Loh Der Ming Andrew v Koh Tien Hua

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 11 August 2021
• Neutral Citation: [2021] SGCA 81
• Published date: 14 August 2021
• Docket Number: Civil Appeal No 227 of 2019
• Year: 2021
• Hearing Date: 01 July 2021
• Plaintiff Counsel: The appellant in person
• Citation: [2021] SGCA 81
• Defendant Counsel: Narayanan Sreenivasan SC and Ranita Yogeeswaran (K&L Gates Straits Law LLC)
• Court: Court of Appeal (Singapore)
• Subject Matter: Legal Profession,Disciplinary proceedings

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

What is a solicitor to do when fidelity to his client’s instructions conflicts with his duty to the court not to advance unreasonable or incorrect legal positions? This problem arose in the present case where the appellant client instructed the respondent solicitor to resist an application to strike out certain parts of the appellant’s Statement of Particulars. Many of these were scandalous and were bound to have been struck out in any event. In our judgment, the proper course for a solicitor in such circumstances is to communicate frankly and candidly with his client, with a view to persuading the latter to change his instructions. Failing that, the solicitor, because of the paramount duty he owes to the court, may have no choice but to discharge himself. The present respondent did not do that. Instead, he mishandled the situation by deciding of his own volition to consent to the striking out of those particulars contrary to the appellant’s instructions and then compounded that by concealing from the appellant what he had done. Although the respondent had acted correctly in the position he took before the court, his conduct was improper as far as his client was concerned. Because of these errors, the respondent has had to endure 5 years of proceedings arising from the complaint that the appellant made against him and he now faces the prospect of more proceedings. This case highlights the critical importance of solicitors communicating frankly and candidly with their clients and having a very clear idea of their duty to the court when confronted with client demands that may conflict with this. This is especially important in family law practice, which can be emotionally and relationally challenging, and where the clients are often in an emotionally wrought state.

This was an appeal from a decision of the High Court judge (“the Judge”) pursuant to s 97 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”), and it additionally gives us the opportunity to clarify the role and powers of a judge hearing a s 97 review application. At the end of the oral hearing, we set aside the Judge’s order which exceeded the scope of her powers. We also set aside part of the determination of the Disciplinary Tribunal (“DT”) and directed the appellant to file an application to refer the matter to the Court of Three Judges (“C3J”) pursuant to s 98 of the LPA. We now explain the grounds for our decision.

Material facts

On 7 July 2015, the appellant, Mr Andrew Loh Der Ming (“Loh”), engaged the respondent, Mr Koh Tien Hua (“Koh”), to represent him in his divorce proceedings. Loh was the plaintiff in the divorce proceedings, while the defendant was his wife and the co-defendant was a neighbour who Loh alleged had been in an adulterous relationship with his wife. Loh’s wife withdrew her defence to adultery, while the co-defendant maintained his defence and denied that he had committed adultery. The co-defendant filed two summonses, one of which, FC/SUM 2009/2015 (“SUM 2009”), was to strike out certain parts of Loh’s Statement of Particulars (“SOP”). These applications were heard by Assistant Registrar Eugene Tay (“AR Tay”) on 27 July 2015.

At the hearing, Koh consented to various parts of the SOP being struck out and to this extent, it was recorded as a consent order. It was disputed whether Koh had been authorised to consent to this in the exercise of his professional judgment. When Loh learnt that the particulars had been struck out, he insisted that an appeal be filed. Koh did not at that stage inform Loh that the particulars had been struck out by consent or that a consent order cannot ordinarily be appealed. With much reluctance on Koh’s part, after considerable delay, and purely because of Loh’s insistence, Koh eventually filed the appeal. Loh subsequently discovered what had transpired at the hearing.

On 12 May 2016, Loh lodged a complaint against Koh (“Complaint Letter”) with the Law Society of Singapore (“Society”) which included the following (see Loh Der Ming Andrew v Law Society of Singapore [2018] 3 SLR 837 (“Andrew Loh (pre-DT)”) at [25]): Seven heads of complaint against Koh under s 85(1) of the LPA alleging against Koh: perjury, knowingly misleading the court, and breach of duty in court; dishonesty and lying; acting against instructions and deception concerning consent orders; acting against client’s interest; acting in conflict of interest; wasting the court’s time; and lack of fairness and courtesy to the judge and to the client. Six heads of complaint against Koh under s 75B of the LPA alleging that he: failed to provide diligent service; failed to complete his work within a reasonable time; failed to keep Loh informed on the progress of the case; failed, without reasonable grounds, to respond to Loh; failed to explain important developments in the case to Loh; and was incompetent.

On 27 May 2016, the Society informed Loh that his complaints under s 75B of the LPA would only be referred to the Council of the Law Society (“Council”) for deliberation upon completion of the inquiry into his complaints under s 85(1) of the LPA (see Andrew Loh (pre-DT) at [26]).

On 1 August 2016, the Inquiry Committee (“IC”) was constituted by the Chairman of the Inquiry Panel to inquire into the complaints under s 85(1) of the LPA. The IC found that only the third head of complaint was made out, but that no formal investigation by a DT was needed, and that Koh should be ordered to pay a penalty of $2,500.

On 14 March 2017, the Society informed Loh that the Council had accepted the findings and recommendations of the IC (Andrew Loh (pre-DT) at [34]).

Loh was dissatisfied with this decision and applied to court for an order directing the Society to apply to the Chief Justice (“CJ”) for the appointment of a DT pursuant to s 96(4)(b) of the LPA (Andrew Loh (pre-DT) at [37]). That application was heard by Woo Bih Li J (as he then was).

On 17 October 2017, Woo J issued his judgment, directing the Society to apply to the CJ for the appointment of a DT to investigate the following two heads of complaint which were stated in the Complaint Letter (Andrew Loh (pre-DT) at [170]) (“Woo J’s remit”): (a) first head of complaint: that Mr Koh had knowingly misled the court and/or failed to discharge his duty to be honest and truthful to the court by stating three untrue statements to AR Tay at the hearing on 27 July 2015 … ; and (b) third head of complaint: that Mr Koh had acted against the Applicant’s instructions by conceding to the Consent Order, and that Mr Koh had subsequently sought to deliberately suppress from the Applicant the fact that the Consent Order had been made and the effect of the concession on the viability of the Applicant’s appeal against the Striking Out Order ...

A DT was duly constituted comprising Dr Stanley Lai SC and Ms Tan Gee Tuan (“DT1”). On 25 October 2017, Loh submitted his complaint and Statement of Case to DT1. Loh brought a total of 14 charges against Koh, arising out of seven alleged acts. Two charges were brought in respect of each alleged wrongful act, one under s 83(2)(b) of the LPA for “fraudulent or grossly improper conduct in the discharge of his professional duty” and one under s 83(2)(h) of the LPA for “misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession”. The 14 charges are summarised at Annex A to this judgment.

On 24 July 2019, DT1 issued a report finding Koh guilty of the Fourth and Sixth charges, but acquitted him of all the other charges. DT1 also questioned whether it was appropriate for the Eleventh to Fourteenth charges to have been brought before it since they seemed to fall outside the scope of Woo J’s order. DT1 found that Koh’s misconduct in relation to the Fourth and Sixth charges did not constitute cause of sufficient gravity for disciplinary action under s 83 of the LPA, and thus did not recommend that the matter be advanced to the C3J. Instead, DT1 recommended a penalty of $10,000, or such sum that the Council shall determine under s 94(3)(a) of the LPA as being sufficient and appropriate to Koh’s misconduct. DT1 also ordered Koh to bear 25% of Loh’s costs for the proceedings before DT1.

On 8 August 2019, Loh filed HC/OS 1015/2019 (“OS 1015”) applying for the High Court to review the entirety of DT1’s determination pursuant to s 97 of the LPA, save for the findings that Koh was guilty of the Fourth and Sixth charges. This was heard before the Judge on 6 November 2019.

At the time of the hearing before the Judge, the Council had yet to decide whether to accept the determination of DT1. However, we inferred that the Council was inclined to accept the determination of DT1 because it would otherwise have been required to advance the matter to the C3J within a month, but it had not done so (see s 94(3)(b) of the LPA).

The Judge’s decision

On 25 November 2019, the Judge found that, in addition to the Fourth and Sixth charges, Koh was also guilty of the Eighth and Tenth charges. The Judge concluded that there was no need to remit the matter to DT1 because her conclusions were based on matters that had been dealt with during the hearing by DT1.

The Eighth charge was framed as an alternative to the Seventh charge and concerned the allegation that Koh had acted contrary to Loh’s instructions. The Judge considered that the Seventh charge was not made out. While Koh had consented to the striking out of particulars without Loh’s instructions, this stemmed from a lack of care and thought, and was a decision Koh made in the moment without prior planning. Koh had in fact initially told the court that he had no instructions to agree. The Judge found that there was no intention to deceive the court.

The Tenth charge was framed as an...