Whitehouse Holdings Pte Ltd v Law Society of Singapore

• Jurisdiction: Singapore
• Judgment Date: 23 May 1994
• Date: 23 May 1994
• Docket Number: Civil Appeal No 144 of 1993
• Court: Court of Appeal (Singapore)

Whitehouse Holdings Pte Ltd

Plaintiff

and

Law Society of Singapore

Defendant

[1994] SGCA 75

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 144 of 1993

Court of Appeal

Legal Profession–Disciplinary procedures–Role of Inquiry Committee and Council of Law Society–Whether Council needed to supplement reasons given in Inquiry Committee report–Sections 87 (1) (a) to 87 (1) (d) Legal Profession Act (Cap 161, 1990 Rev Ed)–Whether judge obliged to either affirm Council's determination or direct application for appointment of Disciplinary Committee–Section 96 (4) Legal Profession Act–Whether court assuming appellate jurisdiction consistent with supervisory jurisdiction–Whether court should allow application by complainant–Section 96 (1) Legal Profession Act–Whether Disciplinary Committee hearing to be held after parallel civil proceedings–Professional conduct–Grossly improper conduct–Whether advocate and solicitor acting in conflict of interests against client–Whether advocate and solicitor obtained advantage from client without advice to seek independent legal advice

The appellant, Whitehouse Holdings Pte Ltd (“WH”), retained Thomas Tham Kok Leong (“Tham”), an advocate and solicitor, for the initial tender for lease of a property and its subsequent subleases. Subsequently, Tham entered into a service agreement with WH for the occupation of a unit in that property (“the Unit”) at a monthly rent of $2.

WH lodged a complaint with the Law Society of Singapore (“the Law Society”) alleging, inter alia, that Tham “acted fraudulently or had displayed gross improper conduct in the discharge of his professional duty by fraudulently charging $2 for the use and occupation of … [the Unit]”. In accordance with s 86 of the Legal Profession Act (Cap 161, 1990 Rev Ed) (“the Act”) the complaint was inquired into by the Inquiry Committee (“IC”) and its report was considered by the Council of the Law Society (“the Council”) in accordance with s 87 of the Act. The Council accepted and adopted the IC's findings and informed WH that the complaint did not merit a formal investigation by a Disciplinary Committee (“DC”) and dismissed it.

WH applied under s 96 of the Act for an order directing the Law Society to apply to the Chief Justice for the appointment of a DC. The High Court dismissed the application and held that the IC failed to investigate the issue as to whether Tham displayed gross improper conduct with respect to the first part of the complaint. As the Council merely accepted and adopted the IC's report, there was no relevant determination under s 87 of the Act. The court below, however, declined to affirm the Council's determination. WH appealed.

Held, allowing the appeal:

(1) The Council had determined that no formal investigation was necessary and that there was therefore no ambiguity at all. The Council need not supplement the reasons given in the IC report if in effect it agreed with and accepted the findings of the IC and made a determination consistent with the report. The precise words in ss 87 (1) (a) to 87 (1) (d) of the Act need not be used as long as the meaning of the Council's determination was clear: at [28].

(2) Pursuant to s 96 (4) of the Act, a judge was not obliged to either affirm the Council's determination or direct the application for the appointment of a DC. Hence, the judicial commissioner was not wrong in refusing to make an order: at [33].

(3) There was in fact an inquiry into the complaint despite there being no specific finding on the issue of grossly improper conduct. The IC had dealt thoroughly with the substance of the first complaint and concluded that a formal investigation was not required. Tham obviously had notice of the allegation of gross improper conduct and had, in fact, presented his defence based on the alleged breakdown in his relationship with the appellant. As such, he had been judged by his own peers: at [36].

(4) The role of the IC was merely to investigate the complaint. It did not have to make any conclusions on misconduct or whether an offence was committed but simply to consider whether or not there was a prima facie case for a formal investigation: at [38].

(5) Section 96 was enacted as a specific appeal procedure for dissatisfied complainants and therefore should be the procedure of first resort. It is not inconsistent with the supervisory powers of the court under s 96 to assume jurisdiction in such a situation: at [38] to [41].

(6) Section 85 (3) of the Act applied to the situation where a complaint was made by a judge of the Supreme Court or by the Attorney-General and was not an alternative to or in substitution of s 85 (1) of the Act, which dealt with complaints from other persons: at [43].

(7) Whatever the motives of the parties might be, an advocate and solicitor could not evade the obligations and duties expected of him. He must ensure that he did not act whenever his own interests conflict with the interests of his client. As such, there should be a formal investigation into the complaint that Tham had displayed grossly improper conduct in the discharge of his professional duty. Accordingly, the Law Society was directed to apply to the Chief Justice for the appointment of a DC to investigate into the first complaint: at [46] and [47].

(8) Although the issue of the professional misconduct was to a certain extent materially different from the issues in the civil suit, the DC proceedings should only be held after the determination of the civil dispute and we so order: at [49].

Singh Kalpanath, Re [1992] 1 SLR (R) 595; [1992] 2 SLR 639 (refd)

Tang King Kai, Re [1991] 1 SLR (R) 282; [1991] SLR 527 (refd)

Wee Harry Lee, Re [1983-1984] SLR (R) 274; [1984-1985] SLR 323 (refd)

Wee Soon Kim Anthony v Law Society of Singapore [1988] 1 SLR (R) 455; [1988] SLR 510 (distd)

Wong Juan Swee v Law Society of Singapore [1993] 1 SLR (R) 429; [1993] 2 SLR 554 (folld)

Legal Profession Act (Cap 161,1990 Rev Ed)ss 87 (1) (a), 87 (1) (b), 87 (1) (c), 87 (1) (d), 96 (1), 96 (4) (consd);ss 85 (1), 85 (3),87 (3), 88,97

Oommen Mathew (Tan Peng Chin & Partners) for the plaintiff

Christopher Chuah and Lawrence Tan (Drew & Napier) for the defendant.

Yong Pung How CJ

(delivering the judgment of the court):

1 On 30 December 1992 the appellants lodged a complaint with the respondents against Thomas Tham Kok Leong (“Tham”), an advocate and solicitor, who was called to the Bar in 1974. Tham is the sole proprietor of Thomas Tham & Co. An Inquiry Committee was constituted to inquire into the complaint under s 85 of the Legal Proceedings Act (“LPA”) (Cap 161). The report of the Inquiry Committee was considered by the Council of the Law Society under s 87 (1) of the LPA. The Council accepted the report of the Inquiry Committee and, by a letter dated 10 August 1993, notified the appellants of its determination that the appellants' complaint be dismissed.

2 The appellants then made an application under s 96 of the LPA which reads:

1. 96 (1) Where a person has made a written application or complaint to the Society and the Council has determined –

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

   2. (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 decision, may within 14 days of being notified of the Council's determination apply to a judge under this section.

1. (2) Such an application shall be made by originating summons and shall be accompanied by an affidavit or affidavits of the facts constituting the basis of the application or complaint and by a copy of the application or complaint originally made to the Society together with a copy of the Council's reasons in writing supplied to the applicant under section 87 (3).

2. (3) The application accompanied by a copy of each of the documents referred to in subsection (2) shall be served on the Society.

3. (4) At the hearing of the application, the judge may make an order –

   1. (a) affirming the determination of the Council; or

   2. (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.

1. (5) If the judge makes an order directing the Society to apply to the Chief Justice for the appointment of a Disciplinary Committee, the applicant shall have the conduct of proceedings before the Disciplinary Committee and any subsequent proceedings before the court under section 98, and any such proceedings shall be brought in the name of the applicant.

3 On 23 October 1993 the High Court dismissed the application but no order as provided under s 96 (4) was made. Against that decision the appellants now bring this appeal seeking an order directing the respondents to apply to the Chief Justice for the appointment of a Disciplinary Committee to formally investigate into the matter complained of.

4 The facts leading to the complaint were these. Tham was retained by Koh Kee Yang (“Koh”), the managing director of the appellants, in connection with the tender of a lease by Koh, Tey Chai Bak (“Tey”) and Ann Thor Lye Suan (“Thor”), Tey's wife, from the Land Office for the whole of the premises of a property at 32 Maxwell Road, Singapore 0106, which was known as Customs House and is presently known as Whitehouse. The...