list of the paragraphs removed from the SOP by consent was provided under the header “[t]o be strike out [sic] unless otherwise stated as per submitted by the Co-Defendant”. A softcopy of the Co-Defendant’s submissions was also appended.

A lengthy series of e-mail exchanges then occurred between the Applicant, Mr Koh, and Mr Koh’s paralegal. Most of these e-mails were sent by the Applicant concerning reminders, instructions, and suggestions. Mr Koh provided an occasional reply.²⁴ In summary, these e-mails evidenced the following: The Applicant was unhappy with the outcome of the two Divorce Applications. He sought the NEs of the hearing on 27 July 2015 from Mr Koh and gave Mr Koh repeated and unequivocal instructions to appeal against both the Striking Out Order and...