Public Prosecutor v Bhaskaran Shamkumar

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 30 June 2005
• Neutral Citation: [2005] SGDC 147
• Court: District Court (Singapore)
• Published date: 08 August 2005
• Year: 2005
• Plaintiff Counsel: Eddy Tham (Deputy Public Prosecutor)
• Defendant Counsel: Rajan Chettiar (Rajan Chettiar and Co)
• Subject Matter: Criminal Law,Statutory offences,Legal Profession Act (Cap 161, 2001 Rev Ed) s 33(1),Sentence
• Citation: [2005] SGDC 147

30 June 2005

District Judge Wong Keen Onn

The Charges

1 This is the third case of an unauthorised person acting as an advocate and solicitor in contravention of the Legal Profession Act that has come before the Courts. The accused faced five charges, 3 under section 33(1)(a) of the Legal Profession Act (LPA) and 2 charges under S33(1)(b), LPA. On 15 March 2005, the accused pleaded guilty to the following two charges under S 33(1)(a) LPA:

“PS 1648/2004, Fourth charge, (Exhibit P1)

You, Bhaskaran Shamkumar (M/38 years), NRIC No: S1740404/J, are charged that you, between 5 May 2003 and 19 September 2003, in Singapore, being an unauthorized person, did act as an advocate or solicitor for a client named Meilina Chandra, for the proceeding (MC Suit 3958/2003), to wit you had prepared documents relating to the said proceeding, and attended court sessions, in the courts of Singapore, and you thereby committed an offence punishable under Section 33(1)a of the Legal Profession Act (Chapter 161, 2001 Revised Edition).

and

“PS 1649/2004, Amended Fifth Charge (Exhibit P2)

You, Bhaskaran Shamkumar (M/38 years), NRIC No: S1740404/J, are charged that you, between 1 April 2003 and 17 July 2003, in Singapore, being an unauthorized person, did act as an advocate or solicitor for a client named Mitheleyshvary @ Sarah Joan Dale, for the proceeding (MC Suit 22762/2002), to wit you had prepared documents relating to the said proceeding, and attended court sessions, in the courts of Singapore, and you thereby committed an offence punishable under Section 33(1)a of the Legal Profession Act (Chapter 161, 2001 Revised Edition).

2 Upon his conviction on these two charges, accused consented to three charges, namely, two charges under section 33(1)(b) and one under section 33(1)(a) of the Legal Profession Act, to be taken into consideration for purpose of sentencing. He was sentenced to a total of one month imprisonment. Being dissatisfied with the sentence, the accused lodged a notice of appeal. I now set out the reasons for my decision.

The Facts

3 The accused, Bhaskaran Shamkumar, 38 years old, was a partner of a firm styled M/s Leo & Sham, which was in business from November 1999 to November 2003. On 31 March 2003, the accused’s practicing certificate expired and he did not renew it. At the material time, the Accused knew that he was not in possession of a valid practicing certificate. He was also aware that no audit was carried on the accounts of M/s Leo & Sham for the year ending 31 December 2002, which was necessary for the renewal of his practicing certificate. The audit was only commissioned on 15 September 2003, some five and a half months later, and was completed on 21 October 2003. Therefore, he was not authorized to practice law from 1 April 2003 onwards. Notwithstanding this, the accused did act as an advocate and solicitor in the matters in these two charges in the Subordinate Courts of Singapore. In the first case in PS 1648/2004, the Accused continued to act as an advocate or solicitor for one Meilina Chandra, between 5 May 2003 and 19 September 2003 for the proceedings in MC Suit 3958/2003, by preparing documents relating to the said proceedings, and attending court sessions in the courts of Singapore. In the second case of PS 1649/2004, the accused acted as an advocate or solicitor for Mitheleyshvary @ Sarah Joan Dale between 1 April 2003 and 17 July 2003, for the proceedings in MC Suit 22762/2002, by preparing documents relating to the said proceedings and attending court sessions in the Courts of Singapore. The particular facts for these two offences are reproduced from the Amended Statement of Facts (Exhibit B1) for easy reference:

Facts relating to PS 1648 of 2004

… … … …

4. Investigations carried out by the Commercial Affairs Department (“CAD”) revealed that on or before 5 May 2003, after the expiry of his practicing certificate, the Accused was engaged by one Meilina Chandra (“Chandra”) to help her set aside a judgment that was made against her under MC Suit Number 3958/2003.

5. The Accused attended Court on two occasions to represent Chandra, on 4 September 2003 and on 18 September 2003. The Court attendances were before the Deputy Registrar of the Subordinate Courts in respect of an application to set aside a default judgment entered against Chandra. On 18 September 2003, the Deputy Registrar, after hearing the arguments from both parties, dismissed Chandra’s application to set aside the default judgment against her with costs of $350. He also prepared 2 affidavits pertaining to Chandra’s case for use in her civil suit as well as 3 letters in the name of an advocate and solicitor. M/s Leo & Sham received $1000 legal fees from Chandra for the legal services rendered.

FACTS RELATING TO PS 1649 OF 2004

… … … …

8. Investigations carried out by the CAD revealed that sometime in April 2002 or May 2002, the Accused was engaged by one Mitheleyshvary @ Sarah Joan Dale (“Dale”) to act as her advocate and solicitor in a civil dispute under MC Suit Number 22762 of 2002 which she was owed certain monies.

9. After the expiration of his practicing certificate on 31 March 2003, the accused continued to represent her three times in Court in respect of these proceedings. The first was on 29 April 2003 for the hearing of the Notice of Directions in Chambers before the Deputy Registrar of the Subordinate Courts. The second was on 17 July 2003 for a settlement conference before a District Judge of the Subordinate Courts. At the settlement conference on 17 July 2003, there was no agreement reached, As such, the accused attended court on a third occasion at the further settlement conference on 31 July 2003 whereupon a consent judgment was entered in favour of Dale. The Accused also prepared and filed an affidavit on 1 April 2003 pertaining to Dale’s case for use in her civil suit. He had further sent out 3 letters in the name of an advocate and solicitor. At the time, the Accused was not in possession of a valid practicing certificate. M/s Leo & Sham received $5000 from Dale for the legal services rendered.

… … …”

Mitigation

4. The accused is 38 years old and has a clean record. He was called to the bar in 1995 and practiced civil and criminal litigation in 2 law firms, Messrs Chan & Ravindra and Boswell Hsieh & Lim. In November 1999, the accused and Mr Leo Chin Hao (“Leo”) set up the law partnership known as Leo & Sham. Counsel informed the Court that the accused was currently unemployed and was waiting for the conclusion of this matter so he could carry on with his life.

5. As for the circumstances leading to the commission of the offences, counsel said that in 2002, the accused and his partner Leo realized that their clients owed them about S$500,000 as unpaid professional charges. In early 2003, they decided to wrap up the law partnership. Since then, they did not actively market their services. When the renewal of the practicing certificate exercise came up in 2003, the accused found out that there were insufficient funds in the office account to pay for the insurance premium, which was the substantial component of the cost of the renewal of the practicing certificate. According to counsel, the accused used his own personal funds of S$8,000 to cover the payment of the insurance premium for both his and Leo’s insurance certificates. He had also instructed a member of the staff, Deanna, to renew both his and Leo’s practicing certificates by handing to her the duly signed application form for the renewal of his practicing certificate. In late September 2003, the accused took the necessary steps to obtain the said Accountant’s Report. The subsequent Accountant’s Report also showed that there were no discrepancies with the relevant accounts maintained by the law firm. Their firm was closed down on or about late October 2003.

6. Counsel urged the Court to take into account that the accused had pleaded guilty early. In addition, he had showed good faith because the accused and his partner voluntarily reported this matter to the Law Society in April 2004 before any formal complaints was made against him.

7. Counsel also submitted that the accused made full restitution of the fees paid by clients in respect of the fourth and fifth charges to the firm totalling $6,000. This was done sometime in March 2005 which was before he pleaded guilty but after he was charged in Court in January 2005. Counsel urged the Court to be lenient and sympathetic as the accused has suffered both mental anguish and economic loss by reason of these proceedings. He had to give up an in-house legal position in a South African company subsequently as he had to return to Singapore in 2004 to attend to the present proceedings. The accused claimed that he had suffered severe financial trauma for the last few months as he had to survive without an income.

8. As for the type of sentence that should be imposed, the accused urged the Court to adopt the principle of consistency in sentencing as laid out Liow Eng Giap v PP (1969-1971) SLR 359. As the accused’s partner received the maximum fine, he urged the Court to consider a fine. In addition, the accused submitted that the Court should also have regard to the principle of parsimony. That principle required the selection of the least severe sentencing option that would be commensurate with the gravity of the offence and the goal or objective of the punishment. Counsel argued that since the offences carried the option of a fine and the accused was a first offender, the Court ought to consider first if the offence can be dealt with appropriately by way of a financial penalty or some other non-custodial option (such as probation). Counsel even suggested that the Court could enhance the fine to $5000 instead of a custodial sentence even though he was informed by the Court that the maximum fine prescribed by law for a single offence under s33 LPA was $1000. Counsel went on to state that if the Court...