Wong Keng Leong Rayney v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 06 September 2007
• Neutral Citation: [2007] SGCA 42
• Docket Number: Civil Appeal No 69 of 2006
• Date: 06 September 2007
• Published date: 07 September 2007
• Year: 2007
• Plaintiff Counsel: N Sreenivasan (Straits Law Practice LLC)
• Citation: [2007] SGCA 42
• Defendant Counsel: Michael Hwang SC and Desmond Ang (Michael Hwang)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether motive of law firm instigating sting operation relevant,Legal Profession,Sections 415, 511 Penal Code (Cap 224, 1985 Rev Ed),Administrative Law,Whether evidence inadmissible because illegally or improperly obtained,Breach,Sections 83(2)(d), 83(2)(e), 83(2)(h) Legal Profession Act (Cap 161, 2001 Rev Ed),Whether doctrine of abuse of process applicable to disciplinary proceedings,Lawyer paying referral fee to estate agent in fictitious conveyancing transaction,Professional conduct,Evidence,Whether misconduct of private non-state agent in procuring incriminating evidence against professional person compromising integrity of disciplinary process,Disciplinary proceedings,Admissibility of evidence,Whether evidence entrapment or illegally obtained,Disciplinary procedures,Rule 11A(2)(b) Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed)

6 September 2007 Judgment reserved.

Chan Sek Keong CJ (delivering the judgment of the court):

Introduction

1 This is an appeal by Rayney Wong Keng Leong (“the appellant”) against the decision of V K Rajah J (as he then was) (“the Judge”) dismissing his application for leave to apply for judicial review of certain decisions of the disciplinary committee (“the DC”) appointed by the Law Society of Singapore (“the Law Society”) in the course of hearing two sets of disciplinary charges against the appellant under the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the Act”). This appeal involves issues of fact and law and important issues of policy in relation to our criminal justice system.

2 The DC proceedings arose from one in a series of sting operations mounted against eight to ten law firms suspected of paying referral fees in cash or in kind to estate agents for referring conveyancing business to them. In the present case, the appellant, who was ensnared in one of the operations, has alleged that the operation was mounted by a particular law firm (“the instructing solicitor”). The resulting disciplinary charges brought against him were for: (a) promising to pay to the estate agent, one Jenny Lee Pei Chuan (“Jenny”), a referral fee for agreeing to introduce a conveyancing transaction to him; and (b) paying Jenny a referral fee after it was aborted.

Background

The charge

3 The relevant facts of this case are set out in Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR 934 (“Rayney Wong”). Briefly, the appellant is an advocate and solicitor of about 22 years’ seniority and a partner in a law firm. The Law Society, upon receiving a complaint from Jenny that the appellant had paid her a fee with respect to a conveyancing transaction, referred it to an inquiry committee (“the IC”) which, after due inquiry, found that there was a prima facie case for a formal investigation and referred the matter to the DC. The following charges were made against the appellant:

(a) attempting to procure the employment of his firm to act in relation to the proposed purchase by the fictitious purchaser, through the instructions of Jenny, to whom he had promised to pay a referral fee, in breach of s 83(2)(e) of the Act; or alternatively in breach of s 83(2)(h) of the Act; and

(b) giving to Jenny as gratification the sum of $150 out of $500 received by him as legal fees for legal work undertaken in relation to the proposed purchase by the fictitious purchaser, in breach of s 83(2)(d) of the Act; or alternatively in breach of s 83(2)(h) of the Act.

The Disciplinary Committee hearing and findings

The Law Society’s case

4 In the DC proceedings, the Law Society’s main witness was Jenny. She testified on how the arrangement for the payment came about. She had telephoned the appellant to ask whether he would be prepared to act for a purchaser in a conveyancing transaction. They subsequently met in his office when the appellant agreed to act for the purchaser. The purchaser was a fictitious person as he was invented by Jenny, although there was a real vendor and the property, the subject matter of the transaction, had been advertised for sale. The appellant carried out the preliminary legal work in the form of searches and requisitions. At a second meeting with the appellant, Jenny informed him that the sale was aborted. She paid him $500 for work done, and he then paid her $150 as reimbursement for her expenses. Unbeknown to the appellant, Jenny had surreptitiously recorded their conversations at both meetings (“the audio recordings”).

5 The Law Society tendered as evidence the audio recordings, together with copies of the transcripts. The appellant did not object to Jenny’s testimony on how she succeeded in getting the appellant to agree to pay her a referral fee or to the admission of the audio recordings (and the related transcripts). For reasons which will become clear later, we will, in this judgment, refer to this collection of evidence as “the impugned evidence”. In the course of the hearing, the appellant applied to the DC for an order to direct Jenny’s employer to disclose the identity of the instructing solicitor so that he could be cross-examined on his motive in “entrapping” the appellant. The appellant alleged that the instructing solicitor had mounted the operation against him and the other lawyers with an improper motive, viz, to eliminate the competition in order to increase his own conveyancing work. The DC rejected the application on the ground that the motive of the instructing solicitor was irrelevant to the conduct of the appellant in relation to the disciplinary charges against him.

The appellant’s case

6 At the conclusion of the Law Society’s case, counsel for the appellant submitted that the appellant had no case to answer on the ground that the impugned evidence had been wrongly admitted as it was obtained illegally by Jenny, and that but for such evidence the appellant had no case to answer. Counsel contended that Jenny had committed two offences in the course of procuring the impugned evidence. Firstly, she had deceived the appellant into believing that the purchase transaction was a genuine transaction, and thereby caused or instigated him into agreeing to pay, and subsequently paying, a referral fee to her. In the circumstances, she had committed the offence of cheating under s 415 of the Penal Code (Cap 224, 1985 Rev Ed). Secondly, by so acting, Jenny had abetted the appellant in committing a breach of r 11A(2)(b) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed).

The Disciplinary Committee’s findings

7 The DC dismissed the appellant’s arguments and held that (a) under the law there was no discretion to exclude the impugned evidence, even if it had been illegally obtained unless its prejudicial effect outweighed its probative value; (b) the impugned evidence was not illegally obtained as Jenny had not committed any offence in the course of obtaining it; and (c) the appellant’s agreement to pay, and the payment of, the referral fee were made voluntarily. The DC accordingly called upon the appellant to enter his defence.

8 Dissatisfied with the DC’s rulings, the appellant applied to the High Court for leave to apply for judicial review and the following orders: (a) an order to quash the decision of the DC and to stay the DC proceedings permanently; (b) an order to quash the DC’s rulings that: (i) the impugned evidence was not illegally obtained; (ii) the impugned evidence was admissible in evidence; and (iii) the identity of the instructing solicitor was not subject to disclosure to the appellant.

Proceedings in the High Court

9 The broad issues of law canvassed before the High Court were as follows:

(a) whether the application for judicial review was premature;

(b) whether the subject matter of the application was amenable to judicial review;

(c) whether the DC had erred in law in admitting the impugned evidence, and if so, whether further proceedings should be permanently stayed.

Decision of the Judge

10 The Judge heard full arguments from the appellant and the Law Society on the procedural and the substantive issues. He dismissed the leave application on the ground that it was premature. He held that the application should only have been brought after the DC had decided that the appellant’s misconduct was of sufficient gravity to be referred to the court of three judges.

11 Even though the substantive issues on the law became irrelevant as a result of his decision that the leave application was premature, the Judge nevertheless gave his views on the legal issues as follows:

(a) The DC did not err in law in admitting the impugned evidence as this court in How Poh Sun v PP [1991] SLR 220 (“How Poh Sun”) held, applying the House of Lords’ decision in Regina v Sang [1980] AC 402 (“Sang”), that courts had no discretion in general to reject evidence that was illegally or improperly obtained.

(b) Jenny had not committed any offence in procuring the impugned evidence.

(c) The DC was correct in refusing to order the disclosure of the identity of the instructing solicitor as his motive in initiating the operation against the appellant was irrelevant to the latter’s conduct.

The issues before this court

12 The main issues raised by the appellant in this appeal are as follows:

(a) whether the application for judicial review was premature;

(b) whether the DC was wrong in law in finding that the impugned evidence was not illegally or improperly obtained; and

(c) whether, if the impugned evidence were illegally or improperly obtained, it was admissible in disciplinary proceedings.

13 The related legal issues arising from the third main issue that were canvassed by the appellant are as follows:

(a) whether How Poh Sun should be followed by this court, having regard to the recent decision of the House of Lords in Regina v Looseley [2001] 1 WLR 2060 (“Looseley”) which declined to apply Sang and held that entrapment was an abuse of process and the consequent prosecution should be stayed;

(b) whether the law, as stated in SM Summit Holdings Ltd v PP [1997] 3 SLR 922 (“Summit”), that illegally obtained evidence procured by a preceding unlawful act by a state party is inadmissible as evidence (“the Summit exception”) is consistent with How Poh Sun, and, if so, whether it should be applied in the present case; and

(c) whether this court should stay the disciplinary proceedings by analogy to an abuse of process under Looseley on the ground that Jenny’s conduct in breaking the law to entrap the appellant was an abuse of the disciplinary process.

14 In this judgment, we will consider the procedural issue and the question as to whether Jenny had committed any offence in getting the appellant to agree to pay, and to pay, her a referral fee, and whether such conduct amounted to entrapment. For reasons which we will give later, we will not be addressing the other issues...