Ratnam v The Law Society of Singapore

• Judge: Lord Cross of Chelsea
• Judgment Date: 02 March 1976
• Neutral Citation: [1976] SGPC 3
• Subject Matter: Show cause action,Legal Profession,Section 84 Legal Profession Act (Cap 217, 1970 Rev Ed),Whether subsequent disciplinary committee proceedings also thereby vitiated,Criminal Law,Inquiry Committee failing to give notice to advocate and solicitor before proceeding with inquiry and investigation,Meaning of "disappear",Whether advocate and solicitor guilty of grossly improper conduct,Appeal,Sections 201 and 424 Penal Code (Cap 103, 1970 Rev Ed),Whether failure to give notice vitiating report of Inquiry Committee,Advocate and solicitor convicted of instigating dishonest removal of property and admitting to causing evidence to disappear,Whether provisions of s 87(5) Legal Profession Act requiring notice imperative or directory,Advocate and solicitor struck off roll,Offence of causing evidence to disappear,Disciplinary procedures,Section 85(7) Legal Profession Act (Cap 217, 1970 Rev Ed),Whether conviction correct,Section 201 Penal Code (Cap 103, 1970 Rev Ed),Whether penalty inflicted excessive
• Court: Privy Council
• Published date: 19 September 2003
• Defendant Counsel: Robin Auld QC and Ian Click (Jaques & Co)
• Plaintiff Counsel: Godfrey Le Quesne QC and Stuart McKinnon (Charles Russell & Co)

Cur Adv Vult

The appellant, now aged about 33, was at all material times an advocate and solicitor of the Supreme Court, Singapore. From 1 June 1967 to 29 February 1972 he was employed as a DPP and State Counsel in the Attorney General`s Chambers. From September 1971 until 29 February 1972 he was, in addition, Deputy Registrar of Companies and Assistant Registrar of Business Names. On 1 March 1972 to 15 August 1972 the appellant was in private practice: he was legal assistant in the firm of Francis T Seow.

On 21 April 1972 that firm was instructed to act for a company incorporated and registered in Singapore, known as Gemini Chit-Fund Corp Ltd (Gemini). Gemini had branch offices in Malaysia, one being in Kuala Lumpur. On 29 July 1972 the Chairman of Gemini, VKS Narayanan, and the Managing Director, Abdul Gaffar, were arrested in Singapore. On 31 July 1972 Narayanan and Abdul Gaffar were charged in the First Magistrate`s Court, Singapore, with abetting Gemini in the commission of the offence of criminal breach of trust in respect of certain funds entrusted to Gemini. On 31 July 1972 the Minister for Finance presented a petition to the High Court in Singapore for the winding-up of Gemini, the petition being served on the company on the same day. Between 29 July 1972 and 1 August 1972 the appellant learned successively of the arrest of Narayanan and Abdul Gaffar, the charges preferred against them, and the presentation of the winding-up petition. On 2 and 3 August 1972 the appellant caused certain files of Gemini, Narayanan and Abdul Gaffar to be removed from Gemini`s offices to the appellant`s office at the offices of the firm of Francis T Seow.

On 3 August 1972 the appellant, on the instructions of Abdul Gaffar, wrote and despatched on behalf of the firm of Francis T Seow a letter to KK Kumaran, the general manager of Gemini`s branch office in Kuala Lumpur. It was sent by hand for personal delivery. It was in the following terms:

Dear Sir,

We act for Mr Gaffar who has instructed us to dispose of the five cars owned by the company, as well as other moveable properties immediately.

In this connection, we have instructions from our clients to appoint Mr S Francis Retnam as the agent to effect the aforesaid transactions. Please take proper inventory and acknowledgement prior to handing over these properties to Mr Retnam and keep them confidentially in your control. At a later date, when the transactions have been completed, please let me have these documents. You may want to note that Mr Retnam has [sic] given specific instructions as to the disposal of the funds realised from these properties and as such, he has to be allowed custody thereof.

We have been instructed to inform you that Mr Retnam has been authorised by Mr Gaffar to proceed to form a Malaysian based Gemini Chit-Fund Corp Ltd and to discontinue operations as a branch of the Singapore company. These instructions are equally applicable to Gemini Travel Service.

Please co-operate with Mr Retnam and do the needful to effect Mr Gaffar`s instructions.

Yours faithfully,

Francis T Seow

However, Kumaran ignored the instructions contained in the letter, so that no offence was in fact committed in consequence of the writing and despatch of the letter.

On 4 August 1972 two police officers, with the consent of the appellant, removed from his office most of the files which had come from Gemini`s offices.

On 15 August 1972 the appellant was arrested and charged in the First Magistrate`s Court with the following two offences:

(1) That he, on or about 3 August 1962 did instigate the General Manager, Gemini Chit-Fund Corp Ltd, Malaysia Branch, Kuala Lumpur, to dishonestly remove property, to wit, five cars and other moveable properties, belonging to the said company, and that he had by virtue of s 108A of the Penal Code committed an offence punishable under s 424 read with s 116 of the said Code; and

(2) That he, on or about 2 August 1972 having reason to believe that a certain offence, to wit, criminal breach of trust by an agent had been` committed by the Gemini Chit-Fund Corp Ltd, and that such offence was abetted by its directors, Abdul Gaffar and VKS Narayanan, ... did cause certain evidence of the said offence to disappear, to wit, files containing the Gemini Chit-Fund Corp Ltd`s correspondence, vouchers, bank statements, chit fund receipts and Abdul Gaffar`s personal correspondence, with the intention of screening the said Gemini Chit-Fund Corp Ltd, Abdul Gaffar and VKS Narayanan from legal punishment, and he had thereby committed an offence punishable under s 201 of the Penal Code.

At the time of his arrest the appellant still had in his office two of Gemini`s files. The appellant did not disclose them to the police officers who arrested him and searched the office in pursuance of a search warrant.

On his return to his office on bail after he had been arrested and charged as aforesaid and remanded the appellant arranged with M Rashad, Gemini`s accountant, to collect those two files, which he did on the following day. However, they were almost immediately handed over to the police.

Since the next event was the inception of disciplinary proceedings against the appellant, which thence forward proceeded concurrently with other events which call for description, it is convenient at this stages to set out the provisions of the Legal Profession Act (Cap 217, 1970 Ed) which are relevant to this appeal:

84(1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the roll or suspended from practice for any period not exceeding two years or censured.

(2) Such due cause may be shown by proof that such person -

(a) has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession; or

(b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council [viz the Council of the respondents, the Law Society] under the provisions of this Act as in the opinion of the court amounts to improper conduct or practice as an advocate and solicitor; or

...

(h) has done some other act which would render him liable to be disbarred or struck off the roll of the court or suspended from practice or censured if a barrister or solicitor in England due regard being had to the fact that the two professions are fused in Singapore; or

85(1) At the first meeting of the Council held after the first day January any year, the 1st day in January in any year, the Council shall appoint an Inquiry Committee comprising five members or former members of the Council of whom three shall constitute a quorum.

(2) Each Inquiry Committee shall hold office until the next Inquiry Committee is appointed.

...

86(1) Any application by any person that an advocate and solicitor be dealt with under this Part and any complaint of the conduct of an advocate and solicitor in his professional capacity shall in the first place be made to the Society and the Council shall refer the application or complaint to the Inquiry Committee.

(2) The Supreme Court or any judge thereof or the Attorney General may at any time refer to the Society any information touching upon the conduct of a solicitor in his professional capacity and the Council shall issue a written order to the Inquiry Committee.

87(1) Where the Inquiry Committee has -

(a) received a written order;

(b) decided of its own motion to inquire into any matter; or...

it shall inquire into and investigate the matter and report to the Council on the matter.

...

(5) Before any inquiry or investigation begins in respect of any matter -

(a) the Inquiry Committee shall post or deliver to the advocate and solicitor concerned -

(i) copies of any written application or complaint and of any statutory declaration or affidavits that have been made in support of the application or complaint; and

(ii) a notice setting out any or any further particulars that may be necessary to disclose the reason for the inquiry or investigation and inviting the member concerned, within such period (not being less than fourteen days) as may be specified in the notice, to give to the Inquiry Committee any written explanation he may wish to offer and to advise the Inquiry Committee if he wishes to be heard by the Committee; and

(b) the Inquiry Committee shall allow the time specified in the notice to elapse and shall give the advocate and solicitor concerned reasonable opportunity to be heard if he so desires and shall give due consideration to any explanation he may make.

...

88(1) The Council shall consider the report of the Inquiry Committee and according to the circumstances of the case shall determine -

...

(c) that there should be a formal investigation by a Disciplinary Committee; or ...

...

90 If the Council determines under s 88 of this Act that there should be a formal investigation the Council shall forthwith apply to the Chief Justice to appoint a Disciplinary Committee which shall hear and investigate the matter.

91(1) The Chief Justice may from time to time appoint a committee from among solicitors who have in force a practising certificate to be known for the purpose of this Act as a Disciplinary Committee.

(2) A Disciplinary Committee shall consist of such number of members not being less than three nor more than five as the Chief Justice may from time to time think fit and shall be appointed in connection with one or more matters or for a fixed period of time or as the Chief Justice may think fit.

...

93(1) After hearing and investigating any matter referred to it a Disciplinary Committee shall record its findings in relation to the facts of the case and according to those facts shall determine -

...

(c) that cause of sufficient gravity...