Re Marshall David

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 07 October 1972
• Neutral Citation: [1972] SGCA 12
• Docket Number: Originating Summons No 275
• Date: 07 October 1972
• Year: 1972
• Published date: 19 September 2003
• Plaintiff Counsel: HE Cashin on behalf of the applicants
• Citation: [1972] SGCA 12
• Defendant Counsel: LAJ Smith and Eugene Phoa (Eugene Phoa & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Undertaking given to Attorney-General in the presence of the Chief Justice,Whether amounting to grossly improper conduct in the discharge of professional duties,Sections 84(2)(b) and 98 Legal Profession Act (Cap 217, 1970 Rev Ed),Legal Profession,Breach of undertaking,Professional conduct

The respondent is an advocate and solicitor of the Supreme Court who has been in practice for nearly 35 years and is generally acknowledged by the members of the legal profession to be one of its leaders.

He now appears before us to show cause why he should not be dealt with under s 84 of the Legal Profession Act (Cap 217, 1970 Ed). This section is, so far as material, in the following terms:

(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 -

...

(b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty ...

It is unnecessary to set out in full the other relevant provisions of the Act. Suffice it to say that under s 86 any complaint of the conduct of an advocate and solicitor in his professional capacity must be made in the first place to the Law Society and the Council of the Law Society must refer the complaint to the inquiry committee which is a committee comprising five members or former members of the Council appointed by the Council.

Under s 87 the inquiry committee is required to investigate the matter and report to the Council on the matter. Under s 88 the Council is required to consider the report of the inquiry committee and according to the circumstances of the case the Council shall determine whether or not there should be a formal investigation by a disciplinary committee.

Under s 90, if the Council determines under s 88 that there should be a formal investigation, the Council shall apply to the Chief Justice to appoint a disciplinary committee which shall hear and investigate the matter. Under s 93 the disciplinary committee shall record its findings in relation to the facts of the case and according to those facts shall determine whether or not cause of sufficient gravity for disciplinary action exists under s 84. They are required to draw up their findings and determination in the form of a report of which a copy must be submitted to the Chief Justice and to the Society. The advocate and solicitor concerned and the person who made the complaint are entitled to a copy of the report on application.

By s 94, if the determination of the disciplinary committee under s 93 is that cause of sufficient gravity exists for disciplinary action under s 84, the Law Society must proceed to make an application in accordance with the provisions of s 98.

By s 98 an application that a solicitor be struck off the roll or suspended from practice or censured shall be made by originating summons ex parte to a judge of the Supreme Court sitting in chambers for an order calling upon the solicitor to show cause. The order to show cause is served on the solicitor concerned and the application shall then be heard by a court of three judges of whom the Chief Justice must be one. The judge who made the order to show cause is not thereby disqualified from sitting as a member of the court of three judges.

The complaint in the present case arose out of four habeas corpus applications made by way of originating motions to the High Court made by four persons who had been arrested and detained under orders of detention made under the Internal Security Act. All these four persons were connected with a leading Singapore Chinese language daily newspaper, the Nanyang Siang Pau being the managing director, the editor-in-chief, a leader writer and the public relations manager of the Nanyang Siang Pau . Affidavits in support of their habeas corpus applications were affirmed by each of these four persons and these affidavits were filed in the Registry of the court. The respondent in the present case acted as the solicitor for the four detained persons. The Attorney General represented the government. The motions were on the list for hearing before the Chief Justice in open court on 26 May 1971 and, for reasons which are immaterial for present purposes, they were adjourned to 7 June 1971 for hearing.

The arrests and subsequent detentions of these four persons aroused considerable public interest both in Singapore and internationally, particularly the international press, because from the beginning of 1971, the government had taken strong action against three leading newspapers one of which was the Nanyang Siang Pau and which action led to the newspapers airing their grievances against the government in their publications. The main topic of controversy concerned freedom of the press. Against this background when the High Court sat on 26 May 1971 there were present in court to report the proceedings members of the press including international news agencies not only of Singapore but also of other countries. It was not in dispute that on that date the respondent was aware that the International Press Institute was holding a conference at Helsinki commencing on 7 June 1971 and that the Prime Minister of Singapore would be going to Helsinki as the main guest speaker at that conference. At the time the chairman of the International Press Institute was a lady who was also the principal shareholder of one of the newspapers in Singapore against which the government had taken strong action.

After the hearing on 26 May 1971 was adjourned the Attorney General and the...