Tan Beng Hui Carolyn v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 22 February 2023
• Neutral Citation: [2023] SGCA 7
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 16 of 2022
• Hearing Date: 12 September 2022
• Citation: [2023] SGCA 7
• Year: 2023
• Plaintiff Counsel: Cecilia Hendrick (Cecilia Hendrick LLC) (instructed), Au Thye Chuen, K Chandra Sekaran and Leong De Shun Kevin (Tan & Au LLP)
• Defendant Counsel: Rajan Menon Smitha and Felicia Soong Wanyi (WongPartnership LLP)
• Published date: 25 February 2023

Belinda Ang Saw Ean JCA (delivering the grounds of decision of the court): Introduction

Ms Tan Beng Hui Carolyn (“the Appellant”) appealed against the decision of a judge of the General Division of the High Court (“the Judge”) in HC/OS 432/2021 (“OS 432”). Before the Judge, the Appellant sought to review and set aside the decision of the Council of the Law Society (“the Council”) to impose a penalty of $10,000 for her breaches of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”). The Judge dismissed her application, which was made under s 95 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”), finding that the penalty imposed was appropriate and justifiable.

We dismissed the appeal on 12 September 2022. We now set out our reasons for dismissing the appeal, which mainly turned on a preliminary issue before us. The appeal was made to the Court of Appeal and the preliminary issue, which was one of jurisdiction, was whether the Appellant ought to have brought her appeal to the Appellate Division of the High Court instead of to the Court of Appeal. The Appellant maintained that her appeal arose from a case relating to administrative law, such that the appeal to the Court of Appeal was correct, based on para 1(a) of the Sixth Schedule to the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”). The Respondent, the Law Society of Singapore, disagreed; it argued that the appeal should have been made to the Appellate Division since the appeal was simply against the order of the Judge dismissing the Appellant’s application made under s 95 of the LPA. We held that the appeal ought to have been made to the Appellate Division. Aside from the jurisdictional point, the appeal was also plainly unmeritorious. We elaborate on this view later in these grounds.

Background of events leading to the decision of the Council to impose a penalty

The Appellant is an advocate and solicitor of the Supreme Court of Singapore. Whilst acting as an advocate and solicitor in a matter before the General Division of the High Court in HC/OS 1100/2017 (“OS 1100”) in September 2018, the Appellant made several allegations against the lawyers for the other parties, as well as against the judge, Dedar Singh Gill JC (as he then was) (“Gill JC”). Unsurprisingly, complaints were duly made against the Appellant and that led to an investigation by the Respondent.

By OS 1100, the Appellant’s law practice, Tan & Au LLP, had commenced an interpleader action in respect of moneys held by Tan & Au LLP as stakeholder against seven respondents who had claimed an interest in the moneys. Tan & Au LLP was both the applicant (the “Applicant”) and the solicitors on record for the Applicant in the interpleader action. The 1st, 4th and 5th respondents in OS 1100 were represented by Central Chambers Law Corporation (“CCLC”). The 2nd, 3rd and 6th respondents in OS 1100 were represented by Yeo-Leong & Peh LLC (“YLP”) (now known as Adsan Law LLC). The complaints lodged against the Appellant were by the solicitors of both CCLC and YLP. In these grounds of decision, we refer to the six solicitors as the Complainants.

The allegations against Gill JC were made during the hearing of OS 1100 in September 2018. On 13 September 2018, after the cross-examination was completed, the Complainants brought to Gill JC’s attention, in chambers, that Tan & Au LLP had included in their Bundle of Documents a document that was not in evidence. Gill JC directed that the new document was not to be admitted. Shortly thereafter, Tan & Au LLP filed a recusal application against Gill JC. In support of the recusal application, the Appellant filed a supporting affidavit the following day (the “Recusal Affidavit”), where she made certain allegations against Gill JC as well as some of the Complainants. The allegations formed the subject matter of the complaints against her.

On 17 September 2018, Tan & Au LLP filed their Bundle of Documents, which still contained the new evidence on page 98 (which was subsequently ordered to be struck out by the court) (“Page 98”). Notably, CCLC also invited Tan & Au LLP to expunge portions of the Recusal Affidavit; this was on the basis that those portions contained allegations against other solicitors, made without giving the other solicitors an opportunity to respond. Tan & Au LLP declined to remove the impugned portions. CCLC then applied to court to strike out these paragraphs (the “First Striking Out Application”). The solicitors from YLP also sought to expunge Page 98, as Gill JC had directed its exclusion. The Appellant declined to remove the impugned portions of the Recusal Affidavit. She responded by e-mail on 20 September 2018 (the “20 September 2018 E-mail”) to one Mr David Kong (“Mr Kong”), who was a solicitor of YLP. In the 20 September 2018 E-mail, the Appellant claimed that she had left several messages for Mr Kong, and her calls had not been returned. Additionally, she accused YLP of suppressing the truth from their clients, and at the same time, informed them that Tan & Au LLP would be filing the Amended Bundle of Documents. We set out an extract of the 20 September 2018 E-mail:

After the 20 September 2018 E-mail was sent, Mr Kong filed an affidavit to refute the allegation, stating that he did not receive any calls from the Appellant. YLP also took out a separate application to remove Page 98 of the Bundle of Documents (the “Second Striking Out Application”). On 25 September 2018, the Striking Out Applications and the Recusal Application were heard. Both Striking Out Applications were allowed, while the Recusal Application was dismissed. After the hearing, Tan & Au LLP requested further arguments on 28 September 2018 (the “Request for Further Arguments”), wherein another allegation against Mr Kong was made. The Appellant alleged that Mr Kong had lied on oath and committed perjury when he said on affidavit that he did not receive any calls from the Appellant, as the Appellant had indeed made several phone calls to him and left several messages. The Appellant also lodged a police report on 27 September 2018, essentially repeating the same allegation that Mr Kong had committed perjury by stating in his affidavit that he had not received any of the calls referred to in the Appellant’s 20 September 2018 E-mail (the “Police Report”). Annexed to the Police Report were screenshots from a call log and a chat log showing that there were calls and messages sent on 13 September 2018.

Gill JC declined the Appellant’s Request for Further Arguments on 10 October 2018. Crucially, Gill JC agreed that in Mr Kong’s affidavit, he was clearly referring to the fact that no calls had been made on 20 September 2018, and not that none had been made on 13 September 2018. This was in response to the allegation in the Appellant’s 20 September 2018 E-mail that Mr Kong “had failed to return [their] call”. Likewise, Mr Kong’s affidavit was also referring to the messages supposedly left on 20 September 2018. When questioned by Gill JC, the Appellant confirmed that she did not make any calls on 20 September 2018.

On 12 October 2018, Tan & Au LLP filed the Applicant’s Closing Submissions in OS 1100, repeating the same allegations that had been raised in support of the Request for Further Arguments (see [7] above). Again, YLP and CCLC invited Tan & Au LLP to expunge the allegations in the Applicant’s Closing Submissions. Again, Tan & Au LLP declined and YLP and CCLC obtained Gill JC’s order for these paragraphs to be struck out.

As alluded to at [3] above, the Complainants lodged 13 complaints with the Respondent on 26 October 2018. The allegations were made against the Appellant and her husband, another solicitor, Mr Au Thye Chuen (“Mr Au”). Both are partners with Tan & Au LLP. The complaints were numerous, and the Inquiry Committee (see [11] below) considered there to be six categories of complaints dealing with various breaches of the PCR. Four of the categories pertained to the following complaints: Category 1 complaints: these related to the Appellant’s allegations that Mr Kong had committed perjury by lying on oath that he had not received any calls or messages from the Appellant. The Complainants claimed that these were false allegations, and the Appellant was as such in breach of rr 7(1) and 7(2) of the PCR. Category 3 complaints: these complaints related to the Appellant’s and Mr Au’s conduct in filing Page 98 in the Applicant’s Bundle of Documents in breach of the court’s previous directions, and in reproducing in the Applicant’s Closing Submissions a paragraph which had been expunged for quoting Page 98. These were allegedly a breach of r 13 of the PCR. Category 4 complaints: the Appellant and Mr Au allegedly breached r 13 of the PCR as they did not treat the court with respect in making false and grave allegations against Gill JC in the Recusal Affidavit and in the Applicant’s Closing Submissions. Category 6 complaints: the Appellant and Mr Au allegedly failed to provide other solicitors with the opportunity to respond to the allegations made against them in the Request for Further Arguments and in the Applicant’s Closing Submissions, which breached r 29 of the PCR.

An Inquiry Committee (“IC”) was convened. The IC issued a report on 30 July 2019 (the “IC Report”) following a hearing held on 17 July 2019. The IC’s findings were as follows: Category 1 complaints: the IC noted that the complaints were that the allegations of perjury were false. However, for the purpose of determining whether there was a breach of r 7 of the PCR, which is that it is not proper for a lawyer to make allegations about another lawyer, it was not relevant whether the allegations were true or not. Although the Appellant did not make the allegations maliciously, and did not knowingly make a false statement that she had left messages for Mr Kong on 20 September 2018 (when she likely had those from 13 September...