The Law Society of Singapore v Tham Yu Xian Rick

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 17 August 1999
• Neutral Citation: [1999] SGHC 213
• Docket Number: Originating Summons No 520 of 1999
• Date: 17 August 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Indranee Rajah and Elaine Chao (Drew & Napier)
• Citation: [1999] SGHC 213
• Defendant Counsel: Respondent in person
• Court: High Court (Singapore)
• Subject Matter: Solicitor convicted of criminal offence under s 3(1)(c) of the Residential Property Act (Cap 20),Whether penalty imposed in the conviction taken into account,ss83(1) & 83(2)(a)Legal Profession Act (Cap 161),Disciplinary committee determines cause of sufficient gravity for disciplinary action shown -Whether nature of offence conclusive in determining defect of character,Legal Profession,Breach,Professional conduct,Whether conduct of solicitor dishonest and should be struck off the rolls

(delivering the grounds of judgment of the court): This was an application by the Law Society of Singapore under s 98 of the Legal Profession Act (Cap 161, 1997 Ed) (`the Act`) to make absolute an order to show cause pursuant to the Disciplinary Committee`s determination that there was cause of sufficient gravity for disciplinary action to be taken against Rick Tham Yu Xian (`the respondent`) under s 83(1) of the Act. Having heard the submissions of counsel for the Law Society as well as those of the respondent, who appeared before us in person, we were unanimously of the opinion that the respondent should be struck off the roll. We now give our reasons.

The facts

The respondent is an advocate and solicitor of approximately 18 years` standing and at all material times, was practising as a partner in the firm of Tham & Partners. The facts, as set out in the Law Society`s Statement of Case and to which the respondent admitted without qualification, were as follows.

On or about 16 August 1991, one Lim Bin Hiong alias Abun Sunarjo (`Lim`) acquired an option from property developers Singapore United Estates (Pte) Ltd (`the developers`) to purchase a semi-detached house at 1 Dedap Gardens (`the property`) for $58,150, being 5% of the purchase price of $1.163m. The property falls within the definition of `residential property` in s 2 of the Residential Property Act (Cap 274) (`RPA`) and Lim, an Indonesian national, was at the material time a `foreign person` as defined by the same section. On or about 23 August 1991, Lim retained the respondent to act for him in (a) the purchase of the property from the developers; and (b) his application for Permanent Resident status in Singapore.

On 24 August 1991, Messrs Rodyk & Davidson, the solicitors for the developers, wrote to Messrs Tham & Partners, stating that the option over the property was subject to Lim obtaining the requisite approval from the authorities under s 25 of the RPA. On 5 October 1991, the respondent wrote to the Controller of Residential Property at the Land Dealings (Approval) Unit (`LDU`) to apply for approval for Lim to purchase the property. On 28 November 1991, the LDU wrote to Messrs Tham & Partners, informing them that Lim`s application to purchase the property had not been approved.

On 4 December 1991, Messrs Tham & Partners wrote to Messrs Rodyk & Davidson, informing them that Lim had decided to assign the right to purchase the property to one Steven Ang Ah Hoe (`Ang`) and that the respondent would be representing Ang in the purchase. On or about 5 December 1991, Lim informed the developers that he no longer wished to purchase the property. On or about the same day, the developers granted Ang an option to purchase the property. On 6 December 1991, the developers returned Lim`s option money of $58,150 to Messrs Tham & Partners. On or about 31 December 1991, Ang entered into a sale and purchase agreement with the developers to purchase the property for $1.163m.

A trust deed was entered into by Ang as trustee and Lim as beneficiary on an unspecified date in 1991. The deed was stated to be supplemental to the sale and purchase agreement between Ang and the developers whereby he agreed to purchase the property from the developers at a price of $1.163m. The deed also stated, inter alia, that in consideration of the sum of $1.163m paid to Ang by Lim, Ang would (a) hold the property as trustee in trust for Lim as beneficiary; and (b) transfer the property to Lim upon the latter`s written request.

On 7 January 1992, Ang lodged a caveat over the property. On 8 April 1992, Ang signed an acknowledgment of debt drafted by the respondent, whereby Ang acknowledged that he was indebted to Lim in the amount of $1.163m. The acknowledgment of debt was backdated to 31 December 1991. On the same day, Lim entered into a sale and purchase agreement with Ang to purchase the property at $1.163m. The sale was conditional on Lim obtaining the requisite approval from the LDU, for which he made a second application on that day. On 9 April 1992, Lim lodged a caveat over the property.

On 3 July 1992, the LDU wrote to Messrs Tham & Partners, informing them that Lim`s application for approval to purchase the property was again unsuccessful. On 27 July 1992, Messrs Tham & Partners received a letter from Messrs Rodyk & Davidson stating that Ang`s purchase of the property was to be completed within 21 days, failing which the developers would treat the sale and purchase agreement as repudiated.

On 4 August 1992, Lim lodged a police report against Ang. Ang was subsequently charged with having committed an offence under the RPA in DAC 16807/95. On or about 15 September 1995, the respondent was charged in the subordinate courts in DAC 16808/95 with having committed an offence under s 3(1)(c) of the RPA. The charge against him read:

You, Rick Tham Yu Xian, NRIC No 0232048G, are charged that you, on or about 31 December 1991, in Singapore, abetted one Lim Bin Hiong (`Lim`), a foreign person as defined under the Residential Property Act (Cap 274) (`the Act`), in acquiring an interest in a residential property, namely, Lot 2099 Mukim 2, also known as 2 Dedap Link, Singapore 809547 (`the property`) [the property was subsequently renamed 2 Dedap Link], when you intentionally aided him in an arrangement whereby one Steven Ang Ah Hoe (`Ang`), a Singapore citizen, was to purchase and hold the property for Lim`s benefit, in that you acted for Ang in the latter`s purchase of the property as Lim`s nominee, and prepared a trust deed to this effect, and you have thereby committed an offence under s 3(1)(c) and punishable under s 36(1) of the Act read with s 109 of the Penal Code (Cap 224).

The respondent claimed trial and denied that he had prepared the abovementioned trust deed. On 3 August 1996, the respondent was convicted and sentenced to a fine of $5,000.

Upon the respondent`s conviction, the Council of the Law Society proceeded under s 85(2) of the Act and laid an information touching upon the respondent`s conduct to the Chairman of the Inquiry Panel, and as a result an Inquiry Committee was duly empanelled to inquire into the information. The Inquiry Committee recommended that a formal investigation be held by a Disciplinary Committee to hear and investigate the information, and accordingly, on application by the Council, a Disciplinary Committee was duly appointed by the Chief Justice on 30 March 1998 under s 90 of the Act. The charge formulated against the respondent by the Law Society read as follows:

You, Rick Tham Yu Xian, NRIC No 0232048G, are charged that on 3 August 1996, you were convicted on a charge that you abetted one Lim Bin Hiong (`Lim`), a foreign person as defined under the Residential Property Act (Cap 274) (`the Act`), in acquiring an interest in a residential property, namely, Lot 2099 Mukim 2, also known as 2 Dedap Link, Singapore 809547 (`the property`), when you intentionally aided him in an arrangement whereby one Steven Ang Ah Hoe (`Ang`), a Singapore citizen, was to purchase and hold the property for Lim`s benefit, in that you acted for Ang in the latter`s purchase of the property as Lim`s nominee, and prepared a trust deed to this effect, an offence ... under s 3(1)(c) and punishable under s 36(1) of the Act read with s 109 of the Penal Code (Cap 224) and you are thereby guilty of conduct implying a defect character which makes you unfit for your profession within the meaning of s 83(2)(a) of the Legal Profession Act (Cap 161, 1990 Ed).

The Disciplinary Committee proceedings

The Disciplinary Committee hearing was held on 30 November 1998 and the Disciplinary Committee delivered its findings in a report dated 2 March 1999 (`the report`). It found that the charge against the respondent was proved as the respondent had been convicted of an offence implying a defect of character which rendered him unfit for his profession and determined (pursuant to s 93(1)(c) of the Act) that cause of sufficient gravity for disciplinary action existed under s 83(2)(a) of the Act. Accordingly, the Law Society applied under s 98 for an order requiring the respondent to show cause why he should not be dealt with under the provisions of s 83(1) of the Act.

The application

It is trite law that it was not open to either the respondent or the court to go behind the respondent`s conviction by virtue of s 83(6) of the Act (by which the conviction must be accepted as `final and conclusive`): Re Mohomed Jiffry Muljee [1994] 3 SLR 520 and Law Society of Singapore v Narmal Singh [1996] 2 SLR 184 , and the sole question for determination in the present proceedings was what consequences should flow from the fact that the respondent had committed the offence of which he was convicted - abetting the purchase by a `foreign person` of `residential property` (as defined in s 2 of the RPA) in contravention of s 3(1)(c) of the RPA.

To begin with, conviction of a criminal offence which implies a defect of character prima facie renders an advocate and solicitor unfit for his profession. The nature of the offence clearly is material, for it cannot be that every violation of the criminal law implies a defect of character which unfits the offender to be a member of the profession. The general rule was stated by Lord Esher MR in Re Weare, A Solicitor [1893] 2 QB 439 at p 445 in the following terms:

Where a man has been convicted of a criminal offence, that prima facie at all events does make him a person unfit

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