Wee Soon Kim Anthony v Law Society of Singapore

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeJudith Prakash J
Judgment Date27 November 2006
Neutral Citation[2006] SGHC 214
Citation[2006] SGHC 214
Subject MatterApplication to judge upon dissatisfaction with Council of Law Society's determination,Section 96 Legal Profession Act (Cap 161, 2001 Rev Ed), rr 33, 34(c) Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed),Whether person dissatisfied by decision of Council of Law Society to invoke r 34(c) of Legal Profession (Professional Conduct) Rules to exempt borrowing transaction from r 33 entitled to apply to judge against decision pursuant to s 96 of Legal Profession Act,Professional conduct,Rule 38 Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed),Procedure,Whether such fee amounting to gross overcharge,Whether formal investigation by Disciplinary Committee to determine existence of gross overcharging warranted on facts of case,Exemption of borrowing transaction,Legal Profession,Gross overcharging,Fee sought to be charged in bill of costs found unreasonable upon taxation,Breach,Whether dispute as to existence of fee agreement relevant to determination of whether overcharging taking place
Published date30 November 2006
Plaintiff CounselPlaintiff in person
Defendant CounselJimmy Yim SC, Abraham Vergis and Daniel Chia (Drew & Napier)
Date27 November 2006
Docket NumberOriginating Summons No 8 of 2006

27 November 2006

Judgment reserved.

Judith Prakash J:

Introduction

1 The plaintiff, Mr Anthony Wee Soon Kim (“Mr Wee”), sued his bankers UBS Ag in High Court Suit 834 of 2001 (“Suit 834”). In 2003, at a time when Suit 834 was part-heard, Mr Wee discharged his then lawyers and engaged Mr Lim Chor Pee (“LCP”), the sole proprietor of M/s Chor Pee & Partners (“the firm”), to represent him in the case. Mr Wee discharged LCP as his solicitor some time in December 2004.

2 In April 2005, Mr Wee made four complaints to the defendant herein, The Law Society of Singapore (“the Law Society”), against LCP. These complaints were:

(a) that LCP had, contrary to r 33 of the Legal Profession (Professional Conduct) Rules (Cap 161, R1, 2000 Rev Ed) (“the Rules”), entered into prohibited borrowing transactions with Mr Wee in that he had taken loans for himself and for the firm from Mr Wee at a time when he was acting for Mr Wee;

(b) that by rendering a bill to Mr Wee in the sum of $612,300 on 13 January 2005, LCP had grossly overcharged Mr Wee in breach of r 38 of the Rules;

(c) that LCP had breached r 35(c) of the Rules by failing to inform Mr Wee of the estimate of fees and also r 35(e) of the Rules by failing to inform him of the approximate amount of costs incurred to date every six months or by delivering interim bills, in relation to Suit 834; and

(d) that LCP had failed to place a sum of $10,000 received from Mr Wee on fixed deposit despite having said that he would do so.

3 The Law Society appointed an Inquiry Committee (“IC”) to look into Mr Wee’s complaints. The IC issued its report on 31 October 2005. In summary, the IC found that:

(a) there had been a breach by LCP of r 33 but that that breach did not warrant a formal investigation by the Disciplinary Committee (“DC”) and instead a penalty of $2,000 would be sufficient and appropriate to the misconduct committed;

(b) the complaint of overcharging had not been made out;

(c) with regard to rr 35(c) and (e), the circumstances had been adequately explained by LCP and the complaint was thus not made out; and

(d) there were no grounds for disciplinary action on the complaint relating to the fixed deposit.

4 The Council of the Law Society (“the Council”) held a meeting on 9 December 2005 to consider the IC’s report. After deliberation, it adopted the recommendations made to dismiss the complaints relating to r 38, rr 35(c) and (e) and LCP’s failure to place the $10,000 on fixed deposit. As for Mr Wee’s complaint relating to the prohibited loan transaction under r 33, the Council exercised the powers given to it by r 34(c) and made a determination that r 33 should not apply to the loans given by Mr Wee to LCP and the firm.

5 Mr Wee was dissatisfied with the result of his complaint. He therefore filed the present originating summons in January 2006 and asked for relief pursuant to s 96 of the Legal Profession Act (Cap 161, 2000 Rev Ed) (“the Act”).

The statutory framework

6 The relevant provisions of the Rules are:

Definitions for purposes of rules 33 and 34

32. For the purposes of rules 33 and 34 —

"independent advice" means advice by an advocate and solicitor not being a party to the transaction nor representing any associated party and where the advocate and solicitor certified in writing that he has given such advice;

"prohibited borrowing transaction" means any transaction under or by virtue of which money or valuable security is borrowed (directly or indirectly and whether with or without security) by an advocate and solicitor from his client or by an associated party from that client unless the client is an excepted person.

Prohibited borrowing transaction

33. Subject to rule 34, an advocate and solicitor shall not –

(a) enter into a prohibited borrowing transaction;

Exempted borrowing transaction

34. Rule 33 shall not apply to any transaction in respect of which —

(a) all parties thereto, other than the advocate and solicitor or the associated party, have received independent advice and the certificate referred to in the definition of “independent advice” in rule 32 as to that advice has been given prior to the transaction being entered into; and the advocate and solicitor has made full disclosure of any interest of the advocate and solicitor and of any associated party;

(b) the advocate and solicitor does not act for the client in relation to the transaction but the client is represented by an independent advocate and solicitor; or

(c) the Council determines (either before or after the transaction is entered into) that it shall not apply to that particular transaction.

Fees

35. An advocate and solicitor shall inform the client of —

(c) the estimates of the fees and other payments, which shall not vary substantially from the final amount, unless the client has been informed of the changed circumstances in writing;

(e) the approximate amount of the costs to date in every 6 months whether or not a limit has been set or deliver an interim bill in appropriate cases.

Gross overcharging

38. An advocate and solicitor shall not render a bill (whether the bill is subject to taxation or otherwise) which amounts to such gross overcharging that will affect the integrity of the profession.

7 The regime under which the IC and the Law Society considered the complaints that Mr Wee made is that established by Part VII of the Act and in particular, s 85 “Complaints against advocates and solicitors”, s 86 “Inquiry”, s 87 “Council’s consideration of report” and s 96 “Procedure for complainant dissatisfied with Council’s decision”. Under this regime, when the Law Society receives any complaint it refers the same to the Chairman of the Inquiry Panel who then immediately constitutes a Review Committee to review the complaint. If the Review Committee does not consider that the complaint is frivolous, vexatious, misconceived or lacking in substance, it will refer the matter back to the Chairman of the Inquiry Panel who will then constitute an inquiry committee. The inquiry committee conducts its inquiry in accordance with the provisions of s 86 and, on completion thereof, issues its report dealing with the question of the necessity or otherwise of a formal investigation by a Disciplinary Committee. This is found in s 86(7), which provides:

(7) The report of the Inquiry Committee shall, among other things, deal with the question of the necessity or otherwise of a formal investigation by a Disciplinary Committee and, if in the view of the Inquiry Committee no formal investigation by a Disciplinary Committee is required, the Inquiry Committee shall recommend to the Council —

(a) a penalty sufficient and appropriate to the misconduct committed; or

(b) that the complaint be dismissed.

I note here that in Whitehouse Holdings Pte Ltd v Law Society of Singapore [1994] 2 SLR 476 (“Whitehouse”), the Court of Appeal said that the role of the inquiry committee was merely to investigate the complaint and consider whether or not there was a prima facie case for a formal investigation. It did not have to make any conclusions on misconduct or whether an offence was committed. This holding was endorsed by the same court in the subsequent case of Subbiah Pillai v Wong Meng Meng [2001] 3 SLR 544. This observation, however, does not prohibit any inquiry committee from, in an appropriate case, coming to a conclusion on misconduct since under s87(7) an inquiry committee shall recommend to the Council an appropriate penalty where it finds misconduct has been committed but considers that no formal investigation is required.

8 Once the Council has received the report, it has to consider it and make various determinations in accordance with s 87. For present purposes, only sub-ss (1) and (2) are relevant:

Council’s consideration of report

87. —(1) The Council shall consider the report of the Inquiry Committee and according to the circumstances of the case shall, within one month of the receipt of the report, determine —

(a) that a formal investigation is not necessary;

(b) that no cause of sufficient gravity exists for a formal investigation but that the advocate and solicitor should be ordered to pay a penalty under section 88;

(c) that there should be a formal investigation by a Disciplinary Committee; or

(d) that the matter be adjourned for consideration or be referred back to the Inquiry Committee for reconsideration or a further report.

(2) If the Inquiry Committee in its report recommends —

(a) that there should be a formal investigation, then the Council shall determine accordingly under subsection (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.

9 The complainant is notified thereafter of the Council’s decision. If he is dissatisfied with the result, he may bring the matter to court in accordance with the procedure set out in s 96 of the Act. This so far as relevant provides:

Procedure for complainant dissatisfied with Council’s decision

96. —(1) Where a person has made a 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 dissatisfied with the determination, may within 14 days of being notified of the Council’s determination apply to a Judge under this section.

(4) At the hearing of the application, the Judge may make an order —

(a) affirming the determination of the Council; or

(b) directing the Society to apply to the Chief Justice for the appointment of a Disciplinary Committee,

and such order for the payment of costs as may be just.

10 The role of the court on hearing an application under s 96 was explained in Whitehouse where the Court of Appeal said it was that of an appeal court supervising a subordinate tribunal...

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3 cases
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