The Law Society of Singapore v Edmund Nathan

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 14 July 1998
• Neutral Citation: [1998] SGHC 239
• Docket Number: Originating Summons No 448 of 1998
• Date: 14 July 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: Denis Tan (Toh Tan & Pnrs)
• Citation: [1998] SGHC 239
• Defendant Counsel: K Shanmugam SC (Allen & Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Procedure under s 94A,Respondent convicted of criminal offence,ss 83(1), 89(7), 94A Legal Profession Act (Cap 161, 1994 Ed),Whether respondent could raise plea of autrefois convict at show cause proceedings,Whether any abuse of process or oppression to respondent if present show cause proceedings proceeded with,Show cause action,Whether order to show cause should be made absolute,Whether respondent could show cause by invoking common law principle of autrefois,Legal Profession,Respondent paid fine imposed by Council of Law Society,Whether Legal Profession Act impinged on availability of principle of autrefois in disciplinary proceedings,Whether prior inquiry committee proceedings and fine imposed by Council amounted to 'conviction' to justify raising autrefois convict

Judgment:

KARTHIGESU JA

Cur Adv Vult

(delivering the judgment of the court): On 30 May 1997 the respondent, an advocate and solicitor, who was jointly tried with his client, one Alloisus Bernard Fernandez (Fernandez), was convicted of an offence of attempted cheating and sentenced to one day`s imprisonment and fined $10,000. Fernandez was also convicted and sentenced to one day`s imprisonment; he was fined $3,000. The respondent`s appeal to the High Court against his conviction and sentence was dismissed by the learned Chief Justice on 12 August 1997. The learned Chief Justice`s judgment is reported at [1997] 3 SLR 782.

2.The charge against the respondent and Fernandez was as follows:

You, Alloisus Bernard Fernandez,

Edmund Nathan

are charged that you, between 1 June 1991 and 26 June 1991, in Singapore, and in furtherance of the common intention of you both, attempted to cheat the United Overseas Bank Ltd, Singapore, and in such attempt did deceive the said bank into believing that the intended purchase price for the property at 363A Upper Paya Lebar Road was S$190,000 when you knew that the intended purchase price was S$135,000, and by such deception, you dishonestly attempted to induce the said United Overseas Bank to deliver property to some persons, to wit: to approve a loan of S$110,000 and disburse the said sum to Alloisus Bernard Fernandez and Margaret Angela Fernandez, and you have thereby committed an offence punishable under s 420 read with ss 34 and 511 of the Penal Code (Cap 224).

3.Relying on the conviction referred to in [para ] 1 above and pursuant to s 94A(1) of the Legal Profession Act (Cap 161, 1994 Ed) (the Act), the Law Society of Singapore (the Society) duly applied to the High Court that the respondent show cause why he should not be struck off the roll or suspended from practice or censured. The order to show cause was made on 4 May 1998.

4.Section 94A(1) of the Act reads as follows:

Where an advocate and solicitor has been convicted of an offence involving fraud or dishonesty, whether the offence was disclosed as a result of an investigation under section 87(3)(b) or otherwise, the Society shall, without further direction or directions, proceed to make an application in accordance with section 98.

The relevant sub-section of s 98 is sub-s (1) which we set out below:

An application that a solicitor be struck off the role or suspended from practice or censured or that he be required to answer allegations contained in an affidavit shall be made by originating summons ex parte for an order calling upon the solicitor to show cause.

It is also necessary to set out s 83(1) and two paragraphs of s 83(2) which are relevant to the arguments addressed to us at `the show cause proceedings`. They are paras (a) and (b) of s 83(2):

83 (1) All advocates and solicitors shall be subject to the control of the Supreme Court and shall be liable on due cause shown to be struck off the roll or suspended from practice for any period not exceeding 5 years or censured.

(2) Such due cause may be shown by proof that an advocate and solicitor -

(a) has been convicted of a criminal offence, implying a defect of character which makes him unfit for his profession;

(b) has been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such a breach of any usage or rule of conduct made by the Council under the provisions of this Act as amounts to improper conduct or practice as an advocate and solicitor.

5.The show cause proceedings came before us on 29 May 1998. The respondent sought to show cause by invoking the common law principle of autrefois . This principle in so far as it applies to professional disciplinary proceedings was accepted in the show cause proceedings in Re An Advocate and Solicitor [1984] 1 MLJ 331 and by the Privy Council in the appeal therefrom, Lee Wee Harry v Law Society of Singapore [1985] 1 MLJ 1 [1984-1985] SLR 41 . Briefly stated the principle is that a man cannot be tried for a crime in respect of which he has previously been acquitted ( autrefois acquit ) or convicted ( autrefois convict ).

6. autrefois convict The respondent`s contention was as follows: (i). Following a complaint to the Society by the Registrar of the Supreme Court on 15 September 1994, an inquiry committee investigated into the complaint under s 86 of the Act. The complaint referred to the very same transaction which formed the subject matter of the charge on which the respondent was convicted. The complaint addressed to the Public Prosecutor and the Society read as follows:

Suit No: 2684 of 1992

Fernandez Alloisus Bernard v Jansen Priscilla Ann & Tansen Edmund Joseph

The above action was heard on 14 September 1994.

2 The court observed that in the affidavits filed by the parties, it was disclosed that:

(a) the parties, who were the vendors and purchaser of a property, executed two agreements for sale and purchase, one at a price of $135,000 and another at a price of $190,000, intending the real price to be $135,000;

(b) the contract for the higher price was executed to enable the purchaser to get a higher bank loan;

(c) a bank loan was applied for and approved on the basis that the sale price was $190,000 (the bank having also valued the property at the price of $190,000); and

(d) Mr Edmund Nathan, the solicitor acting for both parties and the bank, admitted his knowledge in his affidavit filed on 1 February 1994.

3 The court requested that this matter be brought to the attention of the Public Prosecutor (in respect of the vendors, the purchaser and their solicitor) and the Law Society (in respect of the solicitor), so that they might deal with it as they saw fit.

4 In the premises, this matter is referred to you for your consideration.

(ii). On 21 April 1995 the inquiry committee reported to the Council of the Society (the Council) vide s 86(7) of the Act that although a formal investigation by a disciplinary committee was not required the respondent`s conduct was improper and warranted the imposition of a penalty. A penalty of $3,000 was recommended.

(iii). On or about 8 May 1995 the Council accepted and adopted the inquiry committee`s report and acting under s 88 of the Act imposed a fine of $3,000 on the respondent which the respondent duly paid.

(iv). The findings of the inquiry committee which the Council accepted and adopted, `that the respondent`s conduct was improper and warranted the imposition of a penalty` and the imposition of a fine of $3,000 on the respondent was tantamount to a `conviction` by the Council `of fraudulent or grossly improper conduct in the discharge of the respondent`s professional duty` (s 83(2)(b)) for which he was punished by being fined $3,000.

(v). The same complaint which gave rise to the inquiry committee`s investigation (see (i) above) also resulted in the respondent being charged together with Fernandez for attempted cheating on 21 June 1996.

(vi). The criminal conviction for attempted cheating on 30 May 1997 was indisputably on the very same facts on which the Council in May 1995 fined the respondent $3,000 for improper conduct in the discharge of his professional duty. Hence, to be called on to show cause based on the conviction of a criminal offence implying a defect of character which makes him unfit for his profession (s 83(2)(a)) is to put the respondent in `double jeopardy`. In other words it enables the respondent to raise the plea of .

7.Mr Shanmugam`s first argument was that s 94A of the Act should be construed as being a directory provision rather than a mandatory provision. He submitted that if s 94A is treated as a mandatory provision then every conviction of an advocate and solicitor for a criminal offence involving fraud or dishonesty must result in that advocate and solicitor being called on to show cause why he should not be struck off the roll, suspended or censured. This would put the advocate and solicitor in `double jeopardy`. He submitted that the legislature could not have intended to over-ride the principle of autrefois .

8.We do not really understand this argument. If by the section being directory it is suggested that the Society is given a discretion as to which conviction of an advocate and solicitor involving fraud or dishonesty it will require cause to be shown and which it may not and thus the principle of autrefois is somehow preserved, such argument, in our view is fallacious. It is fallacious because this will amount to someone other than the tribunal charged with the duty of controlling the conduct of advocates and solicitors, ie to show cause, deciding whether the plea of autrefois is available in any given case. In the context of the Act that tribunal is the court of three judges of the Supreme Court (see s 83(1) and s 89(7). It is clear from a reading of the whole of Pt VII of the Act that the legislature never intended the show cause proceedings to be heard by a tribunal other than the court of three judges and s 94A requires the Society `to proceed to make an application in accordance with section 98` without further direction or directions, ie to apply to the High Court `for an order calling upon the solicitor to show cause`.

9.In our view s 94A is free from doubt and ambiquity. Its plain meaning is the correct meaning and that is that it directs the Society to apply under s 98 for a show cause order in any case where an advocate and solicitor has been convicted of an offence involving fraud or dishonesty without further direction or directions. The direction given to the Society by the legislature is mandatory. It is purely procedural. All it does is to dispense with the first two stages of the disciplinary process, namely the inquiry committee stage and the disciplinary committee stage and directs the Society to go straight to the third stage, the show cause stage, where an advocate and solicitor is convicted of an offence involving fraud or dishonesty.

1...