Wong Keng Leong Rayney v Law Society of Singapore

• Jurisdiction: Singapore
• Judgment Date: 05 October 2006
• Date: 05 October 2006
• Docket Number: Originating Summons No 511 of 2006
• Court: High Court (Singapore)

Wong Keng Leong Rayney

Plaintiff

and

Law Society of Singapore

Defendant

[2006] SGHC 179

V K Rajah J

Originating Summons No 511 of 2006

High Court

Administrative Law–Disciplinary tribunals–Application for leave to seek judicial review of certain findings made by Disciplinary Committee before final determination by Disciplinary Committee made–Whether application for leave to seek judicial review premature–Development of concept of prematurity–Administrative Law–Judicial review–Threshold for leave to seek judicial review–Matters susceptible to judicial review–Difference between judicial review and appeal–Evidence–Admissibility of evidence–Evidence obtained by means of private entrapment–Distinction between state and private entrapment–Relevance of nature of illegality of conduct in procuring evidence–Whether such evidence inadmissible–Whether court having discretion to reject evidence–Relevance of motive of complainant–When motive can have probative value

The applicant was an advocate and solicitor of the Supreme Court of Singapore for 22 years. The complainant (“Lee”) lodged a complaint with the Law Society of Singapore (“the Law Society”) alleging that the applicant had agreed to grant her a referral fee for having procured work for the applicant's firm. It appeared that an undisclosed law firm had employed one Anthony Tan (“Tan”) to investigate whether certain competing law firms were offering referral fees to estate agents in order to attract more referrals, thereby illegitimately boosting their business. Lee was instructed by Tan to pose as an estate agent for a fictitious prospective purchaser in an effort to probe whether the applicant would fall for the bait. Unknown to the applicant, his meetings with Lee had been secretly recorded (“the recorded conversations”) and these recordings formed a substantial part of the evidence adduced by the Law Society in its case against the applicant in proceedings before a Disciplinary Committee (“the DC”).

At the conclusion of the Law Society's case before the DC, the applicant submitted that there was no case to answer. This submission, in turn, depended on whether Lee's evidence should be excluded because it had been obtained by illegal or improper means. The DC disagreed with the applicant's submissions and refused to exclude Lee's evidence. Once Lee's evidence was admitted, the DC found that a prima facie case against the applicant had been established and, accordingly, called the applicant to enter his defence. Dissatisfied, the applicant brought an application for leave to seek judicial review of the DC's findings, in addition to various other orders including an order that Tan disclose the identity of the person who employed him and an order quashing, inter alia, the DC's decision not to exclude Lee's evidence and the recorded conversations.

Held, dismissing the application:

(1) The approach of the courts in respect of challenges made before a final determination by the tribunal of first instance was to almost invariably view them as premature and decline judicial review. This principle applied equally to disciplinary hearings. However, there were exceptional circumstances where the mechanical application of the concept of prematurity could result in irreparable harm to the applicant. In such exceptional cases, it was remiss to deny the applicant the option of judicial review: at [15], [16] and [19].

(2) To direct Tan to disclose the identity of his client was a procedural and evidential issue well within the discretionary remit of the DC. As it stood, the applicant had not put forward any cogent reason why the identity of Tan's client was particularly important to his case. In any event, it was always open to the applicant to subpoena and seek permission to ask leading questions of any firm or lawyer that it believed was involved in any plot against him: at [26].

(3) That a clean legal argument might be presented to the reviewing court was not by itself a sufficient reason to grant leave for judicial review. It was plain that the applicant was challenging a decision to admit and/or exclude evidence, which did not go to the jurisdiction of the DC or concern any hefty constitutional implications. Therefore, while the present applicant might raise a clean question of law, this by itself did not constitute an exceptional case: at [32] to [34].

(4) That the applicant might have to face the Court of Three Judges did not, ipso facto, constitute permanent prejudice to the applicant. In fact, the availability of an appeal to the Court of Three Judges was a real and valid reason not to intervene by way of judicial review at this stage in this matter: at [35].

(5) The cost savings of averting an appeal could not be assessed in isolation; it had to be calibrated and evaluated against the costs and consequences involved in initiating the process for judicial review as well. There was a significant cost to granting this application that was not outweighed by the inconvenience, embarrassment and costs that the applicant might incur if the proceedings before the DC were allowed to run their usual course: at [39] and [42].

(6) The objection to the admission of unlawfully obtained evidence did not hinge on the possibility that the trial itself might become procedurally or substantively tainted. It was because the courts should not invariably condone a prosecution of allegedly unlawful conduct on the accused's part when the evidence necessary to sustain a conviction was itself obtained through illegal and unlawful means: at [52].

(7) There could be particularly egregious instances of misconduct where the courts should reject evidence that had been procured in a manner that might be inimically repellent to the integrity of the administration of justice. This would protect those who should not be convicted contrary to the public's sense of justice: at [64].

(8) It would be entirely improper to bring a case stated from a DC hearing to the High Court. The case stated was a specialised procedure and available only when provided for in law. In this respect, there was no provision in the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the LPA”) allowing any party to bring a case stated to the High Court: at [78].

(9) There was a clear distinction between the powers that a superior court exercised in judicial reviews and appeals. While judicial reviews were almost invariably limited to examining the legality of the decision, an appellate court might in limited circumstances evaluate the substantive merits of the decision arrived at by the tribunal. This distinction between appeals and judicial reviews applied to disciplinary proceedings under the LPA: at [79] and [80].

(10) There was nothing in the submissions by the applicant that remotely resembled a procedural or processual challenge to the proceedings before the DC; instead, all that had emerged was a simple complaint against the merits of the decision to admit Lee's evidence and the refusal to compel Tan to reveal the identity of his instructing client: at [82].

(11) Inasmuch as there was a compelling public interest in ensuring that investigators did not violate the very rule of law that they purported to uphold by adopting improper methods to procure evidence, there was also a competing and equally pressing public interest to weed out unethical and malign practices within the legal profession: at [83].

[Observation: The role of the DC was to carry out a thorough finding of fact as to whether an advocate and solicitor was guilty of misconduct. That said, the DC's findings were by no means conclusive. If the DC were to find that cause of sufficient gravity for disciplinary action existed, the Court of Three Judges was empowered to review the merits of the case: at [36].

A failure by significant numbers of the legal profession to abide by and observe these ethical standards would eventually drive the entire profession down the slippery slope of ignominy. Systemic ethical corruption would fray and ultimately destroy the moral fibre of the profession. In a race to the bottom, legal practices would expend more and more valuable time and resources competing with and out-foxing each other for business rather than focussing their efforts on effectively delivering premier services to clients and appropriately discharging their wider obligations to the community. While legal practices were necessarily run as profit-making businesses, this did not, and could not, mean that ethical constraints should be perceived as inconveniences to be either accepted or ignored at will. Solicitors who took their obligations and roles seriously should not be disadvantaged by the less scrupulous who did not: at [85].]

AG v Ng Hock Guan [2004] 3 SLR (R) 253; [2004] 3 SLR 253 (folld)

Ajmer Singh v PP [1985-1986] SLR (R) 1030; [1986] SLR 454 (refd)

Amran bin Eusuff v PP [2002] SGCA 20 (refd)

Carolyn Tan Beng Hui v Law Society of Singapore [1999] SGHC 23 (folld)

Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR (R) 294; [1996] 1 SLR 609 (folld)

Cheng Swee Tiang v PP [1964] MLJ 291 (folld)

Haw Tua Tau v PP [1981-1982] SLR (R) 133; [1980-1981] SLR 73 (refd)

How Poh Sun v PP [1991] 2 SLR (R) 270; [1991] SLR 220 (folld)

IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (folld)

Kuruma, Son of Kaniu v The Queen [1955] AC 197 (refd)

Lai Swee Lin Linda v Public Service Commission [2000] SGHC 162 (folld)

Lau Liat Meng v Disciplinary Committee [1965-1967] SLR (R) 641; [1965-1968] SLR 8 (folld)

Law Society of Singapore v Chia Shih Ching James [1983-1984] SLR (R) 596; [1984-1985] SLR 53 (folld)

Law Society of Singapore v Lim Cheong Peng [2006] 4 SLR (R) 360; [2006] 4 SLR 360 (folld)

Ong Chin Keat Jeffrey v PP [2004] 4 SLR (R) 483; [2004] 4 SLR 483 (refd)

Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR (R) 133; [2001] 1 SLR 644...