Nathan Edmund v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 21 November 2012
• Neutral Citation: [2012] SGHC 232
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 116 of 2012
• Year: 2012
• Published date: 26 November 2012
• Hearing Date: 02 July 2012
• Plaintiff Counsel: Mr Ang Cheng Hock SC, Mr Rajan Sanjiv Kumar, Mr Tan Kai Liang (Allen & Gledhill LLP)
• Defendant Counsel: Mr N Sreenivasan (Straits Law Practice LLC),Ms Denise Wong
• Subject Matter: Legal Profession
• Citation: [2012] SGHC 232

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

This was an application by one Edmund Nathan (“the Applicant”) to be restored to the roll of advocates and solicitors of the Supreme Court of Singapore (“the Roll”) after having been struck off 14 years ago, in 1998. The applicant was 64 years of age at the time of the application, and since 2008 had been working as a paralegal at the firm of M/s Tan Rajah and Cheah (“TRC”). This was his second attempt at reinstatement, having previously withdrawn an application made in Originating Summons No 851 of 2010.

After hearing submissions of the respective parties, we allowed the application. We now give the reasons for our decision.

Background facts

On 30 May 1997, the Applicant was convicted together with one Allosius Bernard Fernandez (“Fernandez”) of attempted cheating under s 420, read with s 34 and s 511 of the Penal Code (Cap 224, 1985 Rev Ed).¹ The facts leading to the conviction are as follows. In mid-1991, the Applicant was retained by Fernandez to effect the purchase of an apartment for S$135,000. He also acted for the vendors of the apartment. With the aim of obtaining a higher housing loan for Fernandez and his wife, Margaret Angela Fernandez, the Applicant drafted an agreement which set out the ‘sale price’ as S$190,000. He then drafted a second document which clarified that this ‘sale price’ of S$190,000 was only for the purposes of obtaining the housing loan, and that the correct sum to be paid upon completion of the purchase of the apartment was S$135,000. Following this, the Applicant referred Fernandez to one Joseph Han, a branch manager at United Overseas Bank Ltd (“UOB” or “the bank” as may be appropriate), who duly filled in the bank’s requisite forms stating that the purchase price was S$190,000. A loan of S$110,000 was subsequently approved by the bank, and a letter of offer was made to Fernandez and his wife. UOB also instructed the Applicant to act for them in relation to the loan. Thus, the Applicant represented all three parties to the transaction, namely, the buyers, the sellers and the bank.

Fernandez was unable to complete the purchase of the property due to his failure to obtain the approval of the Central Provident Fund for the release of money from his account towards the purchase. The sale was eventually aborted. The loan of S$110,000 was never disbursed by UOB. The Applicant’s misdeeds only came to light during proceedings brought by Fernandez to enforce the sale and purchase agreement against the vendors, when the presiding High Court judge noticed that there was an issue of illegality and the matter was referred to the police.² On 30 May 1997, the Applicant was jointly tried with Fernandez and convicted of attempted cheating.³ The Applicant was sentenced to one day’s imprisonment and fined S$10,000. On 12 August 1997, his appeal to the High Court was dismissed.

In the meantime, on 15 September 1994, the Registrar of the Supreme Court filed a complaint to the Law Society in relation to the same matter.⁴ Following that, an Inquiry Committee of the Law Society investigated into the complaint pursuant to s 86 of the Legal Profession Act (Cap 161, 1994 Rev Ed) (“the 1994 Act”). It reported to the Council of the Law Society that the applicant’s conduct was improper and recommended a fine of S$3,000. This recommendation was adopted by the Council on or about 8 May 1995.⁵

However, pursuant to the Applicant’s conviction for attempted cheating (see [4] above), and notwithstanding the Inquiry Committee’s report (see [5] above) the Law Society applied, pursuant to s 94A(1) of the 1994 Act, to the High Court requiring the Applicant to show cause why he should not be dealt with under s 83 of the same Act. The application came before a Court of Three Judges of the Supreme Court on 29 May 1998, which held that as the Applicant was “a person of dishonest character”,⁶ and as a punishment of suspension would be “wholly inadequate”, he was to be struck off the Roll with effect from 14 July 1998.

The Applicant’s conduct between disbarment and the application for reinstatement

After being struck off, the Applicant relied upon his wife, a teacher, for financial support.⁷ Apart from this, he lived on his savings and occupied himself by providing tuition to his daughter, nieces and nephews.⁸ He was unsuccessful in his attempts to look for other work until 2008.

In 2008, a decade after he was struck off, the Applicant approached Mr Chelva Retnam Rajah SC (“Mr Rajah SC”) of TRC to ask if he could work as a paralegal at the firm. TRC offered him employment as a paralegal at a monthly salary of S$5,000.⁹ In line with s 78(1)(a) of the Legal Profession Act (Cap 161, 2001 Rev Ed), an application for permission was filed on 25 March 2008,¹⁰ and on 29 April 2008 it was granted. In his affidavit affirmed on 20 March 2008, the Applicant averred that the firm’s offer of employment would allow him to renew his direct involvement with the practice of law, as well as offer him a source of income for the first time since being struck off.¹¹ The Applicant commenced work at TRC in May 2008 and remained employed by the firm up to the time of the hearing of his application for replacement onto the Roll (“replacement application”) before this court.¹² His work as a paralegal included “research assignments, assisting in the drafting of interlocutory applications, drafting affidavits, and reviewing various documents and transcripts for contentious work”.¹³

The applicable law

Section 102 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) governs the replacement onto the Roll of solicitors who have been struck off. It provides that: 102. —(1) Where the name of a solicitor has been removed from, or struck off, the roll, the court may, if it thinks fit, at any time order the Registrar to replace on the roll the name of the solicitor — (a) free from conditions; or (b) subject to such conditions as the court thinks fit. (2) Any application that the name of a solicitor be replaced on the roll shall be made by originating summons, supported by affidavit, before a court of 3 Judges of the Supreme Court of whom the Chief Justice shall be one. (3) The originating summons shall be served on the Society which shall — (a) appear at the hearing of the application; and (b) place before the court a report which shall include — (i) copies of the record of any proceedings as the result of which the name of the solicitor was removed from or struck off the roll; and (ii) a statement of any facts which have occurred since the name of the solicitor was removed from or struck off the roll and which, in the opinion of the Council or any member of the Council, are relevant to be considered or investigated in connection with the application.

In considering a replacement application pursuant to s 102 of the Act, the court will look at 3 crucial factors, as elucidated by the Court of Appeal in Kalpanath Singh s/o Ram Raj Singh v Law Society of Singapore [2009] 4 SLR(R) 1018 (“Kalpanath Singh”). First, the court will assess the adequacy of the period of time which has lapsed between disbarment and the replacement application; second, the court will consider whether the applicant has been fully and completely rehabilitated; third, and most importantly, the court must be satisfied that the public interest and reputation of the legal profession will be protected.

In line with these considerations, the grounds of the Applicant’s case can be simply stated. First, he argued that it had been 14 years since the date of his disbarment and that this, by any standard, was a sufficiently long period for rehabilitation on account of his misconduct. Secondly, he pointed to his conduct since disbarment as an indication that he had been fully rehabilitated, particularly as the gravity of his misconduct was on the lower end of the scale to begin with. Finally, he contended that his reinstatement would not pose any risk to the public interest or the reputation of the profession.

The position of the Law Society and Attorney-General

Neither the Law Society nor the Attorney-General opposed the application. Indeed, the Law Society furnished the court with an additional reason in support of allowing the application at this time, as it took the view that if redemption was to be meaningful reinstatement onto the roll must not be so late that the applicant would not have enough time to resume practice in the profession, bearing in mind the applicant’s age and health.¹⁴ We will revert to this point later at [26].

Nevertheless, the Law Society, conscious of the need to protect the interest of the public as well as the image of the profession, felt that it was necessary to propose the imposition of the following set of 5 conditions – the Applicant: (a) is not permitted to practise as a sole proprietor for a period of 3 years and is not permitted to practice as a partner or director of any law practice for a period of 2 years; (b) is not permitted to hold or receive client money and/or trust money or act as a signatory to or operate any client or office or trust account of a Singapore law practice for a period of 3 years; (c) is to be employed, for a period of 2 years, in a law practice with a sole proprietor, partner or director of at least 12 years standing; (d) is to attend at least 10 hours of ethics training conducted by the Law Society, within 6 months of date of issue of practicing certificate; and (e) is not permitted to sign or countersign any form or instruction in relation to a conveyancing or conveyancing (CPF) account, or to operate any conveyancing or conveyancing (CPF) account of any law practice for a period of 3 years.¹⁵

The applicant did not contest the imposition of these conditions.

Time factor

It has been firmly established in case-law that “a significantly longer...