Chia Shih Ching James v The Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Lord Bridge of Harwich
• Judgment Date: 03 September 1984
• Neutral Citation: [1985] SGPC 5
• Docket Number: Privy Council Appeal No 66 of
• Date: 10 June 1985
• Year: 1984
• Published date: 19 September 2003
• Plaintiff Counsel: George Carman QC (Cameron Markby), HE Cashin and Duncan Matheson (Norton Rose Botterell & Rose)
• Citation: [1985] SGPC 5
• Defendant Counsel: Tan Kok Quan and Lee Han Tiong
• Court: High Court (Singapore)
• Subject Matter: Words and Phrases,Disciplinary procedures,Pt VII, ss 84(1), 86, 87, 88, 90, 94, 96 & 97 Legal Profession Act (Cap 217),Meaning of 'person who made the written application or complaint',Whether Law Society could apply for review of determination,'Person who made the written application or complaint',Legal Profession,Disciplinary Committee determining that advocate and solicitor should be reprimanded,Appellant convicted of cheating

The respondent, James Chia Shih Ching, is a non-practising advocate and solicitor of the Supreme Court, Singapore. He has been on the roll of advocates and solicitors since 11 July 1973. In April 1970 he joined the Legal Section of the Inland Revenue Department of the Government of the Republic of Singapore as a Legal Officer. On 1 May 1979 he was promoted to the post of Senior Legal Officer to head the Legal Section. He remained as head of the Legal Section until his interdiction on 8 August 1980 and was dismissed from government service on 11 February 1983.

On 14 November 1981, the respondent was convicted on a charge under s 420 of the Penal Code (Cap 103).

The charge reads as follows:

that you, on or about 7 March 1980, in Singapore, cheated Tong Eng Brothers Pte Ltd by deceiving the company into believing that a sum of Pound Stg 800 was due and payable to one DC Potter, Queen`s Counsel as legal fees for work rendered when you knew that such sum was not in fact determined nor due and payable and thereby dishonestly induced the company to deliver to you a bank draft for Pound Stg 800 which it would not do if it were not so deceived and thereby committed an offence punishable under s 420 of the Penal Code.

He was sentenced to one day`s imprisonment and was fined $3,000. Being dissatisfied with the conviction and sentence, he appealed to the High Court which, on 20 October 1982, dismissed the appeal.

As the respondent was convicted of an offence involving fraud or dishonesty, the Council of the Law Society of Singapore, in discharge of its statutory duty imposed by sub-s 86(5) of the Legal Profession Act (Cap 217) (the Act), applied to the learned Chief Justice to appoint a Disciplinary Committee to hear and investigate the matter.

The Disciplinary Committee was appointed and its hearing took place on 30 April 1983. In July 1983 the Disciplinary Committee delivered its report to the learned Chief Justice and the Law Society. The Committee found that no cause of sufficient gravity existed for disciplinary action under s 84 of the Act and that the respondent should only be reprimanded. In doing so, the Disciplinary Committee made a determination under s 93(1)(b) of the Act.

The Disciplinary Committee set out its findings and determination in the following terms:

Findings

(1) We find that this is not a case in which we are entitled to go behind the conviction to enquire if it was correctly made.

(2) We find, however, that on a consideration of the whole of the circumstances of this case, and bearing fully in mind that a conviction of cheating is a conviction which, in all but exceptional circumstances. ( In Re Weare; Re a Solicitor [1893] 2 QB 439) would necessarily entail disciplinary action under s 93(1)(c), read with s 84 of the Act, such circumstances do exist in this case, which may be summarized as follows.

(a) the basis of the said conviction was that there was no sum of money due to Mr Potter as at the date on which the respondent deceived Tong Eng as to Mr Potter`s fee, but the degree of turpitude in such deception and in requesting the issue of the draft, which was in Mr Potter`s favour, was in our view minimal, because the respondent had no way of knowing at that time whether Mr Potter`s fee for the opinion which had been delivered would be 800 Pounds, 400 Pounds, or more or less than either of those sums, and in particular he had no way of knowing that Mr Potter would waive his fee altogether, but rather had no reason to expect that a fee would not be charged in the ordinary course;

(b) the minimal sentence passed on the respondent is a clear indication that the district judge did not regard the offence as much more than a minor one within the ambit of the section;

(c) the Public Prosecutor did not appeal against the sentence, and it was not criticised by the High Court as being too lenient and;

(d) Tong Eng has not suffered any material detriment.

We are of the opinion, and so find, having carefully and anxiously considered the whole of the evidence before us, that while no cause of sufficient gravity exists for disciplinary action under s 84 of the Act, the Respondent should be and is hereby Reprimanded.

As the Law Society was dissatisfied with the determination of the Disciplinary Committee, it applied to a judge under s 97 of the Act by Originating Summons No 528 of 1983. In those proceedings the Law Society and all three members of the Disciplinary Committee were heard by the learned Chief Justice who ordered that the determination of the Disciplinary Committee made on 2 July 1983 be set aside. Acting under s 97(3)(b) of the Act, the learned Chief Justice directed the Law Society to make an application under s 98 of the Act for an order calling upon the Respondent to show cause why he should not be dealt with in the manner prescribed by the Act.

By Originating Summons No 54 of 1984 the Law Society accordingly made the ex parte application. On 10 February 1984 the respondent was ordered to show cause.

In the show cause proceedings before us, Mr George Carman on behalf of the respondent submitted that the Law Society had no locus standi or jurisdiction to apply under s 97 of the Act nor to plead before us. In other words, it was submitted that the Law Society could not in law apply for a judicial review of the determination of the Disciplinary Committee.

Before we consider the submissions in detail, we turn first, as is our duty, to the Act, Pt VII of which deals with disciplinary proceedings which may be taken against any advocate and solicitor in certain circumstances. All advocates and solicitors are subject to the control of the Supreme Court and an advocate and solicitor may be liable on due cause being shown to be struck off the roll or suspended from practice for any period not exceeding two years or censured.

Any application for disciplinary action by any person and any complaint of the conduct of an advocate and solicitor in his professional capacity shall in the first place be made to the Law Society and its Council shall refer the application or complaint to the Inquiry Committee: see s 86(1) of the Act for its full terms. The Supreme Court, a judge or the Attorney General may also initiate disciplinary proceedings: s 86(2),

We want to mention one other route by which disciplinary proceedings may be initiated as it has not featured in the arguments before us. Under s 87(1)(b) of the Act, which remained unamended by Act No 11 of 1979, the Inquiry Committee may decide `of its own motion` to inquire into any matter relating to the professional conduct of any advocate and solicitor and report its findings to the Council of the Law Society. In this situation, there is evidently no outside applicant or complainant and if the Council determines that there should be a formal investigation by a Disciplinary Committee, the Law Society must be the applicant or complainant.

For our present purposes, we do not think it necessary to set out the elaborate procedures of the Inquiry Committee.

We have to mention two sets of amendments to the Act which were enacted by Act No 11 of 1979. By s 86(5) of the Act, promulgated by Parliament in 1979, provision was made to dispense with the Inquiry Committee stage of any disciplinary proceedings where an advocate and solicitor has been convicted of the offence of criminal breach of trust or of any other offence involving fraud or dishonesty. Section 86(5) is in these terms:

Notwithstanding this section, whenever an advocate and solicitor been convicted of the offence of criminal breach of trust punishable under s 409 of the Penal Code or of any other offence involving fraud or dishonesty, the Council shall forthwith apply to the Chief Justice to appoint a Disciplinary Committee which shall hear and investigate the matter.

The other set of amendments made in 1979 effected two changes in the law. First, the Council was thenceforth required to determine that there should be a formal investigation if the Inquiry Committee so recommended. The Council`s former right to review and disagree with the recommendation of the Inquiry Committee was taken away. Secondly, and on the other hand, the Council may disagree with the Inquiry Committee, if the latter recommends that a formal investigation is not necessary, and in such a case may request the learned Chief Justice to appoint a disciplinary committee. These changes are set out in s 88(1A)(a) and (b) of the Act which are in these terms:

If the Inquiry Committee in its report recommends -

(a) that there should be a formal investigation, then the Council shall determine accordingly under sub-s (1); or

(b) that a formal investigation by a Disciplinary Committee is not necessary, the Council may, if it disagrees with the recommendation, request the Chief Justice to appoint a Disciplinary Committee.

There are procedures in the Act whereby `complainants`, and here we are only for convenience adopting the abbreviation of the marginal notes to the Act, who are dissatisfied with the decisions of the Council of the Law Society or of the decisions of the Disciplinary Committee, may within a prescribed period apply to a judge of the High Court. These procedures are set out in ss 96 and 97 of the Act.

Before we set them out in the following para, we should mention in passing that s 96, dealing, as it does, with that stage of disciplinary proceedings which is antecedent to the Disciplinary Committee stage, should have more appropriately found its place before s 91 of the Act.

Section 96 provides:

Where a person has made a written application or complaint to the Society and the Council has determined -

(a) that a formal investigation is not necessary; or

(b) that no sufficient cause for a formal investigation exists but that the advocate and solicitor concerned should be ordered to pay a penalty,

that person, if he is

...