Re Shankar Alan s/o Anant Kulkarni

• Jurisdiction: Singapore
• Judge: Sundaresh Menon JC
• Judgment Date: 27 October 2006
• Neutral Citation: [2006] SGHC 194
• Court: High Court (Singapore)
• Year: 2006
• Published date: 03 November 2006
• Plaintiff Counsel: Jimmy Yim SC, Adeline Wong (Drew & Napier LLC) and Daniel Koh (Rajah & Tann)
• Defendant Counsel: R S Bajwa (Bajwa & Co), Mahmood Gaznavi (Mahmood Gaznavi & Partners) and Alan Shankar (Alan Shankar & Lim)
• Subject Matter: Administrative Law,Disciplinary proceedings,Applicant seeking order to quash findings of disciplinary committee,Whether disciplinary committee apparently biased,Whether tests of "reasonable suspicion of bias" and "real likelihood of bias" identical,Whether excessive intervention by disciplinary committee constituting separate ground for complaint,Whether disciplinary committee descending into arena and failing to observe proper role
• Citation: [2006] SGHC 194

27 October 2006 Judgment reserved.

Sundaresh Menon JC:

1 The applicant, Shankar Alan s/o Anant Kulkarni is a solicitor of some 17 years’ standing. He stands convicted by a disciplinary tribunal of what, for a professional man, can only be described as heinous conduct. He contends however, that he has been the victim of a miscarriage of justice; that the process by which the conviction was reached was not a fair one. The applicant reaches out to that hallowed principle: justice must not only be done but it must manifestly be seen to be done. He contends that this principle has been violated in his case. What do these words really mean? Are they simply a nice-sounding tagline expressing a pious aspiration? Or do these words in fact express an uncompromising standard which serves to guarantee that those having business before judicial and quasi-judicial bodies in this country will not go away harbouring any reasonably held apprehensions that they have not been fairly dealt with? Those are the questions raised in this case.

The factual background

2 The complainants are Mislia bte Yusof (“Mdm Mislia”) and her husband Abdul Malik bin Sukor (“Mr Abdul Malik”).

3 According to the complainants, they were introduced to the applicant some time in 1999 by one Rudolph Khoo (“Khoo”) who was a real estate agent. Khoo was assisting them with the sale of their Housing and Development Board (“HDB”) flat at Block 325 Woodlands Street 32, #12-137, Singapore 730325. At that time, Mr Abdul Malik was an undischarged bankrupt. Khoo had advised the complainants that in order to sell their flat, Mr Abdul Malik first needed to obtain a discharge from his bankruptcy. To enable this, Khoo offered to procure for the complainants a loan of $25,000 which could be repaid once the flat was sold. To facilitate these arrangements, Khoo introduced the complainants to the applicant to act for the complainants in a number of related matters. These were:

(a) to apply on behalf of Mr Abdul Malik for a discharge from bankruptcy;

(b) to act for the complainants in the sale of their HDB flat; and

(c) to document some loans that the complainants obtained from one Chiang Bin Kwang (“Chiang”).

4 The loans that the complainants obtained from Chiang were to be discharged by them from the proceeds of sale of their flat.

5 Some time in June 1999, the complainants attended at the applicant’s office. They were accompanied by Khoo. The applicant subsequently prepared a loan agreement which stated that Chiang was to extend an interest-free loan of $45,000 to Mdm Mislia. The applicant also prepared a warrant to act which irrevocably authorised the applicant’s firm to act for the complainants in the sale of their HDB flat and to make payment of the sum of $45,000 to Chiang from the proceeds of sale of the flat. Mdm Mislia did sign these documents. She subsequently approached Khoo on two occasions for further loans from Chiang. These were in July 1999 and September 1999. On each occasion, the applicant prepared a loan agreement and a letter of authority which authorised his firm to make payment to Chiang.

6 In total, Mdm Mislia signed three agreements purportedly to borrow from Chiang the total sum of $88,500 made up of:

(a) $45,000 on the first occasion;

(b) $30,000 on the second occasion; and

(c) $13,500 on the third occasion.

7 However, according to Mdm Mislia, she in fact only received from Chiang the sum of $40,000 made up of the sum of $25,000, $10,000 and $5,000 respectively on each of the three occasions.

8 Some four years later in October 2003, the complainants made a complaint to the Law Society of Singapore (“the Law Society”). The complaint was initially considered by an Inquiry Committee. That committee reported on 30 July 2004 that it was of the opinion that a prima facie case had been disclosed which warranted investigation by a Disciplinary Committee (“DC”).

9 The DC was duly constituted and it heard evidence in respect of three charges brought against the applicant over two hearing days on 19 and 20 July 2005. Directions were given for closing submissions to be made in writing.

10 On 24 January 2006, the DC reported its findings that all three charges had been made out against the applicant: see [2006] SGDSC 1. The applicant then sought leave to make an application for a quashing order in respect of the DC’s findings and determinations as set out in its report of 24 January 2006. Having heard the submissions, I gave leave. The application for a quashing order then came before me and was argued on 20 June 2006.

11 The applicant was represented by Mr R S Bajwa. The Law Society was represented by Mr Jimmy Yim SC, Ms Adeline Wong and Mr Daniel Koh.

12 There is no doubt that the function of a court dealing with an application for judicial review is a limited one. The key concern is to scrutinise the process and ensure that the rules of natural justice have been fairly applied. The issue in an application for judicial review is not whether the tribunal, the findings of which are the subject of the challenge, has reached a decision that the court considers is correct. Rather, it is whether it has proceeded correctly, observing the applicable “due process” requirements.

13 The central issue that was raised before me arose out of the conduct of the DC in initiating a certain line of inquiry, prosecuting it with some vigour when examining the witnesses, and then reaching a conclusion on that issue. The issue in question related to a specific aspect of the dealings between the various persons involved. It will be noted that the complaint alleged that although Mdm Mislia signed documents evidencing loans amounting in total to $88,500, she and her husband never received this amount from Chiang who was the lender. Instead, they maintained that they had received much less. However, the amount of $88,500 was later debited by the applicant’s firm from the proceeds of the sale of the complainant’s flat and then paid over to Chiang.

14 The applicant was charged with three counts of grossly improper conduct contrary to s 83(2)(b) of the Legal Profession Act (Cap 161, 2001 Rev Ed).

15 The charges related to various specific aspects of the applicant’s dealings with Mdm Mislia and Mr Abdul Malik including allegations that:

(a) the applicant had acted both for the complainants as well as for Chiang in the loans without advising the complainants of the implications of the conflict of interest in which he was placed;

(b) the applicant had failed to take the complainants’ full instructions in preparing the various documents;

(c) the applicant had the complainants sign these documents without fully advising them on the terms or their implications; and

(d) the applicant had failed to ascertain whether the actual amounts that had in fact been received by Mdm Mislia from Chiang was in accordance with what was reflected in the loan agreements.

16 The DC heard evidence from the complainants and the applicant. It also heard evidence from two witnesses from Citibank Singapore Ltd (“Citibank”), whom I refer to collectively as “the Citibank witnesses”. The Citibank witnesses had been called on behalf of the applicant. In the case of the first two loans to Mdm Mislia, the payments had been made by way of cheques drawn in her favour. Nonetheless, her evidence was that the cheques had been encashed by Chiang at Citibank and he then handed her a portion of the sum encashed. The applicant challenged this and called the Citibank witnesses to deal with this aspect of the case.

17 The nub of the applicant’s case before me centred on the manner in which the DC dealt with this part of the evidence and the case. In summary, it came down to the following:

(a) The Citibank witnesses were “independent” witnesses in that they were the only ones before the DC not interested in the outcome of the case. The only other witnesses were the complainants and the applicant.

(b) The DC had not questioned the complainants when they were giving evidence to the same extent or in the same manner as it had the Citibank witnesses (in particular, the first witness) or the applicant for that matter.

(c) As against this, the DC had interrupted the applicant’s counsel when he had been adducing the evidence of the first of the Citibank witnesses who had testified that it was unlikely that the money could have been handed over to anyone other than Mdm Mislia. The DC, it was submitted, in effect cross-examined the witness in an effort to establish otherwise.

(d) The DC’s line of cross-examination appeared to have been directed initially at showing that the cheques could have been encashed at the priority banking counter and if presented by Chiang himself, who was a priority banking customer, he instead of Mdm Mislia might have been able to collect the cash.

(e) The DC’s chairman’s questioning took the form of suggesting at one point that he himself had seen certain practices being done in relation to banking at priority banking counters thus challenging the witness’s evidence to the contrary. In the same vein, the chairman at one point asserted that he had personal experience in banking for 26 years and again this appeared to be directed at extracting a concession from the witness.

(f) By way of comparison, the applicant noted that the counsel for the Law Society had asked a total of seven questions (including just two principal questions) whereas the chairman and members of the DC asked some 60 or so questions of the first Citibank witness.

(g) The second of the Citibank witnesses was subsequently called. The chairman again explored the possibility that Chiang, as a priority banking customer, instead of Mdm Mislia, could have received the money from the teller even though the cheques were drawn in favour of Mdm Mislia. The witness, who was one of the tellers who actually attended to Mdm Mislia, rejected this possibility. However, the DC did not make any evaluation of her testimony.

18 In its...