Tan Ng Kuang and another v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 19 June 2020
• Neutral Citation: [2020] SGHC 127
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 263 of 2020
• Year: 2020
• Published date: 26 June 2020
• Hearing Date: 11 June 2020,19 June 2020
• Plaintiff Counsel: Tan Chuan Thye SC, Chew Xiang and James Kwong (Rajah & Tann Singapore LLP)
• Defendant Counsel: Siraj Omar SC and Teng Po Yew (Drew & Napier LLC)
• Subject Matter: Legal Profession,Disciplinary proceedings,Professional conduct
• Citation: [2020] SGHC 127

Valerie Thean J (delivering the judgment of the court ex tempore):

I grant this application under s 96 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) for an order that the Law Society of Singapore (“Law Society”) be directed to apply to the Chief Justice for the appointment of Disciplinary Tribunals (“DTs”) to investigate the alleged misconduct of Mr Lee Teck Leng Robson (“Mr Lee”) and Mr Jai Swarup Pathak (“Mr Pathak”) of Gibson Dunn & Crutcher LLP (“Gibson Dunn”) (collectively, “the Solicitors”).

The Applicants’ contention of ethical impropriety

At the material time, the Solicitors were acting on behalf of Punj Lloyd Ltd (“PLL”). The applicants in this case are Mr Tan Ng Kuang (“Mr Tan”) and Ms Lim Siew Soo (“Ms Lim”), insolvency practitioners with nTan Corporate Advisory Pte Ltd (“nTan”) (collectively, “the Applicants”). The dispute arose from the circumstances surrounding the Applicants’ appointment as judicial managers (“JMs”) of Punj Lloyd Pte Ltd (“PLPL”) and Sembawang Engineers and Constructors Pte Ltd (“SEC”). PLL was the parent company of PLPL, which in turn was the parent company of SEC. Mr Atul Punj (“Mr Punj”) is the chairman of PLL.

The Applicants’ contention in the present case is that they had agreed with PLL to be appointed as JMs for PLPL and SEC on condition that PLL deposit S$2 million either with nTan or with Gibson Dunn in escrow. This was to aid the success of the judicial management, by showing PLPL’s and SEC’s creditors that PLL was serious about the restructuring and to ensure that the JMs’ fees would not eat into PLPL’s and SEC’s assets. The Applicants’ fees, billed at an hourly rate, would be paid out of this sum, and Gibson Dunn received and held $500,000 as deposit for their fees. Contrary to that agreement, Mr Lee informed them on 22 September 2016 that Gibson Dunn was not holding any money for that purpose.

History of the complaint

The Applicants on 26 April 2018 made complaints to the Law Society about the Solicitors, which were then summarised by the Review Committee (“RC”) as follows: that the Solicitors knowingly deceived the Applicants and/or knowingly aided and abetted their client PLL, being the parent company of PLPL and SEC, in deceiving the Applicants with regards to the terms of their remuneration; and that the Solicitors aided and abetted their client in not paying to the Applicants a substantial amount of monies that their client had placed with them for the express purposes of providing a deposit for the JMs’ fees.

The RC appointed to review the matter dismissed both complaints. On review in Originating Summons No 1505 of 2018, Chua Lee Ming J upheld the RC’s decision to dismiss the first complaint, but directed the RC to refer the second complaint to the Chairman of the Inquiry Panel under s 85(8)(b) of the LPA.

Two Inquiry Committees (“ICs”) were then constituted, one in relation to Mr Lee and one in relation to Mr Pathak. The ICs were of the view that no formal investigation by DTs was required and recommended that the complaint be dismissed under s 86(7)(b)(v) of the LPA. After seeking further reports from the ICs, the Council of the Law Society determined that formal investigations were not necessary. The Applicants sought therefore to invoke the appellate jurisdiction of this court under s 96 of the LPA to direct the Law Society to apply for DTs to be appointed.

What is the role of the IC?

The role of the IC is informal and inquisitorial, and under the LPA, the IC may take one of three courses of action after its inquiry. First, it may eliminate frivolous complaints. If there is no prima facie case of any misconduct, or if the allegations, taken at their highest, do not disclose any sufficiently serious breach that would warrant formal investigation, the IC will recommend dismissal of the complaint: Loh Der Ming Andrew v Law Society of Singapore [2018] 3 SLR 837 (“Andrew Loh”) at [67]–[69]; s 86(7)(b)(v) of the LPA. Second, where it concludes there has been minor misconduct, it may recommend the imposition of less serious penalties or remedial measures: s 86(7)(b)(i)–(iv) of the LPA. Third, it should channel the matter to a DT wherever a prima facie case of ethical breach which ought to be heard formally and determined by the DT has been established: see Subbiah Pillai v Wong Meng Meng and others [2001] 2 SLR(R) 556 (“Subbiah Pillai”) at [32].

Here the Applicants contend there is a prima facie case. In Re Nalpon Zero Geraldo Mario [2012] 3 SLR 440 at [27]–[29], in relation to s 82A(6) of the LPA, the analogous section in relation to legal service officers and non-practising solicitors, Chan Sek Keong CJ applied the standard used in criminal law, which is to ask “whether there is some evidence (not inherently incredible) which, if [a judge] were to accept it as accurate, would establish each essential element in the alleged offence” (Haw Tua Tau and others v Public Prosecutor [1981-1982] SLR(R) 133 at [17]).

It follows therefore, from the scheme of the LPA, that where there is evidence, not inherently incredible, on each of the elements of an ethical breach, the role of the IC is to channel the investigation to a DT.

The ICs’ decision

I come then to the ICs’ decision. In the present case, a factual dispute lay at the heart of the complaint. The Applicants contend that there was an express oral...