Tan Beng Hui Carolyn v Law Society of Singapore
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ,Judith Prakash JCA,Belinda Ang Saw Ean JCA |
Judgment Date | 22 February 2023 |
Docket Number | Civil Appeal No 16 of 2022 |
Court | Court of Appeal (Singapore) |
[2023] SGCA 7
Sundaresh Menon CJ, Judith Prakash JCA and Belinda Ang Saw Ean JCA
Civil Appeal No 16 of 2022
Court of Appeal
Civil Procedure — Appeals — Forum — Advocate and solicitor claiming to have been professionally sanctioned for filing police report — Advocate and solicitor challenging appropriateness of penalty imposed by Council of Law Society — Advocate and solicitor claiming to be prejudiced by Law Society's clarification of charge — Whether appeal ought to be made to Court of Appeal — Whether appeal arose from case relating to administrative law — Paragraph 1(a) Sixth Schedule to Supreme Court of Judicature Act 1969 (2020 Rev Ed)
Evidence — Admissibility of evidence — Hearsay — Party referring in affidavit to events recorded in judicial commissioner's notes of evidence — Whether judicial commissioner's notes of evidence fell within exception to hearsay rule as public records made by public officer in discharge of his official duty — Whether statements fell within exception to hearsay rule as statements made by person in ordinary course of trade, business, profession or other occupation — Sections 32(1)(b) and 37 Evidence Act (Cap 97, 1997 Rev Ed)
Legal Profession — Disciplinary proceedings — Court exercising penalty review jurisdiction — Whether court entitled to scrutinise basis of decision of Council of Law Society — Section 95 Legal Profession Act (Cap 161, 2009 Rev Ed)
Legal Profession — Professional conduct — Breach — Penalty — Advocate and solicitor committing several breaches of Legal Profession (Professional Conduct) Rules 2015 for making disrespectful remarks against judicial commissioner, discourteous allegations against other legal practitioners and allegations against other practitioners without providing them opportunity to respond — Advocate and solicitor making same allegations repeatedly — Advocate and solicitor showing no remorse — Whether $10,000 penalty appropriate in the circumstances — Rules 7(1), 7(2), 13(2) and 29 Legal Profession (Professional Conduct) Rules 2015
Held, dismissing the appeal:
(1) The appeal ought to have been made to the Appellate Division of the High Court. OS 432 was not a case relating to administrative law that would fall within para 1(a) of the Sixth Schedule to the Supreme Court of Judicature Act 1969 (2020 Rev Ed): at [27].
(2) First, OS 432 was an application made pursuant to s 95 of the LPA. It was not commenced by way of judicial review for which the appellant would have needed to obtain leave under O 53 r 1 of the Rules of Court (2014 Rev Ed). The reliefs sought by the appellant were the review and setting aside of the Council's decision, and not reliefs provided by way of judicial review: at [33].
(3) Second, the grounds of application under OS 432 pertained to the merits of the Council's determination rather than its legality. The appellant also sought to challenge the appropriateness of the penalty imposed, which entailed a substantive review of the merits of the Council's determination, as the court could potentially substitute the penalty imposed. The basis of this penalty review was statutory, and not found in administrative law judicial review powers: at [34] and [35].
(4) Although the appellant contended in the appeal that the Council had acted ultra vires, it was clear from the Inquiry Committee's report that the appellant was not sanctioned for making a police report as such, but for repeatedly making serious allegations against another legal practitioner. There was no issue of illegality in the Council's exercise of jurisdiction: at [37] and [49].
(5) There was also no prejudice caused to the appellant when the Clarification Letter removed the reference to the allegations being “false”. The Inquiry Committee's report had already stated that its findings were not based on the allegations being false. In any event, an allegation of prejudice, without more, did not render this case one relating to administrative law: at [39], [40] and [44].
(6) There was no breach of natural justice as the appellant was given the opportunity to be heard, both before the Council and before the Judge: at [45].
(7) In exercising its powers of review under s 95 of the LPA, a court could scrutinise the basis of the Council's decision, since ss 95(3)(a) and 95(3)(b) of the LPA empowered the court to vary or set aside the penalty imposed. This was consistent with the established position that where an Inquiry Committee's recommendations were wrongly or improperly arrived at and considered by the Council, this could be a reviewable matter as the Council might have taken extraneous matters into consideration. This stood in contrast to s 97 of the LPA, which did not allow the court to decide on any penalty: at [43].
(8) The appeal was without merit. The $10,000 penalty imposed by the respondent was appropriate. It was a global sum in respect of three distinct breaches of the PCR and was not out of line with relevant case precedents. It was also justified by relevant aggravating factors, namely the appellant's lack of remorse and her repeated making of allegations: at [50] and [51].
(9) The respondent's affidavit did not contain inadmissible hearsay. The impugned portions outlined events that had been included in Gill JC's notes of evidence, which constituted public records made by a public officer in discharge of his official duty. This was an exception to the hearsay rule under s 37 of the Evidence Act (Cap 97, 1997 Rev Ed). They also constituted statements made by a person in the ordinary course of a trade, business, profession or other occupation under s 32(1)(b) of the Evidence Act: at [46] and [47].
Dongah Geological Engineering Co Ltd v Jungwoo E&C Pte Ltd [2022] 1 SLR 1134 (refd)
Iskandar bin Rahmat v Law Society of Singapore [2021] 1 SLR 874 (distd)
Law Society of Singapore v Ang Boon Kong Lawrence [1992] 3 SLR(R) 825; [1993] 1 SLR 522 (folld)
Law Society of Singapore v Udeh Kumar s/o Sethuraju [2017] 4 SLR 1369 (folld)
Law Society of Singapore, The v Looi Wan Hui [2018] SGDT 6 (distd)
Law Society of Singapore, The v Ravi s/o Madasamy [2012] SGDT 12 (distd)
Seow Fook Sen Aloysius v Rajah & Tann Singapore LLP [2022] 2 SLR 1091 (refd)
The appellant, an advocate and solicitor of the Supreme Court of Singapore, was imposed with a $10,000 penalty by the respondent Law Society for breaches of rr 7(1), 7(2), 13(2) and 29 of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”).
These breaches pertained to the appellant's conduct in HC/OS 1100/2017 (“OS 1100”), where she made several allegations against Dedar Singh Gill JC (“Gill JC”), who heard OS 1100, and against opposing counsel. Some of these allegations were contained in an affidavit which the appellant filed in support of her law firm's application for Gill JC to be recused. Opposing counsel invited the appellant to remove parts of the affidavit, on the basis that they made allegations against other legal practitioners without giving them a chance to respond. The appellant's law firm refused to do so. Another allegation related to an e-mail sent by the appellant to one of the opposing counsel, Mr David Kong (“Mr Kong”). That e-mail stated that the appellant had left several messages for Mr Kong, and that her calls had not been returned. Mr Kong filed an affidavit to refute the allegation, claiming that no calls were received from the appellant. The appellant's firm subsequently wrote in to court with a request to make further arguments, and in that request, the appellant alleged that Mr Kong had lied on oath about not receiving any calls and perjured himself. This allegation was repeated in a police report made by the appellant, and again in the closing submissions filed by her law firm in OS 1100.
Various legal practitioners involved in OS 1100 filed complaints with the Law Society. The Council of the Law Society (the “Council”) accepted the disciplinary tribunal's findings and ultimately imposed a $10,000 penalty on the appellant for the abovementioned breaches. It communicated its decision to the appellant via a letter dated 8 April 2021 (the “8 April 2021 Letter”).
In HC/OS 432/2021 (“OS 432”), the appellant applied under s 95 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) for the Council's decision to be reviewed and set aside. This application was dismissed by the judge who heard OS 432 (the “Judge”), who found the penalty to be consistent with precedent and justified by relevant aggravating factors. At the hearing, the Judge also observed that the 8 April 2021 Letter had inaccurately described the appellant's breach of r 7 as one relating to the making of “false” allegations, rather than the making of allegations as such. Thereafter, the respondent issued a clarification letter (the “Clarification Letter”) removing the word “false”. The appellant then filed further submissions that essentially sought a review of the entirety of the respondent's determination. She also argued that the respondent had conflated her allegation of criminal conduct with an allegation of professional misconduct against Mr Kong. The Judge found no basis for the appellant to seek such a review, and in any event, no conflation of allegations.
In CA/CA 16/2022, the appellant appealed against the Judge's decision. She defended her decision to file the appeal to the Court of Appeal, and not the Appellate Division of the High Court, on the basis that the appeal arose from a case relating to administrative law. The respondent disagreed. Additionally, the appellant sought to challenge the respondent's determination on the basis that it acted outside its jurisdiction in disciplining the appellant for making a criminal complaint, when such a complaint ought to be determined by a criminal court. The appellant also submitted that the reply affidavit filed by the respondent in OS...
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