Shanmugam Manohar v Attorney-General and another

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Valerie Thean J
• Judgment Date: 16 June 2020
• Neutral Citation: [2020] SGHC 120
• Citation: [2020] SGHC 120
• Subject Matter: Judicial review,Disciplinary proceedings,Confidence,Administrative Law,Breach of confidence
• Published date: 20 June 2020
• Date: 16 June 2020
• Plaintiff Counsel: Choo Zheng Xi and Priscilla Chia Wen Qi (Peter Low & Choo LLC)
• Docket Number: Originating Summons No 1206 of 2019
• Hearing Date: 02 April 2020
• Defendant Counsel: Aaron Lee Teck Chye and Chong Xue Er Cheryl (Allen & Gledhill LLP),Jeyendran s/o Jeyapal and Ruth Ng Yew Ching (Attorney-General's Chambers)

Valerie Thean J:

Mr Shanmugam Manohar (“the Applicant”), an advocate and solicitor of the Supreme Court, faces disciplinary proceedings before a Disciplinary Tribunal (“DT”). This DT was appointed after a request was made by the Attorney-General (“AG”) under s 85(3) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). In referring information to the Law Society of Singapore (“Law Society”) under that section, the AG disclosed statements recorded by the Commercial Affairs Department (“CAD”) under the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). These grounds of decision concern the dismissal of various declaratory reliefs sought by the Applicant against the AG and the Law Society in respect of the recording, disclosure and use of these statements.

Facts The investigations

The dispute in the present case arose out of a police investigation into a motor insurance fraud scheme, where one Mr Ng Kin Kok (“Mr Ng”) assisted one Mr Woo Keng Chung (“Mr Woo”) to file a fraudulent motor insurance injury claim.¹ On 6 April 2016 and 11 May 2016, the CAD recorded statements from Mr Ng and Mr Krishnamoorthi s/o Kolanthaveloo (“Mr Krishnamoorthi”), one of the partners at M/s K Krishna & Partners (“the Firm”), respectively. The statements revealed that Mr Ng would ask potential claimants to sign warrants to act appointing various law firms to act on their behalf. He would submit the documents to the law firms and would receive commissions from the law firms if the injury claims were successful. Mr Woo’s claim was processed in this manner and the Firm, where the Applicant was and is an Associate Partner, was the law firm appointed in Mr Woo’s case.²

On 21 March 2017, Mr Ng was charged in court for one count of abetment of cheating under s 420 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) for the offence involving Mr Woo. On 31 August 2017, Mr Ng was convicted and sentenced.³ That same day, the Attorney-General’s Chambers (“AGC”) directed the CAD to conduct further investigations into the commissions that were allegedly paid to Mr Ng by the law firms involved, to ascertain if the conduct of these law firms and lawyers had disciplinary consequences.⁴

Senior Investigation Officer Lie Da Cheng (“SIO Lie”) received the AGC’s request and proceeded to record a further statement from Mr Ng on his past referrals on 14 September 2017 (“14 September statement”). Mr Ng’s statement made reference to around six cases that he had referred to the Applicant between 2013 and 2015, and stated that the Applicant had given him a commission of $800 for each referral.⁵ On 15 September 2017, SIO Lie then called the Applicant, asking if he knew Mr Ng and whether Mr Woo had been referred to him in respect of a personal injury claim.⁶ The Applicant replied in the affirmative and a meeting was set up for SIO Lie to record the Applicant’s statement.⁷ On 18 September 2017, SIO Lie called the Applicant and asked him to bring the files of other personal injury claims that had been referred to him by Mr Ng.⁸ On 20 September 2017, SIO Lie recorded a statement from the Applicant (“20 September statement”).

On 12 December 2017, SIO Lie called Mr Krishnamoorthi to arrange for him to attend at CAD for a statement to be recorded. The statement was recorded on that same day (“12 December statement”). SIO Lie sought to record a further statement from Mr Krishnamoorthi and scheduled a further meeting, but Mr Krishnamoorthi stated that he could not make the scheduled appointment in an email dated 15 December 2017 and later declined to give a further statement when SIO Lie spoke with him.⁹

The CAD was of the view that no further offence of cheating was disclosed. The findings were forwarded, together with Mr Ng’s 14 September statement, the Applicant’s 20 September statement, and Mr Krishnamoorthi’s 12 December statement to AGC.¹⁰

Referral to the Law Society and appointment of the DT

On 2 July 2018, the AG referred the information received to the Law Society pursuant to s 85(3) of the LPA. In its referral, the AG relayed information about the Applicant’s alleged touting practices (a breach of r 39 of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”)), and the fact that the Applicant had given copies of the Firm’s warrant to act to Mr Ng for his clients to sign without attending at the Firm. Accordingly, the AG requested the Law Society to refer the matter to a DT.¹¹

On 13 July 2018, the Law Society responded with a letter requesting certain documents and information from the AG for the preparation of the case against the Applicant. Among its requests, the Law Society requested “copies of the statements of the relevant persons”.¹² On 27 July 2018, the AGC then asked the CAD to check if Mr Ng and Mr Krishnamoorthi would consent to be contacted by the Law Society, and to find out if the Firm would agree for the seized warrants to act to be shared with the Law Society. On 15 August 2018, the CAD informed AGC that both Mr Ng and Mr Krishnamoorthi had not agreed to these requests.¹³ The AG updated the Law Society accordingly on 16 October 2018.¹⁴

In response, on 25 October 2018, the Law Society informed the AG that, without the statements, it had no evidence on which to prosecute the matter before a DT. It suggested proceeding under s 85(3)(a) of the LPA instead to first convene an Inquiry Committee, in order to consider whether there was sufficient evidence to justify a DT.¹⁵ The AGC then contacted the CAD to inform them of the Law Society’s position, and asked if the CAD would object to them sending the statements to the Law Society. The CAD informed that they had no objection.¹⁶ On 19 March 2019, the AG forwarded to the Law Society Mr Ng’s statement recorded on 6 April 2016 (“6 April statement”); Mr Ng’s 14 September statement; the Applicant’s 20 September statement; and Mr Krishnamoorthi’s 12 December statement.¹⁷

On 3 July 2019, pursuant to s 85(3)(b) of the LPA, the Law Society applied to the Chief Justice to appoint a DT to investigate the Applicant’s conduct.¹⁸ On 18 July 2019, Sundaresh Menon CJ appointed the members of the DT.¹⁹On 23 July 2019, the DT then issued directions for the filing of the Defence, the list of documents, the respective affidavits of evidence-in-chief, bundles of documents and bundles of authorities.²⁰ A series of delays followed as the Applicant sought abeyance of the DT proceedings on the premise that he would apply for judicial review.

OS 1206/2019 and OS 1030/2019

On 16 August 2019, the Applicant filed Originating Summons No 1030 of 2019 (“OS 1030/2019”) applying for the DT proceedings to be held in abeyance pending resolution of judicial review proceedings against the AG. No application for judicial review was filed at that time.

On 27 September 2019, the Applicant filed Originating Summons No 1206 of 2019 (“OS 1206/2019”) under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”), for the following reliefs: 1. The following Declarations be made:- a. That the statements of the [Applicant] recorded on 20th September 2017 and/or Ng Kin Kok recorded on 14th September 2017 were recorded not in the course of investigation into any alleged offence(s) but were recorded improperly and/or unlawfully to establish that the [Applicant] was in breach of Rule 39 of the Legal Profession (Professional Conduct) Rules 2015. b. That the statements given to the Commercial Affairs Department by the [Applicant] on 20th September 2017, one Ng Kin Kok on 6th April 2016 and 14th September 2017 and one K. Krishnamoorthi on 12th December 2017 (hereinafter referred to as “the statements”) are confidential and cannot be disclosed by the Commercial Affairs Department and the [AG] to any other persons. c. The statements can only be used in the criminal proceedings for which they were recorded and not for any other collateral and/or ulterior purposes(s). d. That the information contained in the statements are confidential and the [AG]’s act of extracting and using this information to refer the Applicant to the [Law Society] under Section 85(3) of the Legal Profession Act (Cap 161, 2009 Rev Ed) for alleged misconduct on 2nd July 2018 is an abuse of privilege and/or unlawful and/or improper. e. That the [Applicant] has absolute immunity at all material times in respect of the statement given by him to the Commercial Affairs Department and the [Applicant]’s statement cannot be used by the [AG] for the purposes of referring the [Applicant]’s conduct to the [Law Society]. f. That the Commercial Affairs Department’s decision to agree to provide the statements to the [Law Society] was improper and/or unlawful. g. That the [AG]’s act of forwarding the statements to the [Law Society] on 19th March 2019 was improper and/or unlawful. h. That, henceforth, all proceedings of the Disciplinary Tribunal appointed under the Legal Profession Act to hear the alleged misconduct of the [Applicant] cease.

A series of pre-hearing conferences (“PHCs”) were held by the DT to resolve the issue of how to proceed. On 14 February 2020, the DT issued timelines for the DT proceedings to continue, including provision for the filing of the Applicant’s defence. At that same PHC, the DT was asked for a stay, which it refused, subject to any order of the court.²¹ On 18 February 2020, the DT issued the Notice of Disciplinary Tribunal Hearing, which stated that the DT would hear the matter from 18 to 20 August 2020.²² I heard OS 1030/2019 on 11 March 2020 and dismissed the application for a stay of the DT proceedings pending the hearing of OS 1206/2019. The Applicant did not appeal against that decision.

On 2 April 2020, after hearing parties, I dismissed OS 1206/2019. The Applicant has appealed against this decision, and I furnish my grounds of decision here.

Parties’ positions in OS 1206/2019

In the present application, the Applicant argued that the CAD took statements from...