Re Nalpon Zero Geraldo Mario

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 07 May 2012
• Neutral Citation: [2012] SGHC 97
• Published date: 15 May 2012
• Docket Number: Originating Summons No 77 of 2012
• Year: 2012
• Hearing Date: 28 March 2012
• Subject Matter: Legal Profession,Disciplinary Procedures
• Plaintiff Counsel: R S Wijaya (R S Wijaya & Co)
• Citation: [2012] SGHC 97
• Court: High Court (Singapore)
• Date: 07 May 2012

Chan Sek Keong CJ: Introduction

This originating summons (“the present OS”) is an ex parte application made by Mr Zero Geraldo Mario Nalpon (“the Applicant”), an advocate and solicitor, under s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) for leave for an investigation to be made into his complaint of misconduct against Ms Nor’Ashikin binte Samdin (“the DPP”), a Legal Service Officer (“LSO”) who was, at the relevant time, designated as a Deputy Public Prosecutor.

The complaint of misconduct arose out of the trial in the District Court (“the District Court trial”) of the Applicant’s client, Ezmiwardi bin Kanan (“the Accused”), on two charges of criminal breach of trust, namely, District Arrest Case (“DAC”) No 18210 of 2009 and DAC No 18211 of 2009 (referred to hereafter as “the 1st Charge” and “the 2nd Charge” respectively). A third charge, DAC No 18212 of 2009, was stood down. At the end of the District Court trial, the district judge (“the DJ”) convicted the Accused of the 1st Charge, but acquitted him of the 2nd Charge.

In support of the present OS, the Applicant filed an affidavit dated 31 January 2012 (“the Applicant’s 31/1/2012 affidavit”) setting out the specific allegations of misconduct against the DPP. The present OS and the Applicant’s 31/1/2012 affidavit were not served on the DPP. However, she came to know about the application and obtained copies of these two documents from the Supreme Court Registry. The DPP thereupon applied to me for leave to be heard at the hearing of the present OS. In support of her application, the DPP filed an affidavit dated 9 March 2012 exhibiting (inter alia) the following documents: a copy of the Applicant’s affidavit filed on 15 August 2011 (“the Applicant’s 15/8/2011 affidavit”) in support of Criminal Motion No 58 of 2011 (“CM 58/2011”), which was the Applicant’s application for leave for a document to be admitted in the Accused’s appeal (viz, Magistrate’s Appeal No 401 of 2010 (“MA 401/2010”)) against his conviction of the 1st Charge by the DJ; a copy of the DPP’s affidavit dated 2 November 2011 filed in CM 58/2011; a copy of the affidavit of Senior Station Inspector Yong Chok Choon (“PW10”) dated 4 November 2011 filed in CM 58/2011; and a certified transcript of the proceedings in MA 401/2010 and CM 58/2011, which were heard together.

Initially, I was minded to grant the DPP leave to be heard, but subsequently, I decided to hear the present OS on an ex parte basis as I was (perhaps overly) concerned that any decision which I made against the DPP at an inter partes hearing, in the event of my allowing the Applicant’s application in the present OS, might influence the subsequent disciplinary proceedings before a Disciplinary Tribunal. Accordingly, I heard the present OS on an ex parte basis.

The statutory framework for disciplinary proceedings against LSOs The relevant statutory provisions

Before I consider the merits of the present OS, it is necessary that I examine the statutory framework governing the conduct of LSOs in their professional work in court and out of court. All LSOs are officers of the court when they act in any court proceedings; they are also officers of the court if they have been admitted as advocates and solicitors. As such, they are subject to the control of the Supreme Court, and, like all other officers of the court, they are liable to be disciplined and punished under the LPA for misconduct committed in Singapore or elsewhere. In the case of LSOs (as well as non-practising lawyers who have been admitted as advocates and solicitors), the statutory regime is set out in s 82A of the LPA. The provisions relevant to the present OS are as follows:

Disciplinary proceedings against Legal Service Officers and non-practising solicitors 82A.—(1) …

(2) All Legal Service Officers … shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be punished in accordance with this section. (3) Such due cause may be shown by proof that a Legal Service Officer … — (a) has been guilty in Singapore or elsewhere of such misconduct unbefitting a Legal Service Officer or an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession; …

…

(4) No application for a Legal Service Officer … to be punished under this section shall be made unless leave has been granted by the Chief Justice for an investigation to be made into the complaint of misconduct against the Legal Service Officer ... concerned. (5) An application for such leave shall be made by ex parte originating summons and shall be accompanied by an affidavit setting out the allegations of misconduct against the Legal Service Officer … (6) Where the Chief Justice is of the opinion that the applicant has made out a prima facie case for an investigation into his complaint, the Chief Justice may grant such leave and appoint a Disciplinary Tribunal under section 90.

…

(7) The Disciplinary Tribunal shall hear and investigate into the complaint and submit its findings of fact and law in the form of a report to the Chief Justice. (8) A copy of the report shall be supplied to the Legal Service Officer … concerned, and to the Attorney-General if the report relates to a Legal Service Officer. (9) Where the Disciplinary Tribunal finds that no cause of sufficient gravity for disciplinary action exists under this section against the Legal Service Officer … concerned, the Chief Justice shall dismiss the complaint. (10) Where the Disciplinary Tribunal finds that cause of sufficient gravity for disciplinary action exists under this section against the Legal Service Officer … concerned, the Chief Justice may appoint an advocate and solicitor or a Legal Service Officer to apply by summons in the same proceedings for an order that the Legal Service Officer … concerned be struck off the roll, prohibited from applying for a practising certificate, censured or otherwise punished. (11) Section 98 shall apply, with the necessary modifications, to any application under subsection (10). (12) On completion of the hearing of the application under subsection (10), the court may — (a) censure the Legal Service Officer …; (b) prohibit him from applying for a practising certificate for such period not exceeding 5 years as it may specify; (c) order that his name be struck off the roll; (d) order him to pay a penalty of not more than $20,000 or (e) make such other order as it thinks fit.

…

(15) For the avoidance of doubt nothing in this section shall prevent any Legal Service Officer from being subject to disciplinary action by the Legal Service Commission for any act or omission which constitutes a disciplinary offence under this section.

[emphasis added]

What is “a prima facie case for an investigation” for the purposes of s 82A(6)?

In an application under s 82A of the LPA for leave for an investigation to be made into a complaint of misconduct against an LSO, s 82A(6) requires the applicant to make out “a prima facie case for an investigation” before the Chief Justice may grant such leave and appoint a Disciplinary Tribunal under s 90. In the present case, the Applicant did not make any submissions on the meaning of “a prima facie case” for the purposes of s 82A(6). He assumed that the matters disclosed in his supporting affidavit for the present OS (viz, the Applicant’s 31/1/2012 affidavit mentioned at [3] above) were sufficient in law to make out such a case. In the circumstances, I shall have to embark on an ex parte examination of the legal principles to determine what the requirements of “a prima facie case” are under s 82A(6) of the LPA in order to decide whether the present OS is a proper case for granting leave for an investigation into the alleged misconduct of the DPP.

The concept of “a prima facie case” has been applied by Singapore and Malaysian courts (and their predecessors) in other contexts in both civil and criminal proceedings. For example, in Gan Soo Swee and another v Ramoo [1968–1970] SLR(R) 324, a civil case, Wee Chong Jin CJ defined the expression to mean the following (at [21]):

… [W]e have here a case where the plaintiff was alleging that either the lorry driver or the taxi driver or both were responsible for the accident. He had therefore to prove a state of facts from which the reasonable inference to be drawn was that prima facie one if not both drivers had been negligent before he is entitled to call on both defendants for an answer. To make a prima facie case he must prove facts from which in the absence of an explanation liability could properly be inferred. …

The concept of “a prima facie case” has also been extensively used in criminal proceedings as the basis for the court’s decision on whether or not to call on the accused to enter his defence at the close of the Prosecution’s case. An early example is Public Prosecutor v Chin Yoke [1940] MLJ 47 (“Chin Yoke”), where Gordon-Smith Ag JA, in examining the scope of s 173(f) of the Criminal Procedure Code (Cap 6) of the Federated Malay States, held (at 48–49) that at the close of the Prosecution’s case:

It is then that it is the duty of the Magistrate or Judge to consider the evidence already led and decide whether or not to call on the accused for his defence, and the question arises what is a prima facie case? …

… [I]t does not follow, in my opinion, that the Magistrate or Judge must necessarily accept the whole of the evidence for the prosecution at its face value. There may be good grounds for rejecting some part, or all of it and, therefore, it is necessary to weigh up this evidence and on so doing one may be satisfied that, if unrebutted, it would warrant the accused’s...