Loh Der Ming Andrew v Koh Tien Hua

CourtCourt of Three Judges (Singapore)
JudgeSundaresh Menon CJ
Judgment Date14 April 2022
Neutral Citation[2022] SGHC 84
Citation[2022] SGHC 84
Published date20 April 2022
Hearing Date21 January 2022
Docket NumberOriginating Summons No 5 of 2021
Plaintiff CounselThe applicant in person
Defendant CounselNarayanan Sreenivasan SC and Ranita Yogeeswaran (K&L Gates Straits Law LLC)
Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This case demonstrates how fundamentally important it is for the legal practitioner to communicate openly and honestly with her client. Although it is the legal practitioner’s training, expertise in the law and legal judgment that are typically engaged, the role she fulfils is a representative one. The legal practitioner acts for her clients, and no two clients will be the same. When engaged in litigation, some clients will require much by way of assurance, guidance and counsel, while others may expect little more than to be kept apprised of key milestones. Some will have strong views as to how their matter should be strategised and conducted, while others may be comfortable leaving all this in the hands of the legal practitioner. The mark of the adept professional is her ability not only to identify and provide what each client needs, but to do so in a manner tailored to that client’s needs and suited to address his concerns, all while ensuring her own independence as counsel is preserved and her paramount obligation to the court is fulfilled. This is no easy feat. Challenging cases, difficult clients, as well as time and other pressures often hinder the legal professional’s ability to strike a good balance. However, as we will explain shortly, none of these constraints excuse – much less justify – the respondent’s conduct in this case, which veered from an initial mismanagement of his client into conduct that was wanting in integrity.

This is an application made under s 98(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (the “Act”) for the respondent, Mr Koh Tien Hua (“Koh”), an advocate and solicitor of the Supreme Court of Singapore, to show cause as to why he should not be made to suffer sanctions under s 83(1) of the Act. In this regard, he faces four charges – three under s 83(2)(h), and one, which implies an allegation of dishonesty, under s 83(2)(b). The applicant, Mr Andrew Loh Der Ming (“Loh”), is the complainant, and he brings this action in respect of Koh’s misconduct whilst representing him in divorce proceedings during a brief period from July to August 2015.

Before turning to the four charges before us, we will set out, in some detail, the underlying facts. As will become apparent in the course of our judgment, proper characterisation is necessary to appreciate the severity of Koh’s misconduct. It is therefore important that we place the charges in their full context.

Facts

Koh is a Partner with Harry Elias Partnership LLP (the “Firm”) and Co-Head of its Family and Divorce Practice Group. At the material time, Koh was an advocate and solicitor of 21 years’ standing, and by any measure, a seasoned family law practitioner.

Pre-hearing correspondence from 7 to 26 July 2015

On 7 July 2015, Loh retained Koh to act for him in divorce proceedings involving Loh’s then-wife and her co-defendant, a neighbour with whom, Loh alleged, his wife had been in an adulterous relationship. By the time Koh was retained on 7 July, Loh’s wife had withdrawn her defence to adultery, and it was only the co-defendant who was contesting the allegation. In this connection, the co-defendant filed two applications against Loh, seeking: (a) a gag order prohibiting the disclosure of the identities of witnesses or parties to the divorce proceedings (“SUM 2128”); and (b) an order to strike out Loh’s claim against him entirely, or alternatively, to strike out portions of Loh’s Statement of Particulars (“SOP”) (“SUM 2009”). These applications were scheduled to be heard on 27 July 2015.

When Koh was retained by Loh, some 20 days prior to the scheduled hearing, he also received his first set of instructions as to how Loh wished his case to be run. Loh specifically noted that it was important to him to establish that the co-defendant was the initiator of the adulterous affair. The notes of this meeting reflect that Loh’s desire to establish this stemmed from his view that this would help him get a sense of personal closure, and also help him explain to his children that the co-defendant had enticed their mother, so that the proceedings would not cast her in a bad light. Koh seemed to have recognised the importance of this point to Loh. Towards the end of the meeting, he is noted as observing that although the SOP drafted by Loh needed to be “reworked”, they needed to “prevent [Loh’s then-wife and the co-defendant] from getting a moral victory”.

From this point until the hearing on 27 July 2015, the flow of communications between Loh and Koh was entirely one-sided. On 8 July, Loh sent an e-mail to Koh setting out the arguments in support of his case that it was the co-defendant who had enticed Loh’s wife. Koh did not respond to this e-mail. On 14 July, Loh then sent a detailed e-mail to Koh, setting out his “first cut” responses to SUM 2009. From this e-mail, it would have been clear to Koh which particulars Loh wished to defend, and which he did not object to being struck out or amended. However, it may be noted that Loh prefaced this e-mail as follows:

Dear Mr Koh,

To assist you, I have prepared a first cut of what can possibly be amended below as a concession (highlighted in blue), in response to the requests made by opposing counsel. I would defer to your counsel on the final list.

Thank you, Andrew

Koh, again, did not respond.

On 15 July, Loh received an e-mail from Koh’s paralegal, attaching a notice from the Family Justice Courts (“FJC”). The court directed, by this notice, that the skeletal submissions for SUM 2009 and SUM 2128 were to be filed by 24 July. On the next day, 16 July, Loh e-mailed Koh, asking what he intended to put forth in the written skeletal submissions that the court had directed be filed. Loh wrote that there was “[n]o rush”, and asked Koh to extend him a copy of the submissions whenever they were ready. Koh did not respond.

On 24 July, Loh wrote to Koh again. In this e-mail, Loh referred to his meeting with Koh on 7 July, where the latter had suggested that he might be in touch with opposing counsel on the amendment of pleadings before the upcoming case conference. Querying whether Koh had acted on this suggestion since 7 July, Loh asked, “[a]re there any developments? What is our strategy?” There was, again, no response.

On 26 July, a day before the hearing, Loh sent yet another e-mail which, again, drew no reply Koh. In this, he wrote:

Dear Mr Koh,

While I have followed your advice to focus 100% on my children, and to leave the matter in your hands, I cannot help feeling anxious over the Court Hearing on Monday.

The co-defendant and his entourage of lawyers, has pulled out all the dirty tricks, and I am fearful there may be more.

I want my pleadings to remain in the SOP, as much as possible, so that my children can know the truth of the matter, and not to allow the co-defendant to twist the truth to suit his own purposes. As I have reiterated, it is harmful to my children, if they grow up to learn their mother was entirely complicit, rather than her being a victim of our neighbour, as shown in my full pleadings.

Please call me anytime during the Court Hearing, if any issues come out, which require more instructions from me.

Thank you, Andrew

[emphasis added]

It is apposite to highlight at this point that Koh subsequently conceded – under cross-examination during proceedings before the disciplinary tribunal – that he did not speak to Loh at all between 7 and 27 July 2015. Hence, there were no meetings, calls or conversations which need to be interposed into the sequence of foregoing e-mails, and inferences may be drawn from them with this in mind.

Hearing on 27 July 2015

On the morning of 27 July 2015, Koh attended the hearing of SUM 2009 and SUM 2128 before Assistant Registrar Eugene Tay (“AR Tay”) at the FJC. At the hearing, Koh made certain representations to AR Tay regarding his instructions from Loh. The first was that he had spoken to counsel for the co-defendant, Mr Nicholas Narayanan (“Mr Narayanan”), and that they were trying to reach a settlement “in terms of pleadings”. However, as he had been “unable to get [Loh’s] confirmation”, they would be proceeding with the hearing of the striking-out application. The second was made in response to AR Tay’s follow-up question further into the proceedings as to whether Loh was then contesting “everything that [the co-defendant’s counsel had applied] to strike out”. To this, Koh said, “Yes. No instructions to agree”.

Neither representation was true. First, as the one-way nature of Loh and Koh’s correspondence in the 20 days preceding the hearing shows, there was no question of Koh having been “unable” to secure confirmation. He had just not made any effort to seek any instructions from Loh. Second, Loh had made it clear to Koh that he did not object to the striking out of certain paragraphs. Therefore, it was not the case that Koh did not have any instructions to agree. For example, in one paragraph of the SOP, Loh had averred, amongst other things, that the co-defendant was “not only a liar and an adulterer” but also of a “vindictive nature”. In Loh’s e-mail to Koh on 14 July 2015, his remark in respect of this paragraph was “[w]e can strike this one out as a concession”. As regards another paragraph, in which Loh had made averments which were wholly irrelevant, he indicated in his 14 July e-mail that “[w]e can strike out [the] portions they want”.

In any event, notwithstanding what Koh said to AR Tay, as the hearing progressed, Koh agreed to numerous paragraphs of Loh’s SOP being struck out by consent. In total, Koh agreed to 19 paragraphs (or parts thereof) being struck out by consent. Fourteen of these were paragraphs which Loh expressly did not consent to being struck out. Indeed, Loh’s instructions as regards some of these paragraphs could not, in our view, have been any clearer. To illustrate, in...

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