The Law Society of Singapore v Tay Choon Leng, John

JurisdictionSingapore
JudgeChan Sek Keong CJ
Judgment Date20 April 2012
Neutral Citation[2012] SGHC 86
Citation[2012] SGHC 86
CourtHigh Court (Singapore)
Published date03 May 2012
Docket NumberOriginating Summons 833 of 2011
Plaintiff CounselTan Tee Jim SC and Sharon Yeow (Lee & Lee)
Defendant CounselAng Cheng Hock SC, Tan Xeauwei and Paul Ong Min-Tse (Allen & Gledhill LLP)
Subject MatterLegal Profession
Hearing Date18 January 2012
Chao Hick Tin JA (delivering the judgment of the court): Introduction

This Originating Summons is initiated by the Law Society of Singapore (“Law Society”) pursuant to s 94(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) praying that this court deal with the Respondent following the findings of the Disciplinary Tribunal (“DT”) on certain disciplinary charges brought against him.

The disciplinary charges brought by the Law Society against the Respondent are the following: First Charge

That you, John Tay Choon Leng, an Advocate and Solicitor of the Supreme Court of Singapore, on or about 28 February 2009 and whilst practicing with the Firm of M/s John Tay & Co located at 171 Chin Swee Road, #08-09 San Centre, Singapore 169877, did pay the sum of $3,000.00 received by you from your client Teo Yeow Hock as a deposit to account of fees for you to act in D4476/2008/S and/or MSS941/2009 into the Office Account of the Firm instead of the Client Account and are thereby guilty of a breach of Rule 3(1) of the Legal Profession (Solicitors’ Accounts) Rules, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Chapter 161).

Second Charge

That you, John Tay Choon Leng, an Advocate and Solicitor of the Supreme Court of Singapore, on or about 28 February 2009 and whilst practicing with the Firm of M/s John Tay & Co located at 171 Chin Swee Road, #08-09 San Centre, Singapore 169877, did pay the sum of $2,000.00 received by you from your client Teo Yeow Hock as a deposit to account of fees for you to act in D4476/2008/S and/or MSS941/2009 into the Office Account of the Firm instead of the Client Account and are thereby guilty of a breach of Rule 3(1) of the Legal Profession (Solicitors’ Accounts) Rules, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Chapter 161).

Third Charge

That you, John Tay Choon Leng, an Advocate and Solicitor of the Supreme Court of Singapore, from on or about 28 February 2009 and whilst practicing with the Firm of M/s John Tay & Co located at 171 Chin Swee Road, #08-09 San Centre, Singapore 169877, did fail to properly and/or adequately inform your client Teo Yeow Hock of the basis on which fees for professional services for acting for him in D4476/2008/S and MSS941/2009 would be charged and the manner in which it was expected that those fees and disbursements should be paid and are thereby guilty of a breach of Rule 35(a) of the Legal Profession (Professional Conduct) Rules, such breach amounting to improper conduct or practice as an advocate and solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Chapter 161).

In short, the first two charges relate to the Respondent depositing the two sums received from one Mr Teo Yeow Hock (“the Complainant”) into his office account in breach of Rule 3(1) of the Legal Profession (Solicitors’ Accounts) Rules (Cap 161, R 8, 1999 Rev Ed) (“the SA Rules”). The third charge is for failing to adequately inform the Complainant of the basis on which his professional fees would be charged, in breach of Rule 35(a) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 1990 Rev Ed) (“the PC Rules”).1

Background facts

At all material times, the Respondent was the sole proprietor of the law firm of Messrs John Tay & Co. He was called to the Singapore Bar on 12 May 1982, an Advocate and Solicitor of 26 years’ standing at the time of the alleged misconduct.

At around the end of February 2009, the Complainant engaged the Respondent to act for him in respect of ancillary matters in D4476/2008/S (a divorce proceedings between the Complainant and his wife) (“the Divorce Ancillaries”) and MSS 941/2009 (an application by the Complainant’s wife for maintenance) (“the Maintenance Summons”).

It is not disputed that the complainant was a client of another advocate and solicitor, Mr Tan Ee Bin (“Mr Tan”), who handled the Complainant’s divorce proceedings. However, as Mr Tan did not normally handle contentious divorce ancillaries matters, Mr Tan recommended the Respondent to the Complainant and they met at Mr Tan’s office on 27 February 2009. The Respondent said that at that meeting he had informed the Complainant that his fees would be as follows: Upfront initial fee or advanced payment of $3,000 for handling the Divorce Ancillaries (“the Divorce Ancillaries Initial Upfront Fee”); Additional fees would be payable and such fees would be discussed if the matter went for trial;2 and There would be a contingency fee of $3,000 in the event that the ancillary matters were transferred to the High Court (“the Divorce Ancillaries Contingency Fee”) if the estimated matrimonial assets exceeded $1.5 million.

The following day, on 28 February 2009, the Complainant came to the Respondent’s office in the morning when the latter was about to leave for a court hearing. The Complainant informed the Respondent that he had been served with the Maintenance Summons, and that he would also like the Respondent to handle that matter. The Complainant had brought with him $2,000 in cash and a POSB cheque for $3,000, both of which he handed to the Respondent. The Respondent said that he told the Complainant that the $2,000 cash would be treated as part payment towards the Divorce Ancillaries Initial Upfront Fee and the cheque for $3,000 as the upfront fee for handling the Maintenance Summons. Their conversation lasted for only five minutes as the Respondent was in a hurry to attend court on another client’s matter. A receipt was issued by the Respondent’s firm in respect of the $2,000 cash payment. We would note that the receipt stated that the $2,000 cash payment was “initial payment for MSS941/2009”, the Maintenance Summons.

Subsequently, the Complainant decided to appoint another set of solicitors to take over the conduct of both the Divorce Ancillaries and the Maintenance Summons. On 3 September 2009, the Complainant wrote to the Respondent asking for a refund of the $3,000 paid as the Divorce Ancillaries Contingency Fee. Initially, the Respondent did not agree to make any refund as he had done work for both the Divorce Ancillaries and the Maintenance Summons. Eventually, the Respondent agreed to refund $1,500, although this refund of $1,500 was never effected.

On 1 February 2010, the Complainant filed a complaint with the Law Society. After investigation, the Law Society preferred the three charges against the Respondent (see [2] above).

At the hearing before the DT, as against the first two charges, the Respondent raised the defence that the Complainant and Respondent had agreed that the $2,000 cash and the cheque for $3,000 were the Respondent’s fees and therefore did not constitute “client’s money” under r 2(b) of the SA Rules.3 The Respondent argued therefore that he was not obliged to deposit them into a client account (as set out and further discussed in [14] to [34] below).

Decision Below

The DT, after due hearing, found pursuant to s 93(1)(c) of the LPA that cause of sufficient gravity for disciplinary action existed under s 83(2)(b) of the LPA and ordered the Respondent to pay costs. In reaching this decision, the DT made the following findings of fact: The $3,000 by way of a POSB cheque (“the $3,000”) and $2,000 cash were paid into the Respondent’s office account;4 There was no agreement on account of an agreed fee between the Respondent and the Complainant because, inter alia:5 The Respondent’s evidence given under cross-examination corroborated the Complainant’s evidence that the payments made were only part of the Respondent’s professional fees; The Respondent’s receipt for the $2,000 did not state that it was an agreed fee. It stated that it was “initial payment for MSS941/2009”;6 The $3,000 was meant to be a deposit in the event that D4476/2008/S was transferred to the High Court, and no agreement was made to convert the $3,000 to agreed fees for MSS941/2009.7 In any case, the alleged fees agreement were not reduced into writing and signed by the complainant. The Respondent did not explain the basis and manner of his fees, and this was conceded during cross-examination;8 and The Respondent did not explain his charges to the Complainant even after the Complainant repeatedly asked for a refund of $3,000. Instead, the Respondent: Issued a bill on or about 3 September 2009 after the Complainant’s first letter was faxed; Did not explain the basis of his fees or when or how his fees or expenses would be incurred or should be paid; Did not reply to any of the Complainant’s letters; and Agreed to a refund of $1,500.9

The DT also found as a matter of law that an “agreed fee” was not valid unless it was evidenced in writing.

Issues before this Court

As seen from the above, the critical question in relation to the first and second charges is whether there was an agreement on fees between the Complaint and the Respondent. The DT found that there was in fact no such agreement. The DT also decided that in law, there could not, in any event, have been an “agreed fee” because the alleged agreements were not evidenced in writing signed by the client. Thus, on this matter there are really five issues which this court must address and we will deal with them in the following order: Whether or not an “agreed fee” under r 9(2)(c)(ii) of the SA Rules must be in writing; Whether or not an “agreed fee” must be for the entire transaction; Whether or not the totality of the evidence demands that this Court should overturn the DT’s findings of fact, ie, that there was no agreed fee, in relation to the first two charges; Whether there is sufficient basis for the DT to find the Respondent guilty of the third charge; and The...

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