Zhou Tong v PP

• Jurisdiction: Singapore
• Judgment Date: 15 July 2010
• Date: 15 July 2010
• Docket Number: Magistrate's Appeals Nos 124-131 of 2010
• Court: High Court (Singapore)

Zhou Tong and others

Plaintiff

and

Public Prosecutor

Defendant

[2010] SGHC 198

V K Rajah JA

Magistrate's Appeals Nos 124-131 of 2010

High Court

Criminal Procedure and Sentencing–Sentencing–Offences under Common Gaming Houses Act (Cap 49, 1985 Rev Ed)–Consistency with benchmark sentences–

Legal Profession–Duties –Duty to advance clients' interests–Duty to assist in efficient and orderly administration of justice–Duty to conscientiously and diligently assess merits of clients' case and render advice accordingly–Inherent jurisdiction of court–Power to order solicitors to bear costs of proceedings

The eight appellants (all Chinese nationals) in the present case were convicted (along with 65 others) on single charges of gaming in a common gaming house under s 7 of the Common Gaming Houses Act (Cap 49, 1985 Rev Ed). Six of the appellants were sentenced to a fine of $2,000 and two of the appellants, Chen Caizhen ( Chen ) and Zheng Qiao Ling ( Zheng ), who had antecedent immigration offences, were sentenced to a fine of $3,000. Mr Leonard Loo ( Mr Loo ) was counsel for the appellants. Mr Loo prepared identical petitions of appeal ( the petitions ) for all eight appellants. The petitions highlighted that Chen and Zheng had the aggravating factor of antecedent immigration offences. Ironically, this fact was also highlighted in the petitions of Chen and Zhen.

Mr Loo tried to contact four of the appellants well before the appeal hearing, but they were uncontactable. This was not made known to the Public Prosecutor nor to the court beforehand. On the hearing date of 1 July 2010, only four out of the eight appellants appeared in court.

No written submissions were made. Mr Loo had also failed to provide authorities on sentencing benchmarks. Mr Loo made two oral submissions. First, consideration should be given to the fact that there was only a small amount of around $1,000 seized at the premises where the offence had been committed. Second, a lower sentence might make it easier for the appellants to return to Singapore in the future ('the second submission').

Held, dismissing the appeal:

(1) The sentences imposed were not manifestly excessive and were consistent with the sentencing benchmarks as shown in the relevant authorities: in PP v Yap Ah Yoon [1993] 1 SLR (R) 506 and PP v Chua Kee Tee MA 432/92/01-05, the offenders had claimed trial and several of them had antecedents of gaming offences, the sentencing range was a fine of $2,000 to $3,000. In the present case, all appellants had claimed trial and were fined $2,000, save for Chen and Zheng who had antecedent offences and were sentenced to a fine of $3,000: at [9] and [10].

(2) The second submission was wholly without merit. The reasons provided were not acceptable grounds to justify a lighter sentence. A court is duty-bound to sentence according to law and in conformity with established sentencing principles: at [7].

[Observation: Mr Loo had consciously shown a marked indifference to his clients' interests. He had reproduced and filed en masseidentical petitions for all appellants (including Chen and Zheng) without regard to the fact that the petitions had highlighted Chen and Zheng's aggravating factor. Mr Loo did not do any legal research; he failed to provide any sentencing precedents to assist the court. He had instead made an oral submission that was wholly without merit (in particular, the second submission), and had simply asked the court to exercise its discretion to reduce the sentence on compassionate grounds: at [7], [8] and [11].

Mr Loo had failed in his duties to the court. Overall, his conduct was prejudicial to the efficient and orderly disposal of cases. Apart from his procedural non-compliance shown in his failure to file written submissions, he had greatly inconvenienced the judicial process by his failure to inform the court and the Public Prosecutor beforehand his prior knowledge that four of the appellants were uncontactable: at [17].

There were severe doubts on whether Mr Loo had in good conscience advised his clients on the merits of the appeal and the prospect of success. All solicitors had an obligation to carefully assess the merits of their clients' cases before engaging in court proceedings. A solicitor had to faithfully and diligently direct his mind to the facts of his client's case, and to the applicable law: at [11], [19] and [20].

The court had the discretionary power to order a solicitor to personally bear the costs of litigation by exercising its inherent jurisdiction. This power was codified in O 59 r 8 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) and s 357 of the Criminal Procedure Code Act 2010 (No 15 of 2010) (the latter is not yet in force); both provisions are based on the same practical and ethical considerations: at [22], [25] and [34].

One of the basis to exercise the inherent jurisdiction was when the solicitor had acted improperly or unreasonably. However, a solicitor was not to be regarded as having acted improperly or unreasonably simply because he acted for a client who had a bad case; see Tan King Hiang v United Engineers (Singapore) Pte Ltd [2005] 3 SLR (R) 529 and Ridehalgh v Horsefield [1994] Ch 205. A solicitor should represent his client to the best of his ability. He would not be faulted so long as he had, bona fide, arrived at the view that there was merit in his client's case, even if the court decided on the contrary: at [29] and [30].

The court made it clear that Mr Loo's failings would not prejudice his clients' appeals. At the end of the hearing, Mr Loo undertook to refund the legal fees of his clients. It was emphasised that a solicitor's competence and efforts were not assessed by reference to the outcome of the cases. The court was concerned with the solicitor's technical proficiency and the conscientious discharge of his professional obligations: at [6] and [37].]

Bachoo Mohan Singh v PP [2010] 4 SLR 137 (folld)

Barrister (Wasted Costs Order) (No 1 of 1991) ,Re A [1993] QB 293 (refd)

DB Trustees (Hong Kong) Ltd v Consult Asia Pte Ltd [2010] 3 SLR 542 (refd)

Ho Kon Kim v Lim Gek Kim Betsy [2001] 3 SLR (R) 220; [2001] 4 SLR 340 (refd)

Lie Hendri Rusli v Wong Tan & Molly Lim [2004] 4 SLR (R) 594; [2004] 4 SLR 594 (folld)

Myers v Elman [1940] AC 282 (refd)

PP v Chua Kee TeeMA 432/92/01-05 (refd)

PP v Yap Ah Yoon [1993] 1 SLR (R) 506; [1993] 3 SLR 763 (refd)

Public Trustee v By Products Traders Pte Ltd [2005] 3 SLR (R) 449; [2005] 3 SLR 449 (folld)

Ridehalgh v Horsefield [1994] Ch 205 (refd)

Saif Ali v Sydney Mitchell & Co [1980] AC 198 (refd)

Tan King Hiang v United Engineers (Singapore) Pte Ltd [2005] 3 SLR (R) 529; [2005] 3 SLR 529 (refd)

Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR (R) 576; [1998] 1 SLR 97 (refd)

Common Gaming Houses Act (Cap 49,1985 Rev Ed) s 7

Criminal Procedure Code 2010 (No 15 of 2010) s 357

Legal Profession Act (Cap 161,2009 Rev Ed) s 24 (2)

Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) rr 2, 12, 54,55, 60

Rules of Court (Cap 322,R 5, 2006 Rev Ed) O 59r 8, O 59r 8 (1) , O 59r 8 (2)

Leonard Loo (Leonard Loo LLP) for the appellants

Kan Shuk Weng and Davyd Chong (Attorney-General's Chambers) for the respondent.

V K Rajah JA

Introduction

1 All solicitors owe serious professional responsibilities to their clients and the court. Aside from the basic tenets of honesty and loyalty, it goes without saying that solicitors are expected to be competent and diligent in advising their clients and representing their interests. This fundamental professional responsibility requires every solicitor to thoroughly familiarise himself with the facts of his client's case, analyse the issues carefully, research the applicable law and then consider how best to advance the client's cause. It is, in short, a fundamental and uncompromising requirement that a solicitor, having taken on a case, should act conscientiously and conscionably. This is why every person admitted as an advocate and solicitor of the Supreme Court is required to make a declaration in the following form (see s 24 (2) of the Legal Profession Act (Cap 161, 2009 Rev Ed) ( the LPA )):

I, A.B., do solemnly and sincerely declare (and swear) that I will truly and honestly conduct myself in the practice of an advocate and solicitor according to the best of my knowledge and ability and according to law.

(So help me God.)

[emphasis added]

2 While the typically publicised cases of errant solicitors usually involve elements of dishonesty, professional incompetence and indolence is no less a cause for concern. Such conduct may in fact be viewed as another form of dishonesty - the receipt of fees for slipshod or non-existent work. The sloppy handling of a matter can also lead to a disciplinary finding that the client's money had been obtained under false pretences. From the viewpoint of the administration of justice, such conduct is always disturbing, but this is especially so in criminal matters where, generally, the clients and/or their families are financially challenged. To worsen matters, the client's position may on occasion be irremediably prejudiced as a result of the shoddy work. If the matter proceeds to court, a solicitor's failure to assist the court adequately would also result in wastage of judicial time and resources, and could even, in some instances, result in miscarriages of justice. This particular matter is a startling example of a solicitor's abject failure to discharge his duty of basic diligence - both to his clients and the court. Before I deal with the facts, I should mention that the terms advocate , counsel , lawyer , solicitor as well as and solicitor are used interchangeably in these grounds both in their singular and plural context.

The background facts

3 The essential facts in these eight appeals are rather unremarkable. The appellants are Chinese nationals, convicted along with 65...