Loh Der Ming Andrew v Koh Tien Hua

• Judge: Sundaresh Menon CJ,Judith Prakash JCA,Steven Chong JCA
• Judgment Date: 14 April 2022
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 5 of 2021

Loh Der Ming Andrew

and

Koh Tien Hua

[2022] SGHC 84

Sundaresh Menon CJ, Judith Prakash JCA and Steven Chong JCA

Originating Summons No 5 of 2021

Court of Three Judges

Legal Profession — Disciplinary proceedings — Review under s 97 Legal Profession Act (Cap 161, 2009 Rev Ed) — Whether High Court or Court of Appeal's observations were binding on Court of Three Judges — Section 97 Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Show cause action — Conduct unbefitting advocate and solicitor — Solicitor making false excuses for failing to comply with court's directions — Whether due cause was made out — Whether making false excuses amounted to dishonesty — Whether dishonesty was indicative of character defect rendering solicitor unfit for profession — Whether dishonesty undermined administration of justice — Sections 83(1) and 83(2)(h) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Show cause action — Conduct unbefitting advocate and solicitor — Solicitor unilaterally acting outside of client's express but untenable instructions — Whether due cause was made out — Section 83(2)(h) Legal Profession Act (Cap 161, 2009 Rev Ed)

Legal Profession — Show cause action — Fraudulent conduct — Solicitor intentionally concealing from client that he acted outside of instructions — Whether due cause was made out — Whether concealing information amounted to dishonesty — Whether dishonesty was indicative of character defect rendering solicitor unfit for profession — Whether dishonesty undermined administration of justice — Sections 83(1) and 83(2)(b) Legal Profession Act (Cap 161, 2009 Rev Ed)

Held, suspending the respondent for a term of three years:

Relevance of Andrew Loh (CA)

(1) In determining whether due cause was made out against Koh, a preliminary issue which arose was what the C3J ought to make of the Court of Appeal's finding in Andrew Loh(CA) that all four charges had been made out. The C3J's jurisdiction was distinct from the civil jurisdiction of the High Court or Court of Appeal exercised under s 97 of the LPA. Any observations made by those courts therefore did not bind the C3J. However, the C3J could not ignore or be blind to any observations made by the High Court and/or Court of Appeal. In reviewing a disciplinary tribunal's determination under s 97, those courts would have been mindful not to interfere with the findings of the tribunal without a proper basis. Thus, in cases where those courts did interfere, it was incumbent upon counsel – before the C3J – to consider why those courts did so, and to persuade the C3J that those courts had acted incorrectly: at [49] to [52] and [54].

(2) In any event, the Court of Appeal in Andrew Loh(CA) did not interfere with the DT's findings of objective facts. The court only disagreed with the inferences drawn by the DT from those facts, and, it was well recognised that appellate courts were just as competent in the drawing of inferences as lower courts or tribunals: at [52] and [53].

Approach towards dealing with dishonest conduct

(3) Where a solicitor's misconduct was dishonest, that would often lead to an order for striking off. If the dishonesty was indicative of a character defect which rendered the solicitor unfit to remain in the profession, or, where the dishonesty undermined the administration of justice, an order for striking off would almost invariably be made. As suggested in Law Society of Singapore v Udeh Kumar s/o Sethuraju[2017] 4 SLR 1369 at [105]–[108] and affirmed in Law Society of Singapore v Chia Choon Yang[2018] 5 SLR 1068 at [19], there were three broad categories of misconduct in respect of which it could typically be said that such indication of character, or, effect on the administration of justice, would be found to be present: at [48] and [69].

(4) The first category comprised cases where the errant solicitor had been convicted of a criminal offence involving dishonesty which implied a character defect rendering her unfit for the profession. Common examples included tax evasion, theft or related offences, and breach of trust. The second category comprised cases where the errant solicitor failed to deal appropriately with client moneys, or, where she had been dishonest in her dealings with the client so as to violate the trust and confidence which inhered the solicitor-client relationship. Dishonestly preferring a third party's interests over that of her client was an example of misconduct within this category. Dishonestly concealing mistakes from a client might also fall within this category. The third category comprised cases where the errant solicitor was fraudulent in her dealings with the court or breached her duty of candour and violated her obligations as an officer of the court: at [70] to [73].

Whether due cause was made out against Koh

(5) Due cause under s 83(2)(h) of the LPA was made out against Koh in respect of the fourth, sixth and eighth charges, and, under the “fraudulent” limb of s 83(2)(b) in respect of the ninth charge: at [75], [85], [89] and [103].

(6) As to the fourth charge, the misleading statement Koh made to the AR was dishonest. Implicit in Koh's statement that he had been “unable” to obtain Loh's instructions, was the suggestion that he had at least attempted to do so. Koh knew that he had made no such attempt, and this was evident from the complete lack of communication between Koh and Loh between 7 and 27 July 2015. It was clearly dishonest for a solicitor to make a false statement knowing that it was false. However, the statement was not one which revealed a character defect rendering Koh unfit to remain in the legal profession, and, it also did not undermine the administration of justice. Koh had failed to file written skeletal submissions as the AR had directed and his statement was an attempt to shift the blame to Loh. Instead of a fundamental defect in Koh's character, it revealed a lack of willingness to accept responsibility for his own failings: at [62] to [66], [74] and [75].

(7) Koh's misleading statement which formed the subject of the sixth charge was also dishonest. However, it was an extension of the misstatement forming the subject of the fourth charge, and, for similar reasons, Koh's dishonesty did not reveal a fundamental defect in his character or undermine the administration of justice: at [80] to [85].

(8) In relation to the eighth charge, Koh correctly assessed the lack of legal merit behind the 14 particulars which Loh wished to preserve in his SOP, but which Koh, of his own volition and contrary to Loh's instructions, consented to being struck out. This was also evident from the district judge's dismissal of Loh's appeal on those points. However, it was not for Koh to depart from Loh's instructions unilaterally. Koh had ample time to communicate his views to Loh before the hearing on 27 July 2015. Acting contrary to Loh's instructions without even attempting to discuss the position with him was conduct unbefitting a solicitor: at [86] to [89].

(9) As to the ninth charge, Koh intentionally concealed from Loh the fact that he had entered into consent orders. First, Koh knew that he was entering into consent orders and did not misapprehend the nature of what he was doing at the hearing. Second, Koh knew that he was not authorised to consent to those orders. This was clear from Loh's e-mails. Third, in light of Loh's many e-mails expressing his wish to file an appeal and review the notes of argument, there was no explanation for why Koh did not respond accordingly. Fourth, the correspondence showed Koh's reluctance to file an appeal. It was only after Loh involved Koh's managing partner that the appeal was filed. Fifth, since Koh had to have known that consent orders could not typically be appealed, it was revealing that even after the appeal had been filed, he still did not advise Loh that this was the consequence of his having consented to the orders in question. It was only when Koh was confronted by Loh, after he had obtained the notes of argument, that Koh acknowledged he entered into the consent orders. These facts pointed irresistibly to the conclusion that Koh intentionally concealed the consent orders from Loh: at [90] to [103].

(10) However, Koh's dishonesty in the ninth charge also did not indicate a defect in Koh's character and did not undermine the administration of justice. On the latter, the particulars of Loh's SOP which Koh had consented to being struck out contravened the basic rules of pleading, and, they would have been struck out with or without Koh's consent. As to the question of character, Koh could have but did not embark on a more elaborate attempt to conceal the consent orders. Thus, a more fundamental defect in character was not read into his misconduct: at [104] to [106].

Appropriate sanction to be imposed on Koh

(11) Koh's misconduct did not warrant him being struck off. First, as stated, although he had acted dishonestly, his dishonesty was not indicative of a character defect rendering him unfit to remain in the profession, nor did it undermine the administration of justice. Indeed, his misstatements to the AR were of no consequence, and his concealment of the consent orders was not elaborate. He eventually did file the appeal for Loh, and, when he did so, he would have known that it was only a matter of time before Loh would discover what he had done. Second, Koh did not benefit from his dishonesty. Third, Koh's misconduct did not cause Loh any actual harm: at [106] and [110] to [116].

(12) However, a substantial suspension was nonetheless called for given Koh's dishonesty. Having regard to the sanctions imposed in other cases, and the importance of maintaining public confidence in the administration of justice as well as in the integrity of the legal profession, it was determined that the appropriate sanction was a three-year suspension: at [116] to [122].

(13) No mitigatory weight was given to Koh's...