1501 Duty of care -- Common solicitor

9 [1501] LEGAL PROFESSION Duty of care Common solicitor Conflict of interests Breach of duty as stakeholder Liability in tort

Summary :

P1 had charged his lands to D1 as security for a loan granted by the latter to him. D2 acted as common solicitor for the parties in the transaction. The loan was to be released to P2 upon completion of the security documentation. D2 failed to release part of the loan to P2. This caused the housing project undertaken by P2 to be abandoned and the lands charged to D1 to be put up for sale by public auction. P sued D for loss and damage suffered by them due to the sale of the lands by public auction. P also sought a declaration that D1 had wrongfully debited their account with the sum in question and claimed for the return of the said sum from D2.

Holding :

Held, allowing P's claims: (1) in the instant case, D2 was clearly in breach of his undertaking and obligations to P. The sum of money not released to P2 had in actual fact been misappropriated by D2; (2) in failing to release the said sum of money to P2, D2 was in breach of his duty of care and skill which was required of him as a solicitor and a claim in tort can lie against him for the breach of such a duty; (3) in the instant case, the evidence had given rise to the irresistible conclusion that there had been collusion between D1 and D2 to defraud P. As a result, D1 was equally liable to P in tort. The court, accordingly, gave judgment to P as prayed.

Digest :

Dato' Seri Au Ba Chi v Malayan United Finance Bhd & Anor [1989] 3 MLJ 434 High Court, Johore Bahru (Mohamed Yusoff J).

1502 Duty of care -- Conduct of arbitration

9 [1502] LEGAL PROFESSION Duty of care Conduct of arbitration Negligence Allegation of professional negligence Allegation of professional negligence Frivolous and vexatious Allegation of duress Whether duress synonymous with negligence.

Summary :

The plaintiff claimed against the defendant the sum of RM29,924 being damages by reason of the defendant's negligence and improper conduct in respect of an arbitration and an action which the defendant undertook to perform for the plaintiff as the plaintiff's advocate and solicitor. With respect to the arbitration the plaintiff alleged that (a) the defendant negligently and unreasonably advised and induced the plaintiff against his own will and consent to agree to the appointment of one Mr Ross as sole arbitrator; (b) the defendant negligently and unreasonably failed to cause the completion of the said arbitration by an agreed date not later than 14 January 1959; (c) the defendant failed to attend an inquiry before the arbitration fixed for 6 November 1958 ... whereby the award in the arbitration was not given at all as agreed. In the matter of the action the plaintiff alleged that the defendant failed to take instructions on an appointed date and subsequently on the date of trial of the action he negligently rashly and unreasonably advised and induced the plaintiff to agree to the unfair terms of settlement. The defendant traversed all these allegations and pleaded that the particulars as set out did not constitute negligence or give rise to a cause of action.

Holding :

Held: (1) the allegations of negligence with respect to the arbitration were not only groundless but frivolous and vexatious because the solution at all times lay in the hands of the plaintiff namely to take up the award after payment of the arbitrator's charges; (2) duress is not synonymous with negligence. The suggestion of duress was so far-fetched as not to merit consideration.

Digest :

Ng Wan Bee v F Keith Sellar [1963] MLJ 366 High Court, Kuala Lumpur (Ong J).

Annotation :

[Annotation: See also Re a Solicitor [1933] MLJ 147.]

1503 Duty of care -- Duty to opposite party

9 [1503] LEGAL PROFESSION Duty of care Duty to opposite party Sale of land Fraudulent misrepresentation Rescission Claim for damages and interest Defendant counter-claiming for specific performance and damages Contracts Act 1950 (Revised 1974), ss 16 & 17 Specific Relief Act 1950 (Revised 1974), ss 27 & 37 Evidence Act 1950, s 111 National Land Code, s 417.

Summary :

Where a party, especially an ignorant or illiterate one, is unrepresented by an advocate and solicitor in a transaction and the opposite party is represented by one, it is the duty of the advocate and solicitor to explain the terms and conditions of the contract and the legal consequences thereof fully and frankly to the unrepresented party and ensure that this unrepresented party understands the terms and conditions and legal consequences fully, so that neither of the contracting parties has any unfair advantage over the other.

Digest :

Letchemy Arumugan v N Annamalay [1982] 2 MLJ 198 High Court, Seremban (Wong Kim Fatt JC).

See LEGAL PROFESSION, Vol 9, para 1503.

1504 Duty of care -- Ex parte injunctions

9 [1504] LEGAL PROFESSION Duty of care Ex parte injunctions Importance of maintaining standards

Summary :

Obiter: there is a duty on a solicitor drafting affidavits, particularly affidavits in support of ex parte injunctions, to ensure that he himself has a clear understanding of the relevant fact situation. And, in drafting the affidavit, the solicitor should exercise care that the clearest possible language is used. It is also prudent for a solicitor, whenever possible, to require the client to produce the originals of material documents before copies are annexed to the affidavit. If a client is unwilling or unable to give clear instructions, the solicitor should think twice before advising the client to apply for an ex parte injunction. Failure to maintain these standards can result in much injustice for non-compliance with the terms of an ex parte injunction would be a contempt regardless of whether that injunction was properly obtained or not.

Digest :

Harkishandas s/o Ratilal Doshi v Aaval Investments (Pte) Ltd District Court Appeal No 14 of 1995 High Court, Singapore (S Rajendran J).

See CIVIL PROCEDURE, para 192.

1505 Duty of care -- Existence of duty outside contract

9 [1505] LEGAL PROFESSION Duty of care Existence of duty outside contract Legal assistant not engaged as solicitor but assumed responsibility as such Whether legal assistant owed any duty of care Standard of care to be observed

Summary :

The plaintiff brought this action to set aside a mortgage granted by her and her now deceased husband over a property in their joint names to the second defendant for the purpose of securing a joint and several guarantee by them of facilities granted by the latter to the first defendant. Her husband's signature on the document had been forged by her son and she had signed after being told by her son that the document was a testimonial as to his character. The document was executed after her husband's death. The signatures were witnessed and attested to by a legal assistant in the employ of the third defendants. The first defendant did not enter an appearance. In a third party action, the second defendant claimed an indemnity from the first and third defendants and the legal assistant. The third defendants further claimed indemnity or damages against the legal assistant in fourth party proceedings.

Holding :

Held, dismissing the plaintiff's claim against the second defendants, allowing the second defendants' counterclaim, allowing the plaintiff's claim against the third defendants in part and allowing the third defendant's claim against the legal assistant: (1) in order for relief to be granted on her plea of non est factum, the plaintiff had to show that the document she executed was fundamentally different from that which she believed it to be and that she was not negligent in signing the document but took the precautions which a reasonably prudent person would have taken before signing it. The latter is a question of fact; (2) on the facts, the plaintiff had been tricked by her son into signing the mortgage and, when she signed the last two pages of the mortgage document, she did not know the nature of the document. The documents signed by the plaintiff were fundamentally different from the documents which she believed them to be. However, she had been careless in signing the mortgage document. She deliberately chose not to read the pages she signed and relied instead on her son's explanation as sufficient without querying or checking, thereby depriving herself of the opportunity to be put on notice. Given that she was semi-literate in English and her working experience as a teacher, with a reasonable amount of common sense she should have realized that the pages she had been asked to sign were inconsistent with a testimonial. The onus of proving that she had not been careless lay on the plaintiff and she had not discharged it; (3) on the facts, the legal assistant had assumed the responsibility of acting as solicitor for the plaintiff and her husband even though he had not met them and had not been contractually retained by them. It followed that the legal assistant owed the plaintiff the same duty and standard of care that he owed to a paying client. His conduct in signing the mortgage as a witness and issuing his attestation certificate had clearly been negligent; (4) it was no objection to the plaintiff's claim based on the tort of negligence that the loss suffered by her was purely economic or that the statements made by the legal assistant were made to a third party resulting in financial loss to the plaintiff. It was also clear that the legal assistant's negligence had placed the plaintiff in a position she should never have been in where she was at risk as a guarantor and mortgagor, and the only dispute was the extent of responsibility to attribute to him; (5) clearly, he did negligently what he was employed to do carefully; (6) however, the plaintiff had been contributorily negligent in executing the mortgage for the same reasons as those for which her plea of non est factum failed. On the facts, liability was apportioned in equal shares between the plaintiff and the third defendants as the employers of the negligent legal assistant; (7) although the third defendants had not pleaded contributory negligence and had only applied to amend their defence to plead contributory negligence after closing submissions had been made, the balance of justice demanded that the amendment be allowed because the true defendant was the legal assistant, a personal litigant who would bear the primary responsibility for satisfying any judgment, and the plaintiff's plea of non est factum had put the issue of her own carelessness at the forefront of the case. In any event, the third defendants had, in their original defence, pleaded that the plaintiff had acted recklessly or negligently in signing the document; (8) the third defendants were vicariously liable for the legal assistant's negligence. It cannot be said on any criterion that what the legal assistant did was wholly outside his job;the legal assistant had acted in breach of the implied obligations under his contract of employment with the third defendants that he would exercise reasonable skill and knowledge, care and diligence. The third defendants were therefore entitled to full indemnity from the legal assistant in the fourth party action, Per curiam: the present judicial attitude is to restrict the scope of the plea of non est factum as signatures on documents ought to be valid.

Digest :

Lee Siew Chun v Sourgrapes Packaging Products Trading Pte Ltd & Ors [1993] 2 SLR 297 High Court, Singapore (Michael Hwang JC).

1506 Duty of care -- Failure to verify instructions

9 [1506] LEGAL PROFESSION Duty of care Failure to verify instructions Whether duty of care breached Foreseeable risk of acting without authority Failure to meet standard of reasonably competent conveyancing solicitor

See contract law, para VII [29].

Digest :

Fong Maun Yee & Anor v Yoong Weng Ho Robert (practising under the name and style of Yoong & Co) [1997] 2 SLR 297 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1507 Duty of care -- Failure to appear at hearing

9 [1507] LEGAL PROFESSION Duty of care Failure to appear at hearing Dismissal of action for failure of plaintiffs to appear at hearing Application for restoration case Negligence of plaintiffs' solicitors Action not time-barred Order for restoration Plaintiffs to pay costs.

Summary :

A solicitor of a firm of solicitors who acted for the plaintiffs left the country after the case had been set down for trial by the defendants under the impression that the case would not come on for hearing until after a year from then. During the absence of the solicitor the defendants obtained a consent order for an early trial on the ground that a material witness of theirs who had full and personal knowledge of the matters involved in the case was leaving the country. While the solicitor was still away a date for the hearing of the case was fixed and the plaintiffs' firm of solicitors were notified of the date. The case came on for hearing on the fixed day by which day the solicitor had returned and assumed his functions but had not been notified of the fact that the case had been fixed for hearing. At the hearing the plaintiff and their counsel failing to appear, the action was dismissed with costs. The solicitor first came to know of the dismissal when his firm received the draft dismissal order from the defendants. Within six days he applied under O 36 r 33 to have the case restored for hearing. The defendants resisted the application on the ground that the restoration would cause great injury to them in that their key witness had left the country and all their witnesses had dispersed so that it was very difficult or impossible to gather them together.

Holding :

Held: (1) the solicitors of the plaintiffs had been negligent and their mistake must be condemned; (2) since limitation did not apply it was open to the plaintiffs to reinstitute their claim by a fresh claim. In view of this the objection of the defendants was not as substantial as it would appear at first and whatever injury they had suffered could be compensated by costs. The action must therefore be restored, the defendants having all the costs thrown away and of and incidental to the application.

Digest :

Chai Huat Seng v Hochtief-Holzmann [1969] 2 MLJ 192 High Court, Ipoh (Chang Min Tat J).

1508 Duty of care -- Failure to file memorandum of appeal in time

9 [1508] LEGAL PROFESSION Duty of care Failure to file memorandum of appeal in time Professional negligence Liability for negligence in a fused profession Failure to file memorandum of appeal in time Not remedied by unsuccessful application to extend time Retainer not affected by client's failure to pay due instalment of fees Appeal against exercise of discretion Guiding principles Burden of proof as to damages Immaterial whether negligence act that of barrister or solicitor ÊAdvocates and Solicitors Ordinance 1947, ss 2, 59, 60 & 63.

Summary :

This was an appeal by an advocate and solicitor, M, against whom judgment had been given in an action for negligence by his former client, K, in the High Court at Muar, Johore. The action for negligence arose out of a civil action in the sessions court in which K had retained M as his advocate and solicitor. K failed in his defence to this action and had instructed M to appeal. The notice of appeal was filed within the prescribed time but the memorandum was not. M then made an unsuccessful application for extention of time relying upon his clerk's ignorance of a change in the relevant rule. An action for negligence against M founded on the failure to file the memorandum in time succeeded, the trial judge finding that this failure clearly constituted a breach of duty to exercise proper care. Damages of RM2,534 were awarded to K. In his appeal it was argued for M, inter alia, that as he was an officer of the court public policy required that he should be protected from suits brought by disgruntled litigants. In dismissing the appeal, the court made observations on the liability of an advocate and solicitor in a fused profession and:

Holding :

Held: (1) an advocate and solicitor is under a contractual duty to use care and this extends to the conduct of a cause; (2) the position of an advocate and solicitor is exactly the same as that of a solicitor in England and if there is an act of negligence it is immaterial to consider whether the act is one normally done in England by a barrister or a solicitor; (3) in an action against a solicitor for negligence in litigation the burden is on the solicitor to show that the client was not damnified; (4) on the facts of the action before the sessions court K would in all probability have succeeded in his appeal had it been prosecuted and therefore the damages awarded against M were proper; (5) the unsuccessful application for extension of time did not remedy the omission to file the memorandum in proper time; (6) while a solicitor is not expected to know every statute, there are statutes some which it is his duty to know. Observations on burden of proof as to damages.

Digest :

Miranda v Khoo Yew Boon [1968] 1 MLJ 161 Federal Court, Kuala Lumpur (Azmi CJ, Ismail Khan and Gill JJ).

1509 Duty of care -- Failure to file notice of appeal in time

9 [1509] LEGAL PROFESSION Duty of care Failure to file notice of appeal in time Whether action on contract or in tort Subsistence of retainer Contemporaneous instructions from client Contractual duty Duty to consult client on doubtful matters Duty to inform client Summary judgment for damages against solicitor

Summary :

The plaintiff was a limited company under receivership. Pursuant to a principle agreement entered into between the plaintiff and one Khintan Enterprise Sdn Bhd ('KE'), all moneys due and accruing to KE from the United Asian Bank Bhd ('UAB') were assigned to the plaintiff. However, one Batu Gajah Agencies ('BGA') had subsequently obtained a garnishee order to the effect that all the moneys due and accruing from UAB to KE be attached in order for BGA to recover a judgment it had obtained against KE. Thus the plaintiff instructed the defen-dant, who then was its solicitor, to make an application to intervene and have the garnishee order set aside. The defendant did, but the application was dismissed, resulting in the garnishee order being made absolute requiring UAB to pay directly to BGA the sum of RM131,967.33 which was due and accruing to KE. Acting on the plaintiff's instructions, the defendant appealed, but the appeal was dismissed on the preliminary point that it was lodged out of time. An appeal to the Supreme Court was dismissed on the same point. The plaintiff then applied by summons-in-chambers to enter final judgment against the defendant for the sum of RM131,967.33 with interest, or alternatively, for damages to be assessed with interest. The defendant argued that as the plaintiff's statement of claim was based on negligence and not on contract, the plaintiff had to prove all the essential elements of negligence, that the retainer had subsisted throughout the entirety of the proceedings, and that the plaintiff had given instructions to the defendant on a continuous basis. The defendant also submitted that the plaintiff's suit involved triable issues and a summary judgment was thus inappropriate. Held, allowing the plaintiff's claim: (1) it was clear that the defendant had been retained by, and had acted for, the plaintiff, in the relevant agreements and the application and appeals against the garnishee order; (2) it was, therefore, not right for the defendant to claim that the retainer had ended with the dismissal of the application to set aside the garnishee order; (3) it was also clearly not right for the defendant to claim that he had not received any specific instructions from the plaintiff to appeal against the dismissal of the application to set aside the garnishee order. It was in evidence that an appeal was supposed to have been filed by the defendant on the fifth day after the dismissal of the application, in which case it would have been on time, but, the defendant only filed the appeal eight days after the dismissal of the application; (4) while the duty of a solicitor is directly related to the confines of the retainer, it is the incident of that contractual duty that he has to consult his client on all questions of doubt which do not fall within the express or implied discretion left him. It is also his duty to keep his client informed to such extent as may be necessary according to the same criteria; (5) the court further opined that it was not essential that the plaintiff show that if the appeal had been filed on time, the plaintiff would surely have been allowed to intervene and the garnishee order would certainly have been set aside; (6) the plaintiff was, therefore, entitled to judgment without the necessity of a trial; (7) however, the court was disinclined to grant a summary judgment to the plaintiff in the sum of RM131,967.33 as applied for; (8) the plaintiff was, nevertheless, granted a summary judgment in the alternative terms prayed for, ie damages, which were to be assessed at a later date.

Digest :

Tatab Industries Sdn Bhd (in receivership) v Su Thiam Hock Civil Suit No D5-22-1075-92 High Court, Kuala Lumpur (Abdul Malek J).

1510 Duty of care -- Failure to file record of appeal in time

9 [1510] LEGAL PROFESSION Duty of care Failure to file record of appeal in time Claim that appeal would have failed in any case Burden on solicitor to prove this

Summary :

The plaintiff, together with his wife, were the defendants in an action (the suit) brought by J & V Development (the claimants) for recovery of possession of a property. On his part, the plaintiff commenced proceedings against the claimants for adverse possession of the property. These proceedings were stayed pending the outcome of the suit. The claimants applied for and obtained summary judgment against the plaintiff and the plaintiff's appeal was dismissed. The plaintiff consulted the defendant law firm who advised that they had a 40% chance of success if they appealed. The plaintiff retained the services of the defendant and paid $20,000 to the defendant as a deposit to account of the costs and disbursements to be incurred for the appeal. The plaintiff agreed, on the defendant's recommendation, to appoint another lawyer CYH as senior counsel for the appeal. The defendant filed a notice of appeal to the Court of Appeal followed by a notice of change of solicitors to take over the conduct of the matter from the plaintiff's previous solicitors. The Registrar of the Supreme Court notified the previous solicitors by letter that the record of proceedings were ready for collection and that the record of appeal together with the plaintiff's case must be filed within three months thereof. The previous solicitors forwarded all the relevant documents including the registrar's letter to the defendant. The defendant did not file the plaintiff's case and record of appeal and the time for filing the documents expired. The defendant advised the plaintiff to apply for an extension of time which he did through his present solicitors but this application was dismissed. The plaintiff then commenced these proceedings alleging that the defendant had been negligent and had breached his duty of care to the plaintiff in, inter alia, failing/neglecting to file the plaintiff's case and record of appeal in time. The plaintiff applied for summary judgment for the sum of $20,000 and for interlocutory judgment with damages and interest to be assessed. The application was heard by the assistant registrar who granted the defendant conditional leave to defend. The plaintiff appealed.

Holding :

Held, allowing the appeal: (1) neither did the defendant write to the plaintiff to confirm the limited role he intended to play in the appeal. Even so the defendant had admitted that he, not CYH, would prepare the record of appeal and the plaintiff's case. Therefore, all the more reason he should have read the documents forwarded to him by the previous solicitors so as to monitor the deadline for filing the appeal documents. It was noteworthy that the defendant's agreed fee for acting as a 'conduit' was $15,000 which was a very substantial sum to pay for such nominal services. It was equally noteworthy that CYH who the defendant had described in his affidavit as assuming a pivotal responsibility in the appeal did not file any affidavit on the defendant's behalf; (2) the burden was on the defendant to prove that the plaintiff would not have succeeded in his appeal in any event, even if the defendant had filed his record of appeal in time. When the plaintiff met the defendant and CYH, the plaintiff was told that the chances of success were 40%. However, in the defendant's affidavit the plaintiff's chances were rated as nil Ð a drastic turnaround. The burden was on the defendant to explain why he had made a volte-face in view of his and CYH's earlier advice. The defendant failed to satisfy the court that he had discharged this burden; (3) the defendant's argument that he was merely to act as a conduit for CYH was not accepted. After he filed the notice of change of solicitors, the defendant was the solicitor on record for the appeal, not CYH. Whatever private arrangement the defendant may have had with CYH was not made known to the plaintiff;the defendant's contention that the plaintiff had not discharged the burden of proving his loss and damage failed. The legal costs incurred by the plaintiff to his solicitors as well as to the claimants' solicitors arising from the defendant's negligent conduct were well documented in the plaintiff's affidavit.

Digest :

Tan Hock Tee v CS Tan & Co Suit No 2065 of 1995 (Registrar's Appeal No 41 of 1996) High Court, Singapore (Lai Siu Chiu J).

1511 Duty of care -- Failure to inquire at Land Office

9 [1511] LEGAL PROFESSION Duty of care Failure to inquire at Land Office Sale and purchase of land Duty of solicitor to client Failure of solicitor to make enquiry at Land Office Negligence Land had been acquired by government Solicitor liable to compensate for loss suffered by clients.

Summary :

The defendant, an advocate and solicitor practising at Butterworth was sued by the plaintiffs for negligence and breach of contractual duty as their solicitor. The plaintiffs had engaged the defendant to act for them in the purchase of land from one Haji Hassan. The defendant had prepared a sale agreement on 12 June 1976 and the sale was completed on 6 August 1976. The said land had been acquired by the government under s 8 of the Land Acquisition Act 1960 (Act 34/1960) and the acquisition was gazetted in Gazette Notification No 23 on 1 February 1973. The plaintiffs were awarded and paid a sum of RM14,000 in 1977 by the government and the acquisition of the said land and claimed that they had suffered damages amounting to RM31,000 which sum was arrived at by subtracting the compensation of RM14,000 from the total purchase price of RM45,000 which they had paid for the said land. It was not denied by the defence that advice on the land acquisition factor lay within the scope of the defendant's duties as solicitor to the plaintiffs. The evidence also revealed that the defendant did not make a search at or inquiry with the Collector of Land Revenue in the Land Office at Bukit Mertajam. The defendant was not aware of the said gazette notification. The purpose of the purchase of the said land was to build a factory on it and the plaintiff Chuah gave evidence that in reply to his question if the land was subject to acquisition, the defendant said that the 'title was clear'.

Holding :

Held: the defendant had failed in his duty to use reasonable care and skill in giving his advice and taking such action as the facts of this particular case demanded of a normally competent and careful practitioner here. Apart from a search in the Interim Register he should have also, like other normally competent and careful solicitors, made a search at or an inquiry with the Land Office concerned. He was therefore liable to compensate his clients for the loss caused by his breach of contractual duty as their solicitor. He was also liable in tort, quite independent of contract, as a professional man professing special skill who gives assistance to another and owed a duty of care to that other person who to his knowledge relied on his skill. The defendant would therefore be ordered to pay RM31,000 together with interest at 6% per annum to the plaintiffs.

Digest :

Neogh Soo Oh & Ors v G Rethinasamy [1984] 1 MLJ 126 High Court, Penang (Gunn Chit Tuan J).

1512 Duty of care -- Failure to respond to statutory notices of demand

9 [1512] LEGAL PROFESSION Duty of care Failure to respond to statutory notices of demand Whether failure constituted professional negligence Whether liable for resultant winding-up petition

Summary :

This is an action by a client against a firm of solicitors claiming damages on account of professional negligence. On two separate occasions in 1983, the plaintiffs entered into agreements with one Lee and one Neo respectively for the sale of a unit each in their residential building project to the said Neo and Lee. In 1985, the plaintiffs agreed to reduce the purchase price of each unit by S$80,000, from S$480,000 to S$400,000, 'the reduction to be applied only to the last progress instalment payable'. Subsequently both Lee and Neo executed sub-sale agreements for their respective units. Lee's solicitors sought confirmation that the reduction in price was to apply to the sub-sales as well. This confirmation was given by the plaintiffs. Some time in June/July 1987, after the project had been completed and the last instalment paid by the sub-purchasers, Lee and Neo asked the plaintiffs for the refund of the S$80,000 reduction. The plaintiffs made a payment of S$40,000 to Lee and paid Neo a sum of S$38,400. Both Lee and Neo asked for the balance but were told by the plaintiffs that the sub-sales disentitled both Lee and Neo from the refund. Therefore on 9 September 1987 the plaintiffs received two letters of demand under s 254(2) of the Companies Act claiming the payment of S$40,000 and S$41,600 to Lee and Neo within 21 days. A week later, the plaintiffs' representative went to consult Liu of the defendant firm and wanted the latter to act for the plaintiffs on the two notices. Liu subsequently gave the opinion that it would not be prudent for Lee or Neo to file a winding-up petition without first obtaining a judgment. He also advised that Lee and Neo did not have a clear case to obtain judgment; there was a fair case of dispute. Liu also expressed the view that the refunds made to Lee and Neo made under a mistake of fact and law. Liu said that he would be writing to M/s Tan Lee & Choo to explain the nature of the dispute in order to prevent the presentation of a winding-up petition against the plaintiffs, and was instructed to do the same. The letter was not written. On 12 October 1987, the plaintiffs were served with a winding-up petition filed on behalf of Lee. The petition appeared in The Straits Times and the Gazette. The plaintiffs' accounts in several banks were frozen or suspended. Liu then took action on instructions to apply for the dismissal of the winding-up petition. Neo never filed any petition to wind-up the plaintiffs. He only brought an action in the district court to claim for the balance of S$41,600. On 29 December 1987 the winding-up petition was withdrawn by Lee following an understanding reached with the plaintiffs whereby the latter would provide a banker's guarantee to Lee for the sum claimed and Lee would in turn bring an action against the plaintiffs to seek recovery of the same. Accordingly, on 7 January 1988 a district court action (DC 80/1988) was commenced by Lee against the plaintiffs to recover the S$40,000. Liu continued to act for the plaintiffs in the district court but subsequently discharged himself on the basis that the plaintiffs had refused to pay his fees relating to the winding-up petition. Liu's subsequent refusal to release the files to the plaintiffs' new solicitors caused the plaintiffs to seek adjournments on payment of costs on two occasions on an O 14 application by Lee. Summary judgment was eventually obtained by Lee which was then set aside. The plaintiffs commenced the action aginst Liu, B Ganeshamoorthy and Lim Hong Kan, the then partners of the defendant firm, for professional negligence in respect of Liu's negligent omission to reply to the statutory notices. What the defendants contend is that the presentation of the winding-up petition was not caused by Liu's omission in responding to the two statutory notices. In the alternative, the defendants aver that the single omission could not amount to negligence or lack of reasonable care. Further, it could not have been a term of the retainer that the defendants were to prevent or forestall the presentation of a winding-up petition. Held, allowing the plaintiffs' claim: (1) the need to reply to the two statutory notices is obvious. A client comes to see a solicitor precisely to get his advice and assistance to prevent any harm from arising. Liu quite clearly stated that he had the general conduct of the matter and that would include advising and doing all that was necessary to protect the interest of the plaintiffs; (2) a solicitor is expected to use reasonable care and skill in giving such advice and taking such steps as the facts of the particular case demand and the standard of care and skill required is that of a reasonably competent and diligent solicitor. By not writing to explain why the plaintiffs had refused to pay Lee, Liu had failed to take the necessary steps to protect the interest of the plaintiffs; (3) a solicitor should advice his client of a step that ought to be taken. He should not wait for client's specific instructions if it was a necessary step to take; (4) what happened was not an error of judgment. In any case, a solicitor cannot escape liability by merely labelling a mistake as an error of judgment. It depends on the nature of the mistake; (5) the failure to reply to the statutory notice would convey to Lee and his solicitor the impression that the plaintiffs had no defence to the notice and that the plaintiffs were just being difficult or unreasonable in refusing to pay the sum claimed. In those circumstances, it was really inevitable that Lee, on the advice of his solicitor, decided to file the petition. Thus causation was established; (6) having been negligent in discharging his duties as a solicitor, which negligence the court found caused Lee to file the petition, the burden shifts to the defendants to show that even if there was no failure, Lee would still have proceeded to file the petition; (7) in order to succeed on any item of loss, not only must the plaintiff establish that the loss was caused by the defendant's negligence or breach of duty, but that it was also foreseeable, in contract as at the date of the contract and in tort, as at the date the tort was committed; (8) Liu is not entitled to be paid for the work he did on the winding-up petition and those directly relating to or flowing from that. However, since the district court actions had nothing to do with Liu's failure to reply to the statutory notice of Lee, Liu was entitled to payment; (9) the losses suffered by the plaintiffs in consequence of the defendants' breach of duty as solicitors should be particularized. Though the court accepted that the plaintiffs' account had been frozen by their bank and that the purchasers of the Geylang project had refused to pay so long as the petition was pending, there was no specific figures proven to show the losses which the plaintiffs had in fact suffered on those accounts. Furthermore, there is the serious question of remoteness. There is no evidence that Liu knew that the plaintiffs were also engaged in the Geylang project or any other project. This was the first time that Liu dealt with the plaintiffs. In the circumstances, no award was made for these unspecified claims; (10) by the omission in sending out the reply to the statutory notice of Lee, Liu did not intend to injure the reputation or credit of the plaintiffs. The plaintiffs are only entitled to compensation for the losses and expenses they have actually incurred on account of the omission. Accordingly, other than the specified losses suffered by the plaintiffs allowed above, the plaintiffs are not entitled to any amount by way of general damages

Digest :

Wai Wing Properties Pte Ltd v Lim, Ganesh & Liu (sued as a firm) [1994] 3 SLR 101 High Court, Singapore (Chao Hick Tin J).

1513 Duty of care -- Failure to seek instructions

9 [1513] LEGAL PROFESSION Duty of care Failure to seek instructions Breach of duty of care Negligence in conduct of land transaction on behalf of client Award of nominal damages and costs.

Summary :

These appeals were by two lawyers, former partners of Hilborne, Chung & Co, against the decision of the learned trial judge who found them to be negligent in the conduct of a land transaction on behalf of a former client, the respondent. The respondent in both these appeals is a building contractor and a small property developer. On 10 January 1968, the respondent commenced an action against the present appellants claiming damages for loss and expense caused by the negligence or breach of contract on the part of Mr Hilborne's firm, acting as the respondent's solicitors in the purchase of a piece of property known as 81, King's Road, Singapore, and in proceedings and matters relating thereto. The negligence or breach of contract alleged was the failure of the firm to notify the respondent of the receipt of a letter from the vendor who gave notice that the contract of sale entered into on 9 April 1963 was required to be completed on or before 25 May 1963. The loss or damage alleged to have been suffered by the respondent was the loss of opportunity of completing the purchase on the vendor's terms with the prospect of obtaining vacant possession at a later date, or alternatively, with the prospect of suing the vendor for damages for failing to give vacant possession. The firm was acting on behalf of both the vendor and purchaser in this land transaction. The learned trial judge held that Mr Hilborne had failed in his duty to the respondent, but awarded the respondent only nominal damages of S$10 and costs on the ground that the respondent had consistently denied signing the contract of sale of 9 April 1963. Mr Hilborne appealed against the whole judgment, including the order as to costs. Mr Chung appealed only on the costs order. The respondent cross-appealed on the ground that the learned trial judge was wrong in awarding nominal damages and ought to have awarded substantial general damages.

Holding :

Held, dismissing the appeal: (1) it was plainly the duty of the firm to notify the respondent of the contents of the letter from the vendor, and to seek the respondent's instructions on the contents thereof. On the facts this was the clearest possible case of breach of duty on the part of the firm, and in particular, on the part of Mr Hilborne. He was clearly negligent in that under the retainer he failed to exercise the care that he was required by law to show towards his client. A reasonably careful and competent solicitor acting for both parties would have sought their instructions immediately; (2) the learned trial judge was entitled on all the evidence and on his assessment of the credibility of the respondent, to reject the respondent's evidence. Therefore, any pecuniary loss that the respondent suffered did not flow naturally from the breach of duty on the part of Mr Hilborne or his firm; (3) there was no reason to interfere with the trial judge's discretion in awarding the costs of the trial to the respondent.

Digest :

KE Hilborne v Tan Tiang Quee; KS Chung v Tan Tiang Quee [1972] 2 MLJ 94 Court of Appeal, Singapore (Wee Chong Jin CJ, Winslow and Tan Ah Tah JJ).

1514 Duty of care -- Failure to serve notice of appeal in time

9 [1514] LEGAL PROFESSION Duty of care Failure to serve notice of appeal in time Failure to serve notice of appeal in time Duty of solicitor to exercise reasonable diligence.

Summary :

The originating summons was heard before the Honourable the Chief Justice on 18 July 1980 who dismissed it with costs. The last day for filing the notice of appeal was 18 August 1980. No notice of appeal was filed on that date. On 29 August 1980 an application was made to the court for extension of the time prescribed for filing the notice of appeal. The reason for the failure to file the notice of appeal in time was contained in the affidavit of the appellant's solicitor as follows: '... The notice of appeal was prepared on the 18th day of July 1980. However the cause paper file pertaining to this matter was misplaced in my office library which was then undergoing renovations. Hence the said notice of appeal was not filed in court. It was only on the 20th day of August 1980 in the afternoon after an exhaustive search that I discovered the file. Upon an inspection of the file, I noticed that the notice of appeal was not filed in court. I immediately instructed my Clerk to file the same, but the same was rejected by the registry of this Honourable Court as the last day for filing the notice of appeal expired on 18th August 1980.'

Holding :

Held: the facts disclosed in the affidavit showed gross negligence on the part of the appellant's solicitor and did not merit the exercise of judicial discretion in favour of the applicant.

Digest :

Tan Chai Heng v Yeo Seng Choon [1981] 1 MLJ 271 High Court, Singapore (Choor Singh J).

1515 Duty of care -- Failure to serve writ of summons in time

9 [1515] LEGAL PROFESSION Duty of care Failure to serve writ of summons in time Professional negligence Action against solicitors for breach of implied term of engagement Delay in filing writ of summons File relating to matter misplaced Solicitors negligent Appeal.

Summary :

The appellants in this case sought to appeal against the lower court's judgment (see [1978] 2 MLJ 48) in awarding damages against them as solicitors for negligence and breach of contract to exercise due professional skill and care while acting for the respondent/client in his claim against the rider of a motor scooter for personal injuries which the respondent sustained. The appellants were found negligent by the lower court in failing to serve the writ of summons on the other party before the date on which the action became statute-barred. The appellants had submitted that the reason for the delay in filing the writ was that the file relating to the plaintiff's matter had been misplaced in their office. In the present appeal, the appellants contended that because they applied to renew the writ before it expired, the delay in serving the writ from the date of its issue on 7 August 1973 to 31 July 1974 two days after the missing file was found, could not be taken into consideration in deciding whether or not they were liable to their client in negligence or breach of contract.

Holding :

Held: (1) the appeal had no chance of success. It prolonged the suffering of the client. It was hoped that an appeal of this nature would not come before the courts again; (2) the position of a plaintiff who had been deprived of his cause of action by failure to serve the writ in time was the same as that of a plaintiff who had been deprived of his cause of action for want of prosecution; (3) in this case it was clear that the client had been deprived of his cause of action by the delay of his solicitors and therefore was entitled to recover damages from them.

Digest :

KE Hilborne & Ors v New Ching Kee [1979] 1 MLJ 103 Court of Appeal, Singapore (Wee Chong Jin CJ, Chua and D'Cotta JJ).

1516 Duty of care -- Failure to serve writ of summons in time

9 [1516] LEGAL PROFESSION Duty of care Failure to serve writ of summons in time Professional negligence Action against solicitors for breach of implied term of engagement Solicitors' failure to serve writ of summons within time File relating to matter misplaced Renewal of writ disallowed by court Claim for damages against defendants as solicitors.

Summary :

The plaintiff was involved in a traffic accident on 18 November 1970 when he was run into by a motor scooter ridden by one Lim. As a result of this accident, he suffered a bad fracture of the humerous resulting in some disability and limitation in the movement and action of that arm. The defendants, advocates and solicitors, were engaged by the plaintiff to act for him in his claim against Lim for damages arising out of the accident. The plaintiff claimed that the defendants had negligently and in breach of the implied term of their agreement failed to serve the writ of summons on Lim before 7 August 1974 on which date the action against Lim became statute-barred. The defendants' main reason why they found themselves having to apply for renewal of the writ on 31 July 1974 for a period of six months as from 7 August 1974 was that their file relating to the plaintiff's matter had been misplaced in their office from 21 August 1973 till 29 July 1974.

Holding :

Held: (1) the defendants were negligent in having failed to serve the writ within the 12 months allowed them before it expired on 7 August 1974; (2) damages amounting to S$12,255.20 (general damages of S$6,000 for injury and special damages S$6,255 for expenses incurred) were awarded to the plaintiff on the basis that this was the sum he would have received in his claim against Lim had it been successfully proceeded with and it being undisputed that Lim was 100% to blame for the accident.

Digest :

New Ching Kee v KE Hilborne & Ors [1978] 2 MLJ 48 High Court, Singapore (Kulasekaram J).

1517 Duty of care -- Liability for negligence and breach of contract

9 [1517] LEGAL PROFESSION Duty of care Liability for negligence and breach of contract Retainer Contractual duty of legal practitioners as common solicitors Conflict of interest Liability in tort Knowledge of common officers Fraudulent concealment Limitation Damages Limitation Ordinance (Sarawak), s 18.

Summary :

The appellants had not only failed to perform their obligations under the contract with the required skill and care but was also liable in tort for their wrongful act of depriving the respondents from having security for the loan they have advanced by failing to execute a memorandum of charge. A claim for purely financial loss without injury to the person or property is no bar to liability for negligence and the learned judge was correct in awarding damages for the appellant's breach of retainer and negligence.

Digest :

Yong & Co v Wee Hood Teck Development Corp [1984] 2 MLJ 39 Federal Court, Sarawak (Lee Hun Hoe CJ, Mohamed Azmi and Syed Agil Barakbah FJJ).

See LEGAL PROFESSION, Vol 9, para 1776.

1518 Duty of care -- Negligence

9 [1518] LEGAL PROFESSION Duty of care Negligence Accused persuaded to plead guilty by solicitors Accused convicted Whether suit for negligence can be brought against solicitors Advice as to plea Whether subject to barristers' immunity

Summary :

P was charged with unlawful and malicious wounding. He intended to plead not guilty but his counsel advised against it. He was sentenced to jail. P sued his solicitors D (but not his counsel) alleging that they had persuaded him to change his plea. The master ordered P's claim to be struck out on the ground that it disclosed no reasonable cause of action and was an abuse of process. P appealed to the Court of Appeal.

Holding :

Held, dismissing the appeal: (1) it was an abuse of process for P to bring the present action, involving as it did an attack on the conviction and sentence imposed by the Crown Court and upheld on appeal; (2) advising as to a plea was something so intimately connected with the conduct of a case in court that it can fairly be said to be a preliminary decision affecting the way the cause is to be conducted when it comes to a hearing. A barrister would therefore be immune from suit. However, the Court of Appeal declined to uphold the submission made on D's behalf that the immunity from suit extended to solicitors who advised on a plea.

Digest :

Somasundaram v M Julius Melchior & Co [1989] 1 All ER 129 Court of Appeal, England (May, Stockner & Stuart-Smith LJJ).

Annotation :

[Annotation: Given the fusion of the profession in Singapore and Malaysia, the Court of Appeal's refusal to extend the immunity to solicitors as opposed to barristers is not significant.]

1519 Duty of care -- Negligence

9 [1519] LEGAL PROFESSION Duty of care Negligence Failure to serve notice and record of appeal Dismissal of appeal Proof of damages Legal fees Whether claimable

Summary :

The plaintiffs had engaged the defendant in two appeals. The appeals were dismissed because the defendant had served the notice and record of appeal out of time though they had been filed within time. In the present action, the plaintiffs sued the defendant for professional negligence in the conduct of the two appeals. The plaintiffs filed an application for summary judgment in the High Court against the defendant. The judge dismissed the application and granted unconditional leave to defend. The plaintiffs appealed to the Supreme Court which directed a trial on the issue of damages. One of the heads of damage was a claim for legal fees of RM71,000. It was submitted that if the appeals had been dimissed because of the defendant's negligence then legal fees for the High Court proceedings had been incurred in vain, that they constituted a wasted expenditure and therefore was payable.

Holding :

Held, allowing the plaintiffs' claims in part: (1) (d) actual measures of damages recoverable for that loss (Miranda v Khoo Yew Boon [1968] 1 MLJ 161 (FC)); (2) the cause of action was in tort and not in contract as there had been no contract and the liability against the defendant was based on breach of duty; (3) even if both the notice and records had been served within time there was no evidence tendered by the plaintiffs that could prove the appeals would have been allowed. There had been no plea that the appeals had a reasonable prospect of success; (4) it was incumbent upon the plaintiffs to prove damages as otherewise '...where damage is shown but its amount is not proved sufficiently or at all, the Court will usually decree nominal damages' (Popular Industries v Eastern Garment Manufacturing [1989] 3 MLJ 360 referred to); (5) damage in respect of which compensation was sought must be sufficiently proximate to the solicitor's breach of duty. This meant that (a) the breach of duty must have caused the damage, and (b) the damage in question was foreseeable; (6) the plaintiffs in their testimony had not been able to prove beyond a balance of probabilities as to the damages actually suffered; (7) in an action for professional negligence against a solicitor, four elements need to be established: (a) existence of a duty of care; (b) breach of that duty; (c) the loss caused by breach of that duty;legal fees paid in the course of the High Court proceedings would in any case be payable by the plaintiffs. It was however reasonable to reimburse the plaintiffs for their payments to Ms Sugumar & Co of RM40,000 as these would not have been incurred if the appeals had not been dismissed as they were or if they had been dismissed after arguments on merits.

Digest :

Tamparuli Granite Quarry (Sabah) Sdn Bhd & Anor v David Fung Yin Yee Suit No K285 of 1989 High Court, Kota Kinabalu (Syed Ahmad Idid J).

1520 Duty of care -- Negligence

9 [1520] LEGAL PROFESSION Duty of care Negligence Ignorance of statute by solicitor Time-bar for action for negligence When time begins to run

Digest :

Seow Teck Ming & Anor v Tan Ah Yeo & Anor and another appeal [1991] 2 MLJ 489 Court of Appeal, Singapore (Yong Pung How CJ, Thean and Chan Sek Keong JJ).

See LIMITATION, Vol 9, para 1974.

1521 Duty of care -- Negligence

9 [1521] LEGAL PROFESSION Duty of care Negligence Negligently advising bank to release loan when charge could not be registered due to third party caveat Loan credited to borrower's current account to reduce existing overdraft Whether negligence had caused loss since overdraft was unsecured debt already owed by borrower

Summary :

The respondent sued the appellants as advocates and solicitors for alleged professional negligence in respect of a loan granted by the respondent to Denson & Co ('the company'). The appellants advised the respondent that the property to be charged to the respondent was free from encumbrances. Acting upon the advice of the appellants, the respondent released a loan of RM60,000 to the company. Subsequently, the appellants informed the respondent that the said property was caveated and not free from incumbrances. The respondent alleged that it had suffered loss and damage by reason of the negligence and claimed the sum of RM60,000 with interest and costs. The respondent's application prayed for an order that the statement of defence be struck out under O 14 r 21 of the Subordinate Courts Rules 1980 ('the SCR') and under the inherent jurisdiction of the court on the grounds that it disclosed no reasonable defence, was frivolous and vexatious and an abuse of the process of the court. The application also contained an alternative prayer for an order that the respondent be at liberty to enter summary judgment under O 26A of the SCR. The sessions court allowed the application for summary judgment. The appellants appealed to the High Court, arguing that no loss had been suffered by the respondent as the loan had been credited to the current account of the company to reduce its overdraft, thereby converting its unsecured debt to a secured debt. The judge dismissed the appeal but reduced the judgment sum and interest as conceded by the respondent. [See [1995] 1 MLJ 33.] The appellants appealed to the Court of Appeal. At the commencement of the hearing, the court inquired whether it was proper for the respondent to pray for an order to strike out the statement of defence and alternatively for summary judgment in the same application.

Holding :

Held, allowing the appeal: (1) (per Zakaria Yatim JCA) the Court of Appeal has the power to raise an issue which was not raised in the court below or in the memorandum of appeal and need not confine itself to the grounds set forth in the memorandum of appeal as O 18 of the Court of Appeal Rules 1994 clearly states this. The question whether effect should be given to a point raised for the first time in the appellate court is one of discretion and the court can consider it in the interests of justice; (2) (per Zakaria Yatim JCA) a plaintiff cannot proceed with both prayers for striking out and summary judgment in one application because, firstly, in an application for striking out under O 26A of the SCR, no defence need be filed, whereas in an application for summary judgment under O 14 r 21 of the SCR, there must be a statement of defence, and secondly, in an O 26A application, the court has to decide whether there are triable issues which ought to be tried. Where there are two such prayers in one application, the court ought to proceed with the application for summary judgment and not with the striking out application; (3) (per Zakaria Yatim JCA) the High Court judge overlooked the fact that the charge could not be registered because of the caveat. If the appellant had notified the respondent about the caveat before the transaction, the respondent would not have carried on with the transaction, in which case, there was still the unsecured debt owing to the respondent by the company; (4) (per NH Chan and Siti Norma Yaakob JJCA) where there are two applications in one summons-in-chambers, the party applying has to elect as to which application he wishes to proceed on. In all civil proceedings, the court has no power to dictate to a litigant what form of application he should make or what kind of order he should apply for.

Digest :

Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1995] 2 MLJ 851 Court of Appeal, Kuala Lumpur (Zakaria Yatim, NH Chan and Siti Norma Yaakob JJCA).

1522 Duty of care -- Negligence

9 [1522] LEGAL PROFESSION Duty of care Negligence Payment into solicitors' client account Disbursement by solicitors to client Claim for money had and received Whether there was a proximate relationship

Digest :

Active Timber Agencies Pte Ltd v Allen & Gledhill Suit No 1728 of 1994 High Court, Singapore (Rubin J).

See CIVIL PROCEDURE, para 3204.

1523 Duty of care -- Negligence

9 [1523] LEGAL PROFESSION Duty of care Negligence Professional negligence Liability for.

Summary :

In Singapore an advocate and solicitor can be sued for professional negligence where the act complained of is an act done in his capacity of a solicitor but will not be liable for negligence if the act complained of is done in his capacity as an advocate.

Digest :

Majid v Muthuswamy [1968] 2 MLJ 89 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Winslow J).

Annotation :

[Annotation: See Miranda v Khoo Yew Boon [1968] 1 MLJ 161.]

1524 Duty of care -- Negligence

9 [1524] LEGAL PROFESSION Duty of care Negligence Solicitor and client Conveyancing Directors' resolution purportedly authorising solicitor to act on behalf of company in sale of property Resolution forged Whether solicitor should have verified instructions to act for company Whether solicitor met standard of care, skill and diligence required of a reasonably competent conveyancer Whether evidence of conveyancing practice in Singapore relevant

See contract law, para VII [29].

Digest :

Fong Maun Yee & Anor v Yoong Weng Ho Robert (practising under the name and style of Yoong & Co) [1997] 2 SLR 297 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1525 Duty of care -- Negligent breach of

9 [1525] LEGAL PROFESSION Duty of care Negligent breach of Foreseeability of fraud Obligations of lawyer in advising client in transaction

Summary :

The second plaintiff was a property developer. The first plaintiff was working as a secretary for the second plaintiff. The defendant was an advocate and solicitor. The second plaintiff agreed with a property developer, Foo, to purchase a piece of land (the property). Foo stated that the property was owned by Fontana Pte Ltd. It was agreed that Foo would obtain an option of the property at $12.8m and the second defendant would pay Foo $1.1m for an assignment thereof in addition to reimbursing Foo the option fee. Foo showed the second defendant the option and a resolution purportedly signed by Fontana's directors authorizing the sale of the property and appointing the defendant as Fontana's solicitors for the sale, together with a photocopy of a cheque he had apparently issued to Fontana for the option fee and what appeared to be the company's acknowledgment. The first plaintiff agreed to allow the second plaintiff to use her name in the transaction. The defendant was also appointed to act for the plaintiffs in the transaction. The first plaintiff authorized the defendant to release payment of two cheques for $550,000 and $256,000 (the option fee) to Foo 'on the basis that all searches are in order'. The defendant complied and Foo cashed the cheques immediately. It was later discovered that the directors of Fontana had never signed either the option or the resolution. The defendant had never received a letter of appointment from Fontana. Foo could no longer be traced. The plaintiffs brought this action claiming that the defendant had acted negligently and was in breach of his duty to exercise all due professional care, skill and diligence as a solicitor in: (a) failing to advise them that he did not act for Fontana and/or failing to correct the impression which any ordinary person reading the option would obtain, that the defendant acted for Fontana and so led them to believe that the option was not a forgery; (b) failing to advise that they or the defendant would have to be satisfied that a resolution was indeed passed by Fontana for the sale of the property and/or failing to take steps to confirm the passing of the resolution; and (c) failing to advise them not to release any sum of money to Foo until after the defendant was satisfied as to items (a) and (b). The defendant denied liability and contended, inter alia, that: (a) he was only instructed to act for the first plaintiff after all the terms had been agreed between the plaintiffs and Foo; (b) he was not instructed to act for the first plaintiff in the assignment which documentation was prepared by Foo; (c) the words 'all searches are in order' meant the company searches; (d) he did not tell the plaintiffs that Foo and a director of Fontana had asked him to act as alleged by the plaintiffs; and (e) the loss complained of was caused wholly or partly by the plaintiffs' own negligence.

Holding :

Held, dismissing the plaintiffs' claim: (1) the defendant did not make the representations the second plaintiff alleged Ð when asked whether he acted for Fontana, the defendant responded that he did, according to the resolution which he showed to the second plaintiff. Even if the defendant's answer amounted to a representation, how could it be said that the second plaintiff relied on it when, by his own testimony, he still wondered if he had 'missed any trick' and knew that it was an unusual transaction; (2) the words 'satisfactory searches' used by the first plaintiff in her fax to the defendant was meaningless Ð 'searches' as at that date could not possibly have referred to the requisitions which conveyancing lawyers send to various government departments as these take four to seven weeks to be returned by the addressees. It could not have referred to the title search on the property as a copy had already been extended to the plaintiffs. Therefore, searches could only have referred to the ROC search which the defendant had indicated to the plaintiffs he would and did conduct on Fontana. The plaintiffs were experienced property developers and must be aware of the different searches involved in a conveyance and the time required for each; (3) it cannot be denied that the defendant owed the plaintiffs the duty of care set out in Hedley Byrne v Heller [1964] AC 465. The question is one of foreseeability. Whether the defendant was negligent or contributorily negligent for the plaintiffs' loss can best be answered by asking Ð what was the causa causans of that loss? Was it the defendant's failure to verify his appointment with Fontana and thereby the documents used to perpetrate the fraud which the plaintiffs say he ought to have foreseen? The answer is the defendant's omission was the causa sine qua non but the causa causan of the plaintiffs' loss was their own failure to disclose the fax and letter on which the terms of the assignment had been agreed to the defendant. A lawyer is not an insurer for his client's own folly nor is he obliged to guarantee the validity of a transaction which documentation he did not prepare. To expect a lawyer to foresee the possibility of fraud when documents presented to him prima facie appear to be in order and when there are no circumstances to warrant any suspicions is to place an unreasonable and intolerable burden on the practitioner. Therefore, there was no contributory negligence on the defendant's part.

Digest :

Fong Maun Yee & Anor v Yoong Weng Ho, Robert Suit No 1653 of 1994 High Court, Singapore (Lai Siu Chiu J).

1526 Duty of care -- Professional negligence

9 [1526] LEGAL PROFESSION Duty of care Professional negligence Breach of duty owed by advocates and solicitors Failure to exhibit evidence in support of an affidavit for summary judgment

Digest :

Guan Ming Hardware & Engineering Pte Ltd v Chong Yeo & Partners & Anor [1996] 2 SLR 621 High Court, Singapore (Christopher Lau JC).

See CIVIL PROCEDURE, para 384.

1527 Duty of care -- Professional negligence

9 [1527] LEGAL PROFESSION Duty of care Professional negligence Immunity Scope of immunity Relevance of Rondel v Worsley [1969] 1 AC 191 in Singapore

Digest :

Guan Ming Hardware & Engineering Pte Ltd v Chong Yeo & Partners & Anor [1996] 2 SLR 621 High Court, Singapore (Christopher Lau JC).

See CIVIL PROCEDURE, para 384.

1528 Duty of care -- Solicitors

9 [1528] LEGAL PROFESSION Duty of care Solicitors Duty of care owed to third parties Proximity Plaintiffs transmitting funds into clients' account of another party's solicitors on behalf of someone else Solicitors disbursing moneys to client without plaintiffs' knowledge Whether solicitors owed duty of care to plaintiffs by receiving plaintiffs' moneys in their clients' account Whether solicitors negligent in disbursing moneys Degree of proximity between plaintiffs and solicitors Whether special relationship existed when solicitor accepted moneys into client's account from identified source

Digest :

Active Timber Agencies Pte Ltd v Allen & Gledhill [1996] 1 SLR 478 High Court, Singapore (Rubin J).

See CIVIL PROCEDURE, para 343.

1529 Duty of care -- Whether action on contract or in tort

9 [1529] LEGAL PROFESSION Duty of care Whether action on contract or in tort Breach of duty of care Negligence in conduct of land transaction on behalf of client Award of nominal damages and costs.

Summary :

The cause of action in the present case was breach of contract and not tort. Therefore, the principle is that a plaintiff, even though he in fact has suffered no pecuniary loss arising from a defendant's breach of contract, is in general entitled to nominal damages.

Digest :

KE Hilborne v Tan Tiang Quee; KS Chung v Tan Tiang Quee [1972] 2 MLJ 94 Court of Appeal, Singapore (Wee Chong Jin CJ, Winslow and Tan Ah Tah JJ).

See LEGAL PROFESSION, Vol 9, para 1468.

1530 Duty to client -- Common solicitors

9 [1530] LEGAL PROFESSION Duty to client Common solicitors Whether solicitors acting contrary to client's instructions Whether solicitors in breach of retainer

Summary :

D1, a firm of solicitors, was retained by A to negotiate for the purchase of certain lands which were to be used for housing development projects. The vendor of the lands was M Sdn Bhd. The purchase of the lands was financed by D2, a bank, which retained D1 to prepare the necessary documents for the loan. D2 subsequently issued a letter of undertaking in favour of M Sdn Bhd by which D2 undertook to pay over the purchase price for the lands to M Sdn Bhd upon the latter transferring the lands to the name of A. The conditions in the undertaking by D2 having been fulfilled, the solicitors for M Sdn Bhd demanded for the release of the balance of the purchase price for the lands. Meanwhile, A changed its mind and decided not to proceed with the purchase of the lands. By a letter, A countermanded its instructions to D2 to pay the registration fees for the charges. As a copy of this letter was not given to D1, D1 instructed D2 to release the balance of the purchase price to M Sdn Bhd which instruction D2 complied with. When D1 sought to recover a sum of money from A as disbursement made on its behalf in the land transaction, A refused to pay contending that D1 had acted against its interest. In the High Court, the learned judge awarded judgment against A. Hence, the present appeal by A to the Supreme Court.

Holding :

Held, dismissing the appeal: (1) in the instant case, D1 had all along acted in accordance with the instructions of A. A's letter to D2, countermanding its earlier instructions, was not copied nor made known to D1. D1, accordingly, had no knowledge whatsoever of A's countermanding instructions; (2) for the above reasons, D1 had not at any time acted in contravention of any instructions from A. A had, accordingly, failed to substantiate its allegation against D1.

Digest :

Taman Zahari Zabidi Sdn Bhd v Adnan Sundra & Low & Anor [1990] 1 MLJ 424 Supreme Court, Malaysia (Abdul Hamid LP, Mohamed Yusoff and Ajaib Singh SCJJ).

1531 Duty to client -- Conduct of trial

9 [1531] LEGAL PROFESSION Duty to client Conduct of trial Duty to cross-examine Duty to carry out client's instructions Duty to review evidence against client

Digest :

Seet Melvin v Law Society of Singapore Originating Summons No 1102 of 1994 High Court, Singapore (Lim Teong Qwee JC).

See LEGAL PROFESSION, para 1627.

1532 Duty to client -- Conflict of interest

9 [1532] LEGAL PROFESSION Duty to client Conflict of interest Solicitor taking lease from client on own documentation Substantial benefit Solicitor not advising client to take independent advice Dismissal of complaint Application for appointment of disciplinary committee

Digest :

Whitehouse Holdings Pte Ltd v Law Society of Singapore [1994] 1 SLR 315 High Court, Singapore (Lim Teong Qwee JC).

See LEGAL PROFESSION, para 1638.

1533 Duty to client -- Conflict of interests

9 [1533] LEGAL PROFESSION Duty to client Conflict of interests Advocate and solicitor initially acted for both appellant and co-accused but was later discharged by appellant Whether real mischief and real prejudice would result from continued representation of co-accused Whether duty of confidentiality to client breached

Summary :

In 1986, the appellant was charged together with one Tan Siang Leng (Tan) and two other persons for abetting one Yee Kim Yeou (Yee) in trafficking 1,693.47g of diamorphine at Changi Airport. Initially, the appellant and Tan both engaged Suppiah Thangaveloo (Thangaveloo), an advocate and solicitor, to act for them. The appellant discharged Thangaveloo after two to three months. R Palakrishnan (Palakrishnan) took over and eventually went on to represent the appellant during his trial. Thangaveloo conducted Tan's defence at the trial wherein the appellant was jointly tried. The appellant gave evidence implicating Tan by linking Tan to the drug trafficking arrangement. Thangaveloo was instructed not to cross-examine the appellant. Nevertheless, in his closing submissions, Thangaveloo attacked the appellant's testimony as being a tissue of lies, fabricated to exonerate himself at Tan's expense. This formed the main basis of the appellant's complaint as to Thangaveloo's professional misconduct. The Inquiry Committee (IC) which investigated the complaint found that it did not merit a formal investigation and the Council of the Law Society adopted this finding. Thangaveloo informed the IC that he did not obtain any specific instructions from the appellant in relation to his proposed line of defence. The appellant then applied to the High Court pursuant to s 96 of the Legal Pro-fession Act (Cap 161, 1994 Ed). The appellant alleged that the following were instances constituting professional misconduct on the part of Thangaveloo: (1) Thangaveloo had attacked the appellant's evidence in his submissions without having cross-examined the appellant; (2) contrary to his instructions from Tan, Thangaveloo had alleged that the appellant's evidence was a tissue of lies; (3) by so conducting himself, Thangaveloo had misled the court. The judicial commissioner rejected these arguments and took the view that Thangaveloo had acted in the proper discharge of his duties to Tan and to the court. Accordingly, he dismissed the appellant's application. On appeal, the appellant first sought to adduce fresh evidence which allegedly showed that Thangaveloo had taken specific instructions and would have known of his proposed line of defence. In respect of the appeal proper, it was submitted that Thangaveloo should not have continued to act for Tan when there was a clear conflict of interest. As Thangaveloo had initially acted for both the appellant and Tan, he would have known what the appellant's proposed line of defence would be. It was submitted that Thangaveloo had misled the court in failing to follow Tan's instructions and attacking the appellant's evidence in his submissions, without having cross-examined the appellant. It was contended that the fact that Thangaveloo did not cross-examine the appellant would preclude submissions as to appellant's credibility. Finally, it was submitted that the IC had acted in breach of natural justice in not affording the appellant any opportunity to rebut Thangaveloo's oral explanations. The appellant argued that the right to an oral hearing before the IC should have been given to him, since Thangaveloo had been given such a hearing.

Holding :

Held, dismissing both the motion and the appeal: (1) in a motion to admit fresh evidence, the appellant must show firstly that the evidence could not have been produced before the court below despite reasonable efforts having been made. There was no reason why the documents could not have been placed before the judicial commissioner, or, for that matter, even before the Inquiry Committee when the appellant first lodged his complaint. Thus, the motion failed at the first hurdle and was dismissed; (2) the issue of conflict of duties presently raised required the court to examine whether, by acting for Tan and making such submissions as he did against his former client (the appellant), real mischief and real prejudice would result. Since Thangaveloo had not been privy to any confidential information in relation to the appellant's proposed line of defence, no real mischief or prejudice could have been occasioned; (3) Thangaveloo's duty in the conduct of the trial was to act in Tan's best interests. He only owed a residual duty to the appellant, and this was the duty to respect the confidence reposed in him in relation to whatever information had been gleaned from the appellant during his period of retainer. There was nothing from Thangaveloo's submissions to indicate that there had been a breach of the duty of confidentiality or a contravention of the rules of professional privilege; (4) it should be permissible for an accused to attack the evidence of his co-accused, provided the particular aspects of the evidence of the latter have been tested in cross-examination, whether conducted by the prosecution or by counsel for the other accused. It was therefore open to Thangaveloo to adopt the prosecution's cross-examination of the appellant and attack his credibility on that basis; (5) counsel had absolute control over the conduct of the case on his client's behalf, and unless it could be shown that he had acted contrary to his client's interests, an allegation of misconduct would be difficult to sustain; (6) there was no indication that Thangaveloo had, in making the allegedly offending submissions, either drawn on extraneous or privileged information or claimed to have been intimately aware of certain facts which were not before the court. He had not acted contrary to Tan's instructions, or made the submissions with the intent to mislead the court; (7) as a general rule, the complainant was not entitled to a right of hearing at Inquiry Committee proceedings. Unlike Thangaveloo, against whom the complaint was directed, the appellant was unable to point to any statutory right to be heard at the inquiry; (8) the Inquiry Committee proceedings were neither adversarial nor accusatorial. All that natural justice requires was that the person or body charged with making the decision should act fairly. In the circumstances, and having regard to the role of the Inquiry Committee, the allegations as to breaches of natural justice were not tenable.

Digest :

Seet Melvin v Law Society of Singapore [1995] 2 SLR 323 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1534 Duty to client -- Conflict of interests

9 [1534] LEGAL PROFESSION Duty to client Conflict of interests Solicitor acting for liquidator and secured creditor Solicitor had acted for petitioning creditor

Summary :

R were the liquidators of the company. A was an unsecured creditor of the company which was owed a small sum. Both A and the company were within a group controlled by HKC, who was made bankrupt. HKC had originally applied for the removal of R as liquidators of the company, but this application was not proceeded with after his bankruptcy. A made a similar application, replying on the affidavits filed by HKC. The grounds on which A sought the removal of R were, inter alia, that they had erred in appointing D, a firm of solicitors, to advise them in the liquidation when D had acted for the petitioning creditor in previous proceedings against the company and were acting for a secured creditor, BP. D had represented the petitioning creditor in an action brought against them by the company for an injunction to restrain the presentation of a winding-up petition. The injunction was discharged and the company ordered to pay costs. D had presented a bill for taxation. The bill was not challenged by the liquidators, who took the view that it would have been too costly to engage other solicitors to do so. As a result, the entire sum claimed was allowed. The liquidators assumed that the registrar when taxing the bill would on his own motion disallow costs, charges and expenses not necessarily incurred. They also assumed that the taxed costs would only rank as an unsecured debt. D were also solicitors for BP, which held a security over substantially all of the company's assets.

Holding :

Held, dismissing the application: (1) the court rejected R's application to cross-examine the deponents on their affidavits as the facts were not in dispute; (2) even though A was only a small creditor, it was entitled to make the application and be heard. There was no need to have the papers served on the other creditors. However, the Official Receiver should have been served so that he could be heard if he so wished. Nevertheless, the court decided to proceed with the hearing notwithstanding the absence of the Official Receiver; (3) the liquidators had made an error of judgment in appointing D as solicitors to assist them in the liquidation. D was in a position of conflict of interest. Firstly, it had presented a bill for taxation. No objection had been taken to the bill by the liquidators, who mistakenly assumed that the registrar would on his own motion scrutinize the bill and disallow costs, charges and expenses not properly or necessarily incurred. It is not the duty of the registrar to do so. As a result, the company was unrepresented on the taxation and the whole sum claimed was allowed; (4) the liquidators were also mistaken in assuming that the taxed costs of the petitioning creditors were only unsecured debts. Under s 328(1)(a) of the Companies Act (Cap 50) the taxed costs of the petitioning creditor rank prior to all other unsecured debts of the company and equally with the remuneration of the liquidators; (5) secondly, the liquidators had a duty to consider the validity of the security given to BP and if necessary to take advice on the matter. D could not act for both BP and the company; (6) the question of whether the liquidators should be removed must be considered in the light of the interest of the creditors as a body. Although the liquidators had made errors, the errors were made in good faith and had not seriously prejudiced the liquidation of the company. The company had insufficient assets to afford the replacement of the liquidators at this late stage, when most of the matters in the liquidation had been completed. An order for the removal of the liquidators would involve incurring further costs and expenses. The application was therefore refused.

Digest :

Procam (Pte) Ltd v Nangle Charles & Anor [1990] 3 MLJ 269 High Court, Singapore (Thean J).

1535 Duty to client -- Conflict of interests

9 [1535] LEGAL PROFESSION Duty to client Conflict of interests Solicitors acting for more than one party in transaction Solicitor as stakeholder Proof of retainer of solicitor Breach of duty of care and skill

Summary :

The above two actions were consolidated and tried together. The plaintiff in the first action, Dato' Seri Au Ba Chi, sought various remedies against the defendants in regard to a transaction in which a loan of RM3,000,000 was granted by the first defendants to the plaintiff in the second action, Dato' Au Development Sdn Bhd. In the second action, Dato' Au Development Sdn Bhd sought remedies against the same defendants as in the first action in regard to the same transaction. Dato' Au was the owner of 51 pieces of land which he had charged to the first defendant as security for the loan. The loan was disbursed through the second defendant which was a firm of solicitors acting for the first defendant. It was alleged that the second defendant, without the knowledge of the plaintiffs, had released to a company, Kim Hiong Realty Sdn Bhd, the sum of RM500,000 being part of the money lent and converted the same to the use of the first and/or the second defendants. Upon approval of the loan by the first defendant, the second defendant had requested the release of the sum of RM3,000,000 to itself as stakeholder and gave an undertaking to refund the whole sum in the event that legal charges over the lands were not registered. The money was released by the first defendant to the second defendant on 25 June 1983. The charge documents, although executed by the parties concerned, were not presented for registration until 20 August 1983. By that time, the second defendant had released the sum of RM2,167,088.78 to Dato' Au Development Sdn Bhd and the sum of RM500,000 to Kim Hiong Realty Sdn Bhd. The second defendant alleged that the sum of RM500,000 was released on the instructions of Dato' Au, an allegation which was denied by the plaintiffs. The second defendant alleged that, on the instructions of Kim Hiong Realty Sdn Bhd, out of this sum, it paid the sum of RM300,000 to the first defendant so as to settle a debt in the sum of RM300,000 owing by a company, Chuan Hin Trading Sdn Bhd, to the first defendant. There was evidence that in regard to this sum, the second defendant had been in breach of an undertaking to pay the sum to the first defendant since 1982.

Holding :

Held, allowing the plaintiffs' claim: (1) he holds it as trustee for both parties to await that event and until that event is known, it is his duty to keep it in his own hands. This was the position in which the second defendant held itself out to be when the money was released to it; (2) there is no legal requirement for a retainer of solicitors to be in writing. There was sufficient evidence to show that the conduct of the parties intended that the relationship of solicitor and client was to continue to exist between the second defendant and the plaintiffs from their earlier dealings. In the circumstances, a retainer was established between the second defendant and the plaintiffs; (3) the duty derived from this retainer and imposed on the second defendant was to disburse the loan of RM3,000,000 in full to Dato' Au Development Sdn Bhd and this was to be done upon completion of the security documents; (4) the second defendant had breached its undertaking to the first defendant and its obligations to the plaintiffs. It had acted for more than one client whose interests directly conflicted with its obligations to the plaintiffs. It had the onus of proving that the conflicting interests did not prevent it from doing its duty to both clients; (5) under the general law, the relationship of solicitor and client gave rise to a duty as a solicitor to exercise that care and skill on which he knew his client would rely, and to a duty not to injure his client by failing to do that which he had undertaken to do and which, at the solicitor's invitation, the client had relied on him to do; (6) the second defendant was given the knowledge that the loan was to be utilized for the plaintiffs' housing project and that full release of the loan was important to the plaintiffs. The period of the loan was also specified to be 24 months, during which time the housing project was expected to be completed. It could be concluded therefore that the plaintiffs relied on the second defendant to achieve that purpose and the second defendant were fully cognizant of their obligations; (7) the second defendant failed to obtain full release of the loan and was for this reason in breach of the duty of care and skill which was required of them and a claim in tort can lie against them for breach of such duty; (8) generally, the duty of a stakeholder is to hold the stake in medio pending the outcome of a future event;the first defendant, not heeding their past experience, namely, the second defendant's failure to honour its undertaking to pay the sum of RM300,000, had released the loan of RM3,000,000 to the second defendant and retained them as their solicitors, ignoring Dato' Au's protest. On the basis of the foregoing, the first defendant was not blameless for the plaintiffs' loss. The whole evidence had given rise to the irresistible conclusion that there had been collusion between the first and second defendants to defraud the plaintiffs. The first defendant was therefore equally liable in tort.

Digest :

Dato' Seri Au Ba Chi v Malayan United Finance Bhd & Anor [1989] 3 MLJ 434 High Court, Johore Bahru (Mohamed Yusoff J).

1536 Duty to client -- Conveyancing

9 [1536] LEGAL PROFESSION Duty to client Conveyancing Whether solicitor acted in breach of undertaking Solicitor alleged to have acted negligently in releasing money to vendor Whether solicitor had used reasonable skill and diligence in performance of duty

Summary :

D acted as solicitors for P in respect of a sale and purchase transaction in which P purchased from Y the property in question. D were also the solicitors for Y, the vendor of the said property. P had obtained a loan from the government to finance the purchase of the property. D had, upon receipt of the loan, forwarded the balance of the amount of the loan to Y. Following this, P received a letter from D stating that the unit allotted to her was to be amended to a medium cost single-storey house with certain changes involving the pricing of the unit as well. P expressed her disagreement with the changes to Y and refused to go on with the contract. Y agreed to the termination of the contract provided P paid 1% of the purchase price. P refused to do so and instituted proceedings against D and Y. The gist of the claim against D and Y was for the refund of the money paid to Y. The learned sessions court judge allowed P's claim against Y but dismissed her claim against D. P appealed to the High Court against the decision of the learned sessions court judge dismissing her claim against D. P claimed that D were in breach of their undertaking which had caused loss and damage to her. P contended that D failed to use reasonable skill and diligence in the performance of their duties and were negligent in releasing the balance of the loan to Y without her consent.

Holding :

Held, dismissing P's appeal: (1) the learned sessions court judge was right in giving judgment to P against Y only and not against D as the money claimed by P was with Y at the material time and not in the hands of D at all. As soon as D received the money from P, D forwarded it to Y. On this ground alone, the appeal of P should be dismissed; (2) while it is undesirable for a solicitor to act for both the vendor and purchaser, as happened in the instant case, this is, nevertheless, not negligence; (3) in the instant case, once the agreement had been concluded, D ceased to act for P since there was nothing more to be done. If P had wanted D to continue to act for her, fresh instructions must be given. Up to this stage, D had acted diligently for both parties in accordance with their instructions. It was only when P was informed of the changes to the unit allotted to her that she alleged that D was negligent in acting for her in the former transaction which was never complained of before; (4) in the result, as there was no negligence on the part of D, the court dismissed the appeal by P.

Digest :

Bong Nyuk Lan v Kamaruddin & Partners Civil Appeal No 12-3/1988 High Court, Malacca (Mokhtar Sidin JC).

1537 Duty to client -- Conveyancing practice

9 [1537] LEGAL PROFESSION Duty to client Conveyancing practice Whether solicitor should forthwith forward memorandum of transfer for adjudication and stamping after execution of sale and purchase agreement Whether solicitor guilty of delay

Digest :

GT Rajan v Lee Yoke Lay & Anor [1994] 2 MLJ 315 High Court, Kuala Lumpur (Wan Mohamed, Abdul Malek and James Foong JJ).

See LEGAL PROFESSION, para 1583.

1538 Duty to client -- Overcharging

9 [1538] LEGAL PROFESSION Duty to client Overcharging Commission for introduction of purchaser Professional fees out of proportion to work done Disciplinary action

Digest :

Re Abdul Rahim Rajudin [1989] 1 MLJ 289 High Court, Singapore (Wee Chong Jin CJ, Sinnathuray and Thean JJ).

See LEGAL PROFESSION, Vol 9, para 1647.

1539 Duty to client -- Solicitor acting for both parties in transaction

9 [1539] LEGAL PROFESSION Duty to client Solicitor acting for both parties in transaction Execution of mortgage deed by illiterate woman Title deeds of house used as security Whether sufficient explanation of transaction had been made Plea of non est factum Solicitor should ensure that party is independently advised

Summary :

P sought a declaration that an equitable mortgage purportedly created over her property was void. P was an illiterate woman 54 years of age at the material time. She worked as a cleaner and factory hand. In mid-September 1981 P handed the title deeds to her house to her son, who ostensibly wanted to check their correctness. The following month, she was taken to a solicitor's office to sign some documents so that she could get back her title deeds. It transpired that she had signed an equitable mortgage. The solicitor was acting for both parties in the transaction. P pleaded non est factum. The two issues before the court were (a) whether P had handed the title deeds to her son knowing that the property would be used as security for a debt; and (b) whether the documents that she signed at the solicitor's office were adequately explained to her.

Holding :

Held, granting the declaration sought: (1) the general rule is that a party of full age and understanding is normally bound by his signature on a document; (2) if, however, the party is misled into signing a document essentially different from that which he intended to sign, he can plead non est factum in an action against him. The document is void in whosoever's hands it may come; (3) second, the signer must not be negligent (in the non-technical sense of careless) when he signed it; (4) on the evidence, the court was satisfied that P did not know that her title deeds were to be used as security. She had been deceived by her son. It was also found that the documents had not been explained to P adequately by the solicitors. The effect of the documents had been explained to the son, who had deceitfully not interpreted it to P; (5) two vital factors must be present before a party may successfully plead non est factum. First, the document which was signed must be significantly different from that which the signer believed it to be;there is a need for extra care on the part of solicitors in dealing with elderly and/or illiterate persons (or others under a disability), particularly when such persons are assuming responsibilities or liabilities of others. Where a solicitor is acting for all parties in a transaction, he must be conscious of a possible conflict of interest and should not hesitate to ask a party to seek independent legal advice.

Digest :

Goh Jong Cheng v MB Melwani Pte Ltd [1991] 1 MLJ 482 High Court, Singapore (Chao Hick Tin JC).

1540 Duty to client -- Solicitor acting for both parties in transaction

9 [1540] LEGAL PROFESSION Duty to client Solicitor acting for both parties in transaction Sale of property Vendor bankrupt and property repossessed Knowledge of solicitor

Digest :

Re Yogendran Originating Summons No 317 of 1994 High Court, Singapore (Karthigesu and LP Thean JJA, TS Sinnathuray J).

See LEGAL PROFESSION, para 1622.

1541 Duty to court -- Disclosure of higher court's decision

9 [1541] LEGAL PROFESSION Duty to court Disclosure of higher court's decision Whether counsel is duty bound as officer of court to disclose decision of higher court

Summary :

D was arrested and charged in the magistrate's court for trafficking in 261g of cannabis. The charge was read and explained to D but he was not asked to plead. D was then remanded in custody while waiting for the chemist report and the Public Prosecutor's consent. D was produced at monthly intervals before the magistrate for mention. When D was produced for the third time, he applied for bail which was granted by the magistrate. The prosecution applied to the High Court to revise the magistrate's order on bail. D argued that since the weight of the drug had not been certified by the chemist, the charge could not be properly explained to him and s 39B(4) of the Dangerous Drugs Act 1952 had therefore not been complied with.

Holding :

Held, allowing the application: (1) there was nothing in the magistrate's notes to indicate any perplexity in explaining the charge to D. Neither was it suggested anywhere that D found the charge to be incomprehensible. The mere prospect of an amendment of the weight of cannabis in the charge could not render the charge unexplainable, questionable or defective; (2) in any arrest made pursuant to s 39B of the 1952 Act, all the prosecution needs to do is to produce the arrested person before the court and have the charge read and explained to him. Once these procedures have been complied with, the court must make an order to remand him in accordance with the mandatory provision of s 41B of the 1952 Act which makes the offence unbailable at the moment he is charged and not at a later stage; (3) it is not open to the defence on the mere hypothesis that the final amount of the drugs as determined by the chemist could be less than the amount with which the accused was initially charged, to move the court into granting bail under s 388(1) of the Criminal Procedure Code (FMS Cap 6). This is because it is illogical and invalid for the accused to challenge the prosecution into proving part of its case even before the commencement of the trial; (4) accordingly no court can in purported exercise of its powers under s 388 of the Code, grant bail to any person charged with any of the offences specified in paras (a), (b) and (c) of s 41B(1) of the 1952 Act; (5) the magistrate's order on bail was set aside and D was ordered to be produced from time to time before a magistrate for the issue of further remand orders pending the analysis by the chemist; (6) counsel is entitled to cite one differing authority in preference to another by courts of co-ordinate jurisdiction but when the same question of law has been settled by a higher court, then counsel as an officer of the court is duty bound to disclose that case to the court unless he is totally oblivious of it.

Digest :

Public Prosecutor v Ilamaran [1992] 1 MLJ 672 High Court, Shah Alam (Wan Yahya J).

1542 Law Society/Malaysian Bar -- Application of sijil annual

9 [1542] LEGAL PROFESSION Law Society/Malaysian Bar Application of sijil annual Rejection of application Whether Bar Council considered application with care

Digest :

Joseph Singaram Pillay v Malaysian Bar [1993] 3 MLJ 257 High Court, Kuala Lumpur (Anuar J).

See LEGAL PROFESSION, Vol 9, para 1541.

1543 Law Society/Malaysian Bar -- Complaint against solicitor

9 [1543] LEGAL PROFESSION Law Society/Malaysian Bar Complaint against solicitor Appeal to High Court against decision of Bar Council Malaysian Bar not made a party to appeal Whether appeal properly brought Legal Profession Act 1976 (Act 166), s 103

Summary :

P appealed to the High Court under s 103 of the Legal Profession Act 1976 against the decision of the Bar Council given under s 98 of the Act that a formal inquiry into her complaint against D, an advocate, by a disciplinary committee to be appointed by the Chief Justice was not necessary. At the outset, counsel for D raised a preliminary objection that the Bar Council whose decision was in question, although a necessary party to the appeal, had not been cited as such and since the period for appealing had long since expired, the appeal was incompetent and ought on this ground alone to be dismissed in limine. Counsel for P answered the objection by pointing out that all that P had to do under s 103 of the Act, in order to bring the appeal, was to serve a copy of each of the documents referred to therein on the Bar Council and that as there had been compliance with this requirement, the appeal could proceed.

Holding :

Held, dismissing the appeal: (1) having regard to the provisions of s 103 of the Act, the Bar Council must be served with each of the documents referred to and the Malaysian Bar made a respondent. It is the Malaysian Bar and not the Bar Council which must be made a respondent to the appeal as the latter is a purely executive body charged with the responsibility of the proper management of the affairs of the Malaysian Bar and for the proper performance of its functions and therefore not a legal entity. The Malaysian Bar should be made a party as it would be directly affected by the order made by the court and unless it is made a party, it could thumb its nose at such an order; (2) as the time period limited for appealing under s 103(1) of the Act had long expired, the court declined to give P leave to amend the originating summons by adding the Malaysian Bar as a respondent. The court accordingly upheld the preliminary objection and dismissed P's appeal.

Digest :

Selvamary d/o P Sathianathan v C Rethinasamy [1989] 3 MLJ 49 High Court, Penang (Edgar Joseph Jr J).

1544 Law Society/Malaysian Bar -- Duties of advocate and solicitor

9 [1544] LEGAL PROFESSION Law Society/Malaysian Bar Duties of advocate and solicitor Applicant's counsel a member of the defendant Whether counsel could continue to act for applicant Whether conflict of interest Legal Profession (Practice and Etiquette) Rules 1978, r 16

Summary :

The plaintiff, who is a practising advocate and solicitor, was suspended for three months by a disciplinary committee convened under the Legal Profession Act 1976 ('the Act'). An appeal against the decision was heard in the Penang High Court in which RR Sethu appeared for her. The plaintiff was unsuccessful and a stay was granted pending her appeal to the Supreme Court. In those proceedings, the Bar Council, the defendant in this originating summons, was not cited as a party and did not intervene although its representatives attended the hearing. Three days prior to the Supreme Court hearing, the Bar Council objected to RR Sethu appearing for the plaintiff in the Supreme Court, apparently on grounds of conflict of interest and embarrassment. The plaintiff has applied for a declaration that the decision of the Bar Council that RR Sethu, her intended counsel in her Supreme Court appeal, ought not to appear, was unconstitutional, illegal, inoperative, null and void and of no effect. Held, allowing the plaintiff's application: (1) neither the Bar Council nor any body other than a competent court of law has the right to fetter the discretion of a counsel. The duty of an advocate and solicitor is summarized in r 16 of the Legal Profession (Practice and Etiquette) Rules 1978 ('the Rules'); (2) as a general rule, a solicitor who is a member of a public authority should not be professionally engaged in any proceedings to which the authority is a party or in which it is directly interested. If exceptional circumstances justify any departure from this general rule, it is the duty of the solicitor to ensure that the interests of the authority are already protected. Even assuming that the Bar Council can be equated as a public authority, they are not directly involved in the absence of any attempt to intervene in the proceedings; (3) the constitutional right of any citizen under art 5 to have the services of a counsel of his or her choice is subject to practical limitations. In this case, Sethu is willing, ready and able to act as counsel and is well aware of the facts of the case having acted as counsel in the High Court and having been in charge of the proceedings until the impending 'crisis' arose. The plaintiff has found it almost impossible to find alternative counsel of standing to argue the appeal and if the declaration is not granted, it would cause great hardship and inconvenience to the plaintiff as it involved her sole career. On the other hand, there would be no serious inconvenience and embarrassment to the Bar Council if a declaration was granted; (4) the court therefore granted the declaration sought and a further declaration to the effect that RR Sethu is and shall be at full liberty to appear for the plaintiff in the appeal without any restriction by the Bar Council as to the mode and manner of his performance of his duties within the meaning of the Rules and without the risk of any penalty under the law.

Digest :

Rhina Bhar v Malaysian Bar [1994] 1 MLJ 24 High Court, Kuala Lumpur (Anuar J).

1545 Law Society/Malaysian Bar -- Entitlement to vote

9 [1545] LEGAL PROFESSION Law Society/Malaysian Bar Entitlement to vote Whether legal assistant entitled to vote Whether a legal assistant practising in Johore as a 'practitioner' for the purpose of the Advocates and Solicitors Ordinance 1947, ss 39 & 40 Entitlement to vote. Local Bar Election Voting rights Practitioners Maintaining an office.

Summary :

The applicants are advocates and solicitors employed in various firms of advocates and solicitors in Johore. They seek the determination of the question whether an advocate and solicitor employed as an assistant by a firm of advocates and solicitors in Johore is a practitioner within the meaning of s 39(2) of the Advocates and Solicitors Ordinance 1947.

Holding :

Held: a legal assistant practising in the state who is under the employ of a firm of practitioners practising and maintaining an office in a state is a practitioner for the purposes of s 39(2) of the Advocates and Solicitors Ordinance and consequently for the purpose of Part IV of the ordinance.

Digest :

SD Rani & Ors v John Pillai [1970] 2 MLJ 21 High Court, Johore Bahru (Syed Othman J).

1546 Law Society/Malaysian Bar -- Whether Bar Committee had locus standi to sue

9 [1546] LEGAL PROFESSION Law Society/Malaysian Bar Whether Bar Committee had locus standi to sue Application sought to bar respondent from practising as advocate and solicitor Objection by respondent that applicant had no locus standi Legal Profession Act 1976, ss 36(1), 41(1) & (2), 57(e) & (j), 73(ii). Locus standi Whether Bar Committee of Pahang had locus standi to act on its own behalf in legal proceedings Meaning and intention of Legal Profession Act 1976 Legal Profession Act 1976, ss 36(1), 41(1) & (2), 57(e) & (j), 73(ii).

Summary :

The applicant in this case sought to bar the respondent, an advocate and solicitor and member of the Pahang Bar from practising as an advocate and solicitor as he was an unauthorised person within the meaning of s 36(1) of the Legal Profession Act 1976 (Act 166). A preliminary objection was raised by the respondent to set aside the application on the ground that the Bar Committee had no locus standi but only the Bar Council had.

Holding :

Held: (1) the right to sue or be sued in so far as the conduct of the members of the Malaysian Bar and all matters pertaining to it are concerned is that of the Malaysian Bar Council only and not the Bar Committee; (2) the action of the Bar Committee clearly was not related to the Bar Council and therefore for present purposes it had no locus standi.

Digest :

Bar Committee of Pahang v Joseph Au Kong Weng [1979] 2 MLJ 297 High Court, Kuantan (Abdul Razak J).

1547 Law Society/Malaysian Bar -- Whether disqualification for membership unconstitutional

9 [1547] LEGAL PROFESSION Law Society/Malaysian Bar Whether disqualification for membership unconstitutional Equal protection of laws Freedom of association Disqualification for membership of Bar Council or Bar Committee or any committee thereof Whether ultra vires the Federal Constitution Equality before the law Freedom of association Legal Profession Act 1976, s 46A Federal Constitution, arts 4(1) & 10(1)(c).

Summary :

In this originating summons the plaintiffs sought the following declarations: (a) s 46(1)(a) of the Legal Profession Act 1976 (Act 166) as introduced by the Legal Profession (Amendment) Act 1978, is ultra vires art (1) of the Federal Constitution guaranteeing equality before the law and equal protection of the law and therefore void under art 4(1) of the Federal Constitution; (b) s 46A(1)(a) of the Legal Profession Act 1976 as introduced by the Legal Profession (Amendment) Act 1978 is ultra vires art 10(1)(c) of the Federal Constitution guaranteeing freedom of association and therefore void under art 4(1) of the Federal Constitution.

Holding :

Held: (1) it is common ground that a law is bad if it is discriminating, unreasonable and if there is no nexus between the law and the objects of the amending act; (2) one of the objects of s 46A of the Legal Profession Act 1976, is clearly that the affairs of the Bar be managed by members of the legal profession who are not only professionally independent but appear to the outside world to be so. Hence the provision that lawyers who are members of Parliament or any of the State Legislatures or local authorities or hold office in any trade union or political party or organizations of a political nature are disqualified from holding office in the Bar Council or Committees. The provisions (s 46(A)(1)(b) and (c)) apply to all lawyers and are therefore not discriminatory; (3) it also seems to be the object of s 46A of the Legal Profession Act 1976, to ensure that the management of the Bar is in the hands of senior members of the profession. The powers and functions of the Bar Council and State Bar Committees as provided by the Act must clearly be exercised by senior members of the profession and the disqualification from membership of these bodies by junior members is not unreasonable; (4) in so far, however, as s 46A(1) applies to any Committee of the Bar Council or a Bar Committee the provision has gone more than a little too far and is unreasonable. The words 'or of any committee of the Bar Council or a Bar Committee' appearing in the section in so far as it affects para (a) thereof is ultra vires art 8(1) and is therefore void under art 4(1) of the Federal Constitution but the remaining provisions are not ultra vires or void under the Federal Constitution; (5) nowhere in s 46A is there a provision to prevent a lawyer from being a member of the Bar. The question of freedom of association therefore does not arise. Section 46A(1)(a) of the Legal Profession Act 1976 is not ultra vires art 10(1)(c) and therefore not void under art 4(1) of the Federal Constitution.

Digest :

Malaysian Bar & Anor v Government of Malaysia [1986] 2 MLJ 225 High Court, Kuala Lumpur (Harun J).

1548 Law Society/Malaysian Bar -- Whether disqualification for membership unconstitutional

9 [1548] LEGAL PROFESSION Law Society/Malaysian Bar Whether disqualification for membership unconstitutional Restriction of membership of Bar Council, State Bar Committees and Committees formed by the two bodies to lawyers of not less than seven years' standing Whether this violates the equal protection clause of the Federal Constitution Legal Profession Act 1976, s 46A(1)(a) Federal Constitution, art 8.

Summary :

The issue which was raised in this appeal was the constitutionality of sub-s (1)(a) of 46A of the Legal Profession Act 1976 (Act 166), which restricts membership of the Bar Council, State Bar Committee and Committee of the Bar Council or Bar Committee to advocates and solicitors of not less than seven years' standing. The appellants contended that the requirement violates the equal protection clause of art 8 of the Federal Constitution because it denies the Council and the Committee the benefit of using the talents of those lawyers with less than seven years' standing and also it denies this group of lawyers representation in the governing bodies of the legal profession. They argued that such discrimination was discriminatory, invidious and destructive of the unity of the Malaysian Bar and therefore violates the equal protection clause of art 8(1) of the Constitution. Harun J in the High Court held that para (a) of s 46A(1) is not unconstitutional in so far as it disqualifies a lawyer with less than seven years' standing from being a member of the Bar Council and a State Bar Committee but unconstitutional as regards disqualifying him from being a member of a Committee of the Bar Council or a State Bar Committee see [1986] 2 MLJ 225. Both parties were dissatisfied and there was an appeal and cross-appeal to the Supreme Court.

Holding :

Held, by a majority (Salleh Abas LP, dissenting): (1) the classification in sub-s (1)(a) of s 46A of the Legal Profession Act 1976 is based on reasonable as well as permissible criteria. There is clearly a nexus between the basis of classification and the legitimate object of the Legal Profession Act 1976 as amended and as such the classification is valid and constitutional. No fundamental rights guaranteed by the Federal Constitution have been violated by the impugned subsection and on the basis of suspect classification it has passed the intelligible differentia and nexus test. Indeed the impugned section would appear to have satisfied even the legitimate or compelling state or governmental test, required in the United States. On those grounds the appeal must be dismissed; (2) for the same reasons the respondent's cross-appeal must be allowed as there can be no difference in classification based on experience between membership of the Bar Council, the Bar Committees and any committee formed by those two bodies.

Digest :

Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165 Supreme Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Wan SCJJ).

1549 Law Society -- Malaysian Bar

9 [1549] LEGAL PROFESSION Law Society Malaysian Bar Powers Abuse of power Refusal of practising certificate on ground of conviction of applicant Whether abuse of licensing power as means of disciplining advocate and solicitor Whether decision arrived at a nullity Legal Profession Act 1976

Digest :

DP Vijandran v Majlis Peguam [1995] 3 MLJ 576 Court of Appeal, Kuala Lumpur (Gopal Sri Ram and NH Chan JJCA, Ahmad Fairuz J).

See LEGAL PROFESSION, para 1540.

1550 Liability as fiduciary -- Conflict of interest

9 [1550] LEGAL PROFESSION Liability as fiduciary Conflict of interest Passing-off action Preliminary objection raised Whether there is such conflict Proper approach to raise such objection

Summary :

The plaintiffs' claim, inter alia, is for an injunction restraining the defendants from passing off or attempting to pass off cordless telephone sets bearing the trade mark 'COMO', which do not have any connection in the course of trade with the plaintiffs, as the plaintiffs' goods. The plaintiffs have always been careful to protect their common law rights in the 'COMO' trade mark in Singapore and had published a Warning Notice in the 23 January 1988 issue of The Straits Times. A response to the Warning Notice came from AIE of Japan who wrote to the plaintiffs demanding the withdrawal of the plaintiffs' claim to the 'COMO' trade mark. The plaintiffs refused to withdraw their claim to the 'COMO' trade mark and no further action was taken by AIE. On or about 24 July 1991 the plaintiffs discovered that telephones bearing the 'COMO' trade mark were being imported by the defendants. When the motion came before the court on 11 February 1992, the defendants' counsel raised this preliminary objection that the plaintiffs' solicitors, D & N, were acting in conflict of duty/interest as solicitors in acting for the plaintiffs in this action. The defendants claimed that D & N were acting for YKC of Japan in their application (No S/5005/91) filed on 17 May 1991 in the Singapore Registry of Trade Marks and Patents to register 'JAPAN COMO' as a trade mark in Class 9. The instructions to make the application were given to D & N by T Sato, a patent attorney from Tokyo, pursuant to a Power of Attorney given to him by AIE, clients of the defendants' solicitors. The main contention of the defendants was that D & N received confidential information when they filed the trade mark application for YKC. D & N had earlier replied in a letter to the defendants' solicitors that in view of the dispute between AIE and the plaintiffs, they would cease to act for YKC in their trade mark application No S/5005/91. D & N in an affidavit stated that they did not receive any confidential information from YKC.

Holding :

Held: (1) the defendants had not adduced any evidence about the nature of the confidential information received by D & N; (2) it is the court's finding that there was no conflict of interest or duty in D & N acting for the plaintiffs; (3) the proper approach for the defendants, if they felt that D & N was in a position of conflict, was to institute proceedings against D & N and apply for an injunction to restrain D & N from acting in this matter. It was not open to the defendants to raise this as an issue in the present proceedings which were between the plaintiffs and the defendants and did not concern D & N.

Digest :

Great Wall (Importers & Exporters) Pte Ltd & Anor v Golden Link Development Pte Ltd Motion in Suit No 2669 of 1991 High Court, Singapore (FA Chua J).

1551 Liability as fiduciary -- Conflict of interest and duty

9 [1551] LEGAL PROFESSION Liability as fiduciary Conflict of interest and duty Failure to disclose solicitor's interest in a company Acting for adverse party

Summary :

The appellants filed a claim in the High Court that the respon-dent, who was a director and shareholder of Pacific Navigation, did not disclose her interest in Pacific Navigation to them before acting as their solicitor in the execution of three documents between the appellant and Pacific Navigation, namely, a management agreement, a charterparty agreement in respect of the vessel 'Ohm Marianna' and a power of attorney. Differences later arose between Pacific Navigation and the appellants, and Pacific Navigation instituted an admiralty action in rem against the vessel and arrested her. In their claim the appellants alleged that the respondent had failed to discharge her duty as their attorney to prevent the arrest of the vessel or to ensure that the power of attorney was properly executed. The trial court found that the failure of the respondent to disclose her interest was not an actionable wrong as it did not cause the appellants any loss or injury. The court further found that as the power of attorney was not created for the benefit of the appellant, the respondent was a gratuitous attorney, and therefore she was not obliged to act under the power of attorney for the appellant's benefit. The appellants ap-pealed. Held, dismissing the appeal: (1) the power of attorney was gratuitous. There was therefore no duty on the attorney to act. She was not in the position of a trustee. Even if she was under a duty to act, she could not have prevented the arrest of the vessel and her duty did not extend to providing the funds to secure the vessel's release; (2) the respondent acting for the appellants while being a director of Pacific Navigation and acting for Pacific Navigation, especially in respect of the management arrangement, was clearly a case of conflict. The fact that the appellants knew was not informed consent. Even if the appellants consented, it did not mean that she was not liable to the appellants, if she did not discharge her duty. Therefore the respondent was in breach of her fiduciary duty to the appellants. However the loss which the appellants claimed did not arise from the breach. There was no causal link between the loss and the breach of fiduciary duty.

Digest :

Ohm Pacific Sdn Bhd v Doreen Ng Hwee Cheng [1994] 2 SLR 576 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1552 Liability as fiduciary -- Conflict of interest and duty

9 [1552] LEGAL PROFESSION Liability as fiduciary Conflict of interest and duty Liability for negligence and breach of contract Retainer Contractual duty of legal practitioners as common solicitors Conflict of interest Liability in tort Knowledge of common officers Fraudulent concealment Limitation Damages Limitation Ordinance (Sarawak), s 18.

Summary :

In this case the appellants had acted in favour of the developers whose instructions directly conflicted with the respondents. Being a common solicitor for two different clients whose interests were directly in conflict, the appellants acted at their own peril and the onus of showing that the conflicting interests did not prevent them from doing their duty to both clients rested firmly on them.

Digest :

Yong & Co v Wee Hood Teck Development Corp [1984] 2 MLJ 39 Federal Court, Sarawak (Lee Hun Hoe CJ, Mohamed Azmi and Syed Agil Barakbah FJJ).

See LEGAL PROFESSION, Vol 9, para 1776.

Annotation :

[Annotation: The appellants were also held liable for negligence.]

1553 Liability as fiduciary -- Conflict of interest and duty

9 [1553] LEGAL PROFESSION Liability as fiduciary Conflict of interest and duty Sale of land Fraudulent misrepresentation Rescission Claim for damages and interest Defendant counter-claiming for specific performance and damages Contracts Act 1950 (Revised 1974), ss 16 & 17 Specific Relief Act 1950 (Revised 1974), ss 27 & 37 Evidence Act 1950, s 111 National Land Code, 417.

Summary :

Where a party, especially an ignorant or illiterate one, is unrepresented by an advocate and solicitor in a transaction and the opposite party is represented by one, it is the duty of the advocate and solicitor to explain the terms and conditions of the contract and the legal consequences thereof fully and frankly to the unrepresented party and ensure that this unrepresented party understands the terms and conditions and legal consequences fully, so that neither of the contracting parties has any unfair advantage over the other. Where there is a conflict of interest, as in this case, the advocate and solicitor should advise the plaintiff to be separately represented. The advocate and solicitor must at all times maintain his professional ethics, honestly, integrity and independence. He should never abuse his special position and the confidence reposed in him if he is to maintain the public respect for and confidence in the legal profession.

Digest :

Letchemy Arumugan v N Annamalay [1982] 2 MLJ 198 High Court, Seremban (Wong Kim Fatt JC).

1554 Liability as fiduciary -- Fraud

9 [1554] LEGAL PROFESSION Liability as fiduciary Fraud Liability for negligence and breach of contract Retainer Contractual duty of legal practitioners as common solicitors Conflict of interest Liability in tort Knowledge of common officers Fraudulent concealment Limitation Damages Limitation Ordinance (Sarawak), s 18.

Summary :

The evidence in this case was insufficient to justify the notion that the managing director of the Bian Chean Bank, who was also the chairman of the respondents, was the alter ego of the bank or the respondents. Similarly the contention that his knowledge of the bank's transactions with regard to the land can be imputed to the knowledge of the respondents so that his action in the former was the action of the latter cannot in the circumstances be accepted. The appellants not only neglected to notify the respondents of the charge to the said land to Hock Hua Bank until more than five years later but were also instrumental in placing the securities out of the reach of the respondents. There was therefore fraudulent concealment on the part of the appellants.

Digest :

Yong & Co v Wee Hood Teck Development Corp [1984] 2 MLJ 39 Federal Court, Sarawak (Lee Hun Hoe CJ, Mohamed Azmi and Syed Agil Barakbah FJJ).

See LEGAL PROFESSION, Vol 9, para 1776.

1555 Liability as fiduciary -- Stakeholder

9 [1555] LEGAL PROFESSION Liability as fiduciary Stakeholder Whether solicitor was agent of client or stakeholder Whether as stakeholder solicitor liable to account for interest earned on moneys held on trust

Digest :

GT Rajan v Lee Yoke Lay & Anor [1994] 2 MLJ 315 High Court, Kuala Lumpur (Wan Mohamed, Abdul Malek and James Foong JJ).

See LEGAL PROFESSION, para 1583.

1556 Liability as fiduciary -- Stakeholding

9 [1556] LEGAL PROFESSION Liability as fiduciary Stakeholding Legal profession Solicitor Solicitor receiving deposit in accordance with contract of sale Whether holding as agent for vendor or as stakeholder Whether vendor entitled to interest earned as deposits Housing Developers (Control and Licensing) Rules 1970, Schedule C Solicitors Accounts Rule 1967, r 2 Legal Profession Act 1976, s 86(2).

Summary :

The respondents were developers and vendors of houses built on their land and the appellant was the solicitor appointed by them. In the sale and purchase agreement between the respondents and various purchasers of the houses it was agreed that a sum equivalent to 5% of the purchase price be paid 'to the vendor's solicitors or some other person or company authorized by the Controller as stakeholder' for payment to the vendor on production of the certificate of fitness for occupation of the building. The appellant received the deposits and kept them in his clients' account receiving interest therefor. The respondents brought an originating summons in the High Court asking for an order that the appellant deliver to the respondents a list of all moneys which had been retained by him in respect of the sale of certain houses. In respect of the houses for which certificates of fitness had been issued the total amount of deposits was paid to the respondents but not the interest earned on the deposits. The learned judge granted the application of the respondents and therefore as agent he was liable to account for whatever money he received for the respondents including interest. The appellant appealed.

Holding :

Held, allowing the appeal: (1) the respondents had entered into sale and purchase agreements wherein they agreed to abide by the term of the agreements with regard to the 5% of the purchase price to be paid to their solicitors as stakeholder which was to be paid on the production of the certificate of fitness for occupation of the premises. The respondents were not entitled to the deposit until the Certificate of Fitness was issued; (2) the appellant cannot be held accountable to the respondents in respect of the interest on the deposits in each case up to the date of the issue of the Certificate of Fitness.

Digest :

Toh Theam Hock v Kemajuan Perwira Management Corp Sdn Bhd [1981] 1 MLJ 116 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ, Hashim Yeop A Sani and Wan Hamzah SCJJ).

Annotation :

[Annotation: The provision of stakeholder is necessary in the Torrens system of conveyancing: per Chong Min Tat FJ in Ong Kim Khoo v Gaya Filem Bhd [1979] 1 MLJ 79, 80. See also Kulip Singh v Lembaga Letrik Negara [1983] 1 MLJ 256.]

1557 Liability as fiduciary -- Undue influence

9 [1557] LEGAL PROFESSION Liability as fiduciary Undue influence Solicitor-client relationship Transfer of land Outright sale or security Fraud Breach of trust Undue influence Breach of agreement Damages.

Summary :

In this case the respondent, the registered proprietor of land alleged that she was induced by the fraud and undue influence of the first and second appellants to transfer the land to the second appellant. The respondent claimed that when the land was transferred it was transferred as a security and there were two undertakings stating that, (1) the land would not be sold to anyone for one year without the consent of the respondent (2) the land would be transferred back to the respondent on her repaying the RM220,000 within one year. Contrary to these undertakings the second appellant some 18 days later transferred the property to the third appellant. Subsequently the land was again transferred to a land development company almost wholly owned by the first appellant. The land was eventually sub-divided and sold to the public. The appellants were advocates and solicitors. The learned trial judge found that the appellants were guilty of fraud, breach of agreement and undue influence ([1983] 2 MLJ 127). The appellants appealed.

Holding :

Held: (1) on the evidence the learned judge was entitled to take the view that the appellants were not honest in that the first and second appellants never really intended to fulfil the conditions of the agreement and that all they wanted was to get the respondent to sign the transfer form so that they could lay their hands on the property. As regards the third appellant he colluded with the other appellants to get possession of the property. (2) the learned trial judge was correct in holding that the agreement was a security agreement and did not constitute an outright transfer of the land; (3) the learned trial judge was not wrong in holding that the transaction was unconscionable and that the burden was on the appellants to rebut the presumption of undue influence; (4) in this case the learned trial judge exercised his discretion correctly in awarding damages for fraud and in not deducting the sums paid by the appellants in payment of overdrafts to the banks as the sums were paid in pursuance and furtherance of the fraud.

Digest :

Datuk Jagindar Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ, Salleh Abas CJ and Abdoolcader FJ).

Annotation :

[Annotation: See Datuk Jagindar Singh & Ors v Tara Rajaratnam [1986] 1 MLJ 105 in which the Federal Court's judgment was affirmed by the Privy Council.]

1558 Liability as officer of court -- Acting in professional capacity

9 [1558] LEGAL PROFESSION Liability as officer of court Acting in professional capacity Letter of undertaking Pre-condition, not stated in letter Integrity required of solicitor Mistake, only defence

Summary :

The plaintiff brought a claim against the defendant for the sum of RM12,800 that was still owed and due to be paid by the defendant to the plaintiff pursuant to a letter of undertaking given by the defendant to the plaintiff for the redemption of the title deed to a piece of land ('the land'). The defendant was a partner in a firm of advocates and solicitors known as Messrs A Xavier & Company. The defendant had acted as the solicitor for a housing developer Fira Development Sdn Bhd ('Fira') and Vincent a/l Ganapragasam ('the purchaser') in a sale and purchase agreement of a house. Fira had before this charged the land to the plaintiff and the amount to redeem title to the land was RM16,000 ('the amount'). Fira, through a letter dated 2 January 1987, instructed the defendant to pay to the plaintiff the amount as soon as it received the money from the Bahagian Pinjaman Perumahan, Perbendaharaan Malaysia ('BPP') from which the purchaser had obtained a housing loan. Pursuant to the letter, the defendant had given a letter of undertaking to the plaintiff wherein the defendant undertook to release the sum as soon as it was received from BPP. On that letter of undertaking, the plaintiff released the title deed to the land to the defendant. The defendant had on 7 September 1987 released the sum of RM3,200 to the plaintiff as part payment of the redemption sum leaving RM12,800 still outstanding. On the same day, Fira and the purchaser terminated the services of the defendant and appointed another solicitor's firm ('TTH'). TTH completed the sale and purchase transaction on the land the BPP released the remaining amount of RM12,800 to TTH. Therefore, the defendant did not receive the remaining amount. The plaintiff was only informed of the change of solicitors by the defendant through a letter dated 10 July 1990. The plaintiff brought the present action to enforce the letter of undertaking given by the defendant to it. In disputing liability, the defendant claimed that there was a precondition together with the letter of undertaking that the full redemption sum of RM16,000 must be received from BPP first but at that time it had not received RM12,800 yet. Thus, the issue that has to be decided by the court was whether the defendant had given the letter of undertaking in its professional capacity as a solicitor, and if so, whether the defendant had acted in breach of the undertaking.

Holding :

Held, allowing the plaintiff's claim: (1) it is clear and unambiguous from the contents of the letter of undertaking that the defendant had acted in its professional capacity as a solicitor in issuing the letter of undertaking to the plaintiff. As the undertaking had been given by the defendant in its professional capacity as a solicitor, the defendant could not evade liability on the ground that there was a precondition which was clearly non-existent in the letter of undertaking; (2) the defendant by inserting the sentence, 'we undertake to release to you the said sum upon receipt of the same from Bahagian Pinjaman Perumahan, Perbendaharaan Malaysia', in the letter of undertaking, could not consider it as imposing a precondition because the receipt of the money from BPP was an arrangement between BPP and the defendant as a stakeholder in the sale and purchase transaction of the house between Fira and the purchaser which did not involve consideration or any obligation from the plaintiff. The plaintiff's right to enforce the undertaking could not be denied because the defendant itself failed to state and protect against the events which occurred, that is the purchaser and Fira terminating the services of the defendant as their solicitor and appointing TTH as the new solicitor; (3) the integrity required of a solicitor who acts to give an undertaking is very high and the court only allows an avoidance of liability on one defence, that is mistake. In this case, there was no mistake in the issuance of the undertaking between the plaintiff and defendant. What actually occurred was that the defendant had failed to inform the relevant parties such as BPP, TTH, Fira and the purchaser about the letter of undertaking dated 6 January 1987 which was given by the defendant to the plaintiff when there was a change of solicitors on 7 September 1987.

Digest :

Tai Lee Credit Corporation Sdn Bhd lwn A Xavier & Co, Peguambela dan Peguamcara, (didakwa sebagai suatu firma) [1996] 4 MLJ 324 High Court, Taiping (Zulkefli JC).

1559 Liability as officer of court -- Breach of undertaking

9 [1559] LEGAL PROFESSION Liability as officer of court Breach of undertaking Advocate and solicitor acting for both parties Conflicting interests Undertaking to bank to register charge Breach of undertaking.

Summary :

The plaintiffs applied, inter alia, for an order that the defendant, an advocate and solicitor, do within 14 days register a charge for the sum of RM5 million in favour of the plaintiffs against two pieces of land in Kuala Lumpur. The plaintiffs granted a loan of RM5 million to one Datu Haji Abdul Salam (the borrower) on or about 2 February 1982. The loan was to be secured by charges against Sabah and Kuala Lumpur lands. The defendant who acted as solicitor for the plaintiffs was instructed by the plaintiffs to prepare and register the said charges. The charge against the Sabah lands but not the Kuala Lumpur lands was duly registered. On 30 April 1982, the defendant wrote a letter to the plaintiffs 'to request for your kind approval to release a further sum of Malaysian ringgit six hundred thousand only (RM600,000) to enable us to redeem the charge on Dashrun Hotel Sdn Bhd properties held by Bank Bumiputra Malaysia Bhd and to recharge the same in favour of your bank and also to settle some of the other creditors as stated in our client's application'. On 3 May 1982 in response to the defendant's request, the plaintiffs duly credited the RM600,000 requested into the defendant's firm account. Despite this and the five reminders sent by the plaintiffs, the defendant failed to present the charge in respect of the Kuala Lumpur lands for registration. The defendant, who was also acting for the borrower, said, inter alia, that since he was acting for both parties he had the duty to protect both parties' interests in this matter. The defendant further said that since the plaintiffs had only released RM3,837,500 out of the RM5 million loan with a security valued at RM6.3 million (in Sabah lands) and whereas and on the other hand the borrower had to meet contractors' claims, he felt it was fair not to charge the Kuala Lumpur lands so that the borrower could use it to raise further funds from another bank. The issue before the court was whether the defendant in law did give an undertaking in his professional capacity and if he did was there breach of that undertaking?

Holding :

Held, allowing the plaintiffs' application: the court was satisfied on the balance of probabilities that the defendant breached the undertaking he gave to the plaintiffs in his professional capacity and it applied the case of T Damodaran v Choe Kuan Him [1979] 2 MLJ 267.

Digest :

Oriental Bank Bhd v Abdul Razak Rouse [1986] 1 MLJ 509 High Court, Sabah (Abu Mansor J).

1560 Liability as officer of court -- Breach of undertaking

9 [1560] LEGAL PROFESSION Liability as officer of court Breach of undertaking Effect of lis pendens order Undertaking to pay balance of purchase money to vendors on registration of transfer of land Lis pendens order registered against land Solicitor offering to pay money to court.

Summary :

In this case the respondent, an advocate and solicitor, was acting for both the purchasers and the vendors of a piece of land. He gave an undertaking to confirm that the balance of the purchase money had been deposited with them and that this would be paid to the vendors upon the transfer of the land being registered. The transfer was duly registered but in the meantime a lis pendens had been obtained and registered against the land. The respondent indicated that he would pay the money into court but the appellant, the vendor, applied for the payment of the money to him. The learned trial judge ordered that the money be paid into court but also ordered that the respondent should pay costs and interest at the rate of 12% per annum ([1975] 2 MLJ 274). The appellant appealed to the Federal Court and the respondent cross-appealed against the order for payment of costs and interest.

Holding :

Held, (Suffian LP and Wan Suleiman FJ, (Ali FJ dissenting)): (1) in the peculiar circumstances of this case the respondent should be allowed to release the money into court and not to the vendor/appellant; (2) in the circumstances costs in the court below and on appeal should be borne by the appellants and the respondent should only be ordered to pay interest at 6% per annum from the date of judgment.

Digest :

Re Choe Kuan Him, Advocate & Solicitor; T Damodaran v Choe Kuan Him [1976] 2 MLJ 207 High Court, Kedah (Suffian LP, Ali and Wan Suleiman FJJ).

1561 Liability as officer of court -- Breach of undertaking

9 [1561] LEGAL PROFESSION Liability as officer of court Breach of undertaking Effect of lis pendens order Undertaking to pay balance of purchase moneys on registration of transfer of land Lis pendens registered against land by third party Effect of.

Summary :

In this case, the respondent as advocate and solicitor was acting for both the purchasers and the vendor of a piece of land. He gave an undertaking to confirm that the balance of the purchase money had been deposited with his firm and that this could be paid to the vendors upon the transfer of the land being registered. The transfer was duly registered but in the meantime a third person had obtained a lis pendens and this had been registered against the land. The respondent indicated that he would pay the money into court but the appellant, the vendor, applied for the payment of the money to him. The learned trial judge initially in chambers ordered the payment of the money forthwith to the appellant but subsequently after further argument he ordered the money to be paid into court as deposit. The appellant appealed to the Federal Court which by a majority held that in the peculiar circumstances of the case the respondent should be allowed to pay the money into court and not to the appellant, the vendor see [1976] 2 MLJ 207. The appellant appealed.

Holding :

Held: the terms of the solicitors' undertaking were clear, unqualified and unequivocal and there was no reason why the appellant should not recover the balance of the purchase price.

Digest :

T Damodaran v Choe Kuan Him [1979] 2 MLJ 267 Privy Council Appeal from Malaysia (Lord Diplock, Lord Morris of Borth-y-Gest, Lord Edmund-Davies and Lord Fraser of Tulleybelton).

1562 Liability as officer of court -- Breach of undertaking

9 [1562] LEGAL PROFESSION Liability as officer of court Breach of undertaking Effect of lis pendens order Written undertaking by advocate and solicitor Whether given by mistake Advocates & Solicitors Ordinance 1947. Written undertaking Liability.

Summary :

The applicant, a registered owner of several pieces of land, entered into a sale agreement with one Andavan who on 6 March 1974, assigned the said land to United Realty Sdn Bhd, the purchaser. In the course of the transaction the respondent in his capacity as solicitor for the purchaser issued a written undertaking of the same date which was duly received by the applicant. In the written undertaking the respondent undertook to release the balance of the purchase price to the applicant 'upon the transfer of the said lands being duly registered...'. On registration of the said lands, the respondent paid part of the purchase price to the applicant in cash and the balance thereof amounting to RM182,000 in cheque. Payment of the said cheque was stopped by the respondent. The issue for determination was whether the respondent was bound to pay the said sum of RM182,000 on the strength of his written undertaking as a solicitor.

Holding :

Held: (1) an undertaking given by a solicitor is very often the decisive factor in inducing its acceptance. Great care ought therefore to be paid to the wording of an undertaking both by the solicitor giving it and by the person accepting it; (2) the fact that subsequent to the undertaking events occur which alter the position, such as his client withdrawing or changing his instructions before the undertaking has been honoured, will not entitle the solicitor to avoid liability unless he has expressly guarded against those events in the undertaking itself; (3) the standard required is so high that the courts have allowed only one defence, that of mistake; (4) as a solicitor, the respondent ought to have foreseen the consequences of such failure. He cannot turn back and say he was acting on the instructions of his client. He is the stakeholder and therefore bound by his undertaking; (5) in the circumstances of this case in view of the fact that there was a pending civil action in which the applicant and the purchaser were involved, the respondent would be ordered to deposit the sum involved into court.

Digest :

Re Choe Kuan Him, Advocate & Solicitor; T Damodaran v Choe Kuan Him [1975] 2 MLJ 274 High Court, Kedah (Syed Agil Barakbah J).

1563 Liability as officer of court -- Breach of undertaking

9 [1563] LEGAL PROFESSION Liability as officer of court Breach of undertaking Letter of undertaking Whether court has jurisdiction to entertain application for solicitors' alleged breach of undertaking

Summary :

The plaintiffs entered into joint venture agreements with the defendants' clients to develop certain lands of which the plaintiffs were registered owners. The plaintiffs deposited documents of title to the lands with the defendants, on receipt of which the defendants gave a letter of undertaking to the solicitors for the plaintiffs. The letter of undertaking was dated 7 August 1985 and contained an undertaking by the defendants to furnish the plaintiffs with performance guarantees in connection with the joint venture agreements, failing which the documents of title to the lands were to be returned. No bank performance guarantee was furnished and the documents of title were not returned to the plaintiffs. A search carried out by the defendants showed that the lands had been transferred to the developers before the letter of undertaking had been given by the defendants and that the lands had been charged by the developers to secure a loan. The defendants alleged that the plaintiffs had by their actions disabled themselves from returning to the plaintiffs the document of title. The plaintiffs commenced an action seeking a declaration that the defendants were in breach of the letter of undertaking dated 7 August 1985. It was argued for the defendants that the proceedings constituted by the plaintiffs were improper because: (a) the court had no jurisdiction over advocates and solicitors in the States of Malaya as advocates and solicitors are not officers of the court, whereas in England solicitors are officers of the court as provided in s 50 of the Solicitors Act 1957 of England; (b) there was no such similar provisions in the Legal Profession Act 1976 (Act 166). The High Court in England exercise supervisory control over solicitors in relation to their role as solicitors on account of the fact that solicitors are officers of the court in England; (c) in the States of Malaya, the professional conduct of advocates and solicitors are under the supervisory control of the Bar Council having regard to the provisions of the Legal Profession Act 1976 (Act 166).

Holding :

Held, allowing the plaintiffs' application: (1) the plaintiffs were seeking a declaration that the defendants were in breach of its undertaking and the remedies sought were to vindicate their legal rights. The cause of action was the breach committed by the defendants which caused the plaintiffs to suffer loss and was not grounded on any misconduct or malpractice by the plaintiffs. The function of the court to entertain an application to enforce a plaintiff's legal right was absolute; (2) the partners and legal assistants of the defendants were not officers of the court within the context of the principle laid down by the English courts, and the court had no disciplinary jurisdiction over them in their capacity as officers of the court. If the undertaking had been given to the plaintiffs in respect of any litigation proceeding, then the court had jurisdiction to admonish or penalize the defendant. On the other hand, if the complaints of the plaintiffs were directed to any misconduct, malpractice or dishonesty in connection with the defendants' practice as an advocate or solicitor, the plaintiffs must refer their complaints to the Bar Council as the court had no jurisdiction to entertain such complaints.

Digest :

Lee Chee & Ors v Allen & Gledhill [1990] 2 MLJ 93 High Court, Kuala Lumpur (Lim Beng Choon J).

1564 Liability as officer of court -- Breach of undertaking

9 [1564] LEGAL PROFESSION Liability as officer of court Breach of undertaking Procedure Solicitor's undertaking Application for enforcement Disputed questions of facts Allegations of fraud and implied misconduct Procedure.

Summary :

Application to enforce an undertaking by a solicitor where there are disputed questions of fact, etc should be made by writ.

Digest :

Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ 112 High Court, Seremban (Syed Agil Barakbah J).

1565 Liability as officer of court -- Breach of undertaking

9 [1565] LEGAL PROFESSION Liability as officer of court Breach of undertaking Solicitor's undertaking Solicitor disputing liability in undertaking Whether undertaking given in professional capacity Whether undertaking clear, unqualified and unequivocal

Summary :

P granted a loan to D1, the owner of the property in question on which houses were to be constructed. One of the terms and conditions of the loan was that D6, as the solicitor for the developers, engaged by D1 to develop their land, shall give an undertaking to P that he would be responsible for the repayment of the loan by D1. D1 defaulted in repaying the loan and P sought to enforce the undertaking against D6. In disputing liability, D6 contended that his liability under the undertaking would only arise upon the receipt by him of the progress payments from purchasers of the housing project which, however, never reached him as the project had been aborted. The only issue for determination in the appeal by D6 against an O 14 judgment was the interpretation to be given to the letter of undertaking executed by him.

Holding :

Held, dismissing the appeal: (1) in constructing an undertaking, the intentions of the parties are to be gathered from the language used. The undertaking must be clearly worded so as to express the intentions of both the parties and this is all the more so when the undertaking is given to a person who is not a solicitor; (2) in the instant case, the undertaking that had been executed by D6 was a solicitor's undertaking and was given by him in his professional capacity. The court found that the undertaking was expressed in very clear and unambiguous language and that there was no precondition attached to it before liability could be established. As the undertaking was clear in intent and meaning, D6 could not now deny liability on the grounds of some precondition that did not appear in the undertaking itself. In the circumstances, D6's appeal was dismissed by the court.

Digest :

United Malayan Banking Corp Bhd v Warisan Niaga (M) Sdn Bhd & Ors [1990] 2 CLJ 110 High Court, Kuala Lumpur (Siti Norma Yaakob J).

1566 Liability as officer of court -- Breach of undertaking

9 [1566] LEGAL PROFESSION Liability as officer of court Breach of undertaking Solicitor's undertaking Whether undertaking clear, unqualified and unequivocal Whether undertaking enforceable in the circumstances

Summary :

D, an advocate and solicitor, acted as common solicitors for P's clients in connection with the purchase of shares in a company. D prepared a purchase agreement which was executed by the parties concerned. D had subsequently written a letter to P stating that 5% of the purchase price was retained by his firm until vacant possession of the land in question was surrendered to his clients. It was not disputed that vacant possession of the land had not been delivered up as was required under the agreement. Notwithstanding this, P continued to press for the payment of the balance of the purchase price. The sole issue for the determination of the learned judge was whether D's letter to P amounted to a solicitor's undertaking which was enforceable against D. D contended that the letter could not be construed as an undertaking but was merely a written confirmation that 5% of the purchase price was retained by his firm until vacant possession was surrendered to his clients. Since vacant possession of the land had not been given to his clients, P's clients were not entitled to the balance of the purchase price.

Holding :

Held, making no order in terms of the application: (1) in the content of the letter, the court was of the view that D had given his undertaking on behalf of his clients to P to pay the balance sum of the purchase price. In the opinion of the court, the letter contained an unequivocal declaration of intention to pay P the balance sum of the purchase price in compliance with the agreement once vacant possession of the land was surrendered to D's client; (2) although the letter constituted a solicitor's undertaking, it was only a qualified undertaking. As the event on the happening of which the balance sum was to be paid had yet to take place, D was legally bound to retain the balance of the purchase price until such time as vacant possession was surrendered to his clients. The undertaking was, accordingly, not enforecable in the circumstances; (3) as D had not committed any breach of his undertaking, the court made no order in terms of P's application.

Digest :

Ong Eng Khuan v Lim Kim Chuan Originating Summons No 24 (31) 830-88 High Court, Penang (Mohamed Dzaiddin J).

1567 Liability as officer of court -- Breach of undertaking

9 [1567] LEGAL PROFESSION Liability as officer of court Breach of undertaking Whether undertaking clear, unqualified and unequivocal Whether undertaking given within ordinary course of solicitor's business Whether solicitor had ostensible authority to give undertaking

Summary :

D, a firm of solicitors, had given an undertaking to P that they would furnish P with, inter alia, a continuing and irrevocable banker's guarantee for the stated sum payable upon the delivery by P of complete vacant possession of the land in question to the purchasers. P were the administrators of the estate of T and the land in question was sold to the purchasers pursuant to an order of court. The purchasers who had obtained a loan from BBMB, had wanted to register the transfer and charge first before paying the full purchase price to P because BBMB would not release the loan until a charge in their favour had been registered. To achieve this, D had to give the necessary usual undertaking referred to above for the payment of the balance of the purchase price. The land was subsequently registered in the name of the purchasers and the charge in favour of BBMB was also duly registered. However, despite many requests by P, D failed to furnish the continuing and irrevocable banker's guarantee to P for the stated sum. P alleged breach of undertaking on the part of D and by this application P sought to enforce the undertaking. D denied liability and contended, inter alia, that the undertaking was ambiguous, that the legal assistant in the firm had no authority to give the undertaking and that the matter was not a fit and proper case for summary enforcement as there were issues which should go for trial.

Holding :

Held, allowing the application: (1) in the instant case, D knew the nature and effect of their undertaking and knew exactly what was required of them thereunder. On the facts, the learned judge found that D had made a clear undertaking which was unqualified and unequivocal; (2) the undertaking was necessary to ensure the completion of the documentation and registration of the charge which was being undertaken by D as solicitors for BBMB. As such the undertaking given by the legal assistant in the firm to P's solicitors was within the ordinary course of a solicitor's business. The learned judge, accordingly, held that the legal assistant had the authority to give the undertaking; (3) the instant case was an appropriate case for which summary jurisdiction could be exercised. As was found by the learned judge on the evidence, the undertaking was clear, unqualified and unequivocal, that it was clearly within the ordinary course of a solicitor's business and that the legal assistant had the ostensible authority to give the undertaking. As the case against D had been clearly established, the learned judge allowed P's application to enforce the undertaking.

Digest :

Tunku Ismail bin Tunky MD Jewa & Anor v Tetuan Hisham, Sobri & Kader [1989] 2 MLJ 489 High Court, Penang (Wan Adnan J).

1568 Liability as officer of court -- Contempt of court

9 [1568] LEGAL PROFESSION Liability as officer of court Contempt of court Contempt of court Counsel applied to court for discharge when clients failed to pay fees Whether counsel's refusal to continue with case amounted to contempt.

Summary :

The appellant, an advocate and solicitor, was convicted for contempt in the face of the court by a district court under s 8 of the Subordinate Courts Act (Cap 321, 1985 Ed) and sentenced to a fine of S$500. The facts were briefly as follows. The appellant had agreed to represent two persons who were charged with an offence under the Women's Charter before a district court. The oral contract was for payment of a retainer by each client which was to be paid before the trial commenced and a refresher for each day or part thereof after the first day. The trial commenced on 3 March 1983. Only part of the agreed retainer had been paid by his clients despite repeated promises. The appellant subsequently applied for a week's adjournment or alternatively for a discharge. The appellant informed the court that his clients had failed to give him instructions since the last hearing and had failed to pay the agreed fees despite repeated promises to do so. The trial judge refused his application and found him in contempt of court and asked him to show cause. The appellant reiterated his grounds for applying for his discharge and apologised to the court. The question before the present court was whether the appellant's conduct or act could properly be regarded as a contempt of court.

Holding :

Held, allowing the appeal: (1) the appellant's conduct did not go so far beyond the limits of non-cooperation or refusal to comply with the court's direction or discourtesy as to harden into contempt of court; (2) having regard to all the circumstances of the case, the power of summary punishment given to the judge under s 8 of the Subordinate Courts Act (Cap 321, 1985 Ed) should not have been exercised when the appellant apologised for his conduct.

Digest :

Ram Goswami v Public Prosecutor [1985] 1 MLJ 113 High Court, Singapore (Wee Chong Jin CJ).

1569 Liability as officer of court -- Contempt of court

9 [1569] LEGAL PROFESSION Liability as officer of court Contempt of court Contempt of court Exchange of words between advocate and President of Sessions Court President exercising powers of summary punishment Principles of showing cause Rules of natural justice Imprisonment order invalid.

Summary :

The advocate and solicitor in this case was defending an accused person charged with an offence under the Corrosive and Explosive Substances and Offensive Weapons Ordinance, 1958 (Ord 43/1958). The record of the proceedings before the President of the Sessions Court showed that the advocate was 'shouting and behaving in a manner which is most unexpected'. The advocate made an application for the case to be heard before another president. The advocate said that if this application was not granted he would apply to be discharged from further acting for the accused. The president then allowed the application for the discharge of the advocate. The advocate then made the following remarks in court: 'If you say this (referring to the President's ruling), outside the court, I will take on (sic) you certainly'. The President of the Sessions Court then ruled that the advocate had committed contempt of court and committed the advocate to two days imprisonment. On exercise of criminal revision;

Holding :

Held: (1) there is no doubt that the words uttered by the advocate constituted insulting and contumacious behaviour in outrageous and provocative language tantamount to a deliberate challenge to the authority of the learned president and was clearly a gross contempt in the face of the court; (2) the power given to sessions and magistrate's courts to take cognizance of any contempt of court and award punishment therefor in para 26 of the Third Schedule to the Subordinate Courts Act 1948 (Act 92) is to be exercised in such extent and in such manner as may be prescribed by Rules of Court. There are rules of court in this context which statutorily embodies and enacts the principles of showing cause; (3) the learned president, perhaps understandably acting in the heat of the moment immediately committed the advocate to imprisonment for two days, without distinctly stating the specific offences charged against the advocate and without giving him an opportunity of answering the charge. This was in breach of the rules of natural justice and in utter disregard of O XXXVIII r 1 of the Subordinate Courts Rule, 1950 or at least the principle underlining it. The order of committal was therefore unsustainable in law and invalid. Per Abdoolcader J: '... it is the duty of counsel appearing before them (presidents and magistrates) to act fearlessly and with all the force and vigour at their disposal in the interest of the cause they represent but wholly within the bounds of propriety and courtesy in the discharge of their duties as officers of the court. Counsel appearing before these courts must equally remember that in the discharge of their duties they must judiciously use the right and privilege of appearing as such in these courts and not abuse it, and that their conduct must at all times accord with that decorum and dignity....'

Digest :

Re Kumaraendran, an Advocate & Solicitor [1975] 2 MLJ 45 High Court, Ipoh (Abdoolcader J).

1570 Liability as officer of court -- Contempt of court

9 [1570] LEGAL PROFESSION Liability as officer of court Contempt of court Counsel Concealment of document Contempt of court Summary punishment.

Summary :

In this case the appellant, an advocate and solicitor was charged and committed for contempt and sentenced to three days' imprisonment by the learned judge. The charge arose out of an alleged breach of duty as counsel in a civil case, the allegation being that the appellant concealed a document as to affect the credibility of a witness in a civil suit. The appellant appealed.

Holding :

Held: (1) it is clear that the learned judge was misled on an important matter, that is the concealment of a document so as to affect the credibility of the witness even though it did not directly relate to the issue in the action; (2) the learned judge was right in this case to find the appellant guilty but the penalty imposed was rather harsh in the circumstances and should be varied to a fine of RM1000 or three months' imprisonment in default of payment. Semble: it is very important for a counsel to remember that whatever may be his duty to his client his duty to the court remains paramount in the administration of justice.

Digest :

Cheah Cheng Hoc v Public Prosecutor [1986] 1 MLJ 299 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ, Wan Suleiman and Syed Agil Barakbah SCJJ).

1571 Liability as officer of court -- Contempt of court

9 [1571] LEGAL PROFESSION Liability as officer of court Contempt of court Counsel holding watching brief Contempt of court.

Summary :

In this case the magistrate at Seremban was holding an inquest. The respondent Mr Seeralan, a member of the Bar was in court holding a watching brief. In the course of the proceedings the respondent became emotional and made several allegations of bias against the magistrate. The magistrate ordered the respondent to leave the court but the respondent refused to comply. He continued to make allegations of bias against the Bench saying the Bench was unfair and prejudiced. The magistrate eventually, after an adjournment, invoked para 26 of the Third Schedule of the Subordinate Courts Act 1948 (Act 92) took cognizance of the contempt committed by the respondent and required him to show cause why he should not be punished. The respondent denied the charge and claimed to be tried before another magistrate. The magistrate then fined him RM150 or in default one week's imprisonment. The next day the High Court exercising its powers of revision reversed and set aside the magistrate's order. The revisionary proceedings were held in the chambers of the judge in the presence of the magistrate and counsel for the respondent. The public prosecutor subsequently referred three questions of law to the Supreme Court. These were (1) whether or not in law criminal contempt has been committed in the face of the court by the respondent by accusing the presiding magistrate in Port Dickson Magistrate's Court Inquest No 47/1984 of being biased, unfair and prejudiced and by refusing to leave the court when ordered to do so by the learned magistrate; (2) if the answer to question (1) is in the affirmative, then whether it is right in law for the learned magistrate in the circumstances of this case to exercise his power of punishment for contempt of court summarily; (3) of the answer to question (2) is in the affirmative, then whether it is right in law for the learned judge to set aside the order of the learned magistrate committing the respondent for contempt of court in chambers without giving due notice or the right to be heard to the public prosecutor?

Holding :

Held: (1) the record clearly revealed the uncompromising attitude of the respondent and his unabashed arrogance and insolence towards the magistrate. His continued accusations that the court was biased, unfair and prejudiced clearly amounted to a contempt of court. Such conduct and behaviour were not just disorderly acts nor a mere use of unbecoming language. They constituted a contempt of court of a serious kind, without any mitigating factor; (2) in this case, the record clearly showed that the elements of contempt were fully set out and the respondent was asked to show cause. There was therefore no failure of the court to give the respondent an opportunity to be heard before he was punished; (3) in the circumstances, the order of the learned judge of the High Court should be quashed and the order of the learned magistrate restored.

Digest :

Public Prosecutor v Seeralan [1985] 2 MLJ 30 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

1572 Liability as officer of court -- Contempt of court

9 [1572] LEGAL PROFESSION Liability as officer of court Contempt of court Criticism of court judgment Advocate and solicitor charged with contempt of court Principles applied by court.

Summary :

In this case the application was for an order that the respondent be committed to prison for contempt of court. The respondent had acted for the plaintiffs in an application for declaratory orders and other reliefs against certain defendants. The application had been allowed in the High Court but on appeal the appeal was allowed ([1986] 2 MLJ 193). The respondent subsequently wrote letters to three Supreme Court judges involved in the appeal and to the solicitors of the appellants in the appeal. The letters were highly derisive of the Supreme Court. The respondent not only criticised the judgment of the Supreme Court but alleged that the decision of the court was unjust and biased.

Holding :

Held: (1) whether a criticism of a judgment is within the limits of reasonable courtesy and good faith must depend on the facts of each particular case. In determining the limit of reasonable courtesy the court should not however lose sight of local conditions; (2) the issue to be determined in this case is not whether criticisms of the court's judgment are well-founded but whether, having regard to all the circumstances of the case the criticisms levelled by the respondent at the Supreme Court are within the limits of reasonable courtesy and good faith; (3) in this case on the evidence, the respondent has gone outside the two limits. The blatant accusations and insinuations made by the respondent are clearly intended to bring the court into disrepute and as such constitute the offence of scandalising the court. On the facts also the respondent was not within the limit of good faith, as here the personal interest of the respondent is overwhelming. Semble: the Supreme Court was given birth only on 1 January 1985, and its sensitivity need not be the same as courts of similar jurisdiction in England or other countries. Having regard to local conditions, criticisms which are considered as within the limit of reasonable courtesy elsewhere are not necessarily so here. For the present, except possibly and we say this with great reservation for the limited purpose of proving it in actual court proceedings, any allegation of injustice or bias however couched in respectful words and even if expressed in temperate language, cannot be tolerated particularly when such allegations are made for the purpose of influencing or exerting pressure upon the court in the exercise of its judicial functions.

Digest :

Attorney General & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 206 Supreme Court, Kuala Lumpur (Mohamed Azmi, Syed Agil Barakbah and Wan Hamzah SCJJ).

1573 Liability as officer of court -- Contempt of court

9 [1573] LEGAL PROFESSION Liability as officer of court Contempt of court Deception of court Solicitors committing grave and abominable acts of contempt against court Deceiving the court Punishment RHC 1980, O 52 r 1.

Summary :

An advocate and solicitor who becomes party to a fraud and conducts his case so as intentionally to deceive the court acts in contempt in the face of the court. In this case on the facts the three defendants had committed a grave and abominable act of contempt against the courts as they had made the courts the subject of their deception and mischief and they should be punished for it. The defendants must be committed to prison for a period of two years.

Digest :

Tara Rajaratnam v Datuk Jagindar Singh & Ors [1983] 2 MLJ 127 High Court, Johore Bahru (Abdul Razak J).

See LEGAL PROFESSION, Vol 9, para 1785.

1574 Liability as officer of court -- Contempt of court

9 [1574] LEGAL PROFESSION Liability as officer of court Contempt of court Failure to appear at hearing Considerations for contempt Continuing delay in face of massive backlog Justice denied Counsel withdrawing from a case is not immune from the laws of contempt Conflict of fact and other considerations No order made

Summary :

The appellant signed a notice of appeal against his conviction of an offence and the sentence ordered. The notice of appeal also had a signature in the name of a firm of solicitors expressing themselves to be the appellant's counsel and its address. The appeal was set down for hearing on 29 September 1992. A letter dated 1 September 1992 gave notice of this hearing to the parties. On the day of the hearing, the appellant and his counsel were absent. Because the notice was considered by the court to be somewhat short, the hearing was therefore adjourned to 27 October 1992. On 22 October 1992, counsel for the appellant informed the court that the appellant had decided to engage a new lawyer to conduct his appeal and they were therefore no longer representing the appellant and requested to be excused from attending the hearing on 27 October 1992. The court then informed the solicitor's office that counsel was required to appear in court on that day. However, again, both the appellant and his counsel were absent. The hearing was then again adjourned to 14 November 1992 at which counsel for the appellant appeared and intimated that no disrespect to the court was at any time intended and apologized for any inconvenience caused. The issue before the court was whether the failure of counsel and the appellant to appear before the court on 27 October 1992 constituted a contempt of court.

Holding :

Held, making no order of contempt: (1) there was a question here of continuing delay in the face of a massive backlog of cases resulting in justice being denied; (2) the court was not prepared to dismiss the appeal in default of appearance but concerned to ascertain who was responsible for the default and deal with that person accordingly; (3) the court has no power to compel counsel to continue with a case if counsel does not wish to do so. However, this does not mean that counsel withdrawing from a case is immune from the laws of contempt and cannot be guilty of the same; (4) inasmuch as neither did so and their failure resulted in the hearing having to be adjourned, the course of justice relative to this case itself and its overall administration was affected and therefore a prima facie case of contempt of court had been made out; (5) the solicitors having by the notice of appeal placed themselves on the court record as representing the appellant and having provided therein an address for service common to both the appellant and themselves had a duty in their dual capacity as advocates and solicitors to ensure that the appellant attended by counsel appeared before the court on the day and at the time appointed for the hearing of the appeal;in showing cause why an order of contempt of court should not be made, there was a conflict of fact as the appellant had claimed that it was not he who terminated the services of the counsel but counsel who did not wish to act for him. As either version could be true, and contempt proceedings are penal in nature, the benefit of the doubt was given to both the appellant and counsel and no order was made. The court also considered that both meant no disrespect and had apologized to the court and this was the first time that such circumstances were being considered as constituting a contempt of court.

Digest :

Lai Cheng Chong v Public Prosecutor [1993] 3 MLJ 147 High Court, Muar (Richard Talalla J).

1575 Liability as officer of court -- Contempt of court

9 [1575] LEGAL PROFESSION Liability as officer of court Contempt of court Solicitor Change of New solicitor undertaking to pay former solicitors' bill of costs Breach of undertaking Professional misconduct Contempt of court Application to suspend Ordinance No 101 (Courts), s 91(2)(b).

Summary :

Breach of undertaking to fellow solicitor amounts to contempt of court.

Digest :

Re A Solicitor [1932] MLJ 177 High Court, Straits Settlements (Murison CJ).

See LEGAL PROFESSION, Vol 9, para 1607.

1576 Liability as officer of court -- Contempt of court

9 [1576] LEGAL PROFESSION Liability as officer of court Contempt of court To inform client of court order Parties continued to deal with one another notwithstanding court order Breach of court order Knowledge of solicitor imputed to client

Summary :

The first defendant ('D1') entered into a joint-venture agreement ('the agreement') with a third party ('Tan'), whereby D1 agreed to purchase and Tan agreed to sell some land in Penang ('the land') for the construction of dwelling houses. Clause 22 of the agreement provided that 'this agreement shall be binding on the heirs, personal representatives, successors-in-title and assigns of the respective parties hereto'. It was contended that there were two implied terms of the agreement, that: (i) D1 would carry out his work in a proper and workmanlike manner using materials of good quality and reasonably fit for their purpose; and (ii) Tan relied on the skill and judgment of D1 as a building contractor and upon his financial ability to carry out the works. Fifteen months after the agreement was entered into, Tan sold the land to the plaintiff, his (Tan's) family company, subject to the rights and obligations under the agreement and D1 consented to the sale, on condition that all the rights and obligations of the parties under the agreement were to be assumed by the plaintiff and D1. Subsequently, D1 purported to assign ('the assignment') all his rights, title and interest under the agreement to the second defendant ('D2'), which was D1's family company. However, the plaintiff challenged the validity of the assignment and refused to have any dealings with D2, alleging that the relationship between the plaintiff and D2 had never been amicable and that the plaintiff had no confidence in D2 as a building contractor. D1 had begun the construction work, but was unable to complete it, and the plaintiff alleged that: (i) under the agreement, D1 was liable to pay compensation at the rate of RM10 per day in respect of each of 15 uncompleted houses from January 1979; (ii) the construction work carried out by D1 was seriously defective and, as D1 had not carried out the required remedial works, he was in breach of contract; (iii) D1 did not have the financial ability to carry out his obligations under the agreement which was, in consequence, frustrated; (iv) the purported assignment was not valid, and even if it was valid in law, it had been lawfully rescinded by the plaintiff, and D2 was thus liable to the plaintiff; and (v) it had lost the benefit of the agreement, ie the profits it would have received from the rental or sale of the houses. The plaintiff claimed: (a) a declaration that, on its true construction, the agreement was rescinded; (b) a declaration that, on the true construction of the agreement, D1 was not entitled to assign his right, title or interest under the agreement to D2 without the plaintiff's consent; and (c) damages, interest, and costs. D1's defences were that: (a) the plaintiff had failed to give vacant possession of the whole of the land until 3 April 1981, with the result that the 18-month construction period was to run from that date; (b) the dispute had been compromised by a settlement agreement ('the settlement agreement') on terms that, on payment of RM250,000, the plaintiff had agreed to discharge D1 of all liabilities existing prior to 20 July 1982, the time for completion would be extended by two years from that date, and the suit herein discontinued; (c) the plaintiff had no reasonable cause to terminate the agreement or, alternatively, the plaintiff was estopped by its conduct in entering into the settlement agreement and had thereby waived any alleged breach of the agreement by D1; and (d) the assignment to D2 was valid, and thus the plaintiff had no cause of action against him. Alternatively, D1 said that the assignment was null, void and of no effect for total failure of consideration and had been rescinded. Two months after the settlement agreement was entered into, the receivers and managers of D2 obtained a court order ('the court order') whereby D2 was authorized to continue with the construction work. By his counterclaim, D1 claimed: (a) damages for the lost chance of deriving a profit from the construction of the project, together with other damages, interest and costs; and (b) specific performance of the agreement. In its defence, D2: (a) denied the alleged implied terms in the agreement; (b) contended that the assignment by D1 was valid and that the plaintiff had been informed of it but had wrongfully prevented D2 from continuing with the construction work; (c) said that the plaintiff had failed to deliver vacant possession of the land in accordance with the agreement; (d) denied the plaintiff's allegations about lack of confidence and asserted that, as from January 1979, it had assumed all responsibilities for the project without objection from the plaintiff; and (e) said that the plaintiff had been aware that, as D2 was D1's family company, it was D2 which would be carrying out the building scheme under the agreement. D2 alleged that it had substantially performed its obligations and counterclaimed for specific performance of the agreement; an injunction restraining the plaintiff from preventing or interfering with the construction works; damages; interest; and costs. In the action between the plaintiff and D2, the key issues before the court were: (a) whether the assignment from D1 to D2 was valid; and (b) if so, whether it was the plaintiff or D2 who was in breach of the agreement.

Holding :

Held, dismissing both the plaintiff's claim and D1's counterclaim and allowing D2's counterclaim: (1) it was obviously the intention of the parties, judged purely from the words appearing in cl 22, that both the parties to the agreement were to be at liberty to assign their right, title and interest under it without the need for consent by the other party. As the words of cl 22 were unmistakably clear and unambiguous, any attempt to introduce extrinsic or oral evidence in contradiction of cl 22 would be inadmissible under ss 91 and 92 of the Evidence Act 1950 (Act 56). Therefore, the testimony of the solicitor who prepared the joint-venture agreement, as to the interpretation of cl 22, must be disregarded; (2) on the evidence, it was clear that Tan knew D1's modus operandi when entering into joint-venture agreements was to engage D2 to carry out the construction works and to raise the necessary finance. Furthermore, the parties' conduct following execution of the agreement reinforced the view that it was their intention that their right, title and interest thereunder were to be freely assignable; (3) even if, upon a proper construction of the agreement, the parties were not at liberty to assign their rights thereunder without the express consent of the other party, by their conduct, Tan, and therefore the plaintiff, had waived the condition against assignment or, alternatively, by their conduct, had acquiesced to D2 stepping into D1's shoes; (4) the assignment was made for valuable consideration as the receipts for the consideration which had been paid to D1 in respect of the assignment were signed by D1's attorney ('DW2'), under a general power of attorney which had not been effectively revoked. By virtue of cl 26 of the power of attorney, consistent with s 161 of the Contracts Act 1950 (Act 136), for the notice of revocation to be effective, it has to be received by DW2. As DW2 had not received the notice of revocation, he was authorized to sign the receipts on behalf of D1 and D1 had no right to rescind the assignment; (5) although the plaintiff attempted to allege fraud, misrepresentation and manipulation of accounts against D2 by way of cross-examination of DW2, neither fraud nor misrepresentation had ever been alleged by the plaintiff in their pleadings. It is settled law that where it is sought to rely upon a plea based thereon, the allegations relating thereto must be pleaded and particularized, in which case, the onus lies upon the party making the allegations to prove the same beyond reasonable doubt. Therefore, the allegations made by way of cross-examination by counsel for the plaintiff should be dismissed; (6) the settlement agreement had been overridden by the court order whereby D2 had been authorized to carry on the construction work. As an officer of the court, D1's counsel (who was also the

Digest :

Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3 MLJ 633 High Court, Penang (Edgar Joseph Jr SCJ).

1577 Liability as officer of court -- Contempt of court

9 [1577] LEGAL PROFESSION Liability as officer of court Contempt of court When magistrate's summary power may be invoked Control of practitioners Advocates & Solicitors Ordinance 1947, s 27.

Summary :

This was an appeal by an advocate and solicitor against summary conviction and sentence of two weeks' imprisonment. The facts disclosed in the record were that there was a heated argument between the magistrate and the appellant who was appearing on behalf of a defendant in a case concerning impersonation. The learned magistrate adjourned into chambers for 15 minutes and after considering the matter returned to the Bench and decided to deal with the appellant summarily.

Holding :

Held: (1) a magistrate's summary power to proceed of his own motion must never be invoked unless the ends of justice really required such drastic means. The magistrate should not be both the prosecutor and the judge; (2) in this case the learned magistrate should have adjourned the matter and reported it to the local Bar Committee.

Digest :

Karam Singh v Public Prosecutor [1975] 1 MLJ 229 High Court, Kedah (Raja Azlan Shah FJ).

1578 Liability as officer of court -- Contempt of court

9 [1578] LEGAL PROFESSION Liability as officer of court Contempt of court Where application for committal to be made Legal profession Advocate and solicitor Application for order of committal for contempt of court against applicant dismissed.

Summary :

Where an alleged contempt of court occurred before the High Court at Alor Star on the part of an advocate and solicitor who is alleged, inter alia, to have falsely represented that he was holding a watching brief, the application for committal must be made there.

Digest :

Karam Singh Veriah v Karpal Singh [1988] 2 MLJ 603 High Court, Kuala Lumpur (Harun J).

1579 Liability as officer of court -- Contempt of court

9 [1579] LEGAL PROFESSION Liability as officer of court Contempt of court Whether power exercisable by magistrate Counsel holding watching brief Contempt of court.

Summary :

The learned magistrate in this case had a choice of either proceeding under para 26 of the Third Schedule of the Subordinate Courts Act 1948 (Act 92) or of authorising a prosecution. The absence of a provision in the Subordinate Court Rules regarding the exercise of the power by the magistrate does not mean that the power cannot be exercised. The magistrate can effectively exercise the power so long as the contemnor is given an opportunity of being heard.

Digest :

Public Prosecutor v Seeralan [1985] 2 MLJ 30 Supreme Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Syed Agil Barakbah SCJJ).

See LEGAL PROFESSION, Vol 9, para 1520.

1580 Liability as officer of court -- Costs

9 [1580] LEGAL PROFESSION Liability as officer of court Costs Costs Bankrupt client Proceedings begun notwithstanding Solicitors personally liable for costs.

Summary :

In the circumstances the costs of the proceedings after the fact of the bankruptcy became known to the solicitors for the appellant, should be borne by the solicitors personally.

Digest :

Amos William Dawe v Development & Commercial Bank (Ltd) Berhad [1981] 1 MLJ 230 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ, Wan Suleiman and Chang Min Tat FJJ).

1581 Liability as officer of court -- Costs

9 [1581] LEGAL PROFESSION Liability as officer of court Costs Personal liability for costs of action Plaintiff a bankrupt when action commenced Action struck off Whether counsel should be personally liable for costs of action Authority to act Whether counsel's lack of knowledge of bankruptcy a defence

Summary :

The first plaintiff was a bankrupt when the proceedings against the defendants were instituted. The action was ordered to be struck out. The second defendant applied for an order that the counsel for the first plaintiff be personally liable for costs of the action on the ground that the first plaintiff was an undischarged bankrupt at the time of the commencement of the action and no sanction had been obtained from the Official Assignee's office as required by s 38(1) of the Bankruptcy Act 1967. As such, the second defendant's counsel argued, the counsel for the first plaintiff has no authority to act on behalf of the first plaintiff and therefore the counsel should be ordered to pay the second defendant's costs personally. The senior assistant registrar (SAR) refused the application. The second defendant appealed. On appeal, counsel for the first plaintiff raised two procedural objections -- the second defendant did not pray for such an order in his application; and no notice to show cause was ever given to him. Further, he stated that he was not aware of the fact that the first plaintiff was a bankrupt when he took out the originating summons, and for that reason he said he should not be penalised.

Holding :

Held, allowing the appeal: (1) no prayer for the relief of cost could be made against counsel for the first plaintiff as he was not party to the action; (2) however, the party concerned might apply for a cost order against the counsel personally at the close of the proceedings and the court might then ask the counsel to show cause why such an order should not be made against him, provided he had due notice of what the claim against him was and had sufficient opportunity to meet the claim in any way that was reasonably necessary; (3) that jurisdiction of the court was exercisable summarily upon application by originating summons or motion, or at the hearing of the proceedings; (4) here, the record of proceedings before the SAR showed that the second defendant had applied for a cost order against the counsel for the first plaintiff personally and the trial judge had heard arguments of both parties on the application. Further, the counsel had been asked why costs should not be ordered against him in the present appeal. Therefore, he had sufficient notice of the application and had sufficient opportunity to put up his case why such order should not be made against him; (5) the counsel had taken on himself to act on behalf of the first plaintiff and had impliedly warranted that he had the authority to act on behalf of the first plaintiff. A solicitor who entered an appearance warranted that he had authority from his client to enter the appearance; (6) as it turned out that the first plaintiff was a bankrupt when the action was commenced against the second defendant, counsel for the first plaintiff had breached his warranty of authority and he should be personally liable for all the costs thrown away.

Digest :

Mohd Yusof bin Awang & Anor v Malayan Banking Bhd & Anor Originating Summons No 24-128-1992 High Court, Kuantan (Arifin Zakaria J).

1582 Liability as officer of court -- Costs

9 [1582] LEGAL PROFESSION Liability as officer of court Costs Professional conduct Dereliction of duty Personal liability to costs.

Summary :

In this case, the learned judge had struck out a civil suit against the appellant and another ([1987] 1 MLJ 82). The appellant applied for costs to be borne personally by counsel for the plaintiff. The learned judge declined to make the order. The appellant appealed.

Holding :

Held: (1) an advocate and solicitor is an officer of the court and his professional conduct is always under the supervision and scrutiny of the court. It follows that when there is dereliction of duty on the part of an advocate and solicitor in the conduct of his professional work the court may, in a proper case, order him to be personally liable for the costs of the proceedings after giving him an opportunity to defend himself; (2) in this case, having come to a conclusion that the civil suit filed by the plaintiff was 'conspicuously unmaintainable' and having rejected the explanation given by the advocate and solicitor for the plaintiff, the learned judge ought to have exercised his discretion and ordered that the costs of the proceedings be paid by the lawyer personally.

Digest :

Karpal Singh v Atip bin Ali [1987] 1 MLJ 291 Supreme Court, Kuala Lumpur (Seah Hashim Yeop A Sani and Wan Hamzah SCJJ).

1583 Liability as officer of court -- Delivery up of client's papers

9 [1583] LEGAL PROFESSION Liability as officer of court Delivery up of client's papers Dispute between solicitors Defendants withholding documents Whether reasonable Order for delivery.

Summary :

The plaintiff applied for an order for the delivery of certain documents (land titles and transfers) by the defendants. He deposed that at all times since June 1977 he had been the partner of the defendants holding 70% shares of the partnership of Zuki Gandhi & Amin, Temerloh & Mentakab offices. When he returned from holidays abroad in September 1982, he was denied entry to the two offices and the defendants took possession of every article therein, including personal articles. He also deposed that they took possession of land Grant No 5191 for land which he personally purchased. Just before leaving for his holidays, the plaintiff had in turn sold this piece of land to certain purchasers and a transfer was executed after which he left instructions with his staff to proceed with the necessary acts of transfer. The second defendant took possession of the title and transfers. The defendants also took possession of land title GM 209 for land in respect of which the plaintiff acted as solicitor in its sale and purchase. The defendants opposed the handing over of the documents. They contended that, in respect of Grant No 5191, a probable offence under the Penal Code was alleged to have been committed by the plaintiff when he was a partner of the defendant firm and the relevant documents might be required by the police in their investigation. As regards GM 209, the defendants contended that the plaintiff had no locus standi.

Holding :

Held, allowing the application: (1) on Grant 5191, the reason given by the defendants was untenable and weak. It was not really necessary for the policy to get hold of the original documents for the purpose of their investigation as photostat copies of the documents would have sufficed until the criminal matter is tried in court; (2) on GM 209, by handing over the documents, the position of the defendants would in no way be affected. On the other hand, the unreasonable refusal by the defendants had affected the rights of third parties; (3) in the event, the defendants had acted unreasonably and in bad faith and were directed to hand over all the documents concerned to the plaintiff's solicitor within seven days from service of the order.

Digest :

Roy R Muttiah v Haji Mohamed Zuki & Anor [1985] 1 MLJ 265 High Court, Kuantan (Shaik Daud J).

1584 Liability as officer of court -- Duty to court

9 [1584] LEGAL PROFESSION Liability as officer of court Duty to court Observations on Duties and obligations of an advocate.

Summary :

The guiding principle laid down by judges of great learning and wisdom as to the conduct of an advocate are that while an advocate should be fearless in carrying out the interest of his client, he is, as an officer of the court, under an obligation of frankness and candour founding that confidence reposed by the Bench and the Bar. He is also under obligation to be careful to display accuracy in his presentation of facts and it is his duty to call the attention of the court to any case or statute which is clearly against him. He wields the arms of a warrior and not of the assassin.

Digest :

Shaw & Shaw Ltd v Lim Hock Kim (No 2) [1958] MLJ 129 High Court, Singapore (Whyatt CJ).

1585 Liability as officer of court -- Duty to court

9 [1585] LEGAL PROFESSION Liability as officer of court Duty to court Pleading fraud Solicitor's duty to explain nature of documents to clients Solicitor's conflict of interest Solicitor's duty to inform party to seek independent legal advice Failure of solicitor to provide party with copy of document executed Illiteracy of party.

Summary :

Since fraud is a very serious allegation, solicitors who make such charges in their pleadings do so at their own peril.

Digest :

Abdul Malik bin Abdul Majid v Asnah bte Hamid & Anor; Dagang bin Bachik v Abdul Malik bin Abdul Majid [1985] 2 MLJ 459 High Court, Malacca (Shankar J).

1586 Liability as officer of court -- Jurisdiction to punish

9 [1586] LEGAL PROFESSION Liability as officer of court Jurisdiction to punish

Summary :

The High Court has inherent jurisdiction to punish its officers for misconduct.

Digest :

Ishmahel Laxmana v East India Co; Re Trebeck [1829] 1 Ky 4 High Court, Penang (Claridge R).

See LEGAL PROFESSION, Vol 9, para 1628.

1587 Liability as officer of court -- Jurisdiction to punish

9 [1587] LEGAL PROFESSION Liability as officer of court Jurisdiction to punish Advocates and Solicitors Ordinance (Cap 62) Rules of etiquette What amounts to professional misconduct of solicitor.

Summary :

The jurisdiction of the court to punish an advocate and solicitor does not depend on the existence of a practising certificate.

Digest :

Re S Fung, a Solicitor [1941] MLJ 173 High Court, Straits Settlements (McElwaine CJ, Aitken Ag JA and Manning J).

See LEGAL PROFESSION, Vol 9, para 1619.

1588 Liability as officer of court -- Jurisdiction to punish

9 [1588] LEGAL PROFESSION Liability as officer of court Jurisdiction to punish Duty of counsel to court Right of court to supervise Etiquette Right of court to supervise the conduct of its solicitors Duty of a solicitor to conduct litigation with due propriety.

Summary :

The court has a right and duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally. A solicitor owes a duty to the court to conduct litigation with due propriety and to assist in promoting in his own sphere the cause of justice. If, therefore, a solicitor becomes aware in the course of proceedings that his client is obstructing the interest of justice, it is his duty to advise his client as to the conduct which he ought to follow and if the client still persists in his wrong conduct, he should decline to act for him further.

Digest :

Yee Chang & Co Ltd v NV Koninklijke Peketvaart Maatschappij [1958] MLJ 131 High Court, Singapore (Whyatt CJ).

1589 Liability as officer of court -- Jurisdiction to punish

9 [1589] LEGAL PROFESSION Liability as officer of court Jurisdiction to punish New solicitor undertaking to pay former solicitors' bill of costs Breach of undertaking Professional misconduct Contempt of court Application to suspend Ordinance No 101 (Courts), s 91(2)(b).

Summary :

The personal undertaking of the solicitor is sufficient to enable the court to exercise its summary jurisdiction to compel him to carry out the undertaking.

Digest :

Re A Solicitor [1932] MLJ 177 High Court, Straits Settlements (Murison CJ).

[See legal profession, Vol 9, para 1544.

1590 Liability as officer of court -- When solicitor's undertaking

9 [1590] LEGAL PROFESSION Liability as officer of court When solicitor's undertaking Legal profession Letter written by solicitors on instruction of client Whether letter amounted to a letter of solicitor's undertaking Triable issue.

Summary :

The plaintiff claimed against the first and second defendants for a certain sum of money in respect of goods sold and delivered by the plaintiff to the first defendant. The plaintiff averred that by a letter of undertaking, the second defendant (the first defendant's solicitors) undertook to pay the plaintiff all outstanding sums in the first defendant's account with the plaintiff up to a certain limit. The second defendant, in its defence, contended that it had signed its name in the same letter of undertaking on behalf of its clients, the first defendant, and that the letter was not a letter of guarantee, indemnity or undertaking. The senior assistant registrar dismissed the plaintiff's application to strike out the statements of defence of the second defendant on the grounds that there were triable issues of fact. The plaintiff appealed against the decision of the senior assistant registrar.

Holding :

Held, dismissing the appeal: the letter in question was clearly written by the second defendant as an agent of the first defendant. The undertaking was not given by the solicitor or solicitors personally. Clearly, there are issues to be tried in this case.

Digest :

Syarikat Jengka Sdn Bhd v Tri-Trade Properties (M) Sdn Bhd & Anor [1988] 3 MLJ 163 High Court, Kuala Lumpur (Zakaria Yatim J).

1591 Practice of law -- Application for sijil annual

9 [1591] LEGAL PROFESSION Practice of law Application for sijil annual Advocate and solicitor convicted of criminal offence Whether Bar Council has power to refuse to issue sijil annual Whether power confined to situations set out in s 33 Meaning of 'order of committal' Whether only refers to contempt of court Legal Profession Act 1976, s 33

Summary :

The appellant, an advocate and solicitor of the High Court of Malaya, was convicted of an offence under s 193 of the Penal Code (FMS Cap 45) by the Ipoh Sessions Court on 6 May 1994, for fabrication of evidence that was presented to a court in civil proceedings in which he was a litigant. He appealed against the conviction and was granted a stay of execution of the sentence passed. On 15 September 1994, the appellant applied to the respondent for a sijil annual to enable him to obtain a practising certificate for the year 1995. The respondent refused to issue him a sijil and communicated its decision to the appellant by a letter dated 20 October 1994. The appellant then took out an originating summons for an order directing the respondent to issue him with a sijil annual under the provisions of s 34 of the Legal Profession Act 1976 ('the LPA') but the application was dismissed by the High Court. The appellant then appealed to the Court of Appeal. The respondent relied on s 33(1)(h) of the LPA to justify its refusal to issue the sijil annual on the ground that the appellant had been 'committed' to prison for his offence as he had been sentenced to a term of imprisonment. The issues before the court were: (i) the construction to be placed on s 33(1)(h) of the LPA; and (ii) the respondent's claim to a much wider power to refuse the issuance of sijil annuals generally based upon s 57(c) of the LPA and the case of Yip Shou Shan v Majlis Peguam [1994] 3 MLJ 82.

Holding :

Held, allowing the appeal: (1) when Parliament enacts a law which uses technical legal language, it is taken as using that language in its technical legal sense. Where a contrary intention is intended, there will usually be a specific definition of the term within the Act. Therefore, a court must interpret the terminology in s 33(1)(h) in its legal sense as used and understood in the general law. Also, the principle noscitur a sociis requires that a word or phrase appearing in a statute must fall to be judged by the company in which it is to be found. Therefore, the expression 'order of committal' in s 33(1)(h) takes its colour from the expression 'writ of attachment' to which it is joined by the conjunction 'or'; (2) the expressions 'order of committal' or 'writ of attachment' are, in technical peculiarity, associated with the law of contempt. Therefore, they ought to be read as referring to a situation in which an advocate and solicitor has been punished for committing contempt of court. The respondent's suggestion that the words 'order of committal' should be widely construed so as to include a conviction cuts across well-settled principles of construction and does violence to the language used by Parliament; (3) through s 34 of the LPA, Parliament intended to confer upon a judge of the High Court an original jurisdiction upon the question whether a sijil annual ought to be issued in a particular case. When exercising that original jurisdiction, the judge is not fettered by any prior decision of the respondent. He is entitled to take into account the respondent's reasons but he is not bound by them. He must consider all the material before him and decide whether the particular applicant should have a sijil annual. What is of paramount importance that s 34 provides for a special statutory remedy that is to be granted according to the circumstances of each case; (4) the respondent being a creature of statute only has the powers conferred upon it by the LPA. Its general powers to manage and administer its affairs are found in Pt V, in particular ss 56 and 57, whereas the specific licensing power is found in Pt III, which includes ss 32-34. Where an Act contains a general provision which covers a situation in respect of which a specific provision exists elsewhere in the enactment, the general provision is presumed to give way to the more specific provision following the maxim generalia specialibus non derogant. Therefore, the general words of s 57(c) which seem to support the existence of a power in the respondent to refuse to issue a sijil annual must give way to the specific provisions of s 33; (5) the reference made in Yip Shou Shan[ri] that the respondent has the power to refuse to issue a sijil annual on the grounds of public interest was made only in the context of the inability of an advocate and solicitor to deliver a clean accountant's certificate in respect of his client's account. It was thus apparent that the respondent's claim to a wider power could not succeed; (6) the appellant's accounts were all admittedly in order, yet the respondent refused to issue him with a sijil annual due to his conviction. This had the effect of disciplining him by a body that distinctly lacked that power, and the respondent's refusal had suspended the appellant from practising his profession. The licensing power in ss 32 and 33 was used as a means of disciplining the appellant without having resort to the specific provisions in the LPA for the discipline of advocates and solicitors. As the statutory power was used for a collateral purpose, it was an abuse of power and the decision arrived at was consequently a nullity.

Digest :

DP Vijandran v Majlis Peguam [1995] 3 MLJ 576 Court of Appeal, Kuala Lumpur (Gopal Sri Ram and NH Chan JJCA, Ahmad Fairuz J).

1592 Practice of law -- Application for sijil annual

9 [1592] LEGAL PROFESSION Practice of law Application for sijil annual Compliance with the Legal Profession Act 1976 Whether the Bar Council could exempt plaintiff from strict compliance with rules relating to submission of accounts Legal Profession Act 1976 (Act 166) The Solicitors Account Rules 1990

Summary :

The plaintiff was admitted to the Malaysian Bar in 1987 and had since been practising as an advocate and solicitor in Johor Bahru without interruption. In January 1990, he decided to associate with a lawyer in Kuala Lumpur using the firm name of Zaibuddin Ambak and Associates. In December 1991, the association between them ended and the plaintiff changed his style of practice to JS Pillay & Co. The plaintiff applied to the defendant for the issue of the sijil annual, enclosing his 'own' office accounts in Johor Bahru. There were some queries by the defendant regarding the Kuala Lumpur office of the 'firm'. In response, the plaintiff submitted a statutory declaration and forwarded a redesignated accountant's certificate modifying its title but not the contents, to comply with the formal requirements made by the defendant's secretariat. The defendant wrote to the plaintiff a letter to the effect that the plaintiff's application for the sijil annual could not be considered until he complied with the requirements of the Legal Profession Act 1976 (Act 166) ('the Act') and produced the accountant's certificate of his 'branch office'. The defendant also pointed out to the plaintiff the latter's right to apply to the court under the Act. The plaintiff contended that the defendant did not make appropriate inquiries before withholding or not issuing the sijil annual. He complained that he was never given the opportunity to exculpate himself before being deprived of his livelihood. It was not easily possible for him to produce the accounts of Zaibuddin Ambak who had been suspended from practice. The plaintiff also averred that he had, at all material times, done his best to trace and persuade his colleague to submit the accounts. The plaintiff applied by originating summons to the court praying that the defendant be directed to issue forthwith to the plaintiff a sijil annual for the year 1993. On the same occasion, the defendant applied for the interlocutory injunction obtained by the plaintiff against it to be set aside followed by other consequential reliefs.

Holding :

Held, directing that the injunction be automatically dissolved upon the plaintiff being issued the sijil annual: (1) the court was of the opinion, after studying minutely the Act and The Solicitors Account Rules 1990, that the defendant has wide discretionary power to exempt the plaintiff from strict requirements of the rules relating to submission of accounts; (2) on review of the whole evidence, the court was of the opinion that the defendant was merely relying on 'holding out' as the reason for withdrawal of the sijil annual and did not consider the plaintiff's request with the care it deserved although it involved him being deprived of his livelihood indefinitely, causing him loss of his career. The defendant had all the statutory power which it never exercised to check the plaintiff's accounts at its option even without a complaint; (3) the court's decision was without prejudice to the plaintiff's liability to answer for and satisfy any claim against him on the grounds of holding out as a partner, should a case of that nature arise any time in future; (4) whatever be the technical arguments, the injunction was an equitable remedy and the courts had no hesitation in invoking the remedy even against statutory authorities unless forbidden by legislature. Anyway, the injunction was not a validation of wrongful acts of the plaintiff or anyone but was intended to be an order against the defendant from alleged abuse of power in desperate circumstances claimed by the plaintiff in his ex parte application. Obiter: where a statute provides a full right of appeal to a court, as in this case, vide s 34 of the Act, against an official decision, the court should be able to apply its own view of the merits provided it had due regard to the opinions of the authority which made the first decision. While policy is an important guide, no authority must shut its eyes to the individual applicant. In all cases of depriving a man of his livelihood or in frustrating legitimate expectation, fairness is of paramount importance.

Digest :

Joseph Singaram Pillay v Malaysian Bar [1993] 3 MLJ 257 High Court, Kuala Lumpur (Anuar J).

1593 Practice of law -- Application for sijil annual

9 [1593] LEGAL PROFESSION Practice of law Application for sijil annual Refusal of Bar Council to issue sijil annual Whether High Court has original jurisdiction to decide if sijil annual should be issued Whether High Court bound by decision of Bar Council Legal Profession Act 1976, s 34

Digest :

DP Vijandran v Majlis Peguam [1995] 3 MLJ 576 Court of Appeal, Kuala Lumpur (Gopal Sri Ram and NH Chan JJCA, Ahmad Fairuz J).

See LEGAL PROFESSION, para 1540.

1594 Practice of law -- Application for sijil annual

9 [1594] LEGAL PROFESSION Practice of law Application for sijil annual Rejection of application Lawyer convicted of criminal offence Conviction pending appeal Requirements of s 32 of the Legal Profession Act 1976 fulfilled Whether Bar Council had discretion to refuse application Legal Profession Act 1976, ss 32 & 88A

Summary :

The plaintiff was a senior lawyer who had been convicted for a criminal offence. In October 1994, he made an application to the Bar Council for a sijil annual ('SA') for 1995, but his application was refused under s 88A of the Legal Profession Act 1976 ('the Act'). The Bar Council alleged that the issuance of the SA was not a rubber-stamping process, and in the exercise of its dicretionary power under s 32 of the Act, the Bar Council took the view that the plaintiff's conviction had rendered him unfit and improper to practise as an advocate and solicitor. In order to protect public interest and the interests of the legal profession, the Bar Council had decided not to issue the SA to the plaintiff. It was not disputed that the plaintiff had not disclosed his conviction in the application form for the SA ('the form') which was prescribed by the Advocates and Solicitors (Issue of Sijil Annual) Rules 1978 ('the Rules'). The plaintiff applied to the High Court for an order to direct the Bar Council to issue him with the SA on the grounds, inter alia, that: (i) it was mandatory for the Bar Council to issue him the SA, as he had already complied with all the requirements under s 32 of the Act; and (ii) there was no rule to say that upon a conviction which is pending appeal, the Bar Council could refuse to issue the SA under s 88A of the Act.

Holding :

Held, allowing the application: (1) the plaintiff's failure to disclose his conviction in the form could amount to non-compliance with the Rules and constitute sufficient grounds for the Bar Council to refuse the plaintiff's application under s 32. However, the form currently used by the Bar Council was different from the form prescribed in the Schedule to the Rules. The declaration that an applicant had not been convicted of a criminal offence did not appear in the prescribed form and an applicant could ignore any part of the form which in substance was different from the prescribed form. Therefore, the plaintiff's failure to declare his conviction could not be a valid premise for the Bar Council to reject the plaintiff's application; (2) the plaintiff's conviction could well be within the term 'misconduct' within the meaning of s 94(2) of the Act, for which the disciplinary board had the power to strike off the roll or suspend the plaintiff from practice. However, it was for the disciplinary board to decide whether to take disciplinary action against the plaintiff. By refusing to issue the SA to the plaintiff on the ground of his conviction for a criminal offence, the Bar Council had usurped the power which was expressly conferred upon the disciplinary board by the Act; (3) under s 88A, the power to suspend an advocate and solicitor lies with the Chief Judge on the application of the Bar Council. However, thus far, the Bar Council had not taken any step in making such an application. Therefore, it could not rely on s 88A to support its case; (4) (obiter) if the Bar Council was desirous of inserting the declaration of non-conviction in the form, it should first amend the prescribed form and include therein the said declaration.

Digest :

Dato' Mahindar Singh s/o Harcharan Singh v Majlis Peguam [1995] 2 MLJ 309 High Court, Kuantan (Arifin Zakaria J).

1595 Practice of law -- Application for sijil annual

9 [1595] LEGAL PROFESSION Practice of law Application for sijil annual Rejection of application Whether Bar Council under peremptory duty to issue certificate once conditions of s 32(1) are fulfilled Refusal to issue because of criminal conviction Whether conviction fell within s 33(1)(h) Whether notification to plaintiff to apply to court under s 34 establishes refusal, neglect or delay by Bar Council in issuing certificate Legal Profession Act 1976, ss 32(1), 33(1)(h) & 34

Summary :

The Bar Council had refused the plaintiff's application for a sijil annual ('the sijil') for 1995 under s 32 of the Legal Profession Act 1976 ('the Act') as the plaintiff had been convicted of a charge under s 193 of the Penal Code (FMS Cap 45). The Bar Council contended that the plaintiff's conviction came under s 33(1)(h) of the Act, ie that an order of commital had been made against him and that s 32 gave it a discretion whether or not to issue the sijil. The plaintiff applied to the High Court under s 34 of the Act for an order directing the Bar Council to issue him with the sijil on the grounds, inter alia, that: (i) the Bar Council was under a peremptory duty to issue the sijil once the plaintiff had satisfied all the requirements of s 32; (ii) the plaintiff's conviction did not fall within any of the categories mentioned in s 33(1) as the 'order of commital' under s 33(1)(h) was a term used in civil procedure; and (iii) the notification by the Bar Council of its decision not to issue the sijil to the plaintiff and informing him to make an application to court under s 34 of the Act showed a refusal, neglect or delay by the Bar Council in issuing the sijil.

Holding :

Held, dismissing the application with costs: (1) s 32(1)(a) is 'subject to' ss 33 and 34, which means that the scope, application, operation, effect or implication of s 32(1)(a) is bound, restricted or limited by the provisions of ss 33 and 34 so that when the provisions of ss 33 and 34 are invoked, they will prevail while the provisions in s 32(1)(a) will then play a secondary role; (2) s 32(1)(a) of the Act does not render the Bar Council's function in relation to the issue of the sijil a purely mechanical function. In performing its function under s 32(1)(a), the Bar Council must at all times consider the overriding question as to whether the peculiar facts and circumstances of each particular application call for the application of ss 33 and 34. The plantiff was not entitled as of right to the issue to him of the sijil, either under s 32 or under s 33 because there was no rubber-stamping role imposed on the Bar Council; (3) by virtue of s 33(2), the Bar Council had the discretion either to issue the sijil or notify the plaintiff that he was required to make an application under s 34. There was no evidence that the Bar Council's exercise of discretion was wrong in law or in fact. On the contrary, the court was of the view that it was correctly exercised; (4) the expression 'order of committal' in s 33(1)(h) not only means but also includes an order of conviction which is not merely confined to a conviction for contempt of court. Therefore, it includes the plaintiff's conviction which remained legally binding; (5) it was clear that the plaintiff was invoking the second limb of s 34(1) as an advocate and solicitor who was dissatisfied with the 'refusal, neglect or delay' in the issue to him of the sijil. However, the Bar Council's notification did not constitute any 'refusal, neglect or delay' because, first, a refusal under s 34(1) of the Act could only arise if there was a duty to issue the sijil and the Bar Council, in declining to do so, had breached that duty. Secondly, to 'neglect' in the context of s 34(1) of the Act connotes a wrongful act arising out of a failure to exercise reasonable care in the performance of a duty, as opposed to the exercise of a discretion. Where, as in this case, a discretion is conferred upon the Bar Council, then the choice of the two alternatives provided in s 33(2) does not constitute a 'neglect' under s 34(1). Thirdly, the ordinary meaning of 'delay' is the 'putting off' or 'the deferring' which connotes postponement of the performance of some act or step beyond the time when the act or step should have been performed. The Bar Council had not occasioned any delay because s 33 of the Act does not prescribe any time frame.

Digest :

DP Vijandran v Majlis Peguam [1995] 2 MLJ 391 High Court, Kuala Lumpur (Low Hop Bing JC).

1596 Practice of law -- Chambering pupil

9 [1596] LEGAL PROFESSION Practice of law Chambering pupil Extent of appearance in court after expiration of first three months of pupillage Legal Profession Act 1976 (Act 166), s 36(2)(b)

Summary :

In the instant application, the Bar Council seeks the determination of the construction of s 36(2)(b) of the Legal Profession Act 1976 (Act 166), namely whether a chambering pupil at the expiration of the first three months of his pupillage is only entitled to (a) appear in chambers whether it is before a judge or registrar of the High Court, President of the Sessions Court or magistrate in order to conduct any cause or matter or (b) appear in chambers before a judge or registrar of the High Court and in open court or chambers when appearing before a President of the Sessions Court or magistrate in order to conduct any cause or matter. Counsel for the Bar Council submitted that s 36(2)(b) can be interpreted to mean that a chambering pupil may appear in open court in the subordinate courts.

Holding :

Held: (1) to interpret s 36(2)(b) to mean that a chambering pupil may appear in open court in the subordinate courts is to render redundant and superfluous the words '... and before any magistrate ...' therein, bearing in mind that the words 'subordinate courts' include both the sessions courts and magistrate courts. A construction which would leave without effect any part of the language of a statute will normally be rejected; (2) the purpose of s 36(2) is to provide a step by step practical training for a chambering pupil. Bearing in mind that Parliament does not legislate in futility and that every word in s 36(2)(b) of the Act should be given effect, the court held that under s 36(2)(b), a chambering pupil may, at the expiration of three months, gain further experience by being allowed to appear and conduct a cause or matter on behalf of his master or of the firm in which his master is practising before a judge or a registrar of the High Court in chambers, before a judge of the sessions court in chambers, and before a magistrate in chambers and in open court; (3) the practice of the sessions court hearing chamber matters in the open court is a matter of convenience. As some sessions court judges' office rooms are too small, it is quite proper for the sessions court judges to hear chamber matters in open court rooms provided that they clear members of the public from these rooms. A chambering pupil under s 36(2)(b) may appear there before any sessions court judge to conduct any cause or matter which is a chamber matter on behalf of his master.

Digest :

Re Bar Council of Malaysia [1989] 3 MLJ 379 High Court, Kuala Lumpur (Eusoff Chin J).

1597 Practice of law -- Chambering pupil

9 [1597] LEGAL PROFESSION Practice of law Chambering pupil Pupil's right to conduct matters on behalf of master Whether pupil can conduct cause or matter in open court in sessions court Legal Profession Act 1976 (Act 166), s 36(2) & (5)

Summary :

A, a pupil master, initially applied to the High Court and obtained an order ('the original order') for his pupil, X, to appear in the High Court and the subordinate courts to conduct matters as provided in s 36(2) of the Legal Profession Act 1976 (Act 166). The Bar Council and the State Bar Committee did not object to the application for the original order. Subsequently, A applied under s 36(5) of the 1976 Act to vary the original order so as to enable X, inter alia, to appear before the sessions court judge in open court at the expiration of three months from the date of the original order to conduct any cause or matter. The Bar Council objected to this application on the ground that any variation of any order under s 36(5) of the 1976 Act cannot go beyond the ambit of s 36(2) of the 1976 Act.

Holding :

Held, dismissing the application: (1) all the enumerated rights of appearance of a pupil under s 36(2) of the 1976 Act had been applied for and obtained by A. There was nothing more the High Court could have added to the original order; (2) a variation of the original order under s 36(5) of the 1976 Act must mean a variation within the ambit of the terms of s 36(2) of the 1976 Act; (3) a judge may not add words that are not in the statute save only by way of necessary implication, nor may he interpret according to his own views as to policy; (4) the words 'as in all the circumstances seems to be in the best interest of the profession' in s 36(5) of the 1976 Act are general words qualifying the High Court's powers to vary the original order in respect only of enumerated rights under s 36(2) of the 1976 Act and cannot create any additional right of appearance. There must be clear and unequivocal conferment of such an additional right.

Digest :

Re A Panjaram [1992] 1 MLJ 467 High Court, Alor Setar (KC Vohrah J).

1598 Practice of law -- Chambering pupil

9 [1598] LEGAL PROFESSION Practice of law Chambering pupil Pupil's right to conduct matters on behalf of master Whether pupil can conduct civil cases for master in open court in sessions court Whether it is in best interest of profession for court to order so Legal Profession Act 1976 (Act 166), s 36(2) & (5)

Summary :

As from 1 January 1991 all civil suits except for small claims would be filed in the sessions courts. The magistrate's courts would thereafter be deciding criminal cases and small civil claims. This was pursuant to an amendment to the Subordinate Courts Rules 1980 and Practice Direction No 4/1990. A was the master of a pupil reading in chambers who had already obtained a court order under s 36(2) of the Legal Profession Act 1976 (Act 166). The court order, inter alia, allowed the pupil to appear for A to conduct any matter in chambers but not in open court in the sessions court. A applied under s 36(5) of the 1976 Act to vary the order so as to enable his pupil to appear in open court in the sessions court. The Bar Council objected to A's application on the ground that since a pupil cannot appear in open court under s 36(2), any variation of the order under s 36(5) must therefore be limited to matters stated in s 36(2).

Holding :

Held, allowing the application: (1) the word 'vary' in s 36(5) of the 1976 Act should be given its ordinary meaning which is to 'change, alter, modify, add to or subtract from'; (2) s 36(5) gives a wide discretion to the High Court to vary an order already made under s 36(2). The only thing the court has to consider is whether in all the circumstances the variation under s 36(5) is 'in the best interest of the profession'; (3) it is in the best interest of the legal profession that chambering pupils must be given the experience of gaining practical knowledge in the conduct of civil cases before being called to the Bar. It is fair and reasonable to order that after the three months of pupillage, the pupil may appear in open court in the sessions court to conduct on his master's behalf civil cases whose value or subject matter does not exceed RM25,000.

Digest :

Re Vazeer Alam Mydin Meera [1991] 3 MLJ 386 High Court, Kuala Lumpur (Eusoff Chin J).

1599 Practice of law -- Interview of opposing party's witness

9 [1599] LEGAL PROFESSION Practice of law Interview of opposing party's witness Whether counsel acted improperly Legal Profession (Practice and Etiquette) Rules 1978

Summary :

Counsel for the defendant had interviewed a key prosecution witness in good faith at a detention centre. There was no objection from the Director of the centre. Counsel was not aware that the person interviewed would be called as a prosecution witness prior to the trial. Held: counsel had acted in the best traditions of the Bar. His actions were perfectly legitimate and came squarely within s 34 of the Legal Profession (Practice and Etiquette) Rules 1978.

Digest :

Public Prosecutor v Mohd Alias bin Mohd Kamis Criminal Trial No 58-2-94 High Court, Taiping (Abdul Malik Ishak JC).

1600 Practice of law -- Liability as partner

9 [1600] LEGAL PROFESSION Practice of law Liability as partner Ostensible authority of partner Solicitor Guarantee given on behalf of firm Whether giving of guarantees within solicitor's ostensible authority

Summary :

In the first case E was a salaried partner of D, a firm of solicitors. He gave an undertaking to P1, a bank, that D would guarantee advances made to a certain client of the firm. This was done without the knowledge of the other partners. In the second case E was also an assistant solicitor employed by D2, another firm of solicitors. E gave a similar undertaking to P2, another bank, that D2 would guarantee a personal loan to a client of the firm. E absconded and the plaintiff banks sought to enforce the guarantees. In the first case the action was dismissed; in the second case the action was allowed. Both appeals were heard jointly by the Court of Appeal.

Holding :

Held, allowing the first appeal and dismissing the second: (1) on the information given to P1 by E, a reasonably careful and competent bank would most probably have concluded that there was an underlying transaction of a kind forming part of a solicitor's business, and thus that the undertaking given by E was an act for the carrying on of such business. Accordingly, the giving of the undertaking by E was within his ostensible authority to act in the ordinary business of the partnership; (2) in the second case E was left in full charge of the office of his employer. E had ostensible authority to give undertakings of a kind which was in the ordinary course of the practice. The undertaking given to P2 was such an undertaking and D2 was accordingly bound by it; (3) as both transactions appeared to the plaintiff banks to be of a kind which was within the ordinary authority of a solicitor, the defendant firms were both held to be bound by the undertakings given by E.

Digest :

United Bank of Kuwait v Hammoud & Ors; City Trust Ltd v Levy [1988] 3 All ER 418 Court of Appeal, England (Lord Donaldson MR, Glidewell and Staughton LJJ).

1601 Practice of law -- Maintenance of a client's account

9 [1601] LEGAL PROFESSION Practice of law Maintenance of a client's account Use of client's money to settle a solicitor's liability to another client Whether client's money lost its identity when it merged with money already in the client account Whether client could be paid with money from any number of client accounts Solicitors' Account Rules 1978, rr 3(2) & 7(a)(i)

See evidence, para IX [82].

Digest :

Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 Court of Appeal, Kuala Lumpur (Shaik Daud, Mahadev Shankar JJCA and Abdul Malek AhmadJ).

1602 Practice of law -- Partnership between solicitors

9 [1602] LEGAL PROFESSION Practice of law Partnership between solicitors Duty of partner

Digest :

Yip Shou Shan v Majlis Peguam [1994] 3 MLJ 82 Supreme Court, Malaysia (Jemuri Serjan CJ (Borneo).

See LEGAL PROFESSION, para 1416.

1603 Practice of law -- Partnerships between solicitors

9 [1603] LEGAL PROFESSION Practice of law Partnerships between solicitors Dissolution, grounds for Grossly improper conduct Partnership Dissolution of 'Grossly improper conduct' in the discharge of his professional duty Allegation of Advocates and Solicitors Ordinance 1947, s 26(2)(b) Contracts (Malay States) Ordinance 1950.

Summary :

The issue raised upon a preliminary question in this case was whether the plaintiffs are entitled to: (a) a declaration that the partnership between the plaintiffs and the defendants constituted by a memorandum of agreement dated 14 December 1966 may be dissolved by the plaintiffs giving to the defendant prior notice in writing of their intention to dissolve it; or (b) alternatively, a declaration that the partnership may be dissolved by the court. It was alleged that the conduct of the defendant amounted to gross misconduct because of his non-attendance or infrequent attendance at the office.

Holding :

Held: (1) a notice of dissolution would be ineffective to dissolve the partnership having regard to the fact that there is in existence an agreement which has otherwise provided for a means of terminating the partnership; (2) the conduct complained of in this case did not amount to 'gross misconduct' and therefore the court could not order a dissolution under s 207 of the Contracts (Malay States) Ordinance 1950.

Digest :

JMM Lewis & Ors v WE Balasingam [1970] 1 MLJ 133 High Court, Ipoh (Ong Hock Sim J).

1604 Practice of law -- Persons who can act as advocate and solicitor

9 [1604] LEGAL PROFESSION Practice of law Persons who can act as advocate and solicitor Arbitrator Duly appointed under Arbitration Act 1952 Nature of arbitration agreement envisaged Purpose for appearing in court Legal Profession Act 1976, s 38(1)(f)

Summary :

This was an application by the applicant for an order that the respondent be removed as the executrix of the estate under which she (the applicant) is a beneficiary, and, that she be appointed as the executrix of the said estate. At the hearing, counsel for the applicant raised the preliminary objection that the person who was representing the respondent in the instant application, not being an advocate and solicitor, was prohibited from so representing the respondent by s 37 of the Legal Profession Act 1976 ('the LPA76'). The respondent's said representative claimed that he had the authority to act as an advocate and solicitor in the instant proceedings by virtue of s 38(1)(f) of the LPA76. After hearing the parties' submissions in chambers, the court upheld the preliminary objection. The respondent's representative applied for further arguments. Held, confirming the decision made in chambers: (1) in order to qualify under s 38(1)(f) of the LPA76 as a person who can act as an advocate and solicitor, the person intending to so act must satisfy the court that he has been duly appointed as an arbitrator under the Arbitration Act 1952 ('the AA52'), and, that as a duly appointed arbitrator, he is appearing in court for the purpose of settling or attempting to settle a dispute between the parties to the arbitration; (2) the respondent's representative had not been duly appointed as an arbitrator under the AA52. This was because the arbitration agreement under which he claimed to have been appointed as an arbitrator was one to which only he and the respondent, to the exclusion of the applicant, were parties. On the other hand, the type of arbitration agreement that is envisaged by the AA52 is one in which all the parties to the arbitration are parties to as well; (3) the respondent's representative was also not appearing in court to settle or to attempt to settle a dispute between the parties to the arbitration. It was implicit that he was appearing in court for and on behalf of the respondent, and as an adversary to the applicant. He was not appearing in court as an impartial arbitrator in respect of the dispute between the applicant and the respondent.

Digest :

Goh Mui Lan v Teh Yoke Sew Originating Summons No 24-223-93 High Court, Shah Alam (Hishamudin Yunus JC).

1605 Practice of law -- Practice and etiquette

9 [1605] LEGAL PROFESSION Practice of law Practice and etiquette Effect of Practice and Etiquette Rules Legal profession Legal Profession (Practice and Etiquette) Rules 1978 Non-compliance with rules Whether judgment in default of appearance regular.

Summary :

In this application, the first defendant sought to set aside a judgment obtained in default of defence entered against him on 17 August 1985. There were two grounds on which the first defendant sought to set aside the judgment. First, the defendant contended that the plaintiff did not comply with r 56 of the Legal Profession (Practice and Etiquette) Rules 1978 ('Practice and Etiquette Rules 1978'). It was submitted that the Practice and Etiquette Rules 1978 have the force of law and where there was a mandatory prohibition as contained in r 56, any judgment entered without complying with the rule would be irregular. Secondly, it was also argued that the judgment in default had been entered one day short of the 14-day period as provided in O 16, r 2(1) of the Rules of the High Court 1980. It was also submitted that the eight days required for entering appearance did not include the day of service.

Holding :

Held: (1) the Practice and Etiquette Rules 1978 only regulate the professional practice, etiquette, conduct and discipline of an advocate and solicitor. The rules do not regulate the procedure of legal proceedings in the High Court. The Bar Council has no power under the Legal Professional Act to make rules to regulate the procedure of legal proceedings; (2) non-compliance with r 56 of the Practice and Etiquette Rules 1978 does not render the judgment in default of defence irregular. Under O 2 r 1 of the Rules of the High Court 1980, only failure to comply with the Rules of the High Court 1980 shall be treated as an irregularity. Judgment in default of defence is only an irregular judgment if the plaintiff, in obtaining the judgment, failed to comply with the Rules of the High Court 1980; (3) the eight days include the day of service. The judgment in default was therefore entered upon the expiry of 14 days; (4) the judgment entered in default of defence was a regular judgment.

Digest :

Asia Commerical Finance (M) Bhd v Bank Bumiputra Malaysia Bhd & Ors [1988] 1 MLJ 33 High Court, Kuala Lumpur (Zakaria Yatim J).

1606 Practice of law -- Practice and etiquette

9 [1606] LEGAL PROFESSION Practice of law Practice and etiquette Payment of counsel's fees Duty of instructing solicitor to pay counsel's fees even if not put in funds by client Counsel may not sue for fees

Digest :

Re Peter Yap [1991] 1 MLJ 129 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Yong Pung How JJ).

See LEGAL PROFESSION, Vol 9, para 1748.

1607 Practice of law -- Practice and etiquette

9 [1607] LEGAL PROFESSION Practice of law Practice and etiquette Professional etiquette Champerty agreement Whether there was proof beyond reasonable doubt that advocate and solicitor had agreed to pay percentage of fees to person who introduced cases Legal Profession Act 1976 (Act 166), s 93(2)(c), (f) & (g) Legal Profession (Practice and Etiquette) Rules 1978, r 52(b)

Summary :

The respondent complained to the Bar Council ('the BC') that he had introduced accident claims cases to the appellant, an advocate and solicitor, and the appellant had agreed to pay the respondent 10% of the fees received from the clients. An inquiry was conducted by the Disciplinary Sub-committee of the State Bar Committee which recommended to 'the BC' that a complaint be made against the appellant for employing the respondent as a tout. The respondent also commenced a civil action against the appellant claiming his alleged share of the fees. A Disciplinary Committee ('the DC') was appointed by the Chief Justice to hear the complaint against the appellant. 'The DC' at the end of the respondent's case, ruled that the respondent had established beyond reasonable doubt the case against the appellant and it was for the appellant to rebut the case established. The appellant gave evidence admitting that she had agreed to pay the respondent for investigative work but she denied having agreed to pay commission to the respondent. 'The DC' decided at the end of the inquiry that disciplinary action should be taken against the appellant and she was ordered to be suspended from practice for three months. The appellant appealed to the High Court firstly on the ground that since the respondent's complaint was in respect of breach of contract, such a complaint was outside the purview of s 95(1) of the Legal Profession Act 1976 (Act 166). The appellant then argued that the respondent's complaint was an abuse of the process because there was already a pending civil suit on the same subject matter. The appellant also alleged that the respondent had no locus standi as he was not her client. The appellant further argued that the DC's ruling was irregular for failing to state the specific provision of the 1976 Act and the Legal Profession (Practice and Etiquette) Rules 1978 which had been breached. The appellant also asserted that 'the DC' had unwittingly shifted the burden of proof to the appellant by requiring her to rebut the respondent's case. The appellant further claimed that 'the DC' had not given the appellant an opportunity to plea in mitigation before suspending her. It was lastly argued that the DC's suspension order was excessive.

Holding :

Held, dismissing the appeal: (1) a complaint envisaged by s 95(1) of the 1976 Act must concern the conduct of an advocate and solicitor in his professional capacity. A complaint purely for breach of contract and which concerns a civil suit simpliciter, unaccompanied by an allegation of misconduct, does not constitute a complaint within the meaning of s 95(1) of the 1976 Act; (2) the non-payment of money complained of in this case, arose from a champerty agreement which contravened the 1976 Act and the 1978 Rules. The respondent's complaint therefore concerned the appellant's conduct as an advocate and solicitor in her professional capacity and was not over a civil dispute simpliciter; (3) the subject matter of the respondent's civil suit was for non-payment of money while the subject matter of the complaint and the inquiry was the breach of etiquette. They are two different matters before two different tribunals, each discharging its duties empowered by law; (4) nowhere does the law say that only a client may complain against an advocate and solicitor with regard to his professional conduct. The appellant's argument that the respondent had no locus standi, therefore failed; (5) the appellant's misconduct could fall under s 92(3)(c), (f) or (g) of the 1976 Act or even under r 52(b) of the 1978 Rules; (6) there was nothing wrong in 'the DC' not stating which specific provision of the 1976 Act or the 1978 Rules had been breached. What was important was that there was sufficient evidence to support such a finding. The DC's failure to state the specific paragraph of s 93(2) of the 1976 Act or r 52 of the 1978 Rules, did not in any way prejudice the appellant or cause any miscarriage of justice; (7) the use of the word 'rebut' by 'the DC' was unfortunate but it did not mean that the DC had shifted the burden of proof to the appellant to prove her innocence. What 'the DC' meant was that the appellant's duty was 'to cast a reasonable doubt' in the respondent's case. The DC's decision was not irregular. Nor was there any miscarriage of justice; (8) considering the whole of the evidence, 'the DC' had correctly decided that the respondent had proved beyond reasonable doubt that there was an agreement between the appellant and the respondent which was contrary to the 1976 Act and the 1978 Rules; (9) the proceedings before 'the DC' was criminal in nature, and in practice, courts do give a person found guilty a chance to plea in mitigation before passing sentence. This practice is only a practice and is not a requirement of law. The DC's failure to give the appellant an opportunity to plea in mitigation, accordingly did not nullify the suspension order; (10) considering the circumstances of this case including the interest of the public and the profession, the suspension order was not manifestly excessive or out of proportion. Indeed it did appear to be on the lenient side. There was therefore no reason to interfere with the DC's suspension order.

Digest :

Rhina Bhar v Koid Hong Keat [1992] 2 MLJ 455 High Court, Penang (Mohamed Dzaiddin, Abdul Hamid JJ and Chew Kim Poh JC).

1608 Practice of law -- Practice and etiquette

9 [1608] LEGAL PROFESSION Practice of law Practice and etiquette Professional etiquette Conflict of interest Whether solicitors could be restrained from acting for party Whether solicitors had confidential information Whether solicitor's clients should object Advocates (Practice and Etiquette) Rules 1988

Summary :

The plaintiff obtained judgment against the defendant company. To satisfy the judgment, the plaintiff obtained a prohibitory order in respect of the defendant company's land. The defendant company then entered into a consent order with United Malayan Banking Corp ('UMBC') to appoint receivers and managers to manage the defendant company's land. The plaintiff, nevertheless, filed an ex parte summons for leave of the court to proceed with the summons-for-directions for the sale of the defendant company's land. The court granted leave to the plaintiff ('the order'). The defendant company applied to the court to set aside the order. At the hearing of the defendant company's application, the plaintiff raised a preliminary objection. The plaintiff contended that the solicitors for the defendant company, Reddi & Co ('Reddi'), could not act for the defendant company in its application to set aside the order because Reddi also acted for UMBC in respect of the appointment of the defendant company's receivers. The plaintiff therefore argued that Reddi was in a situation of conflict of interest by relying on provisions in the Advocates (Practice and Etiquette) Rules 1988.

Holding :

Held, dismissing the preliminary objection: (1) in considering the conflict of interest issue, the question was whether Reddi had confidential information in respect of UMBC which Reddi could use in this case. On the facts of this case, there was no confidential information which could be used by Reddi; (2) even assuming that a conflict of interest could possibly arise, it was for UMBC to raise the objection which UMBC did not do in this case; (3) the object of the 1988 Rules is to regulate the conduct of advocates. If there is a failure to comply with the 1988 Rules, it only results in disciplinary proceedings against the advocate concerned. The 1988 Rules were not applicable in this case for the court to order that Reddi should cease to act for the defendant company; (4) even if there were merits in the preliminary objection, such an objection amounted to an application for injunction. The plaintiff should have filed a proper application against Reddi, restraining that firm from acting for the defendant company.

Digest :

Poh Kwong Quarry & Development Sdn Bhd v Peninjau Enterprises Sdn Bhd Summons No AE/KG2 of 1989 High Court, Kuching (Haidar J).

1609 Practice of law -- Practice and etiquette

9 [1609] LEGAL PROFESSION Practice of law Practice and etiquette Professional etiquette Counsel undertaking to appear in a case when he knew he could not do so Whether counsel could apply for adjournment Whether counsel was privy to abuse of court's process which might constitute contempt of court

Summary :

The first of the five actions commenced in 1984. In July 1988 the second and third actions were consolidated as were the fourth and fifth actions ('the consolidated actions'). Evidence of several witnesses was taken between October 1988 and January 1990. On 23 April 1990 the consolidated actions were adjourned to 13 August 1990 on the application of the plaintiffs' counsel that new solicitors and counsel were to be appointed to act for the plaintiffs. On 8 July 1990 the first action was ordered by the court to be heard together with the consolidated actions. On 13 August 1990 the court adjourned the actions to 2 March 1991 upon the application of the plaintiffs' counsel that there was insufficient time for him to prepare the plaintiffs' case as he was just retained. By a letter dated 20 February 1991, the second defendant's counsel applied for an adjournment of the hearing on the ground that he was unilaterally assigned by the senior assistant registrar to be counsel in a murder case at the material time. The court refused the application and when the actions came up for hearing, the second defendant's counsel again applied for adjournment. Counsel for the other parties had no objection to the application.

Holding :

Held, allowing the application: (1) in the face of a serious current backlog of cases, applications for adjournment without just cause, especially late applications, are anathema. Every consideration is given to counsel's requirements and convenience before a case is set down for hearing but once a case is set down for hearing, there should be no adjournment except for a just cause, usually emanating from circumstances beyond control; (2) there is no provision in the rules of the court that interlocutory applications for adjournment are to be made by letter. Such applications are usually made by way of summons-in-chambers supported by affidavit or orally by counsel in court. Late applications for adjournment by letter, telegram or telephone, should as a matter of course be rare, based on circumstances beyond the control of counsel and his client and amounting to an emergency. In such cases if the court is minded to allow the application, it would convey its view to the counsel or party concerned in the same way the application would have been made with the advice that counsel should appear on the hearing date and formally apply for an adjournment; (3) it is unprofessional for counsel to undertake to appear in a case when reasonably he should know that he cannot do so. If in consequence the case has to be adjourned, it will be an abuse of the court's process which he will have been privy to and that may be prima facie a contempt of court inasmuch as it affects the fair administration of justice; (4) adjournment on the ground that counsel is committed to appear before the Supreme Court, does not follow automatically. The Supreme Court sittings are published in the gazette well in advance. A prudent counsel having a regular practice in the Supreme Court, would rule out all sitting dates of the Supreme Court when taking trial dates in other courts. In any event counsel should be able to ascertain from the Supreme Court registry when cases in which they have been retained are likely to be listed for hearing and thus keep free the appropriate period; (5) the fact that there was no objection by any other party, was by no means conclusive. It was to the court that the applicant had to look for indulgence; (6) the actions were adjourned after due consideration of all the facts and circumstances. This was because without the services of a much experienced counsel, the second defendant would suffer and also considering that counsel for the other parties had no objection.

Digest :

Tan Pak v Cham Boon San & other actions [1992] 2 MLJ 271 High Court, Muar (Richard Talalla JC).

1610 Practice of law -- Practice and etiquette

9 [1610] LEGAL PROFESSION Practice of law Practice and etiquette Professional etiquette Non-compliance with rules of etiquette Whether non-compliance would only result in disciplinary proceedings Advocates (Practice and Etiquette) Rules 1988

Digest :

Poh Kwong Quarry & Development Sdn Bhd v Peninjau Enterprises Sdn Bhd Summons No AE/KG 2 of 1989 High Court, Kuching (Haidar J).

See LEGAL PROFESSION, Vol 9, para 1556.

1611 Practice of law -- Practice and etiquette

9 [1611] LEGAL PROFESSION Practice of law Practice and etiquette Representation by counsel Counsel to be called as witness in same case Whether counsel excluded from appearing in court Whether counsel to be a witness of any material or disputed fact Legal Profession (Practice and Etiquette) Rules 1978, r 28

Summary :

P was retained by the family of deceased detainee who died whilst in police custody. At a subsequent inquest held at the Klang Magistrate Court, the prosecution officer took objection to P's presence in court as a counsel on a watching brief on the ground that his statement had been recorded by the police and that he would be called as a witness in the same case. The prosecution officer had also stated that P himself had written the police report on behalf of the deceased's son. The learned magistrate upheld the prosecution officer's objection and ruled that in accordance with s 28 of the Legal Profession Act 1976, P could not represent the deceased's family. In due course, at the request of P, the matter came up for revision before the learned judge. P contended that he had no knowledge of the case until retained by the deceased's family. There was therefore no conflict of interest to warrant s 28 to be applied against him.

Holding :

Held, reversing the magistrate's order in part: (1) r 28 of the Legal Profession (Practice and Etiquette) Rules 1978, which is the relevant provision to be considered, does not envisage that an advocate and solicitor is ipso facto excluded from appearing as such in court the moment he believes that he will be a witness. The restriction will only arise if he is likely to be a witness of any material or disputed fact; (2) r 28 is a rule of ethics and the magistrate should not have applied it with the stringency of the force of law. The only matter which appeared to be in conflict with P's presence was the allegation that he and not the witness wrote the report. The learned judge, accordingly, directed that the order of the learned magistrate on the exclusion of P be confined only to that stage of the proceeding if and when the deceased's son was about to give evidence.

Digest :

Wee Choo Keong v Public Prosecutor [1990] 2 MLJ 239 High Court, Shah Alam (Wan Yahya J).

1612 Practice of law -- Practice and etiquette

9 [1612] LEGAL PROFESSION Practice of law Practice and etiquette Touting Whether contrary to public policy Action by tout against lawyer for fees alleged to be due Application to strike out suit Legal Profession (Practice and Etiquette) Rules 1978, rr 51 & 52

Summary :

P, a tout, claimed against D, a lawyer, for fees alleged to be due to him. P alleged that he had an oral agreement with D whereby it was agreed that P would be paid 10% of the fees collected by D upon the conclusion of each case referred by P to D for consultation, legal proceedings or otherwise. D applied to strike out P's action pursuant to O 18 r 19 of the Rules of the High Court 1980 on the ground that it disclosed no cause of action. D argued that the alleged oral agreement amounted to touting and since touting was contrary to public policy the alleged agreement was unenforceable under s 24(a) and (e) of the Contracts Act 1950. D also relied on rr 51 and 52 of the Legal Profession (Practice and Etiquette) Rules 1978.

Holding :

Held, dismissing the application: (1) before the court can regard touting as opposed to public policy under s 24(e) of the Contracts Act 1950, there must be shown to the court that touting has a tendency to be injurious to the public welfare. The Legal Profession (Practice and Etiquette) Rules 1978 were made by the Bar Council to regulate the practice and etiquette of lawyers. The rules were not made by Parliament and therefore could not be taken to reflect public opinion; (2) in the present case, on the affidavit evidence alone, it could not be decided whether or not touting was injurious to public welfare. For the above reasons, D's application was dismissed by the learned judge.

Digest :

Koid Hong Keat v Rhina Bahar [1989] 3 MLJ 238 High Court, Penang (Wan Adnan J).

1613 Practice of law -- Practice of 'mentioning case' on behalf of another solicitor

9 [1613] LEGAL PROFESSION Practice of law Practice of 'mentioning case' on behalf of another solicitor No legal justification for such practice Counsel to declare that he was appearing for both the appellant and the respondent Substituted counsel should be fully briefed Practice otherwise inappropriate and undesirable

Summary :

The appeal in this case had been heard and judgment was reserved. When the case was called out for judgment to be delivered, counsel for the respondent addressed the court stating that he was appearing for the respondent and also 'mentioning on behalf of the solicitors for the applicant'. He was then asked what this expression meant and was informed that as far as the court could see, there appeared to be no meaning to it as the solicitors for the appellant were not parties to the proceedings and therefore there was no question of counsel appearing or mentioning on their behalf. In the latter regard, the court posed the question, 'Mentioning what?'. Counsel replied that the appellant's counsel was engaged elsewhere and could not appear before the court then. Counsel was invited to give consideration to the matter which was stood down in order to enable him to research on this. Upon resumption, counsel informed the court that he had consulted a number of senior legal practitioners, all of whom were not able to provide any justification or legal basis for such a practice.

Holding :

Held, acknowledging that counsel was appearing for both appellant and respondent: (1) under Practice Direction No 6 of 1989, magistrate's courts mention cases on appointed dates, usually to enable counsel to appear and obtain a hearing date if the matter is to be litigated further or, if compromised, either to withdraw the action upon agreed terms or enter consent judgment. Invariably there is no conflict of interest between the parties in regard to the business to be transacted when the court mentions the case. Hence, the Practice Direction lends support to the view that counsel should properly appear on behalf of a litigant and not on behalf of the opposing solicitor or counsel; (2) it is for counsel, and it is well within the scope of counsel's authority in an appropriate case, to request that another person appear in place of counsel and upon the request being acceded to, that person would appear, not on behalf of requesting counsel, or on behalf of the solicitor instructing requesting counsel, but on behalf of the litigant, the client of the instructing solicitor and the lay client of the requesting counsel; (3) it therefore behoves the substituted counsel to be fully briefed and ready to fulfil counsel's duty to the court as well as to the litigant just as ably as requesting counsel; (4) what invariably happens when the court inquires of pertinent matters is that counsel appearing is unable to provide an effective answer, pleading lack of instructions and emphasizing that counsel is only 'mentioning on behalf of the opposing solicitor or counsel'; (5) the practice is inappropriate and undesirable. It is a device which has the effect of clogging the hearing lists, especially in the lower courts where the practice is rampant; (6) the court declined to entertain counsel as 'mentioning on behalf of the solicitor for the appellant', but acknowledged the fresh declaration of counsel that he was appearing for both the appellant and the respondent, and proceeded to deliver the judgment.

Digest :

Lee Oui Long v Lim Chu Ahiat & Anor Civil Appeal No 12-17-90 High Court, Muar (Richard Talalla J).

1614 Practice of law -- Renewal of practising certificate

9 [1614] LEGAL PROFESSION Practice of law Renewal of practising certificate Instituting action without having renewed practising certificates Locus standi to file action on behalf of client Advocates Ordinance (Cap 2) (Sabah), s 9

Digest :

Borneo Housing Mortgage Finance Bhd v Voo Kee Chang & Anor Originating Summons No K24-80 of 1993 High Court, Borneo (Ian Chin J).

See CIVIL PROCEDURE, para 3239.

1615 Practice of law -- Right of audience

9 [1615] LEGAL PROFESSION Practice of law Right of audience

Summary :

The Collector making an inquiry under s 37(i) (now 42(i)) and the Commissioner hearing an appeal under s 38(i) (now s 43(i)) or trying a question under s 38(ii)) of the Land Enactment, is a 'court'. An advocate and solicitor of the Supreme Court has a right of audience before such 'court'.

Digest :

Selamah v Haji Salleh [1935] 1 JLR 96 High Court, Johore Bahru (Mills J).

1616 Practice of law -- Right of audience

9 [1616] LEGAL PROFESSION Practice of law Right of audience

Summary :

On the construction of s 55(1) of the Advocates and Solicitors Ordinance 1947

Holding :

Held: (1) practitioners have the exclusive right to appear and plead in all 'courts of justice' which are established by the Courts Ordinance (pursuant to the provisions of cll 77 and 81 of the Federation of Malaya Agreement 1948 and Part IX of the present Constitution); (2) in the absence of express provision or prohibition, appearance before all other tribunals is entirely a matter of discretion for the presiding officer; (3) in a great majority of cases, it is no doubt undesirable for an advocate to appear and there may well be the occasional instance where the appearance of an advocate could be of considerable assistance to all concerned and the presiding officers should not be fettered in the exercise of their discretion.

Digest :

State Commissioner for Labour, Kedah/Perlis v United Transport Co Ltd [1958] MLJ xxiii High Court, Kuala Lumpur (Hill J).

Annotation :

[Annotation: See Haji Shaik Abdul Cader v Aisha & Ors (1886) 4 Ky 151; 1 SLJ 38 and Chia Khin Sze v Mentri Besar, Selangor [1958] MLJ 105; see also Mundell v Mellor (1929) SSLR 152 which was not cited before Hill J.]

1617 Practice of law -- Right of audience

9 [1617] LEGAL PROFESSION Practice of law Right of audience Assistant Official Assignee Order for payment of costs 'by the Official Assignee of the property of Sassoon Ezekiel, a bankrupt' Judgment Summons issued against Official Assignee on non-payment Right of creditor to issue such summons Right of Assistant Official Assignee to appear in court as representing the Official Assignee.

Summary :

An Assistant Official Assignee has a right under Bankruptcy Rule 269 to appear and be heard as the agent of the Official Assignee in all proceedings in court and not merely in all bankruptcy proceedings in court.

Digest :

Re Sassoon Ezekiel [1933] MLJ 245 High Court, Singapore (Mills J).

1618 Practice of law -- Right of audience

9 [1618] LEGAL PROFESSION Practice of law Right of audience Constitutional proceedings Legal profession Whether States of Malaya advocate and solicitor is qualified to appear before judge of Supreme Court in Kuala Lumpur Advocate Ordinance (Sabah, Cap 2), s 8.

Summary :

A State of Malaya advocate and solicitor was held qualified to appear before the Supreme Court in proceedings for a declaration that the Constitution (Amendment) Enactment 1986 of Sabah exceeded the legislative power of the Legislature of Sabah. Section 8 of the Advocates Ordinance of Sabah did not apply to proceedings under Art 4(4) of the Federal Constitution before a judge of the Supreme Court.

Digest :

Abdul Karim bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171 Supreme Court, Kuala Lumpur (Hashim Yeop A Sani SCJ).

1619 Practice of law -- Right of audience

9 [1619] LEGAL PROFESSION Practice of law Right of audience Examination of debtor

Summary :

A person examined under s 26 of the Bankruptcy Ordinance 2 of 1888 as to a debt alleged to be due by him to the bankrupt, is not entitled to the assistance of counsel; but the Official Assignee in person or counsel in his behalf, is not by the section, excluded from carrying on such examination.

Digest :

Re Choa Hong [1890] 4 Ky 569 High Court, Singapore (Goldney J).

1620 Practice of law -- Right of audience

9 [1620] LEGAL PROFESSION Practice of law Right of audience Federal counsel Advocates and Solicitors Ordinance 1947, s 55(2) Statute Rule of construction of Whether Federal Counsel can enter appearance on behalf of government officials.

Summary :

In this case the plaintiff sued one Lee Yat Kai and the senior inspector of mines, Selangor, Negri Sembilan and Malacca and the inspector of mines, Kuala Lumpur. The Federal counsel entered an appearance in the action on behalf of the two government officials who were sued in their official capacity. The plaintiff applied to the court by way of summons-in-chambers (which was adjourned into open court) for an order that the appearance entered on behalf of the second and third defendants should be struck out. It was argued on behalf of the plaintiff that although the Federal counsel has a right of audience before the court, he is not an advocate and solicitor and, therefore has no right to enter an appearance on behalf of the two defendants.

Holding :

Held: s 55(2) of the Advocates and Solicitors Ordinance 1947 gives a Federal counsel the right to enter appearance in respect of any proceedings in any court when so instructed by the government.

Digest :

Sin Huat Hin Tin Mines Ltd v Lee Yat Kai & Ors [1954] MLJ 170 High Court, Kuala Lumpur (Wilson J).

1621 Practice of law -- Right of audience

9 [1621] LEGAL PROFESSION Practice of law Right of audience Federal counsel Federal counsel Right of audience Advocates and Solicitors Ordinance 1947, s 55(2).

Summary :

This was an application by the Federal counsel to appear on behalf of and represent the chairman of the Ipoh Town Council on the hearing of the appeal.

Holding :

Held: as the salary of the chairman of the Ipoh Town Council is not paid by any government but is paid by the Ipoh Town Council, he is not therefore to be considered as a public officer who, in this case, is being sued by virtue of his office and therefore the Federal counsel has no right of audience on his behalf under s 24(2)(a) of the Government Proceedings Ordinance 1956. Section 55(2) of the Advocates and Solicitors Ordinance 1947 does not in itself confer upon the law officers any new right of audience but merely saves rights under the pre-existing law which might otherwise have been held to have been adversely affected by the provisions of the Advocates and Solicitors Ordinance. Those rights, at that time, mainly arose from the provisions of the Government Suits Enactment (Cap 17) of the old Federated Malay States Laws. Tests of employment discussed.

Digest :

Ipoh Town Council & Anor v Ng Khoon Khoon [1960] MLJ 165 Court of Appeal, Ipoh (Thomson CJ, Hill and Good JJA).

1622 Practice of law -- Right of audience

9 [1622] LEGAL PROFESSION Practice of law Right of audience Legal profession Counsel gainfully employed as Deputy Speaker to Dewan Raayat Locus standi to appear as counsel Practice certificate Legal Professional Act 1976, s 30 Federal Constitution, arts 57(5) & 58.

Summary :

This application concerns the Malaysian Indian Congress Penang Branch elections. The plaintiff had obtained an ex parte interim injunction restraining the defendants, their agents or servants from receiving any nomination papers in respect of the nomination of candidates for the elections. The defendants applied to discharge the injunction. Plaintiff's counsel challenged the standing of defendants' counsel. The issue in the plaintiff's writ was whether the defendants were acting within the Party's Constitution when they declared 'defunct' the Malaysian Indian Congress Tanjong West Branch. The plaintiff contended that the said branch was wrongfully declared as 'default'. The defendants showed that 41 photocopies of the identity cards of the total members of 115 from the branch were falsified, thus reducing the membership to 71. Under art 19.12, the membership of the Branch Congress shall not be less than 100. Under art 91 of the Party Constitution, the plaintiff was precluded from restoring to court proceedings unless and until such matter was first referred to the Central Committee.

Holding :

Held: so long as counsel is on the roll of advocates and solicitors and has a valid practising certificate, he has an exclusive right to appear and plead in all courts in Malaysia.

Digest :

Subramaniam Lakshamanasamy v Datuk S Samy Vellu & Ors [1988] 1 MLJ 42 High Court, Penang (Mohamed Dzaiddin J).

1623 Practice of law -- Right of audience

9 [1623] LEGAL PROFESSION Practice of law Right of audience Official Assignee

Summary :

The Official Assignee has a locus standi to appear before the Court of Appeal on appeals against convictions under s 107A of the Bankruptcy Ordinance.

Digest :

Re Chan Leong Watt [1910] 12 SSLR 32 Court of Appeal, Singapore (Hyndman-Jones CJ, Thornton and Braddell JJ).

1624 Practice of law -- Right of audience

9 [1624] LEGAL PROFESSION Practice of law Right of audience Solicitor-General Advocates and Solicitors Ordinance 1934, s 26(1) Right of audience of Solicitor-General of the Straits Settlements.

Summary :

The right given to the Attorney General by s 26(1) of the Advocates and Solicitors Ordinance 1934 to initiate proceedings against any advocate and solicitor is given to him both directly on behalf of the Crown and also as representing the public. When he acts as representing the public he does so by virtue of the principle that the Crown as parens patriae protects the interests of the public. It follows that his rights and duties under s 26 are conferred upon him as first law officer of the Crown and his application is indirectly on behalf of the Crown. The Solicitor-General is accordingly empowered by s 36(2) of the ordinance to appear on his behalf and has a right of audience whether or not he is an advocate and solicitor of the Colony.

Digest :

Re Three Advocates & Solicitors [1935] MLJ 193 High Court, Singapore (Huggard CJ).

Annotation :

[Annotation: See now Legal Profession Act (Cap 161, 1985 Ed) Pt VII, s 28(2).]

1625 Practice of law -- Right of audience

9 [1625] LEGAL PROFESSION Practice of law Right of audience Statutory tribunal

Summary :

Upon an inquiry held under Ordinance No 42 (Machinery) s 15(iii) a person summoned to appear before the tribunal has a locus standi to appear before the tribunal where he may be affected by the finding. There is nothing in the ordinance to prohibit the tribunal from hearing such a person, or an advocate on his behalf, and he has a right to be heard. The right may be enforced by mandamus.

Digest :

Mundell v Mellor [1929] SSLR 152 High Court, Singapore (Mills J).

1626 Practice of law -- Scope of prohibition against unauthorized practice

9 [1626] LEGAL PROFESSION Practice of law Scope of prohibition against unauthorized practice Arbitration proceedings Legal profession American law firm Intending to act as advocates and solicitors in arbitration proceedings in Singapore Whether permissible Legal Profession Act (Cap 161, 1985 Ed), ss 29 and 30.

Summary :

The applicants were the main contractors for a building project. The respondents were the sub-contractors for the construction of certain curtain walls. For certain reasons, the applicants stopped all works. Subsequent to the stoppage, the respondents made certain claims from the applicants. The disputes were referred to arbitration. D & P (an American law firm) purported to represent the respondents. The applicants applied for and obtained an interim injunction restraining D & P from acting for the respondents. The applicants in the instant case sought to make the injunction permanent. The applicants contended that D & P by so acting for the respondents have contravened, and by intending to so act in the arbitration proceedings will contravene, either s 29(1) or s 30(1) of the Legal Profession Act (Cap 161, 1985 Ed) ('the Act'). The respondents argued that the Act has no application to arbitration proceedings and that foreign lawyers and non-lawyers are not prohibited by the Act from representing parties to arbitration proceedings in Singapore.

Holding :

Held, allowing the application: (1) it is neither necessary nor desirable to attempt to identify the acts and services which have the quality or character of being 'legal' acts or services or which may only be provided by advocates and solicitors. The character of a legal service is not determined solely by the requirement of knowledge of the law, for non-advocates and solicitors may have a knowledge of the law and many of them have a better knowledge. The categories of legal services are not closed nor do they remain static for all time. They change from time to time to meet the needs of society; (2) (b) a person acts as an advocate and/or solicitor if, by reason of his being an advocate and solicitor, he is employed to act as such in any matter connected with his profession; (3) applying these two tests, firstly, the services of D & P intended to be provided to the respondents are services customarily provided by advocates and solicitors of the Supreme Court and indeed may be said to constitute the core services of the legal profession. Secondly, D & P's employment in the arbitration proceedings is in connection with their profession as attorneys and because they are attorneys; (4) the participation of D & P in the arbitration proceedings in Singapore is part and parcel of the practice of their profession as attorneys in New York, save only that it is being practised in Singapore in regard to the arbitration; (5) s 30(1) is not restricted to proceedings in a court of law; (6) the primary object of the Act is to protect the public from claims to legal services by unauthorized persons. Parties who prefer to have their disputes resolved through arbitration rather than by court proceedings are no less members of the public. Their common law right to retain whomsoever (from the category of unauthorized persons) they desire or prefer for their legal services in arbitration proceedings in Singapore has been taken away by the Act. Such freedom of choice is now limited to a choice from amongst authorized persons where the dispute in question involves questions of law and legal rights and obligations. This does not mean that only advocates and solicitors of the Supreme Court may appear in arbitration proceedings. But it means that only those with practising certificates may practise law in arbitration proceedings; (7) D & P's representation of the respondents at the arbitration proceedings in Singapore will contravene 29(1) and/or s 30(1) of the Act; (8) two tests may be constructed from the authorities and the provisions of ss 29 and 30 of the Act: (a) other than those specific acts listed in s 30(1) and (2), an act is an act of an advocate and solicitor when it is customarily (whether by history or tradition) within his exclusive function;the interim injunction granted by the court was made permanent.

Digest :

Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd & Anor [1988] 2 MLJ 280 High Court, Singapore (Chan Sek Keong JC).

1627 Practice of law -- Unauthorized person

9 [1627] LEGAL PROFESSION Practice of law Unauthorized person Drawing a will

Summary :

Where a defendant in expectation of a fee or reward drew a will relating to real or personal estate for another, it was held that he was liable to a penalty under s 26 of the Civil Procedure Ordinance 1878.

Digest :

Vaughan v D'Silva [1887] 4 Ky 286 Supreme Court, Straits Settlements (Ford CJ).

Annotation :

[Annotation: To draw (a) a will or other testamentary instrument; (b) a transfer of stock containing no trust or limitation thereof, is now permitted to an unqualified person in Singapore. See s 30(8) of the Legal Profession Act (Cap 161, 1985 Ed) and s 38(2) of the Legal Profession Act (Act 166).]

1628 Practice of law -- Unauthorized person

9 [1628] LEGAL PROFESSION Practice of law Unauthorized person Suing out process Suing out process Writ of summons signed in the name of firm of solicitors by firm employee not being a practitioner Whether acting as an advocate and solicitor Advocates and Solicitors Ordinance 1947, s 57(1)(a).

Summary :

This was an appeal against the acquittal and discharge of the respondent on charges under s 57(1)(a) of the Advocates and Solicitors Ordinance 1947 for acting as an advocate and solicitor by signing the name of his employers a firm of solicitors on two generally endorsed writs in two civil suits filed in the High Court. The respondent was acquitted by the President of the Sessions Court on the grounds that it was the firm of solicitors which had authorized the issue of the two writs and it was the said firm which therefore sued out the writs. Further he held that it was impossible to say that the defendant was acting as a solicitor when he signed the two writs. On appeal,

Holding :

Held, dismissing the appeal: (1) it was the firm of solicitors which were the respondent's employers that sued out the writs. That respondent had therefore not committed the two offences of which he was charged; (2) the evidence produced by the prosecution did not show that the respondent was actually acting as an advocate and solicitor on his own behalf. When the respondent signed the name of the firm on the two writs he was not acting on his own behalf but on behalf of that firm. The respondent therefore had not acted as an advocate and solicitor under s 57(1)(a) of the Advocates and Solicitors Ordinance 1947.

Digest :

Public Prosecutor v Winston Chung Yin Chen [1969] 1 MLJ 207 High Court, Malacca (Ibrahim J).

Annotation :

[Annotation: See now Legal Profession Act (Act 166), s 38(1).]

1629 Practice of law -- Unauthorized person

9 [1629] LEGAL PROFESSION Practice of law Unauthorized person Threatening legal proceedings

Summary :

Under terms of s 102(a) of Ordinance No 101 (Courts) (see now s 46(1)(a) of the Advocates and Solicitors Ordinance (Cap 188)), it is an offence for anyone but an advocate and solicitor to take or threaten to take, legal proceedings on behalf of another person, subject to the exceptions contained in s 103(2) of the ordinance and s 38 of the Civil Procedure Code.

Digest :

R v Reid [1931] SSLR 62 High Court, Singapore (Murison CJ).

Annotation :

[Annotation: See now Legal Profession Act (Cap 161, 1985 Ed), s 30(2).]

1630 Practice of law -- Unauthorized person

9 [1630] LEGAL PROFESSION Practice of law Unauthorized person Whether Bar Committee had locus standi to act Whether Bar Committee of Pahang has locus standi to act on its own behalf in legal proceedings Meaning and intention of Legal Profession Act 1976 Legal Profession Act 1976, ss 36(1), 41(1) & (2), 57(e) & (j), 73(ii).

Digest :

Bar Committee of Pahang v Joseph Au Kong Weng [1979] 2 MLJ 297 High Court, Kuantan (Abdul Razak J).

See LEGAL PROFESSION, Vol 9, para 1496.

1631 Practice of law -- Whether foreign counsel may appear in arbitration proceedings

9 [1631] LEGAL PROFESSION Practice of law Whether foreign counsel may appear in arbitration proceedings Foreign counsel not admitted as advocate and solicitor of High Court of Malaya Whether Legal Profession Act 1976 has application to arbitration proceedings in West Malaysia Legal Profession Act 1976 (Act 166), ss 35(1), 36(1), 37(1) & 40

Summary :

P had entered into a contract with D to construct for D three berths at Johore Port. P made claims and D made counterclaims under cl 67 of the contract which went to an arbitrator. P retained a firm of advocates and solicitors to represent them in the proceedings before the arbitrator. The firm engaged a foreign counsel with wide experience in international arbitration matters involving engineering contracts to assist them in cross-examining witnesses. D objected to the presence of the foreign counsel on the ground that he had not been admitted as an advocate and solicitor of the High Court of Malaya and as such, being an unauthorized person within the meaning of s 36(1) of the Legal Profession Act 1976 (Act 166), he was precluded from acting for any party under s 37 of the Act. In due course, the present application was made to the High Court to resolve the matter.

Holding :

Held: (1) an arbitration tribunal is not a court of justice in Malaysia as envisaged by the Legal Profession Act 1976 (Act 166). It is a private tribunal. The Legal Profession Act 1976 (Act 166) has no application to arbitration proceedings in West Malaysia which are governed by the Arbitration Act 1952; (2) in the instant case, the foreign counsel ought not to be excluded from appearing in the arbitration proceeding. Even if he had performed duties which were normally done by an advocate and solicitor in this country, he had done so not in or relating to a court in Malaysia but only in or relating to an arbitration proceeding. His actions therefore did not offend s 37 of the Legal Profession Act 1976 (Act 166); (3) in the circumstances, the learned judge was of the view that a person representing a party in an arbitration proceeding need not be an advocate and solicitor within the meaning of the Legal Profession Act 1976 (Act 166) as the Act had no application to an arbitration proceeding in West Malaysia.

Digest :

Zublin Muhibbah Joint Venture v Government of Malaysia Originating Summons No R8-24-41-89 High Court, Kuala Lumpur (Eusoff Chin J).

1632 Professional discipline -- Abuse of process of court and unethical conduct

9 [1632] LEGAL PROFESSION Professional discipline Abuse of process of court and unethical conduct Whether proper for judge to make criticism in judgment Whether proper step is to lodge report with Legal Profession Disciplinary Board Legal Profession Act 1976, s 99(2)

Digest :

Insas Bhd & Anor v Ayer Molek Rubber Co Bhd & Ors [1995] 2 MLJ 833 Federal Court, Kuala Lumpur (Eusoff Chin CJ, Zakaria Yatim FCJ and PS Gill J).

See CIVIL PROCEDURE, para 124.

1633 Professional discipline -- Appointment of disciplinary committee

9 [1633] LEGAL PROFESSION Professional discipline Appointment of disciplinary committee Application by complainant for order directing the Law Society to apply for the appointment of a disciplinary committee Whether court should allow application Legal Profession Act (Cap 161, 1994 Ed), s 96

Digest :

Seet Melvin v Law Society of Singapore [1995] 2 SLR 323 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See LEGAL PROFESSION, para 1483.

1634 Professional discipline -- Appropriate penalty

9 [1634] LEGAL PROFESSION Professional discipline Appropriate penalty Striking off or suspension Conviction for corruption and criminal breach of trust Whether court could consider reliability of evidence of witnesses in criminal trial to show weakness of prosecution's case Legal Profession Act (Cap 161, 1994 Ed), s 83

Summary :

The respondent, an advocate and solicitor, was convicted in a district court on 3 September 1993 of four criminal offences. He was found to have corruptly offered gratification of $3,000 to one Aziz, a police officer, in order that one Tan Be How (Tan), who had engaged the respondent as defence counsel, would be let off from police investigations into his role in various housebreaking offences. In addition, the respondent solicited and received $5,000 as gratification from Tan for his assistance in the scheme. The fourth offence was one of having committed criminal breach of trust of a sum of $500 in his capacity as a legal assistant. In the present proceedings, the respondent stated that he did not intend to show cause, but only to raise some matters in mitigation in order that the court could determine the appropriate penalty. Counsel for the respondent urged the court to consider the reliability and cogency of the evidence of Tan and Aziz which implicated the respondent in the district court to show the weakness of the prosecution's case. Counsel further suggested that a suspension from practice might be sufficient punishment.

Holding :

Held, striking the respondent off the roll of advocates and solicitors: (1) it was manifestly clear from s 83(5) of the Legal Profession Act (Cap 161, 1994 Ed) that the court could not go behind the respondent's convictions. The strength or weakness of the prosecution's case before the district court was irrelevant in these proceedings; (2) the court could not ignore the gravity of the offences and the circumstances in which they were committed. The gravity of the offences involving the corrupt solicitation, receipt and offering of gratification was compounded by the fact that they were committed by the respondent while acting on behalf of his client. As an officer of the court he sought to evade the due process of the law and pervert the course of justice. Such conduct of an advocate and solicitor was extremely reprehensible. The amount involved in the offence of criminal breach of trust might have been small but the element of dishonesty also existed; (3) the offences of which the respondent was convicted demonstrated the extreme defects in his character. His conduct merited an order that he should be struck off the roll of advocates and solicitors.

Digest :

Law Society of Singapore v Narmal Singh [1996] 2 SLR 184 High Court, SIngapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1635 Professional discipline -- Conduct of advocate and solicitor in professional capacity

9 [1635] LEGAL PROFESSION Professional discipline Conduct of advocate and solicitor in professional capacity Allegation in open court that opposing counsel had misled the court Whether allegation unfounded and amounted to misconduct Allegation made by advocate and solicitor without practising certificate Whether court had disciplinary jurisdiction

Summary :

The respondent was at all relevant times a deputy public prosecutor and an advocate and solicitor of the Supreme Court. In 1988, he was assigned to prosecute one Francis Seow for income tax offences. Seow was represented by Colin Ross-Munro QC and VK Dube. The case came up for hearing on 5 and 10 December 1988 but were adjourned as Ross-Munro QC produced letters from a Dr Fine stating that Seow was suffering from a serious heart condition and was unable to travel from New York. The prosecution strenuously objected to any adjournment, and in the course of argument, Ross-Munro QC called the respondent a disgrace to his profession. The prosecution subsequently discovered that Dr Fine was not a licensed medical practitioner and had not examined Seow. This was confirmed by a letter dated 22 February 1989 from Dr Fine to Dube. At the next mention of the case on 15 March 1989, Dube applied on behalf of Ross-Munro QC and himself to be discharged from further acting for Seow. The respondent then submitted that Ross-Munro QC had misled the court and that he (Ross-Munro) and Dube had abetted Seow in fabricating false evidence. As a result of what was said at these proceedings, Ross-Munro QC wrote to the respondent explaining that he was unaware of the true circumstances surrounding Seow's illness. The respondent replied to Ross-Munro QC in a letter dated 27 March 1989 saying that he accepted that Ross-Munro QC had not consciously misled the court. On 28 March 1989, Dube made a complaint to the Law Society alleging dishonourable and unprofessional conduct on the part of the respondent for making unfounded allegations in open court on 15 March 1989. An Inquiry Committee was appointed to investigate the complaint, and this committee duly submitted its report. Relying on this report, the Council of the Society ('the Council') determined under s 88 of the Legal Profession Act (Cap 161) ('the Act') that the respondent should be ordered to pay a penalty and imposed a S$1,000 penalty. The respondent applied to the High Court to have this penalty set aside under s 95 of the Act on the grounds that the Law Society had no jurisdiction over him and that the complaint was unfounded. The application was allowed. The Law Society appealed.

Holding :

Held, dismissing the appeal: (1) Pt VII of the Act expressly provides that every advocate and solicitor is an officer of the Supreme Court and is subject to the control of the court. There is no exemption for advocates and solicitors who do not hold practising certificates, or for those who are not members of the Society. Since the respondent was an advocate and solicitor albeit without a practising certificate, this disciplinary jurisdiction was wide enough to include him; (2) at the time the respondent made the allegation complained of, he was not acting in his capacity as an advocate and solicitor. He was clearly acting in his capacity as a legal officer; (3) it was clear from the evidence that by 22 February 1989, Dube and Ross-Munro QC knew that Dr Fine was not a licensed doctor and had not examined Seow. It was incumbent on Dube on his own motion, and at the earliest opportunity, to explain and to inform the court that he and Ross-Munro QC were totally unaware of the two facts. It was understandable therefore, that on 15 March 1989 when Dube produced the letter, a wary prosecutor would apprehend the possibility that, the deception having been revealed, counsel were endeavouring, as it were, to leave the sinking ship before they sank with it having been knowing parties to the deception. The respondent was justifiably suspicious in the light of what was known to him at the time; (4) the respondent made the allegations not merely in the face of an omission to explain, but in circumstances which gave rise to a positive duty to explain since counsel had, albeit unwittingly, assisted in creating a wrong impression in the court; (5) when the explanation was later elaborated on by Ross-Munro QC's letter of 20 March 1989, the respondent accepted Ross-Munro QC's word without hesitation; (6) the Inquiry Committee was in error in its finding that in the light of the evidence available at 15 March 1989, it was reasonable for the respondent to have made the allegations complained of; (7) the court was not condoning the allegations made by the respondent in the sense that it was a fit example for all advocates and solicitors to follow. Restrained language was generally desirable between brethren in the profession. In the same vein, Ross-Munro QC was not justified nor entitled to say that the respondent was a disgrace to his profession at the first court mention.

Digest :

Law Society of Singapore v Ang Boon Kong Lawrence [1993] 1 SLR 522 Court of Appeal, Singapore (Yong Pung How CJ, LP Thean and Chao Hick Tin JJ).

1636 Professional discipline -- Conduct unbefitting

9 [1636] LEGAL PROFESSION Professional discipline Conduct unbefitting Whether solicitor who acts as stakeholder liable to account for interest earned on moneys held by him as stakeholder Legal Profession Act 1976, s 93(2)(b)

Summary :

The respondents were registered owners of a piece of land which they sold to two purchasers under a sale and purchase agreement dated 28 July 1989. The appellant, GT Rajan ('Rajan'), acted as solicitor for the respondents in this transaction. The sale and purchase agreement ('the agreement') provided that Rajan was to forthwith present the memorandum of transfer for adjudication after it was executed by the purchasers or their nominees and that Rajan was to hold the balance purchase price of RM750,000 until the memorandum of transfer was registered in favour of the purchasers. However, Rajan only forwarded the memorandum of transfer for adjudication and stamping after the balance of the purchase price was paid, which caused a delay of four months before the respondents received the money. When the balance of the purchase price was paid by the purchasers to Rajan, the respondents requested that this amount be deposited into a fixed deposit earning account. Rajan was of the view that as he was a stakeholder of the said money, he need not accede to the request of the respondents. Eventually when the balance of the purchase price was released to the respondents some four months later, it was without any interest. This prompted the respondents to complain to the State Bar Committee about the conduct of Rajan which resulted in an inquiry by the disciplinary committee under s 99 of the Legal Profession Act 1976 before its amendment in 1992. The issues before the disciplinary committee were, inter alia: (1) whether Rajan was a solicitor for the respondents or a stakeholder; and (2) whether Rajan was late in sending the memorandum of transfer for adjudication and stamping. The disciplinary committee answered both questions in the affirmative and found Rajan guilty of 'conduct otherwise unbefitting an advocate and solicitor' under s 93(2)(b) of the Legal Profession Act 1976 before its amendment in 1992. Rajan appealed. Held, allowing the appeal: (1) in order to decide whether a person is an agent or a stakeholder, the circumstances of the transaction as a whole must be examined. It is without doubt that Rajan first acted as a solicitor for the respondents. In that capacity, he was an agent of the respondents. However, when the agreement was executed, Rajan's role as an agent was transformed. The provision that Rajan was to receive the balance of the purchase price and not to release the same until the registration of the transfer into the names of the purchasers, their nominee or nominees placed a responsibility on Rajan to keep the said money in his own hands or to put it on deposit with a bank. In the event that the transfer could not be registered, he had to return the money to the purchasers. On the other hand, without the money being placed with him, the respondents would not have released the document of title and the memorandum of transfer to the purchasers. Rajan was therefore placed in the position of a trustee where he was accountable to both the purchasers and the respondents. This arrangement was to protect the interests of both parties to the agreement and the court concluded that Rajan was clearly a stakeholder; (2) from decided authorities, it is clear that if a person is a stakeholder then he is not accountable to any party for any interest gained while holding the money on trust. As the court found that Rajan was a stakeholder of the balance of the purchase price received from the purchasers until subsequently released to the respondents, he was then entitled to keep for himself any interest earned on the said sum. In that event, the court found that the disciplinary committee had erred in fact and in law in arriving at their finding on the first question; (3) it was not disputed that the memorandum of transfer was executed by the purchasers' nominees only after the balance of the purchase price was received. Under normal conveyancing practice, a memorandum of transfer is not forwarded for adjudication and stamping until and unless all required particulars of the purchase are completed and the purchaser has executed the same. Any memorandum of transfer which does not fulfil this requirement is considered incomplete and is likely to be rejected by the relevant authorities. Under such circumstances, Rajan could not possibly have forwarded the memorandum of transfer for adjudication immediately after execution of the agreement as the memorandum had to be signed first by the parties and he could not be blamed for sending the memorandum of transfer late for adjudication and stamping. The disciplinary committee had therefore erred in arriving at their conclusion on the second question.

Digest :

GT Rajan v Lee Yoke Lay & Anor [1994] 2 MLJ 315 High Court, Kuala Lumpur (Wan Mohamed, Abdul Malek and James Foong JJ).

1637 Professional discipline -- Conviction of offence

9 [1637] LEGAL PROFESSION Professional discipline Conviction of offence Abetment of non-issue of prospectus on public issue of shares Whether offence implied a defect of character Misjudgment of law

Summary :

R acted as solicitor for the promoters of a company. The company was incorporated to run a proprietary club. Membership was to be by invitation. Prospective members were required to purchase one or two S$5,000 shares at a premium of S$25,000 to qualify for membership. Letters of invitation were despatched to friends and associates of the promoters. No prospectus accompanied these letters. The price of the shares was also not disclosed. R was convicted on his plea of guilty of abetting the promoters in making a public issue of shares without a prospectus. The matter was referred to a Disciplinary Committee, which determined that there was sufficient cause for disciplinary action on two charges: (a) on the conviction; (b) in that R had been guilty of grossly improper conduct in the discharge of his professional duty in aiding and abetting the promoters of the company in concealing or withholding from the offerees the premium payable for the shares in the company.

Holding :

Held, acquitting R: (1) it must imply a defect of character which made R unfit for his profession. The nature of the offence is the sole criterion in determining whether an advocate and solicitor is within s 80(2)(a) of the Legal Profession Act (Cap 161); (2) the offence was not a strict liability offence. However, the offence was consistent with an error of judgment on the law. R thought that no prospectus was required. He turned out to have been mistaken. R had not committed an intentional breach of the law. The nature of the offence was such that, unlike offences where fraud or dishonesty are essential ingredients, there was no irresistible inference of a defect of character making R unfit to practise law; (3) a conviction per se is not sufficient to warrant disciplinary action;on the second charge, R testified that he had deleted reference to the price of the shares because he wanted to ensure that the letter was not construed as an offer but only as an invitation to treat. It was the view of the court that the Disciplinary Committee should not have rejected R's explanation for the lack of reference to the price of the shares. The court disagreed with the Disciplinary Committee's inference that the omission of the price was meant to 'trap' investors. Even if the deletion of the sale price in the letter was meant to enable the promoters to subsequently raise the price of shares, this did not amount to such reprehensible conduct as to come within s 80(2)(b) of the Legal Profession Act (Cap 161). As both charges had not been made out, R was acquitted and no sanction was imposed.

Digest :

Re Winston Chen Chung Ying [1989] 1 MLJ 340 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Rajah JJ).

1638 Professional discipline -- Conviction of offence

9 [1638] LEGAL PROFESSION Professional discipline Conviction of offence Abetting client in offence of intentionally omitting to attend court under s 174 read with s 109 of Penal Code (Cap 224) Whether conviction implied defect of character making respondent unfit for his profession Legal Profession Act (Cap 161), ss 83(1), (2)(a) & 98(1)

Summary :

In these disciplinary proceedings pursuant to s 98(1) of the Legal Profession Act (Cap 161) ('the Act'), the respondent was called upon to show cause why he should not be dealt with by the court under s 83(1) of the Act. The respondent, acting in person, chose not to appear before the court to show cause. The respondent pleaded guilty to a charge of abetting a client in the commission of the offence of intentionally omitting to attend at the subordinate courts from 3 to 4 December 1990 in obedience to an order made by a judicial officer, being an offence under s 174 read with s 109 of the Penal Code (Cap 224). The respondent instigated the client to obtain a medical certificate from a medical practitioner certifying that the client was unfit to attend court on the stated days. Later, the medical certificate was tendered by the respondent to the court. As a result, the case against the client was adjourned. Seven other charges were taken into consideration. Following his conviction, disciplinary proceedings were commenced by the Law Society. In its report, the committee determined that cause of sufficient gravity existed for disciplinary action to be taken against the respondent. Subsequently, the Law Society made an application under s 98(1) of the Act for the respondent to show cause. Held, ordering that the respondent be struck off the roll: (1) at the outset, the court is bound by s 83(5) of the Act and accepted the criminal conviction of the respondent as final and conclusive. The court's task was to consider whether due cause had been shown by proof that the conviction of the respondent implied a defect of character which made him unfit for his profession within s 83(2)(a) of the Act; (2) the sole criterion in determining whether an advocate and solicitor falls within s 83(2)(a) is the nature of the offence in question. The offence committed by the respondent involved an obstruction of the machinery of justice. The nature of this offence implied a defect of character which made the respondent unfit for his profession and the court was satisfied that due cause had been shown as required by s 83(1) of the Act for disciplinary action to be taken.

Digest :

Re Gnaguru s/o Thamboo Mylvaganam Originating Summons No 608 of 1994 High Court, Singapore (Yong Pung How CJ, Karthigesu JA and Lai Siu Chiu J).

1639 Professional discipline -- Conviction of offence

9 [1639] LEGAL PROFESSION Professional discipline Conviction of offence Conviction for breach of trust Whether conviction implied a defect of character which made him unfit for his profession

Summary :

This application was made on behalf of the Inquiry Committee ('the applicant') for the respondent, an advocate, to show cause as to why his name should not be struck off the roll of advocates pursuant to s 12(e) of the Advocates Ordinance ('the Ordinance'). Section 12(e) provides, inter alia, that any advocate may have his name struck off the roll of advocates, be suspended from practising in Sarawak, be fined, be censured or be awarded costs against him if he has been convicted of a criminal offence implying a defect of character which unfits him for his profession. The respondent had earlier pleaded guilty to a charge under s 409 of the Penal Code and was sentenced to eight days' imprisonment and fined. The respondent requested that he be suspended as striking off the rolls would be too harsh and complained that there was failure on the part of the applicant to comply with O 3 r 6 of the Rules of the High Court 1980 ('the Rules') in that there was no notice of intention to proceed filed and served. The issue before the court was whether the respondent should be struck off the rolls, fined, censured or whether a period of suspension from practice would be sufficient punishment.

Holding :

Held, granting an order of striking off: (1) O 3 r 6 of the Rules applies to interlocutory proceedings before final judgment and had no application in this present case; (2) it was necessary to consider the nature of the offence of which the respondent had been convicted and the circumstances of the conviction and whether the said conviction would imply 'a defect of character which unfits him for his profession'. What the respondent had done amounted to gross misconduct of the most serious character. He had committed a breach of trust of money belonging to his client. The respondent's criminal conviction implied a defect of character which made him unfit for his profession.

Digest :

Inquiry Committee v Lee Heng Chiang Originating Summons No KG 183-92-III High Court, Kuching (Elizabeth Chapman JC).

1640 Professional discipline -- Conviction of offence

9 [1640] LEGAL PROFESSION Professional discipline Conviction of offence Conviction of offences implying unfitness to be an advocate and solicitor Solicitor paying composition fine Whether acceptance of composition amounts to admission of guilt Information regarding solicitor's conduct referred by Attorney General to Law Society Powers of disciplinary committee

Summary :

R was at the material time a partner in a firm with K. K was convicted of abetting criminal breach of trust. An investigation was made into the accounts of the firm, as a result of which R was charged with criminal breach of trust. Negotiations began with the prosecution regarding the charge and a deal was struck whereby R would plead guilty to an income tax summons instead. However, the deal fell through and R was eventually prosecuted and acquitted of criminal breach of trust. However, the income tax summons remained. More such summonses were brought against R. The gist of these charges was that R had falsified the accounts of the firm in order to evade tax. Eventually R faced a total of 12 such summonses. Another deal was negotiated with the prosecution. R pleaded guilty to one charge which did not involve dishonesty. The other charges (involving dishonesty) were compounded. As a result of these matters, the Attorney General referred information touching on R's conduct to the Law Society. Several 'charges' were eventually brought by the Law Society against R in disciplinary proceedings. The disciplinary committee found that there was cause of sufficient gravity for disciplinary action against R on seven of the charges. One of these charges was substantially amended during the course of the proceedings. An order nisi to show cause was made against R.

Holding :

Held, discharging the order nisi: (1) there was insufficient evidence to support the disciplinary committee's findings that R's actions were deliberate. None of the charges against R had been proven beyond a reasonable doubt; (2) two of the charges were outside the scope of the information referred by the Attorney General to the Law Society. Where disciplinary proceedings are based on information referred by the Attorney General to the Law Society, the Society cannot frame a charge which was not contained in the information referred by the A-G to them and notice of which was not given by the Inquiry Committee under s 87(5) of the Legal Profession Act (Cap 217, 1970 Rev Ed); (3) the disciplinary committee can only investigate matters referred to it by the Council of the Law Society and cannot of its own motion decide to investigate other matters. Therefore, it cannot during the course of disciplinary proceedings introduce a new charge that was not inquired into by the Inquiry Committee. The disciplinary committee had allowed an amendment to the seventh charge which changed it substantially. They should not have done so; (4) the fact that R accepted the offer of composition and paid the penalty imposed was not an admission of guilt. The effect of a composition under the Income Tax Act (Cap 134) is that no further action can be taken by the prosecution against the accused on the charge; (5) as the charges against R had not been made out, the order nisi to show cause was discharged. The Society was ordered to pay R's costs.

Digest :

Re Lim Chor Pee [1991] 2 MLJ 154 High Court, Singapore (Wee Chong Jin CJ, Thean and Coomaraswamy JJ).

1641 Professional discipline -- Conviction of offence

9 [1641] LEGAL PROFESSION Professional discipline Conviction of offence Disciplinary proceedings Striking off the roll Conviction for criminal offence relating to dishonesty Admission of another offence Sentence of imprisonment and fine Whether conviction implied a defect in character Extreme penalty Legal Profession Act (Cap 217, 1970 Ed), s 84(2)(a) & (b).

Summary :

The respondent, an advocate and solicitor, was on his plea of guilty convicted of an offence under s 108A of the Penal Code (Cap 224) for instigating the general manager of Gemini Chit-Fund Corporation Limited, Malaysia Branch, to dishonestly remove property, to wit, five cars and other movable properties belonging to the said company. The respondent after his conviction for the said offence applied with the consent of the Deputy Public Prosecutor for another charge to be taken into consideration as provided in s 171(1) of the Criminal Procedure Code (Cap 68). That charge related to an offence punishable under s 201 of the Penal Code. The magistrate's court after hearing a plea in mitigation sentenced the respondent to one day's imprisonment and a fine of S$4,000 or in default 15 months' imprisonment. As a consequence of his conviction, the respondent appeared before a disciplinary committee under the Legal Profession Act (Cap 217, 1970 Ed). The committee found that the respondent had been convicted of a criminal offence implying a defect of character which made him unfit for his profession within the meaning of s 84(2)(a) of the Legal Profession Act (Cap 217, 1970 Ed) and that he was guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s 84(2)(a) of the said Act. On reference of the matter by the Law Society to the High Court,

Holding :

Held: the respondent was convicted of an offence which clearly implied a defect of character which made him unfit for the profession of an advocate and solicitor. Having considered all the circumstances including the respondent's admission of having committed another serious criminal offence, the court was of the view that the extreme penalty ought to be imposed and that the respondent should be struck off the roll and that he should bear all the costs of the Law Society.

Digest :

Re Isaac Paul Ratnam; Law Society of Singapore v Isaac Paul Ratnam [1973] 2 MLJ 54 High Court, Singapore (Wee Chong Jin CJ, Chua and Tan Ah Tah JJ).

Annotation :

[Annotation: The Privy Council in Isaac Paul Ratnam v Law Society of Singapore [1976] 1 MLJ 195 reversed the High Court judgment on the ground that the failure to comply with the requirement of notice in s 87(5) rendered all subsequent proceedings void.]

1642 Professional discipline -- Conviction of offence

9 [1642] LEGAL PROFESSION Professional discipline Conviction of offence Disciplinary proceedings Striking off the roll Criminal offence 'A defect of character which makes him unfit for the profession' Legal Profession Act (Cap 217), s 84(2)(a).

Summary :

The respondent, an advocate and solicitor had been convicted on two charges under the Companies Act (Cap 185, 1970 Ed) and was sentenced to a term of imprisonment. Disciplinary proceedings were commenced and he appeared before the court to show cause why he should not be dealt with under s 84(2) in that he had been convicted of a criminal offence, implying a defect of character which made him unfit for the profession.

Holding :

Held: on the facts the respondent had acted dishonestly in relation to the transactions in question. The criminal offences of which he had been convicted implied 'a defect of character which makes him unfit for the profession'. Accordingly the respondent should be struck off the roll of advocates and solicitors.

Digest :

Law Society of Singapore v VKS Narayanan [1974] 2 MLJ 146 High Court, Singapore (Wee Chong Jin CJ, Winslow and Tan Ah Tah JJ).

1643 Professional discipline -- Conviction of offence

9 [1643] LEGAL PROFESSION Professional discipline Conviction of offence Offence under s 6(c) of Prevention of Corruption Act (Cap 241, 1990 Ed) Whether offence involved any element of fraud or dishonesty Whether fact that offence not connected to discharge of professional duties a mitigating factor Time lag before institution of disciplinary proceedings Whether prejudice occasioned to respondent Protection of public and preservation of good name of profession paramount considerations Legal Profession Act (Cap 161, 1990 Ed), ss 83(1), (2)(a), 89(b) & 98(1)

Summary :

In these disciplinary proceedings pursuant to s 98(1) of the Legal Profession Act (Cap 161) ('the Act'), the respondent was called upon to show cause why he should not be dealt with by the court under s 83(1) of the Act. The respondent pleaded guilty to a charge under s 6(c) of the Prevention of Corruption Act (Cap 241) ('the PCA'). The respondent admitted without qualification the statement of facts tendered by the prosecution. On 19 August 1993 and 20 January 1994, a disciplinary committee was appointed to hear and investigate certain complaints made against the respondent. In the course of the proceedings, the respondent contended that (i) the conviction was a technical one as the offence did not involve any element of fraud or dishonesty, and that the only 'wrong' which the respondent had committed was to submit a wrong invoice; (ii) there had been delay by the Law Society in commencing disciplinary proceedings against the respondent under (the then) s 89(b) of the Act. Counsel argued that the delay had caused the respondent grave prejudice, and that consideration had to be accorded to this prejudice when the disciplinary committee came to determine whether any cause of sufficient gravity for disciplinary action existed under s 83 of the Act; and (iii) the respondent had been sufficiently punished for his crime and that a reprimand should suffice in his case. In reply, Counsel for the Law Society stated that (i) a conviction under s 6(c) of the PCA implied dishonest conduct rendering the respondent unfit for the legal profession; (ii) the Law Society had, rightly or wrongly, thought it prudent to await the judgment of the Court of Appeal in Law Society of Singapore v Ang Boon Kong Lawrence [1993] 1 SLR 522. Further, the respondent could not be said to have suffered any prejudice because he should have been aware all along that an application by the Law Society under (the then) s 89(b) was mandatory and therefore he could not claim to have been labouring under the belief that the Law Society had decided not to take any action against him. The disciplinary committee found that the charge to which the respondent had pleaded guilty clearly alleged an intent to deceive. Also, having the benefit of the respondent's oral testimony before them, the committee articulated a negative finding as to his credibility. The committee found that the charge against the respon-dent had been proven and that accordingly cause of sufficient gravity existed for disciplinary action under s 83(1) of the Act. At the hearing of the show cause action, the respondent conceded that the only issue before the court was one of the appropriate penalty to be applied to him. The court was urged to show leniency towards the respondent, bearing in mind the mitigating factors as well as the prejudice allegedly caused by the time lag which elapsed before the commencement of disciplinary proceed-ings. Held, ordering that the respondent be struck off the roll: (1) in expanding on the mitigating circumstances of the respondent's case, counsel asserted that the offence in question had not involved the respondent acting in his professional capacity as an advocate and solicitor. This in itself had no mitigating value whatsoever. The charge against the respondent required only that it be shown that he had been convicted of a criminal offence. There was no necessity that the offence be connected in any way with the discharge of the respondent's professional duties; (2) there was also no inordinate delay by the Law Society. The Law Society appears to have acted only with circumspection in seeking legal advice before bringing its disciplinary jurisdiction to bear on the respondent; (3) more importantly, in any case where the court is bound to consider the appropriate order to be made in respect of an advocate and solicitor convicted of a criminal offence - particularly one involving dishonesty - the paramount considerations must be the protection of the public and the preservation of the good name of the profession. Certainly the court will give its consideration to the mitigating circumstances in each individual case but it can do so only so far as is consistent with the above two related objectives; (4) it must be remembered that, at the time of the offence, the respondent was holding a position of not inconsiderable significance within the legal pro fession and one which frequently placed him in the public eye. As the Director of the Commercial Affairs Department, he was charged with the responsibility of overseeing the investigation and prosecution of various commercial crimes. That he should himself become the perpetrator of a crime of deceit, albeit one not within the purview of his own department, is inexcusable. It is no exaggeration to say that the respondent's conduct and his subsequent conviction produced in turn negative consequences so far as public confidence in the integrity of the legal profession was concerned.

Digest :

Re Knight Glenn Jeyasingam [1994] 3 SLR 531 High Court, Singapore (Yong Pung How CJ, Karthigesu JA and Lai Siu Chiu J).

1644 Professional discipline -- Conviction of offence

9 [1644] LEGAL PROFESSION Professional discipline Conviction of offence Respondent convicted of conspiracy to commit criminal breach of trust and to cheat- Whether respondent should be struck off the roll Legal Profession Act (Cap 161), ss 83(1), 83(2)(a) & 94A

Summary :

The respondent, an advocate and solicitor, acted for the owners of two plots of land which were being redeveloped. The agreement between the developer and the owners of the land provided that the land was not to be mortgaged and that the title deeds were to be in the safekeeping of the respondent as the solicitor for the land owners. In breach of this agreement, the developer mortgaged the land to Asia Building Society Ltd (ABS) for $560,000 and later to United Overseas Finance (UOF) for $580,000. The developer was eventually prosecuted in respect of these matters and the respondent was, in turn, charged with conspiring with the developer to commit criminal breach of trust and cheating. There were four charges of conspiracy to commit criminal breach of trust which alleged that the respondent had sent the title deeds in his possession to ABS and copies of the same deeds to UOF in breach of trust and for the dishonest purpose of obtaining a mortgage of the land without the consent of the owners. There were also two charges of conspiracy to cheat which alleged that the respondent had dishonestly induced UOF to release moneys to the developer by signing as a witness to the purported execution of forged sale and purchase agreements whereby the land owners allegedly sold their property to the developer. The respondent was convicted on each of the six charges and his subsequent appeal against conviction was dismissed. The Law Society then applied for and received an order calling upon the respondent to show cause why he should not be dealt with under s 83 of the Legal Profession Act (the Act). Held, ordering that the respondent be struck off the roll: (1) the convictions in this case were of such a nature as to imply a defect in the character of the respondent as they each involved fraud and dishonesty. Moreover, they were committed in the course of his professional duties as an advocate and solicitor; (2) s 83(5) of the Act says that the court cannot go behind the convictions at such proceedings. Thus, it was not open to the respondent to argue that he was wrongly convicted. The sole question before the court was what consequences should flow from the fact that the respondent had in fact been convicted of the offences charged; (3) the offences all involved fraud and dishonesty. They also involved large sums of money. Most importantly, the offences had been carried out in the respondent's capacity as an advocate and solicitor. In view of these facts, the respondent was ordered to be struck off the roll of advocates and solicitors.

Digest :

Re Mohomed Jiffry Muljee [1994] 3 SLR 520 High Court, Singapore (Karthigesu JA, LP Thean JA and Lai Siu Chiu J).

1645 Professional discipline -- Deputy Public Prosecutor

9 [1645] LEGAL PROFESSION Professional discipline Deputy Public Prosecutor Disciplinary proceedings against Deputy Public Prosecutor Jurisdiction of Law Society No jurisdiction over members of Legal Service

Digest :

Ang Boon Kong Lawrence v Law Society of Singapore [1991] 1 MLJ 385 High Court, Singapore (Sinnathuray J).

See LEGAL PROFESSION, Vol 9, para 1593.

1646 Professional discipline -- Deputy Public Prosecutor

9 [1646] LEGAL PROFESSION Professional discipline Deputy Public Prosecutor Jurisdiction of Law Society No jurisdiction over members of Legal Service

Summary :

The Council of the Law Society ordered A to pay S$1,000 pursuant to disciplinary proceedings brought against him. A was a Deputy Public Prosecutor and did not have a practising certificate, although he had been called to the Bar. A applied to have the penalty set aside.

Holding :

Held, allowing the application: (1) on the merits of the penalty, there was nothing dishonourable about the conduct of A. The imposition of the penalty therefore could not be supported; (2) as far as jurisdiction was concerned, the Law Society had no jurisdiction over A, who was a Deputy Public Prosecutor. The penalty imposed on A was accordingly set aside.

Digest :

Ang Boon Kong Lawrence v Law Society of Singapore [1991] 1 MLJ 385 High Court, Singapore (Sinnathuray J).

Annotation :

[Annotation: Affirmed on appeal. See [1993] 1 SLR 522.]

1647 Professional discipline -- Duplicity of proceedings

9 [1647] LEGAL PROFESSION Professional discipline Duplicity of proceedings Disciplinary committee had dismissed complaint against advocate and solicitor Whether disciplinary committee became functus officio after dismissing complaint

Digest :

Vadiveloo v Thanaletchumy & Anor [1992] 1 MLJ 623 High Court, Kuala Lumpur (Eusoff Chin, Shankar and Faiza Tamby Chik JJ).

See LEGAL PROFESSION, Vol 9, para 1595.

1648 Professional discipline -- Duplicity of proceedings

9 [1648] LEGAL PROFESSION Professional discipline Duplicity of proceedings First disciplinary committee had dismissed complaint against advocate and solicitor No appeal against first disciplinary committee's order Whether Bar Council could act on same complaint and apply to appoint second disciplinary committee Whether second disciplinary committee could hear same complaint Legal Profession Act 1976 (Act 166), ss 101(3), (4) & 102(1)

Summary :

A, an advocate and solicitor, acted for X in respect of the purchase of a piece of property. X made three payments to A and alleged that A was to prepare a sale and purchase agreement after such payments were made. A denied this allegation. A sale and purchase agreement was not executed and X subsequently did not wish to purchase the property. X did not receive a refund of her money from A despite having seen A on several occasions. X then complained to the Bar Council. A disciplinary committee was appointed and a hearing of X's complaint was fixed. The hearing was, however, adjourned to 4 August 1988 because X's solicitors had just been retained. On 4 August 1988, A was present before the disciplinary committee but X was absent. A applied to dismiss the complaint, inter alia, on the ground that it was unjust to A to have such matter hanging over him for such a long time. The disciplinary committee thus dismissed the complaint. When members of the disciplinary committee were on their way out of the building where the hearing was held, they saw X and asked why she was absent at the hearing. X admitted receiving notice of the hearing and she was advised to file a fresh complaint if she wished to pursue the matter further. The disciplinary committee's order dismissing the complaint was filed with the Bar Council and the registrar of the High Court. A copy of this order was also served on A and X. X did not appeal against this order and also did not file a fresh complaint. The Bar Council, however, acted on X's original complaint in applying to the learned Chief Justice of Malaya to appoint a second disciplinary committee. A second disciplinary committee was therefore appointed which heard the original complaint and found A's conduct unbecoming and unbefitting that of an advocate and solicitor. A was suspended from practice for six months and was ordered to pay costs to X. A appealed to the High Court.

Holding :

Held, allowing the appeal: (1) once the first disciplinary committee had dismissed X's complaint, it became functus officio and its advice to X to file a fresh complaint, could not be treated as part of its order; (2) the first disciplinary committee's order had already disposed of X's complaint. The Bar Council could not therefore act on the same complaint and apply to appoint a second disciplinary committee. Consequently the second disciplinary committee had no jurisdiction to hear the same complaint as its appointment was based on an invalid application by the Bar Council.

Digest :

Vadiveloo v Thanaletchumy & Anor [1992] 1 MLJ 623 High Court, Kuala Lumpur (Eusoff Chin, Shankar and Faiza Tamby Chik JJ).

1649 Professional discipline -- Giving a wrong reference

9 [1649] LEGAL PROFESSION Professional discipline Giving a wrong reference Whether there was sufficient grounds for findings of Inquiry Committee Imposition of penalty Court should be slow to interfere with Inquiry Committee's findings of fact

Summary :

The defendants received a complaint against the plaintiff by a letter dated 13 June 1990 from the complainant. The complainant alleged that the plaintiff, an advocate and solicitor, had made certain representations concerning one F's creditworthiness which amounted to the giving of a reference to the complainant and these were wrong. As a result, the complainant suffered a loss when F failed to collect the shares which he had ordered through the complainant. The plaintiff did not disclose to her that F was an undischarged bankrupt and she had written a letter on 22 February 1990 to the complainant's company requesting that F be given more time to pick up the shares. The Inquiry Committee found that no formal investigation by a disciplinary committee was necessary and recommended that a penalty be imposed on the plaintiff under s 88(1) of the Legal Profession Act (Cap 161) ('the Act'). On 5 April 1991, the plaintiff appeared before the defendants' council to show cause under s 88(3) of the Act and they subsequently informed the plaintiff that a penalty of S$500 would be imposed on her. The plaintiff applied to set aside, or otherwise vary, the order made by the defendants and conveyed to her in their letter dated 10 April 1991 ('the letter') that she pay a penalty of S$500 under s 88(1) of the Act; she had since paid the penalty. The question before the court was whether the defendant council was entitled to act on the Inquiry Committee's recommendation and to impose a penalty on the plaintiff.

Holding :

Held, dismissing the plaintiff's application: (1) having regard to the circumstances of this case, there was sufficient grounds for the Inquiry Committee to arrive at its findings based on the complainant's letter dated 13 June 1990 and the defendant council was entitled to accept the findings; (2) the plaintiff had misconducted herself professionally by giving a wrong reference to the complainant. Not only did the plaintiff give a wrong reference which resulted in a fraud being committed by F under ss 111(1)(m)(i) and 116(2) of the Bankruptcy Act (Cap 20), but she had helped him to perpetuate the fraud by writing to the complainant's company on 22 February 1990 requesting that he be given more time to pick up the shares; (3) in the instant case, the court is exercising its appellate jurisdiction over the defendants as an administrative tribunal and it should be slow to disturb or interfere with the findings of fact by the Inquiry Committee unless it can be shown that supporting evidence was lacking, or there was some misunderstanding of the evidence or there are other exceptional circumstances justifying the court to do so. There are no valid reasons here to justify the court disturbing the Inquiry Committee's findings of fact; (4) when the defendants' council decides to dismiss a complaint and impose a penalty under s 88 of the Act, the opportunity afforded to an advocate and solicitor to be heard is to assist the council to decide the quantum of penalty and not to determine whether or not to impose a penalty. The defendants were right in deciding to impose a penalty on the plaintiff and after hearing her on 5 April 1991, to impose a penalty of S$500 against the Inquiry Committee's recommendation of S$1,000.

Digest :

Wong Juan Swee v Law Society of Singapore [1993] 2 SLR 554 High Court, Singapore (Lai Siu Chiu JC).

1650 Professional discipline -- Inquiry Committee

9 [1650] LEGAL PROFESSION Professional discipline Inquiry Committee Whether Committee identified precise nature of misconduct committed by appellant Whether Law Society's Council bound by findings of Inquiry Committee as expressed in its report Legal Profession Act (Cap 161), ss 86(7), 87(1) & (2)(a) Whether Council's determination of penalty sustainable on basis that appellant had given complainant a wrongful reference vis-a-vis third party

Digest :

Wong Juan Swee v Law Society of Singapore [1994] 3 SLR 846 Court of Appeal, Singapore (LP Thean JA, Goh Joon Seng and Warren LH Khoo JJ).

See LEGAL PROFESSION, para 1602.

1651 Professional discipline -- Keeping attendance-slips

9 [1651] LEGAL PROFESSION Professional discipline Keeping attendance-slips Practice Importance of keeping attendance-slips Keeping aide-memoires.

Summary :

4Per Chang Min Tat J:5 'Attendance-slips as they are usually called in the profession must be seen to be of the utmost importance not only in recalling past events to mind but also for purposes of taxation of costs. It is, I realize, not part of my duty nor should it be my presumption to advise solicitors on how they should or should not carry out their work but I would venture, with some diffidence, to suggest that solicitors would do well to bear in mind the possibility of their being called to the witness stand.'

Digest :

SMO Othaman Chettiar v Ang Gee Bok [1971] 1 MLJ 91 High Court, Ipoh (Chang Min Tat J).

1652 Professional discipline -- Misconduct

9 [1652] LEGAL PROFESSION Professional discipline Misconduct 'Complaint' under s 82(1) of the Legal Profession Act (Cap 161, 1988 Ed) Necessity for allegation of misconduct Disciplinary Committee's findings of fact Court's power to consider findings of fact

Summary :

R was a senior partner in a local law firm MD. C had instructed R to act for a company of which she was at all material times a director and principal shareholder. R was instructed to resist a winding-up petition presented against the company by A. R accepted the instructions and assigned CH, a legal assistant in the firm, to assist him in the matter. The petition against the company was dismissed. Later, the taxed party and party costs which were awarded to C were paid by R's law firm into the office account. C claimed that R had agreed to limit the costs payable by her to S$25,000. R denied that he had agreed to this and claimed that the agreement was that such costs would only be limited if A was unable to bear the party and party costs awarded against it. C wrote a letter to the Law Society describing the events that had occurred and sought the help of the society in resolving the dispute. The Law Society commenced disciplinary proceedings against R. He was charged with breach of r 3 of the Solicitors Accounts Rules 1967 by paying client's money into the office account, breach of s 109(1) of the Legal Profession Act (Cap 161, 1988 Ed) in that he taxed party and party costs in excess of the agreed solicitor and client costs, and wrongful appropriation of party and party costs which lawfully belonged to C. The Disciplinary Committee hearing the matter determined that cause of sufficient gravity existed against R in respect of all three charges. R was called upon to show cause why he should not be disciplined.

Holding :

Held, discharging the order nisi: (1) a complaint that concerned a civil dispute simpliciter, unaccompanied by any allegation of misconduct, does not constitute a 'complaint of the conduct' within s 82(1) of the Legal Profession Act (Cap 161, 1988 Ed). C's letter to the Law Society made no allegation of impropriety or misconduct on the part of R; (2) the correspondence between C and R's firm showed that there was a dispute as to the precise terms of the agreement that they had entered into regarding costs. There was no suggestion that R had ever intended to deprive C of anything that might be due to her; (3) this was a dispute which should be resolved in a civil court. A breach of contract simpliciter cannot in any way constitute an allegation of misconduct; (4) there was therefore no valid 'complaint' against R and the proceedings failed at the outset; (5) disciplinary power is essentially punitive and penal and is exercised in appropriate cases only where there is personal complicity by the solicitor charged. In certain cases, the negligence of a solicitor in relation to a client's account may amount to professional misconduct, 'if it is inexcusable and is such as to be regarded as deplorable by his fellows in the profession'. However, in the present case the Disciplinary Committee made no finding that R was personally implicated in the breach of the rules, and there was no evidential basis for such a finding. The first charge must therefore fail; (6) as regards the second charge, in deciding whether the committee came to the correct finding that there was an oral agreement between R's law firm and C limiting solicitor and client costs to S$25,000, the whole of the evidence had to be examined. The committee's findings were essentially matters of fact, but where it appears from the evidence that the wrong decision in fact has been reached it can be reversed, due regard being had to the court's disadvantage in not seeing or hearing the witnesses; (7) having examined the facts, the court concluded that the findings of the committee on the second charge could not be sustained; (8) the third charge was contingent upon the first charge. Since R was not personally implicated in the first charge, the third charge also failed. The order nisi to show cause was discharged.

Digest :

Re Howard E Cashin [1989] 3 MLJ 129 High Court, Singapore (Wee Chong Jin CJ, Thean and Chua JJ).

1653 Professional discipline -- Misconduct

9 [1653] LEGAL PROFESSION Professional discipline Misconduct Advocate and solicitor formerly acted for both appellant and co-accused Submissions made at trial attacking appellant's evidence Whether submissions would amount to professional misconduct

Digest :

Seet Melvin v Law Society of Singapore [1995] 2 SLR 323 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See LEGAL PROFESSION, para 1483.

1654 Professional discipline -- Misconduct

9 [1654] LEGAL PROFESSION Professional discipline Misconduct Allegations made in affidavits not yet found as facts Whether court should make finding of fact and then proceed against advocate under s 12 of Sarawak Advocates Ordinance (Cap 110)

Summary :

The applicant applied for a rule to issue to the Attorney General of Sarawak ('the subject advocate') to show cause why he should not be suspended or struck off the roll or fined or censured pursuant to s 13(1) of the Sarawak Advocates Ordinance (Cap 110) ('the Ordinance'). The application arose from a proceeding before another High Court where the applicant applied for an order of certiorari ('the earlier proceeding'). The applicant alleged that the subject advocate had made false submissions both written and oral during the hearing of the earlier proceeding. It was also alleged that the subject advocate had filed a false affidavit of a third party and thereafter made use of it during the hearing of the earlier proceeding. In his application, the applicant relied on s 12(b) and (g) of the Ordinance read with r 17 of the Advocates (Practice and Etiquette) Rules 1988. Under s 12(b), an advocate may, inter alia, have his name struck off the roll of advocates if he is guilty of fraudulent or improper conduct in the discharge of his professional duty or knowingly misleads or allows the court to be misled. Held, dismissing the application: (1) the applicant was asking the court to make a finding of fact that his allegations were correct, and thereafter based on the findings, a finding that the conduct of the subject advocate came within the ambit of s 12(b) and (g) of the Ordinance. The court did not think that it should embark on such a task; (2) before the applicant invoked s 13 of the Ordinance, he should first have his allegations found as facts. The contents of his affidavits are contentious in nature, thereby requiring firstly a finding to be made; (3) thus at this stage it was inappropriate for the court to find that prima facie the subject advocate had made a false submission or filed a false affidavit; (4) if the applicant was truly aggrieved by what the subject advocate had allegedly done, he could have raised such a matter during the hearing of the earlier proceeding. That would have enabled the matter to be addressed before the presiding judge who could have come to some findings on it.

Digest :

Re Sarjit Singh Khaira Originating Summons No KG 300 of 1993 (III).

1655 Professional discipline -- Misconduct

9 [1655] LEGAL PROFESSION Professional discipline Misconduct Appellant ordered by Law Society's Council to pay penalty Appellant's appeal to High Court against order of penalty dismissed Whether High Court decision final and unappealable Whether Court of Appeal possessed jurisdiction to hear appeal against High Court decision Legal Profession Act (Cap 161), s 95

Summary :

The appellant is an advocate and solicitor of the Supreme Court of Singapore. The complainant, a remisier, brought a complaint against the appellant alleging that on 7 February 1990 she had made inquiries of the appellant over the telephone about the creditworthiness of one Francis Tan ('Tan'), an acquaintance of the appellant. The complainant alleged that the appellant assured her of Tan's creditworthiness and that in reliance of the appellant's assurance, she purchased shares on Tan's behalf. Subsequently, Tan failed to collect his shares or to pay for them. On 22 February 1990, the appellant wrote a letter on his behalf to the complainant's firm, informing the firm of his undertaking to collect the shares. A bankruptcy search conducted by the firm revealed that Tan had been made a bankrupt since 18 November 1983. When confronted by the complainant, the appellant admitted that she had in fact previously acted for the petitioning creditor in the bankruptcy proceedings against Tan. The Law Society's Inquiry Committee, which investigated the complaint, disbelieved the complainant's evidence as to the alleged telephone conversation of 7 February 1993. Instead, the Inquiry Committee accepted the appellant's evidence to the effect that sometime in February 1990, she had warned the complainant to 'watch out' in her business dealings with Francis Tan. Nonetheless, the Committee noted that she had failed to inform the complainant of Tan's bankrupt status. The Committee stated in its report that '(i)f anything', the appellant's conduct 'amounted to the giving of a wrongful reference' and recommended that a penalty be imposed on her. The Law Society's Council subsequently imposed on her a penalty of S$500. The appellant's appeal to the High Court against this order of penalty was dismissed, following which she appealed to the Court of Appeal. Held, dismissing the appeal (by a majority): (1) there is no provision in the Legal Profession Act (Cap 161) excluding an appeal to the Court of Appeal against a decision of the High Court made pursuant to s 95 of that Act. In cases such as the appellant's, the proceedings below are commenced under s 95 of the Legal Profession Act (Cap 161) by an originating summons, one of the four modes of commencing civil proceedings in the High Court. In hearing an application under s 95, the High Court is exercising a form of appellate but supervisory jurisdiction, and its judgment thereon is given in exercise of its appellate jurisdiction in a civil cause or matter. Under s 29A(1) [formerly s 29(1)] of the Supreme Court of Judicature Act (Cap 322), the Court of Appeal has jurisdiction to hear and determine appeals from such judgment or order of the High Court; (2) all the appellant had done during the conversation was to warn the complainant against dealing with Tan without disclosing Tan's bankrupt status: she had not given the complainant a reference vis-a-vis Francis Tan's creditworthiness. The Inquiry Committee was therefore wrong in arriving at the finding that the appellant's conversation with the complainant amounted to the giving of a wrongful reference; (3) however, the Law Society's Council is not bound by the recommendation of the Inquiry Committee (save where the Committee recommends a formal investigation); nor is the Council bound by only the findings expressed in the Committee's report. The Council is obliged only to consider the report. Having considered that report, it may come to a different conclusion or make other or further findings based on the facts found or disclosed in the report; and it may then make a determination accordingly under s 87(1) of the Legal Profession Act; (4) in the present case, the Council's determination of a penalty could be sustained on the basis of the Inquiry Committee's report and also on the basis of the facts disclosed therein. It was part of the complaint against the appellant that she had written a letter to the complainant's firm on 22 February 1990 stating that Francis Tan would collect his shares. It was clear that she had written the letter on the instructions of Francis Tan, even though on her own admission she knew that Tan was an undischarged bankrupt - a status which disqualified him under the Bankruptcy Act (Cap 20) from entering into the sort of share transaction he had entered into. In writing the letter, in the circumstances of the case, the appellant's conduct amounted to a misconduct justifying the imposition of a penalty on her by the Council. For this reason, the court was not disposed to interfere with the determination of the Council. Held (per Warren LH Khoo J, dissenting): (1) the report of the Inquiry Committee was unclear in the findings made. The Committee did not appear to have made a proper finding, or indeed any finding at all, that the appellant had been guilty of giving a 'wrongful reference'. The Law Society's Council was therefore in error in proceeding on the basis that there had been such a finding by the Committee; and its decision to impose a penalty on the appellant could not stand; (2) the order of a penalty should not be affirmed on the basis of the appellant having committed some other misconduct when the appellant had not been heard by the Inquiry Committee on the matter of this other misconduct. Also, in general, the amount of evidence available to the High Court in hearing an application under s 95 of the Legal Profession Act does not always enable it to consider an offence or a misconduct not dealt with by the Inquiry Committee; and indeed s 95 itself does not, on the face of it, allow the court to do so.

Digest :

Wong Juan Swee v Law Society of Singapore [1994] 3 SLR 846 Court of Appeal, Singapore (LP Thean JA, Goh Joon Seng and Warren LH Khoo JJ).

1656 Professional discipline -- Misconduct

9 [1656] LEGAL PROFESSION Professional discipline Misconduct Breach of rules of etiquette Advocates and Solicitors Ordinance (Cap 62), Rules of etiquette What amounts to professional misconduct of solicitor.

Summary :

The rules regulating the practice and etiquette of the Bar which have been made under the Advocates and Solicitors Ordinance (Cap 62) have the force of law. A breach of these rules amounts to improper conduct on the part of the advocate and solicitor and will be punished as such.

Digest :

Re S Fung, A Solicitor [1941] MLJ 173 High Court, Straits Settlements (McElwaine CJ, Aitken Ag JA and Manning J).

1657 Professional discipline -- Misconduct

9 [1657] LEGAL PROFESSION Professional discipline Misconduct Breach of undertaking Breach of undertaking given to Attorney General in the presence of the Chief Justice Undertaking not to disclose pleadings to the press Findings of disciplinary committee Grossly improper conduct in the discharge of professional duties Legal Profession Act (Cap 217), ss 84, 86 & 93(2) Costs.

Summary :

The respondent, a senior advocate and solicitor of the Supreme Court, acted for the managing editor and three other employees of the Nanyang Siang Pau, a Chinese language daily newspaper, in their applications for habeas corpus to the High Court. The affidavits in support of the habeas corpus applications were affirmed by the four applicants and these were filed in the registry of the Supreme Court. The habeas corpus applications were fixed for hearing on 26 May 1971. At the hearing, these applications were adjourned to 7 June 1971. Both the Attorney General who appeared for the government and the respondent were requested to see the Chief Justice in his chambers. Whilst in the Chief Justice's chambers, the Attorney General intending to prevent publication of the affidavits before the hearing fixed on 7 June 1971, drew the attention of the Chief Justice to the fact that affidavits and their contents had a habit of being leaked out to the press and the public at large before the hearing. The respondent thereupon volunteered an oral undertaking in the following terms: 'The Attorney General need have no anxiety about our office because we never give any pleadings to the press before trial and I can assure you that neither I nor my office have given these affidavits to them for publication.' The respondent, however, before 7 June 1971 sent: (a) five sets of the affidavits together with explanatory documents by registered post to the Secretary-General of Amnesty International; (b) two sets of the affidavits to Sir Elwyn Jones QC; (c) one set of the affidavits to Mr Harold Ebens, the editor of the London Sunday Times. All the affidavits sent to the persons above (except one) had the headings deleted and the words 'Instructions to Counsel' substituted. The jurats of these affidavits were also deleted. On 4 June 1971, the Chief Justice ordered certain portions of these affidavits to be struck out. The disciplinary committee on the above facts held that the respondent's undertaking given to the Attorney General in the presence of the Chief Justice, was a general undertaking not to release the affidavits to the press. This undertaking was given by the respondent in his professional capacity, and the respondent had, therefore, committed a breach of the undertaking in sending the contents of the affidavits to the persons mentioned above. On reference to the court,

Holding :

Held: (1) it was clear beyond any real doubt that the respondent meant the undertaking to be understood by the Attorney General that neither the respondent nor his office would be a party to the contents of the affidavits being made available to the 'press' using the expression 'press' in its generally accepted connotation without any qualification whatsoever; (2) it was plain from the disciplinary committee's report and the facts that the respondent acted with premeditation and deliberation and the inference can clearly be drawn that he must have forseen that one of the consequences of his making available to the press the contents of the affidavits was the likelihood of the contents being published in the news media; (3) the test of what constitutes 'grossly improper conduct in the discharge of his professional duties' has been laid down in many cases to mean conduct which is dishonourable to him as a man and dishonourable in his profession. Applying that test and taking into consideration the fact that the respondent was a leading member of the legal profession in Singapore, that the undertaking was given to the Attorney General in the presence of the Chief Justice, that the matter had aroused considerable public interest and the interest of journalists and pressmen all over the world, and the fact that the legal profession here must be zealous and constantly endeavour to uphold its standing in the community by strict adherence to the ethics and etiquette accepted as binding by the profession on its members; the respondent should be suspended from practice for a period of six months, the period of suspension to commence from the date of the order.

Digest :

Re David Marshall; Law Society of Singapore v David Saul Marshall [1972] 2 MLJ 221 High Court, Singapore (Wee Chong Jin CJ, Chua and Winslow JJ).

1658 Professional discipline -- Misconduct

9 [1658] LEGAL PROFESSION Professional discipline Misconduct Breach of undertaking Finding of Disciplinary Committee that advocate and solicitor guilty of unbefitting conduct Suspension Appeal to Federal Court Undertaking given by advocate and solicitor Breach of undertaking Legal Profession Act 1976, s 93(2)(b).

Summary :

In this case the Disciplinary Committee of the Pahang Bar Committee found that the appellant had been guilty of conduct unbefitting an advocate and solicitor in that he had broken an undertaking given by him to another advocate and solicitor. The Bar Committee ordered the suspension of the appellant for a period of three months. The appellant appealed to the Federal Court.

Holding :

Held, dismissing the appeal: (1) there are no closed categories of professional misconduct; (2) on the facts as disclosed and found by the committee, the finding that the appellant was guilty of professional misconduct unbefitting an advocate and solicitor could not be successfully challenged before the courts; (3) a relationship of trust and confidence between the courts and the members of the Bar is essential for the due administration of justice in this country, and that relationship would be impaired, if on any but the most compelling grounds, the courts were to interfere with the finding of the committee in a matter so peculiarly its concern.

Digest :

Au Kong Weng v Bar Committee, Pahang [1980] 2 MLJ 89 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ, Wan Suleiman, Chang Min Tat FJJ and Abdul Hamid J).

1659 Professional discipline -- Misconduct

9 [1659] LEGAL PROFESSION Professional discipline Misconduct Breach of undertaking Improper conduct Improper letter to dispose of movable property of company with branch in Malaysia Company subject to winding up in Singapore Breach of undertaking to Attorney General Legal Profession Act (Cap 217, 1970 Ed), ss 84(2)(b) and 90.

Summary :

The respondent, an advocate and solicitor commenced practice under the firm name of 'Francis T Seow' in October 1971. Prior to this he was a legal officer in the Singapore Legal Service and held the post of Solicitor-General from 1969 to sometime in September 1971. In March 1972 one Isaac Paul Ratnam, also a former legal officer in the Singapore Legal Service joined his firm as a profit sharing partner. The respondent's firm was instructed by Gemini Chit Fund Corporation Limited, now in liquidation, in connection with certain chit fund matters. Ratnam was the solicitor in charge of all Gemini matters. A director of Gemini was arrested on a charge of criminal breach of trust of moneys entrusted to Gemini. The respondent's firm acted for this director in this criminal matter. The respondent personally appeared in court as counsel for the director in his application for bail pending trial. Sometime later in July 1972, the Minister for Finance, acting under the Chit Fund Act presented a petition for winding up of Gemini. The respondent's firm also acted as solicitors for Gemini in the winding up proceedings. In August 1972, a letter was sent by the respondent's firm to the General Manager of the Kuala Lumpur branch of Gemini. The material parts of the letter related to the disposal of movable property belonging to Gemini in West Malaysia. The letter was prepared by Ratnam and sent out before it was shown to the respondent. The respondent saw a copy of the letter the same afternoon and after reading it made an exclamation mark and a question mark on the copy of the letter. The respondent did not take any further action until several days later when he inquired as to whether Ratnam had taken any steps to inform the other side to ignore the instructions. Sometime in mid August 1972 a police party arrived at the respondent's office armed with a warrant for the arrest of Ratnam and with a search warrant for a search of the respondent's office. The respondent refused to allow the police to search his office. He called the Attorney General on the telephone and gave his personal undertaking to hand over to the police all books, files and documents relating to Gemini. The Attorney General relying on the respondent's undertaking instructed the police not to conduct a search of the respondent's firm and no search was conducted. The respondent subsequently relying on his partner, Ratnam, confirmed to the Attorney General that all files relating to Gemini had been handed over to the police. It was later found that two files relating to Gemini's affairs and two deposit receipts and the seal of Gemini were in the respondent's office. The matter was referred to a Disciplinary Committee appointed by the Chief Justice. The Disciplinary Committee found that the respondent was guilty of grossly improper conduct in the discharge of his professional duty under s 84(2)(b) of the Legal Profession Act in failing in his duty to ensure that the letter to Gemini's office in Kuala Lumpur (having regard to its criminal nature, the full import of which was apparent to the respondent), was not counter-manded, withdrawn, repudiated or otherwise negatived. The Disciplinary Committee also found the respondent guilty of grossly improper conduct in the discharge of his professional duty under s 84(2)(b) in giving his undertaking to the Attorney General so recklessly and irresponsibly. On an application to show cause under s 84 of the Legal Profession Act (Cap 217, 1970 Ed),

Holding :

Held: (1) the respondent was not only guilty of an error of judgment in relying on and placing his trust in a partner but also was guilty of improper conduct in the discharge of his professional duty. It was wholly deplorable conduct of him as a man and dishonourable of his profession; (2) on all the facts and circumstances it was not only gross misjudgment of Ratnam's character but also the gross failure on his part to honour his undertaking to the Attorney General. A simple and normal step to take was for the respondent to give express orders and directions to every member of his staff to search every room of his office for any relevant files or documents relating to Gemini, but this was not done. It was culpable negligence on the part of the respondent in such circumstances as to amount to grossly improper conduct in the discharge of his profession; (3) the respondent should be suspended from practice for a period of one year for these serious derelictions. Observations on use of tape recording by solicitor as supporting evidence in disciplinary proceedings.

Digest :

Re Francis T Seow; The Law Society of Singapore v Francis T Seow [1973] 1 MLJ 199 High Court, Singapore (Wee Chong Jin CJ, Winslow and Tan Ah Tah JJ).

1660 Professional discipline -- Misconduct

9 [1660] LEGAL PROFESSION Professional discipline Misconduct Breach of undertaking Solicitor Change of New solicitor undertaking to pay former solicitors' bill of costs Breach of undertaking Professional misconduct Contempt of court Application to suspend s 91(2)(b) Ordinance No 101 (Courts).

Summary :

Where, on a change of solicitors, the new solicitor gave a written undertaking to pay the costs claimed to be due from the client to the former solicitors, failure to honour the undertaking amounted to professional misconduct and a contempt of court. That the defaulter had a cross-complaint against the former solicitors, however genuine it might be, would not affect the breach of undertaking.

Digest :

Re A Solicitor [1932] MLJ 177 High Court, Straits Settlements (Murison CJ).

1661 Professional discipline -- Misconduct

9 [1661] LEGAL PROFESSION Professional discipline Misconduct Burden of proof Application to show cause Letter to advocate and solicitor informing him of investigation on charge of paying money to a tout Disciplinary Committee set up Disciplinary Committee making further allegation that advocate and solicitor had received costs other than taxed costs Whether Disciplinary Committee had power to investigate Whether allegations proved beyond reasonable doubt Whether duty of solicitor to make inquiries Legal Profession Act (Cap 217), ss 84, 88 and 93.

Summary :

The charge under s 84(2)(e) of the Act must be proved beyond reasonable doubt and in this case the evidence was insufficient to justify the Disciplinary Committee drawing the irresistible inference which led them to find that the respondent was guilty of the charge. Accordingly no order would be made on the application.

Digest :

Re An Advocate and Solicitor [1978] 2 MLJ 7 High Court, Singapore (Wee Chong Jin CJ, Chua and Rajah JJ).

See LEGAL PROFESSION, Vol 9, para 1679.

1662 Professional discipline -- Misconduct

9 [1662] LEGAL PROFESSION Professional discipline Misconduct Burden of proof Disciplinary proceedings Failure to pay money into client's account Dishonest conduct in discharge of professional duty Conduct unbefitting of advocate and solicitor Advocate and solicitor struck off the roll Inquiry Burden of proof Proof beyond reasonable doubt Solicitors' Accounts Rules 1974, rr 3, 6 & 8(2) Legal Profession Act 1976, s 96(1).

Summary :

In this case, the appellant appealed and on the appeal it was argued that the proceedings were wrongly treated as civil proceedings but as the proceedings were punitive in nature proof should have been beyond reasonable doubt.

Holding :

Held, dimissing the appeal: on the evidence if the Bar Committee had required proof beyond reasonable doubt, it could not as a reasonable body of men have come to any other conclusion than that the evidence had discharged that burden more than amply.

Digest :

Au Ah Wah v Lee Sow Keng & Ors [1981] 1 MLJ 303 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ, Wan Suleiman and Abdul Hamid FJJ).

See LEGAL PROFESSION, Vol 9, para 1617.

1663 Professional discipline -- Misconduct

9 [1663] LEGAL PROFESSION Professional discipline Misconduct Burden of proof Disciplinary proceedings Whether rightly taken under new law Receipt of money by chief clerk in name of firm Failure to return or account for money Misconduct Standard of proof Legal Profession Act 1966, s 150(1).

Summary :

In the circumstances of this case, the Disciplinary Committee adopted the right approach and there were no grounds to assume that the Committee had applied a lower standard of proof than that required for a proceeding of this nature.

Digest :

Keith Sellar v Lee Kwang; Tennakoon v Lee Kwang [1980] 2 MLJ 191 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ, Wan Suleiman, Abdul Hamid Omar FJJ and Hashim Yeop A Sani J).

See LEGAL PROFESSION, Vol 9, para 1704.

1664 Professional discipline -- Misconduct

9 [1664] LEGAL PROFESSION Professional discipline Misconduct Burden of proof Finding of Disciplinary Committee that advocate and solicitor guilty of unbefitting conduct Suspension Appeal to Federal Court Undertaking given by advocate and solicitor Breach of undertaking Legal Profession Act 1976, s 93(2)(b).

Summary :

It is a question for the Committee to decide, first, whether the factor alleged in the charge had been proved beyond reasonable doubt and, secondly, whether the appellant in relation to those facts was guilty of such conduct. The absence in the Committee's determination of any mention of the standard of proof does not justify an inference that it had failed to have regard for it.

Digest :

Au Kong Weng v Bar Committee, Pahang [1980] 2 MLJ 89 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ, Wan Suleiman, Chang Min Tat FJJ and Abdul Hamid J).

See LEGAL PROFESSION, Vol 9, para 1605.

1665 Professional discipline -- Misconduct

9 [1665] LEGAL PROFESSION Professional discipline Misconduct Burden of proof Professional misconduct Alleged false statements made to obtain costs Legal Professional Act 1966, s 87(2)(b).

Summary :

The respondent acted as solicitor for the plaintiffs in an action and had obtained judgment against the defendants. As counsel for the plaintiffs, the respondent proceeded to issue a writ of seizure and sale to enforce the judgment. An application by the defendants to have the writ set aside was dismissed by Choor Singh J. The defendants appealed against the judgment in the main action and the decision of Choor Singh J. Subsequently the defendants instructed their solicitors to withdraw the appeals. The instruction was communicated by letter to the respondent for the purpose of obtaining his consent to the withdrawal of the appeals. The respondent replied stating his refusal to give his unconditional consent. Consequently an application for withdrawal of the appeals was made before the Federal Court. During the hearing the respondent was questioned by the court as to whether he had earlier been asked to consent to the withdrawal of the appeals. There was a conflict of evidence as to what the reply was. According to counsel for the defendants the respondent replied to the effect that no letter was written to him. The respondent's version was that he had merely confirmed a negative reply of the defendants' counsel. In the circumstances, costs were awarded to the plaintiffs/appellants. As a result of a complaint made by the defendants' solicitors, a disciplinary committee was set up under s 27 of the Advocates and Solicitors Ordinance to inquire into whether the respondent had made a false statement to the Federal Court for the purpose of obtaining costs which he was otherwise not entitled to. The committee came to the conclusion that the respondent 'had been guilty of grossly improper conduct in the discharge of his professional duty in that he had wilfully and rashly misled the court'. Upon an order of court requiring the respondent to show cause why he should not be dealt with under s 87 of the Legal Profession Act 1966.

Holding :

Held: having regard to the explanations made by the respondent before the disciplinary committee and the ambiguous nature of the committee's findings, the court was not satisfied that there was sufficient evidence to show that the respondent had wilfully misled the Federal Court into believing that he had not been notified of the defendants' intention to withdraw the two appeals.

Digest :

Re An Advocate & Solicitor [1968] 1 MLJ 302 High Court, Singapore (Wee Chong Jin CJ, Winslow and Kulasekaram JJ).

1666 Professional discipline -- Misconduct

9 [1666] LEGAL PROFESSION Professional discipline Misconduct Causing files to disappear Disciplinary proceedings Conviction for criminal offence Inquiry Committee investigating on its own motion Striking off the roll Failure to notify person concerned of investigation Investigation a nullity Instigating the dishonest removal of property Causing files to disappear Whether grossly improper conduct Penal Code, ss 107, 108A and 201 Legal Profession Act (Cap 217), ss 84, 85, 86, 87, 88, 90, 91, 93, 94 and 98.

Summary :

As the appellant had admitted that at least part of his purpose in removing the files was to keep them from the police, the High Court was entitled to conclude that the appellant was guilty of grossly improper conduct in the discharge of his professional duty within the meaning of 84(2)(b) of the Legal Profession Act (Cap 217, 1970 Ed).

Digest :

Isaac Paul Ratnam v Law Society of Singapore [1976] 1 MLJ 195 Privy Council Appeal from Singapore (Lord Cross of Chelsea, Lord Simon of Glaisdale and Lord Edmund-Davies).

See LEGAL PROFESSION, Vol 9, para 1685.

1667 Professional discipline -- Misconduct

9 [1667] LEGAL PROFESSION Professional discipline Misconduct Champerty Professional misconduct Non-disclosure to client of taxed costs already recovered Disciplinary Committee Failure to make specific charge against advocate and solicitor in respect of non-disclosure Finding of grossly improper misconduct Whether violation of the principles of natural justice Champertous agreements Whether court can without hearing evidence act on Disciplinary Committee's findings Advocates and Solicitors Ordinance (Cap 188)*, ss 25(1) & (2), 26, 27, 28, 29, 30, 49 & 57(b).

Summary :

The appellant, an advocate and solicitor in Singapore, was instructed by a deceased boy's father to claim damages for the death of the boy. The appellant attended the coroner's inquiry and conducted negotiations with the solicitors for the owners of the vehicle involved in the collision which resulted in the boy's death. The claim was, on 18 January 1964, settled for S$4,000 damages and S$500 costs payable by the owners of the vehicle. The S$500 was paid to the appellant on 22 January 1964 and he, pursuant to his client's general authority given on 11 January 1964 retained the money without paying this sum into his client's account with his bankers. The actual receipt of the S$500 was not disclosed to the client. Pursuant to s 17(2) of the Motor Vehicles (Third Party Risks & Compensation) Ordinance 1960 a party and party bill was taxed at S$500. This taxation, which was in respect of the S$500 previously paid on 22 January 1964 took place on 14 April 1964. Prior to this, a solicitor and client bill had, on 11 February 1964, been taxed at S$705.50. On 27 February 1964 the appellant received from his client a further sum of S$700 being agreed costs for his attendance at the coroner's inquiry and in respect of his proposed attendance at the prosecution of the driver of the bus involved in the collision. Of this S$700, a sum of S$350 was on 13 April 1964 returned to the client, the appellant not attending the trial of the driver as his client had failed to give further instructions in this matter. The appellant appeared before a Disciplinary Committee on two substantive charges of grossly improper conduct. One charge related to the receipt of the S$700 and the other to a champertous agreement alleged to have been made by the appellant by which he was to take 25% of any damages recovered. The receipt of the S$500 did not form the basis of any charge. Arising out of an admission made by the appellant that he appropriated this S$500 without disclosure to his client and his failure to give a satisfactory explanation in this respect, the Disciplinary Committee made an adverse finding against him on the ground that he received the said sum of S$500 as party and party costs over and above the solicitor and client costs where it should have formed part of those costs. The committee also made an adverse finding on the charge relating to the champertous agreement but not in respect of the S$700. A court of three judges constituted under s 30(7) of the Advocates and Solicitors Ordinance accepted the findings of the Disciplinary Committee and the charges were not proved by evidence brought before the court itself. The court ordered the appellant to be struck off the roll of advocates and solicitors and the appellant appealed to the Judicial Committee of the Privy Council. The appeal was allowed in part and the case remitted to the High Court in Singapore to reconsider, if the court thought fit, the sentence passed on the appellant. In allowing the appeal so far as the findings against the appellant related to the receipt of the S$500 and dismissing the appeal on the champertous agreement the Judicial Committee of the Privy Council,

Holding :

Held: (1) the sum of S$700 (in respect of attendance at the coroner's inquiry and the proposed attendance at the prosecution of the driver) did not require the special taxation under the Motor Vehicles (Third Party Risks and Compensation) Ordinance as it had nothing to do with the claim for compensation; (2) the vice can exist if such a stipulation is made when an action though not brought is clearly contemplated; (3) an agreement calling for payment by percentage on the amount recovered on the claim or in an action is undeniably one stipulation for payment only in the event of success; (4) natural justice requires adequate notice of charges and the provision of opportunity to meet them. This requirement was not met in relation to the adverse finding on the receipt of the S$500 by the appellant. Accordingly, the appeal against this finding was allowed; (5) the vice of champerty is not limited to stipulations for payment in the event of success in claims brought by action;it is unnecessary for the court to hear evidence in every disputed disciplinary proceeding under the ordinance. It can act on the findings of the Disciplinary Committee. The court however retains control and has a discretion in a proper case, as for example, if fresh evidence is found, to hold a rehearing.

Digest :

Lau Liat Meng v Disciplinary Committee [1967] 2 MLJ 141 Privy Council Appeal from Singapore (Viscount Dilhorne, Lord Hodson, Lord Guest, Lord Upjohn and Sir Hugh Wooding).

1668 Professional discipline -- Misconduct

9 [1668] LEGAL PROFESSION Professional discipline Misconduct Client's money Criminal breach of trust Advocates and Solicitors Ordinance 1934 Criminal breach of trust.

Summary :

Where a solicitor has been convicted of actual dishonesty such as misappropriation of money to his own use he ought to be struck off the rolls and not merely suspended.

Digest :

Re A Solicitor [1936] MLJ 241 High Court, Singapore (Whitley Ag CJ, Mills and Clark JJ).

1669 Professional discipline -- Misconduct

9 [1669] LEGAL PROFESSION Professional discipline Misconduct Client's money Failure to keep proper accounts

Summary :

In this case the respondent, an advocate and solicitor was found by the Disciplinary Committee to have conducted his business in such a way that a very large sum of client's money which came into his hands as a solicitor could not be accounted for. It was also found that he was not keeping his accounts in the way he was required by the Etiquette Rules.

Holding :

Held: it was in the public interest to revoke his admission as an advocate and solicitor and to strike him off the roll. Per curiam: there are three interests to be considered in such cases as this the interest of the practitioner, the interest of the profession and the interest of the public. Of all these three interests, if there be any conflict, the interest of the public must be paramount.

Digest :

Re A Solicitor [1962] 3 MC 323 High Court, Ipoh (Thomson CJ, Hill and Barakbah JJA).

1670 Professional discipline -- Misconduct

9 [1670] LEGAL PROFESSION Professional discipline Misconduct Client's money Failure to keep proper accounts Disciplinary proceedings Failure to pay money into client's account Dishonest conduct in discharge of professional duty Conduct unbefitting of advocate and solicitor Advocate and solicitor struck off the roll Inquiry ÊBurden of proof Proof beyond reasonable doubt Solicitors' Accounts Rules 1974, rr 3, 6 & 8(2) Legal Profession Act 1976, s 96(1).

Summary :

In this case the Bar Committee held an inquiry on receipt of a complaint that a cheque given by the appellant to his client had been dishonoured. Subsequently as a result of the hearing of the complaint the Disciplinary Committee found that the appellant had contravened the Solicitors' Accounts Rule 1974 in a number of respects and the Committee found that the appellant was guilty of dishonest conduct in the discharge of his professional duty and of conduct unbefitting an advocate and solicitor. The Committee considered that he was not a fit person to be an advocate and solicitor and ordered his name be struck off the roll. (See PU(B) 365/80). The appellant appealed and on the appeal it was argued that the proceedings were wrongly treated as civil proceedings but as the proceedings were punitive in nature proof should have been beyond reasonable doubt.

Holding :

Held, dismissing the appeal: on the evidence if the Bar Committee had required proof beyond reasonable doubt, it could not as a reasonable body of men have come to any other conclusion than that the evidence had discharged that burden more than amply.

Digest :

Au Ah Wah v Lee Sow Keng & Ors [1981] 1 MLJ 303 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ, Wan Suleiman and Abdul Hamid FJJ).

Annotation :

[Annotation: See Solicitors' Account Rules 1974.]

1671 Professional discipline -- Misconduct

9 [1671] LEGAL PROFESSION Professional discipline Misconduct Client's money Failure to keep separate client's account Advocates & Solicitors Enactment (Cap 16) Obligations regarding client's moneys Professional misconduct Application to suspend.

Summary :

Proceedings on an order calling upon the advocate to show cause why he should not be suspended.

Holding :

Held: the effect of English authorities is that mere non-payment of money due to a client is not professional misconduct unless there is a deceit or fraud and that when such deceit, fraud or any misappropriation is negatived the mere non-payment to the client or intermingling of the client's and the solicitor's own money does not constitute professional misconduct justifying the suspension of a solicitor. It is extremely reprehensible conduct on the part of any advocate and solicitor who obtains money for distribution to the beneficiaries of an estate to retain that money in his possession for 12 months without taking any steps whatsoever to distribute the same to those entitled, even and although there may be costs or fees due to him in regard thereto. Advocates and solicitors are under the same obligations as those appertaining to solicitors in England in the conduct of that branch of professional work. It is a moral duty to keep strict and accurate accounts not only of their own moneys but also of their clients' moneys and to pay at once any client's moneys received by them into a separate account at a bank. And although not obligatory, it is also a desirable practice that such accounts should be audited annually by a firm of accountants.

Digest :

Re An Advocate and Solicitor [1940] MLJ 253 High Court, Singapore (Poyser CJ and Gordon-Smith J).

Annotation :

[Annotation: See now Solicitors' Accounts Rule 1967.]

1672 Professional discipline -- Misconduct

9 [1672] LEGAL PROFESSION Professional discipline Misconduct Client's money Failure to keep separate client's account Advocates and Solicitors Ordinance (Cap 62) ss 25(2)(b) & 31(1)(a) Rules of etiquette What amounts to professional misconduct of a solicitor.

Summary :

If a solicitor does not keep his client's moneys intact and if he uses some of it for purposes which do not concern the client then there is a misappropriation at least for a time of at least part of the client's money even though later on the full amount due to the client is paid to him. This amounts to professional misconduct. The rules regulating the practice and etiquette of the Singapore Bar which have been made under s 31(1)(a) of the Advocates and Solicitors Ordinance have the force of law. Those rules require a practising advocate and solicitor to keep a client's moneys in a separate account with a bank. A breach of this rule amounts to improper conduct or practice on the part of the advocate and solicitor and will be punished as such.

Digest :

Re S Fung, a Solicitor [1941] MLJ 173 High Court, Singapore (McElwaine CJ, Aitken Ag JA and Manning J).

Annotation :

[Annotation: See now Solicitors' Accounts Rules 1967.]

1673 Professional discipline -- Misconduct

9 [1673] LEGAL PROFESSION Professional discipline Misconduct Client's money Failure to keep separate client's account Advocates and Solicitors Ordinance ss 25, 31 Grossly improper conduct in the discharge of professional duty Breach of r 10 of the Penang Bar Committee Rules.

Summary :

On an application by the Disciplinary Committee to call upon the respondent to show cause why he should not be struck off the rolls of the court or suspended from practice or censured or otherwise dealt with it was proved that he did not keep a separate clients' account with a bank and that he received moneys due to a client who was a beneficiary of an estate and that he improperly retained such moneys despite repeated applications by the guardian of the beneficiary and that he denied that he had received such moneys.

Holding :

Held: (1) the rule requiring a solicitor to keep a separate clients' account with a bank is a legal and not merely a moral obligation; (2) the evidence was overwhelming to show that there had been misrepresentation and deceit on the part of the respondent, and he had been guilty of grossly improper conduct.

Digest :

Re Lim Keng Kooi, an Advocate and Solicitor [1941] MLJ 217 High Court, Straits Settlements (McElwaine CJ, Terrell Ag CJ (FMS).

Annotation :

[Annotation: See Solicitors Accounts Rules 1974.]

1674 Professional discipline -- Misconduct

9 [1674] LEGAL PROFESSION Professional discipline Misconduct Client's money Knowingly applied to other purposes Professional misconduct High standards of conduct to be observed by the legal profession Public interest.

Summary :

The respondent, in his capacity as a solicitor, received RM14,000 from a third party for payment to a client. The sum received was not paid to the client but was knowingly applied by the respondent to other purposes.

Holding :

Held: what the respondent had done amounted to professional misconduct of the most serious character. Per curiam: the legal profession occupies by law a privileged position. The continued existence of that position can only be justified if every individual member of the profession conforms to certain standards.

Digest :

Re GH Conaghan [1961] MLJ 81 High Court, Kuala Lumpur (Thomson CJ, Hill JA and Ong J).

Annotation :

[Annotation: See Solicitors' Account Rules 1974.]

1675 Professional discipline -- Misconduct

9 [1675] LEGAL PROFESSION Professional discipline Misconduct Client's money Misappropriation

Summary :

In December 1991, the complainant and his wife, Che Nemah, inspected the property of one Arumugam Kujambu ('Kujambu') and expressed interest in purchasing the property. They were introduced to the respondent as the advocate and solicitor acting for the said Kujambu. They consented to let the respondent act on their behalf as well. On 15 January 1992, Kujambu and his wife granted an option to Che Nemah to purchase the property for the price of S$380,000. This option was exercised on 21 January 1992 but no moneys were paid at this time. Meanwhile, Keppel Bank approved a bridging loan of S$38,000 and on 25 March 1992, forwarded that sum to the respondent as Che Nemah's solicitor in the form of a cashier's order. This payment was made upon the undertaking by the respondent to return the money if the option was not exercised or if the sale was aborted. In fact, Kujambu was bankrupt and the property had been repossessed by mortgagees. The sum of S$38,000 was not returned to Keppel Bank nor given to Che Nemah. In consequence, the Law Society formulated two charges against the respondent, which the disciplinary committee found to be made out. These were: (a) that the respondent had intentionally omitted to advise Che Nemah that the vendors were not in a legal position to sell the property; and (b) that the respondent had requested for the release of a S$38,000 bridging loan and then misappropriated the moneys. Upon the Law Society's ensuing application, the High Court ordered the respondent to show cause why he should not be dealt with under s 83 of the Legal Profession Act (Cap 161). The respondent's defence to the first charge consisted of a denial of any knowledge as to Kujambu's bankruptcy or the repossession of the property. With respect to the second charge, the respondent's defence was that the money had not been misappropriated for his own use. His case was that being threatened with a letter opener by Kujambu, he had been forced to issue a cheque for that amount to Kujambu and had been unable to stop payment on the cheque in time. Apparently, the cheque was cashed by Kujambu who gave the money to one Prem Kumar. Prem Kumar kept S$8,000 and handed the balance to several others.

Holding :

Held, ordering that the respondent be struck off the roll of advocates and solicitors: (1) the facts showed that the respondent clearly had knowledge of Kujambu's bankruptcy and the repossession of the property; (2) it was irrelevant that the respondent may not have used the S$38,000 himself. The money was advanced to him for the exclusive purpose of the purchase of the property. His claim that he was the victim of a robbery staged by Kujambu was incapable of belief. He had dishonestly misappropriated the money for his own selfish purposes.

Digest :

Re Yogendran Originating Summons No 317 of 1994 High Court, Singapore (Karthigesu and LP Thean JJA, TS Sinnathuray J).

1676 Professional discipline -- Misconduct

9 [1676] LEGAL PROFESSION Professional discipline Misconduct Client's money Neglect to procure registration of deeds Neglect to procure registration of deeds Fees and expenses paid by client Partnership with unqualified person Ordinance No 101 (Courts), ss 90(5)(b), 91(b), and (i).

Summary :

A solicitor is not guilty of professional misconduct in not having procured the registration of certain title deeds although he has received money from his client for that purpose. The respondent's conduct would seem to have amounted only to gross negligence and that is not enough.

Digest :

Re A Solicitor [1933] MLJ 147 High Court, Straits Settlements (Murison CJ and Whitley J).

1677 Professional discipline -- Misconduct

9 [1677] LEGAL PROFESSION Professional discipline Misconduct Client's money Payment into client's account contrary to Solicitors' Accounts Rules 1967 Legal profession Accounts Payment of money into client's account Contrary to Solicitors' Accounts Rules 1967 Whether wiful ignorance of the rules What is the appropriate penalty Importance of observing the rules and practice in the legal profession Solicitors' Accounts Rules 1967, rr 4, 5 & 6 Legal Profession Act (Cap 161), ss 80, 93 and 95.

Summary :

This was an application under s 95 of the Legal Profession Act (Cap 161, 1985 Ed) for the respondent, HE Cashin, an advocate and solicitor, to show cause before a court of three judges as to why he should not be dealt with under s 80 of the Legal Profession Act. The present proceedings arose out of a complaint lodged by one P Suppiah, also an advocate and solicitor. The facts were that the respondent had deposited a certain sum of money in his firm's client account contrary to the Solicitors' Accounts Rules 1967 (now Solicitors' Accounts Rules 1985). On 4 December 1986, a Disciplinary Committee was appointed pursuant to a court order to deal with the complaint. The Disciplinary Committee rejected the respondent's claims and decided that the respondent was guilty of statutory misconduct under s 80(2)(i) of the Legal Profession Act in that he had contravened or failed to comply with r 6 of the Solicitors' Accounts Rules 1967 and that cause of sufficient gravity existed for disciplinary action under s 80.

Holding :

Held: (1) this court disagreed with the findings by the Disciplinary Committee that there was a wilful disregard of the provisions of r 6. There was no admission by or on behalf of the respondent that he had wilfully disregarded the provisions of that rule. Ignorance of the law is no excuse, but that does not make every breach of the law a wilful one. What a person knows and what he ought to know are quite different matters. While every practising solicitor ought to know the requirements of r 6, the distinction between actual knowledge and constructive knowledge must be clearly appreciated, as it would affect the seriousness of the contravention and hence the kind of penalty that ought to be imposed; (2) in the circumstances of the case, the Disciplinary Committee was wrong to draw the inference from the admitted facts and the respondent's admission that he had contravened r 6 that the contravention was wilful. Nevertheless, having regard to the fact that the Solicitors' Accounts Rules 1967 were rules which every practising solicitor ought to know, and the fact that the respondent, a senior advocate and solicitor, was in practice for many years before and after the promulgation of the rules, his contravention, in the court's opinion, warranted disciplinary action and the imposition of a penalty; (3) the respondents should be censured.

Digest :

Re HE Cashin, An Advocate and Solicitor [1988] 1 MLJ 380 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Chua JJ).

1678 Professional discipline -- Misconduct

9 [1678] LEGAL PROFESSION Professional discipline Misconduct Client's money Retention of Advocates and Solicitors Ordinance 1947, ss 26, 27, 29 and 31 Whether failure of an advocate and solicitor to refund money paid to him as agreed fee and claimed by a client amounts to improper professional conduct.

Summary :

This was an application under s 31 of the Advocates and Solicitors Ordinance 1947 for an order that a solicitor should be called upon to show cause why an order should not be made against him under s 26 of the ordinance. Arising out of a complaint by a Chinese lady, the local Bar Committee had appointed a disciplinary committee, which after investigation found that the Chinese lady had paid the solicitor RM200 on account of agreed fee, that he had done little or no work in the matter and in particular had taken no steps towards initiating the proceedings which he had been retained to take and that he had steadfastly refused to take any such steps or to refund the money which had been paid to him.

Holding :

Held: the facts found by the disciplinary committee do not make out the offence of grossly improper professional conduct or any other offence under s 26 of the Advocates and Solicitors Ordinance, as they only amount to a finding that there has been a breach of contract on the part of the solicitor.

Digest :

Re An Advocate and Solicitor [1950] MLJ 113 High Court, Ipoh (Thomson J).

Annotation :

[Annotation: Procedure under the various sections discussed. See also Solicitors' Accounts Rules 1974.]

1679 Professional discipline -- Misconduct

9 [1679] LEGAL PROFESSION Professional discipline Misconduct Complaint against solicitor's conduct in his professional capacity Solicitors' Accounts Rules 1967, r 6 Legal Profession Act (Cap 217), ss 84(2)(h) & (j), 86(1), 96(1)(a) & 96(4)(b). Scope of Legal Profession Act (Cap 217), s 86(1).

Summary :

If an advocate knowingly deposes to an untrue statement in an affidavit, such conduct may well fall within para (h) of s 84(2) of the Legal Profession Act (Cap 217, 1970 Ed). The second allegation, namely, a breach of r 6 of the Solicitors' Accounts Rules 1967 does pertain to Mr Cashin's conduct in his professional capacity and is also matter falling within para (j) of s 84(2).

Digest :

P Suppiah v The Law Society of Singapore [1986] 1 MLJ 459 Court of Appeal, Singapore (Lai Kew Chai, Thean and Chua JJ).

See LEGAL PROFESSION, Vol 9, para 1682.

1680 Professional discipline -- Misconduct

9 [1680] LEGAL PROFESSION Professional discipline Misconduct Conduct of trial Duty to cross-examine Duty to carry out client's instructions Duty to review evidence against client

Summary :

The plaintiff applied for an order directing the Law Society of Singapore to apply to the Chief Justice to appoint a disciplinary committee in respect of a complaint made by the plaintiff. The plaintiff had been arrested with a number of others who were charged with trafficking heroin under the Misuse of Drugs Act. The plaintiff was charged with abetting the offence by providing transport to the airport. He retained the solicitor and then one month later discharged him. One of the others charged ('SL') also retained the same solicitor shortly before he was discharged by the plaintiff. The plaintiff was the only one to give evidence at the trial, and dealt with his relationship with SL and the assistance he gave him in buying the airline ticket for the courier. The solicitor did not cross-examine the plaintiff but accused him of making a tissue of lies in trying to blame his client, SL. The plaintiff's solicitor asked the court to expunge the solicitors and the court refused. All the accused were convicted. On appeal, SL was acquitted but the plaintiff's appeal was dismissed. The plaintiff then complained to the Law Society about the solicitor's conduct alleging misconduct or improper conduct in (a) not cross-examining the plaintiff, having attacked his evidence in closing submissions; (b) alleging that the evidence was a tissue of lies contrary to instructions; and (c) misleading the court by his conduct.

Holding :

Held, dismissing the application and affirming the Council of the Law Society's determination that there were no grounds for complaint and no need for a formal investigation: (1) it is not improper to attack the evidence of a witness, whether a co-accused or otherwise, in a criminal trial by reason only that counsel has not cross-examined the witness. In the circumstances of the case, it was not improper. There was nothing to indicate that any instructions which the plaintiff might have given to the solicitor in the month he was retained by him were in any way made use of in the submission. The court was not bound to accept the plaintiff's evidence by reason only that it was not challenged and it was the solicitor's duty to demonstrate to what extent it should not be accepted. The solicitor dealt extensively with the plaintiff's evidence from the transcript and relied only on material which was before the court; (2) in the proper conduct of the defence, the solicitor had to address the question of the reliablity of the plaintiff's evidence. There was no evidence that in making the submission as to the plaintiff's evidence being a tissue of lies, he had acted contrary to his client's instructions. His client had instructed him to review the evidence and comment on the plaintiff's credibility. He owed a duty to his client to carry out his lawful instructions and to the court to review the evidence against his client. He should present reasoned arguments as to whether the evidence should be accepted and if it should not, he should be permitted to say so. The court did not prevent him saying so as they were not disposed to think he was acting improperly; (3) it was not shown in any what way that the court was misled. It was not shown that the solicitor relied on any fact which was not in evidence. It was his duty to promote and protect his client's best interest by all lawful and proper means. In this case, this meant reviewing the evidence of the plaintiff and attacking it with reasoned arguments; (4) the court in exercising its appellate jurisdiction as an administrative tribunal should be slow to disturb or interfere with a finding of fact unless it can be shown that supporting evidence was lacking or there was some misunderstanding of the court or there are other exceptional circumstances to do so (Whitehouse Holdings v Law Society of Singapore [1994] 2 SLR 476) . The inquiry committee reported that there were no grounds for complaint and that finding was justified on the evidence before it.

Digest :

Seet Melvin v Law Society of Singapore Originating Summons No 1102 of 1994 High Court, Singapore (Lim Teong Qwee JC).

1681 Professional discipline -- Misconduct

9 [1681] LEGAL PROFESSION Professional discipline Misconduct Contempt of court

Summary :

A solicitor guilty of gross insult to the court was summarily struck off the roll of law agents.

Digest :

Ishmahel Laxmana v East India Co; Re Trebeck [1829] 1 Ky 4 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Claridge R).

See LEGAL PROFESSION, Vol 9, para 1535.

1682 Professional discipline -- Misconduct

9 [1682] LEGAL PROFESSION Professional discipline Misconduct Conviction of offence Advocate and solicitor convicted of criminal offences Defect of character making him unfit for his profession Disciplinary proceedings Plea of autrefois convict or res judicata rejected Two years' suspension from practice Legal Profession Act (Cap 217), s 84(1) & 84(2)(a) & (b) Penal Code (Cap 103), s 213.

Summary :

On the facts and having regard to all the circumstances and the nature of the offence, the respondent's conviction clearly implies a defect of character which makes him unfit for the profession. It would not be in the public interest or in the interest of the profession, on all the facts and the circumstances of the present case that no penalty is imposed. The respondent should therefore be suspended from practice for a period of two years and that he be ordered to pay the costs of the proceedings.

Digest :

Re An Advocate and Solicitor [1984] 1 MLJ 331 High Court, Singapore (Wee Chong Jin CJ, Sinnathuray and Chua JJ).

See legal profession, Vol 9, para.

Annotation :

[Annotation: This case was reversed in [1985] 1 MLJ 1.]

1683 Professional discipline -- Misconduct

9 [1683] LEGAL PROFESSION Professional discipline Misconduct Conviction of offence Going behind conviction Conviction under ss 109 & 409, Penal Code (FMS Cap 45) Disciplinary Committee appointed Appellant struck off the roll Appeal Conduct of advocate and solicitor in his professional capacity Appeal record not before Disciplinary Committee Fresh inquiry Penal Code (FMS Cap 45), ss 109 & 409 Legal Profession Act 1976, ss 93(2)(a), 100, 100(1) & 101(1) Advocates and Solicitors (Disciplinary Enquiry) Procedure Rules 1970, r 10.

Summary :

Held: it was not open to the Disciplinary Committee to go behind the conviction to ascertain whether the conviction was justified. The conviction was final in that the appeal against the conviction was dismissed, and therefore it was a conviction within the contemplation of s 93(2).

Digest :

WE Balasingam v The Bar Council [1986] 1 MLJ 334 High Court, Kuala Lumpur (Wan Hamzah SCJ, Harun and Zakaria Yatim JJ).

See LEGAL PROFESSION, Vol 9, para 1645.

1684 Professional discipline -- Misconduct

9 [1684] LEGAL PROFESSION Professional discipline Misconduct Conviction of offence Immaterial that offence committed in capacity other than as advocate and solicitor

Digest :

Re JB Jeyaretnam, An advocate and solicitor [1988] 1 MLJ 353 High Court, Singapore (Wee Chong Jin CJ, Chua J and Chan Sek Keong JC).

See LEGAL PROFESSION, Vol 9, para 1632.

1685 Professional discipline -- Misconduct

9 [1685] LEGAL PROFESSION Professional discipline Misconduct Conviction of offence Whether exceptional circumstances permitting going behind conviction Legal profession Show cause proceedings Striking off the roll of advocates and solicitors Whether exceptional circumstances present Whether capacity in which solicitor acted a criterion for striking-off action Legal Profession Act (Cap 166), ss 80 & 95.

Summary :

In this case, disciplinary proceedings were taken by the Law Society against the respondent, who was an advocate and solicitor, on the recommendation of the Disciplinary Committee. The respondent was previously convicted of four offences against the Penal Code. Three of the offences were for the fraudulent removal of property and the fourth was for making a false declaration. As a result, the respondent was asked to show cause as to why he should not be struck off the roll of advocates and solicitors. The respondent raised a preliminary objection that in the circumstances of this case, the Chief Justice should not be one of the three judges. As regards the main show cause action, the respondent contended that there were exceptional circumstances which justified the court to go behind the convictions of the respondent.

Holding :

Held: (1) s 95(6) which provided that the Chief Justice shall be one of the judges is mandatory; (2) whether the exceptional circumstances exist is a question solely to be determined on the circumstances of each particular case. It is not enough merely to show that no appeal against conviction was available since lack of a right to appear per se does not constitute exceptional circumstances justifying re-opening a conviction in the course of disciplinary proceedings; (3) there were no exceptional circumstances as regards all or any of the four convictions to justify any inquiry into the correctness of the convictions. The convictions therefore stand proved against the respondent for the purposes of s 80(2)(a) of the Legal Profession Act (Cap 161, 1985 Ed); (4) in the present case, the offences were clearly of a very serious nature and they involved fraud and falsehood. Each one of the four criminal convictions clearly implied a defect of character making the respondent unfit for the profession within the meaning of 80(2)(a); (5) the respondent was ordered to be struck off the roll of advocates and solicitors.

Digest :

Re JB Jeyaretnam, An advocate and solicitor [1988] 1 MLJ 353 High Court, Singapore (Wee Chong Jin CJ, Chua J and Chan Sek Keong JC).

1686 Professional discipline -- Misconduct

9 [1686] LEGAL PROFESSION Professional discipline Misconduct Conviction of offence Whether exceptional circumstances to justify going behind conviction Legal profession Disciplinary proceedings Striking off the roll upon conviction for offences Whether court may go behind convictions Legal Profession Act (Cap 161, 1985 Ed), s 80(2)(a) Full bench of three judges hearing show cause action Whether Chief Justice must be a member of the full bench of three judges Legal Profession Act (Cap 161, 1985 Ed), s 95(6).

Summary :

On 19 October 1987, the High Court of Singapore (consisting of a full bench of three judges presided over by the Chief Justice) ordered that the appellant be struck off the roll of advocates and solicitors. The ground on which the order was made was that the appellant had been convicted of criminal offences implying a defect of character making him unfit for his profession under s 80(2) of the Legal Profession Act (Cap 161, 1985 Ed) (see [1988] 1 MLJ 353). The circumstances under which the convictions came about were as follows. The appellant was the secretary-general of the Workers' Party. The Workers' Party sued one Tay Boon Too ('Tay') for slander in respect of words spoken in the 1972 general election campaign. The action was dismissed with costs, which were not paid. On 19 January 1982, the appellant received a cheque for S$2,000 from a Dr Chew payable to the Worker's Party (the S$2,000) cheque. This cheque was endorsed by the appellant and Wong Hong Toy ('Wong'), the party chairman, in favour of a Madam Chiew to help meet her liability for the costs of an unsuccessful election petition brought against the appellant's opponent in 1980 general election. This was done with the concurrence of the donor, Dr Chew. On 23 January 1982, Tay's solicitor wrote demanding payment of the outstanding costs of the Workers' Party's unsuccessful slander action aginst him. On 3 February 1982, Tay applied for leave to execute for the unpaid costs. On 17 February 1982, the S$2,000 cheque was handed to Madam Chiew's solicitors. On 22 February 1982, Tay was granted leave to execute and the court made a garnishee order on the Workers' Party's bank account. There was only S$18.47 standing to that account. On 10 March 1982, the appellant and Wong received a cheque for S$200 (the 'S$200 cheque') from a Mr Ping. This cheque was made out to the Workers' Party. Mr Ping altered the cheque to a bearer cheque, and it was paid into Wong's personal account. Wong drew out S$200 and handed it to Madam Chiew's solicitors as a contribution towards her liability for costs on her unsuccessful election petition. On 22 May 1982, Tay applied to the court for the appointment of a receiver by way of equitable execution. On the same day, a Mr Lim made a donation of S$400 to the Workers' Party in the form of a crossed cheque (the 'S$400 cheque'). On 1 June 1982, the Official Receiver was appointed as receiver of the Workers' Party's asset. Some days later, Mr Lim was invited by Wong in the presence of the appellant to alter the S$400 cheque to a cash cheque. In the course of the receivership, the Official Receiver requested the appellant and Wong to make a statutory declaration to confirm the accounts. This was duly done. The accounts contained no entries referring to any of the three cheques. The declaration was not a valid statutory declaration as material words had been omitted. The declaration was, however, exhibited in an affidavit sworn by the Official Receiver. Arising out of the facts narrated, the appellant and Wong were charged with three counts under s 421 of the Penal Code (Cap 103, 1970 Ed) for dishonestly or fraudulently removing property of the Workers' Party intending to prevent the distribution of the same to the Party's creditors. They also faced one charge under s 199 of the Penal Code (Cap 103, 1970 Ed) for making a false declaration receivable in evidence. At the trial before Mr Michael Khoo, the senior district judge, the appellant and Wong were acquitted of the charges in relation to the S$2,000 and $200 cheques but convicted on the charge in relation to the S$400 cheque. They were also acquitted on the s 199 charge. On appeal to the High Court, the Chief Justice reversed the acquittals on the two s 421 charges and remitted the s 199 charge for a re-trial (see [1986] 1 MLJ 133). He declined to reserve a question of law for the decision of the Court of Criminal Appeal. The re-trial was heard by Mr Errol Foenander, the new senior district judge. The appellant and Wong were convicted. The appeal against his conviction was dismissed by the High Court (see [1988] 2 MLJ 553). Lai J, who heard the appeal, also declined to reserve a question of law for the decision of the Court of Criminal Appeal. As a result of the convictions, the Law Society began disciplinary proceedings against the appellant. The instant appeal to the Privy Council was consequent upon the decision of the full bench of the High Court to strike the appellant off the roll.

Holding :

Held, allowing the appeal: (1) the Chief Justice should not have sat as a member of the full bench of the High Court which heard the show cause proceedings, since one of the primary submissions of the appellant was that the Chief Justice's own decision on the appeal from Judge Khoo and his refusal to reserve questions of law for the Court of Criminal Appeal were erroneous. Section 95(6) of the Legal Profession Act (Cap 161, 1985 Ed) is not mandatory but directory only; (2) although it is usually not open to the court hearing a show cause action against an advocate and solicitor to go behind a conviction in order to determine whether or not the conviction was proper, the circumstances in this case were exceptional enough to warrant examination of the grounds on which the convictions were attacked as being bad in law; (3) as the High Court had declined to reserve questions of law for decision by the Court of Criminal Appeal, the appellant had no opportunity to test any of the questions of law involved by appeal to the Court of Criminal Appeal. Their Lordships found it difficult to understand how any serious question of law arising in a criminal case on which a person's conviction might depend could be said not to be of public interest within the meaning of s 60(1) of the Supreme Court of Judicature Act (Cap 15, 1970 Ed). If it could be shown that there were questions of law of public interest which should have been reserved for decision by the Court of Criminal Appeal and that this would have led to the quashing of the convictions, the convictions should not be conclusive against the accused in the course of disciplinary proceedings. The instant appeal therefore turned on the question whether the convictions were vitiated by errors of law; (4) the declaration sworn by the appellant and Wong was not per se admissible as evidence of any fact so as to bring it within the scope of s 199 of the Penal Code (Cap 103, 1970 Ed). The s 199 charge was misconceived in law as held by Judge Khoo; (5) to prove the s 421 charges, it was necessary to show that the money became the property of the Workers' Party. It was found by Judge Khoo that the S$2,000 cheque and the S$200 cheque had been transferred with the concurrence of the donors. Similarly, the S$400 cheque had been disposed of with the consent of the donor before it was presented for payment by the Workers' Party. The Workers' Party never had more than a defeasible title to the proceeds of the cheques. Before the title was perfected, the cheque was in each case lawfully disposed of in accordance with the donor's instructions. Accordingly, the proceeds of the cheques never became the property of the Party and the appellant and Wong could not have been guilty of an offence under s 421 of the Penal Code; (6) the Chief Justice, as an appellate judge, was not entitled to substitute his own findings of fact for those of Judge Khoo on the question of the donors' consent to the disposal of the S$2,000 cheque and the S$200 cheque. The judgment of the Chief Justice had started from a false premise with respect to the trial's judge assessment of the evidence and had proceeded upon a clear misdirection with respect to the onus of proof. For these reasons, it could not be supported; (7) the convictions of the appellant were vitiated by errors of law. His appeal against being struck off the roll was accordingly allowed.

Digest :

JB Jeyaretnam v Law Society of Singapore [1988] 3 MLJ 425 Privy Council Appeal from Singapore (Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle).

Annotation :

[Annotation: Section 9 of the Legal Profession (Amendment) Act 1989 now makes it impossible for the court to go behind the conviction for a criminal offence.]

1687 Professional discipline -- Misconduct

9 [1687] LEGAL PROFESSION Professional discipline Misconduct Deception of court False statement in mitigation Grossly improper conduct Act that would subject barrister to disciplinary proceedings in England Hearsay evidence, effect of

Summary :

R was an advocate and solicitor. R represented S, an Indonesian, in a cheating case. Bail was furnished purportedly by H, R's clerk. In reality the money had been provided by S's family. When S did not appear in court H was called upon to show cause why the bail should not be forfeited. R appeared on H's behalf to mitigate. In the course of mitigation, R stated that the bail money belonged to H and represented 15 years' savings for H. The bail was forfeited and an appeal was lodged. At the hearing of the appeal H was asked for documentary proof that the bail money belonged to him. H stated that the money was not his and that R had known this. R thereupon applied to be discharged from acting for H. Subsequently, disciplinary proceedings were brought against R on the ground that he had deliberately misled the court. The Disciplinary Committee was satisfied beyond reasonable doubt that R knew the bail money did not belong to H. The committee recommended that R be dealt with under s 80 of the Legal Profession Act (Cap 161).

Holding :

Held, suspending R from practice for six months: (1) the only issue was whether or not R knew that the bail money did not belong to H. R's submission that the Disciplinary Committee had improperly admitted hearsay evidence was rejected. Even if the committee ought not to have admitted the evidence, the decision of the Disciplinary Committee could still stand as provided in s 169 of the Evidence Act (Cap 97); (2) having considered the evidence and R's submissions, the court was satisfied beyond reasonable doubt, as the Disciplinary Committee had been, that R did know of the fact that the money did not belong to H; (3) it is imperative that advocates and solicitors of the Supreme Court maintain at all times the highest standard of integrity in court. It is clearly professional misconduct for an advocate and solicitor to engage in any sort of deception of the court. Accordingly, it was held that R was guilty of grossly improper conduct in the discharge of his professional duty and also that he had done an act which would render him liable to be disciplined if he were a barrister in England. R was suspended from practice for six months.

Digest :

Re Ram Goswami [1988] 3 MLJ 376 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Thean JJ).

1688 Professional discipline -- Misconduct

9 [1688] LEGAL PROFESSION Professional discipline Misconduct Delay in reporting criminal breach of trust Grossly improper conduct Delay in reporting employee's criminal misappropriation Restitution as motive Investigation Scope Punishment Legal Profession Act (Cap 217), ss 84(2)(b), 87(5) & 93(1).

Summary :

The respondent, an advocate and solicitor of some 30 years standing and at the material time the President of the Law Society of Singapore, appeared before the Disciplinary Committee of the Law Society to show cause on the charge that his delay in reporting to the Law Society his legal assistant's criminal breach of trust of clients' moneys amounted to grossly improper conduct in the discharge of his professional duty within the meaning of s 84(2)(b) of the Legal Profession Act (Cap 217, 1970 Ed). The respondent admitted that his legal assistant named Santhiran had in March 1976 admitted to him that he, Santhiran, had misappropriated sums totalling S$298,270.75 from the clients' account of Braddell Brothers of which firm the respondent was the sole proprietor; that between 9 March and 10 June 1976 Santhiran, with the knowledge and encouragement of the respondent had made restitution to the firm of S$297,556.72 in respect of the monies misappropriated; and Santhiran was allowed to continue his employment in the firm as an advocate and solicitor until he left the service of his firm on 21 December 1976; and that the respondent did not report to the Law Society the conduct of Santhiran until 30 April 1977. The respondent, though admitting that the delay of 13 months in reporting Santhiran's defalcations to the Law Society was 'prima facie far too long' sought by giving evidence and calling witnesses to justify the delay and contended that it was a mere error of judgment. The Disciplinary Committee found that the delay of 13 months was not an error of judgment but a premeditated scheme of delay; that the motive for the deliberate long delay was to obtain restitution from Santhiran; that the respondent took great pains to ensure that the object of his scheme was not prejudiced by any premature disclosure; that the method adopted by the respondent to achieve his purpose was dishonourable and that there was cause of sufficient gravity for disciplinary action against the respondent under s 84 of the Legal Profession Act (Cap 217, 1970 Ed). At the hearing before the court of the Law Society's application for the respondent to be dealt with under s 84 of the Act, it was contended on behalf of the respondent, that the Disciplinary Committee wrongly went outside the complaint by inquiring into the alleged consequence of the failure to report; that in any case they attached far too much weight to them in all the circumstances of the case and that the Disciplinary Committee ignored a large amount of unchallenged evidence that was favourable to the respondent.

Holding :

Held: the Disciplinary Committee, on the evidence before it, was amply justified in disbelieving the respondent's explanation for the delay and in finding that the motive for the respondent's delay in reporting promptly to the Law Society was to obtain total restitution from Santhiran; (2) as the respondent's defence was that he had an explanation for the long delay in reporting the defalcations which showed that he had committed an error of judgment and no more and that as a matter of law the long delay did not amount to 'grossly improper conduct', the Disciplinary Committee could properly inquire into the respondent's motive for the admitted delay and into the consequences of such delay; (3) the respondent was guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s 84(2)(b) of the Legal Profession Act (Cap 217, 1970 Ed); (4) having regard to all the circumstances, the respondent is ordered to be suspended from practice for a period of two years.

Digest :

Re An Advocate & Solicitor [1981] 2 MLJ 215 High Court, Singapore (Wee Chong Jin CJ, Kulasekaram and Chua JJ).

1689 Professional discipline -- Misconduct

9 [1689] LEGAL PROFESSION Professional discipline Misconduct Disciplinary proceedings Champertous agreement False representation Fraudulent conduct Striking off the roll of solicitors ÊLegal Profession Act (Cap 217), ss 84(1) & (2), and 107(1)(b) & (3).

Summary :

The respondent was an advocate and solicitor practising under the firm name of Chan Chow Wang & Co. Disciplinary proceedings were commenced against him on, inter alia, the following charges: (a) he entered into a champertous agreement to deduct S$10 for every S$100 damages awarded in connection with an action of which he had the conduct in contravention of s 107(1)(b) and (3) of the Legal Profession Act (Cap 217, 1970 Ed); (b) he falsely represented to the complainant that her son's employers' insurers had offered to pay S$3,300 damages thereby being guilty of fraudulent conduct in the discharge of his professional duty; (c) he deducted S$1,000 alleged to be solicitor and client's costs without the knowledge and consent of the complainant and without disclosing that the party and party costs of S$1,000 had been paid thereby being guilty of fraudulent conduct in the discharge of his professional duty. The Disciplinary Committee found that all the three charges had been proved against the respondent and that there was a cause of sufficient gravity for disciplinary action under s 84 of the Legal Profession Act (Cap 217, 1970 Ed). On reference to a court of three judges,

Holding :

Held: the Disciplinary Committee were justified in coming to the conclusions they did. Cause had been shown that the respondent should be dealt with under s 84(1) of the Legal Profession Act (Cap 217, 1970 Ed). The appropriate punishment for the charges found proved was that the respondent be struck off the roll of solicitors.

Digest :

Law Society of Singapore v Chan Chow Wang [1975] 1 MLJ 59 High Court, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

Annotation :

[Annotation: Natural justice and s 87(5) discussed extensively.]

1690 Professional discipline -- Misconduct

9 [1690] LEGAL PROFESSION Professional discipline Misconduct Disciplinary proceedings Reasonable opportunity to be heard Respondent should be informed of the charges he is facing Technical failure to inform Whether fatal to proceedings

Summary :

In 1987, the respondent of 12 years' call acted for Kimly Construction Pte Ltd ('Kimly') in the sale of their property, a unit in Shenton House. Upon completion, which occurred on 13 November 1987, the respondent informed Kimly that the balance of the sale proceeds due to Kimly was $239,898.78. He sent a copy of his bill in respect of the sale to Kimly. However, it was only after repeated demands and an AR Registered demand from Kimly's new solicitors that the respon-dent paid to Kimly the following sums: $25,000 on 22 December 1988, $35,000 on 18 January 1989 and finally the balance of $179,898.78 on 14 November 1989. By a letter dated 24 January 1990, Kimly complained to the applicant of the respondent's conduct. On 12 February 1990, an inquiry committee was appointed to hear and investigate Kimly's complaint. On 8 May 1990, it recommended a formal inquiry by a disciplinary committee. Five charges were formulated against the respondent and on 27 August 1990, a disciplinary committee was appointed to investigate into these five charges. It found on 12 October 1992 that the first and second charges were made out and that cause of sufficient gravity existed under s 83 of the Legal Profession Act (Cap 161, 1990 Ed) ('the Act'). The respondent was therefore asked to show cause before the High Court on two charges. The first charge was that the respondent had caused to be paid to himself a sum of $239,898.78 out of his firm's client account in circumstances other than permitted under the Solicitors' Accounts Rules 1985. The second charge was that the respondent had caused to be paid to Kimly Construction $179,898.78 in his firm's client account in circumstances other than as permitted under the Solicitors' Accounts Rules. The respondent's argument on the first charge was that there had been a joint venture between himself and Kimly in which they had agreed to develop a piece of property in Dunearn Road which was owned by the respondent. He maintained that the proceeds from the sale of Kimly's unit in Shenton House were paid out to himself as part payment for the purchase price of the Dunearn Road property. In relation to the second charge, the respondent claimed that the moneys belonged to a pair of Indonesian clients who had authorized him to draw on these sums for his own purpose. He produced a letter from the clients. He claimed that the money was the sale proceeds of a house he sold for these clients. The respondent also claimed that the second charge fell outside the scope of the Kimly complaint and that he had not been given notice of it. Held, ordering that the respondent be struck off the roll of advocates and solicitors: (1) in respect of the first charge, there was no written joint venture agreement even though the respondent was an experienced solicitor conversant with joint ventures. Witnesses for Kimly said that there had been no such joint venture. The disciplinary committee was satisfied beyond a reasonable doubt that this was so. There was no reason to disturb that finding. The first charge had been proved; (2) in respect of the second charge, the file relating to the sale of the property for the Indonesian clients was not produced and could not be found. The ledger card showed that on the date of the letter of authorization the balance in the account was zero. The Indonesian clients did not give evidence before the disciplinary committee who found that there was no authorization. There was no reason to interfere with that finding; (3) it was clear from ss 85 and 86 of the Act that the primary concern of the legislature was that an advocate and solicitor whose conduct was being investigated by an inquiry committee should be given a reasonable opportunity to present his case because that might lead to a result other than formal investigation by the disciplinary committee. Nowhere in the legislation was the leap made from this to the suggestion that matters outside an original complaint can never form the subject matter of disciplinary proceedings commenced as a result of that complaint. If the inquiry committee decides that the advocate and solicitor should be called upon to answer these allegations and/or allegations made against him in the original complaint, he should be informed, in the manner and to the extent prescribed by s 86(6), of all the allegations he has to answer to; (4) in the present case, the respondent was informed of the complaint against him. The inquiry committee, once it had considered the allegations, decided that the respondent's firm should be invited to give an explanation and to advise the inquiry committee whether it wished to be heard on the complaint. This entirely concerned the alleged joint venture agreement and the relationship between the parties. The respondent attended the subsequent meetings of the inquiry committee when there would have been a discussion of what was done with the proceeds of sale of the Shenton house unit and where the late payment came from, especially if the retention was questionable; (5) s 86(6) requires that copies of any written application, complaint or information and any statutory declarations or affidavits that have been made in support thereof must be sent to the advocate and solicitor. In the present case, even if the inquiry committee had written to the respondent to give him notice of allegations in the second charge, no new materials would have had to be sent to him under s 86(6). All that was lacking was technical official 'notice' posted or delivered to the respondent; (6) on a review of the proceedings it was clear that the matters set out in the second charge had been brought to the notice of the respondent and his counsel by the inquiry committee and opportunity had been given to provide explanations upon these matters to the inquiry committee. Moreover, from the time the respondent became actively involved, the inquiry lasted almost two months. This was quite sufficient time for at least the beginning of a defence to those allegations to emerge. The lack of notice was more technical than real and no injustice could arise in any case where issues not apparent from the face of the original complaint but which arose in the course of inquiry were presented by the inquiry committee to the advocate and solicitor concerned and he was asked for an explanation and given sufficient time to proffer one.

Digest :

Law Society of Singapore v Wong Kai Kit [1994] 1 SLR 294 High Court, Singapore (Yong Pung How CJ, Karthigesu JA and Lai Kew Chai J).

1691 Professional discipline -- Misconduct

9 [1691] LEGAL PROFESSION Professional discipline Misconduct Dismissal of complaint Application for appointment of disciplinary committee Inquiry com-mittee overlooking substantial complaint Law Council 'accepted and adopted' inquiry committee's report Whether court should order appointment of disciplinary committee Propriety of Law Council's determination Legal Profession Act (Cap 161), ss 87(1) & 96(4)

Summary :

This was an appeal against the dismissal of an application under s 96 of the Legal Profession Act (Cap 161) ('the Act') directing the Law Society to apply to the Chief Justice for the appointment of a disciplinary committee. On 22 December 1992, the complainant had lodged a complaint with the Law Society against Tham Kok Leong ('Tham'), an advocate and solicitor. Tham had been retained in and about the leasing of certain premises of which the complainant was the head lessee. Tham took a sub-lease in the premises and, significantly, all the legal documentation were prepared by his assistant. Subsequently, the complainant complained, inter alia, that Tham had acted fraudulently or had displayed gross improper conduct in the discharge of his professional duty by fraudulently charging S$2 per month for the use and occupation of the premises. In accordance with s 86 of the Act, the complaint was inquired into by the inquiry committee and it subsequently recommended that the complaint be dismissed as it found Tham had not been fraudulent in his conduct. On 6 August 1993, the Council of the Law Society considered the inquiry committee's report and 'accepted and adopted the findings of the inquiry committee' that the complaint did not merit a formal investigation by a disciplinary committee. The complainant's application under s 96 of the Act was dismissed, resulting in the instant appeal. Held, dismissing the application: (1) in the inquiry committee's report, the committee had only considered whether Tham's conduct was fraudulent. It said nothing about grossly improper conduct. The report appeared to have ignored the fact that a solicitor who derives a substantial benefit other than his proper remuneration under a document prepared by him for his client to execute, where he has not advised his client to take independent legal advice on it, would be open to a charge of grossly improper conduct in the discharge of his professional duty; (2) on the question of grossly improper conduct either the Council had made no determination in which case there was no determination to be affirmed or it had made a determination without having considered the matter because the inquiry committee had not reported on it and the Council had merely accepted and adopted the inquiry committee's findings in which case its determination could not stand; for the reasons given, the court declined to affirm the determination of the Council; (3) following Wee Soon Kim Anthony v Law Society of Singapore [1988] 3 MLJ 9, the court will also not make an order for the appointment of a disciplinary committee. The statutory scheme for disciplinary proceedings (from the initiation of the complaint to the hearing before the disciplinary committee) is a right which an advocate and solicitor should not be deprived of. Whereas in this case the inquiry committee had not in its report dealt with the necessity or otherwise of a formal investigation in respect of a substantial complaint and it did not appear from the report that such complaint had been investigated or considered and the Council had merely accepted and adopted the inquiry committee's report it would be wrong for the court on an application under s 96 to make an order for the appointment of a disciplinary committee. That would be to deprive the solicitor concerned of the safeguards provided by law; (4) the Council must under s 87 consider the report and according to the circumstances of the case it must come to a determination as to the matters set out in paras (a) to (d) of sub-s (1). It is not sufficient to 'accept' or to 'adopt' the inquiry committee's findings. This may be and often is an important step leading to the determination but it is not the determination.

Digest :

Whitehouse Holdings Pte Ltd v Law Society of Singapore [1994] 1 SLR 315 High Court Singapore (Lim Teong Qwee JC).

1692 Professional discipline -- Misconduct

9 [1692] LEGAL PROFESSION Professional discipline Misconduct Evidence Conviction under ss 109 & 409, Penal Code (FMS Cap 45) Disciplinary Committee appointed Appellant struck off the roll Appeal Conduct of advocate and solicitor in his professional capacity Appeal record not before Disciplinary Committee Fresh inquiry Penal Code (FMS Cap 45), ss 109 & 409 Legal Profession Act 1976, ss 93(2)(a), 100, 100(1) & 101(1) Advocates and Solicitors (Disciplinary Enquiry) Procedure Rules 1970, r 10.

Summary :

For the reason that the Disciplinary Committee made the inquiry without the appeal record before it, its decision and order should be set aside and this case should be sent back to the committee to hold a fresh inquiry. The sessions court appeal record and the High Court judgment should be made available to the committee for the purpose of the fresh inquiry. It was not proper and correct for the committee to arrive at a finding of instigation, conspiracy and aiding without the proper record of evidence before it.

Digest :

WE Balasingam v The Bar Council [1986] 1 MLJ 334 High Court, Kuala Lumpur (Wan Hamzah SCJ, Harun and Zakaria Yatim JJ).

See LEGAL PROFESSION, Vol 9, para 1645.

1693 Professional discipline -- Misconduct

9 [1693] LEGAL PROFESSION Professional discipline Misconduct Fraudulently obtaining money from clients

Summary :

The respondent had on four occasions deceived three clients in her previous firm into paying sums which were more than what was due to the firm and retaining the additional amount for her own use. On each occasion, the respondent altered the client's copy of the firm's bills and receipts to reflect an additional sum which was not actually due to the firm. The clients paid up but the firm never received the additional sums. The total sum misappropriated was $700. At the hearing before the Disciplinary Committee, four charges were made out against the respondent, namely that she had on four different occasions falsely altered the client's copy of the firm's bill to reflect a higher sum and retaining the difference for her own use. The respondent admitted to the four charges and was ordered to show cause why she should not be dealt with under s 83 of the Legal Profession Act.

Holding :

Held, affirming the charges made out by the Disciplinary Committee: (1) the respondent had fraudulently obtained moneys by deception and had abused the solicitor and client relationship. This relationship was one of trust and the very foundation on which the legal profession rests. An abuse of this relationship in the circumstances of the case constituted fraudulent and grossly improper conduct in the discharge of the respondent's professional duty and fell within s 83(2)(b) of the Act; (2) although the sums involved were small, it did not affect the severity of the offence nor should it be a mitigating factor since the element of dishonesty clearly existed and there was a deliberate and calculated intention to deceive. In the result the respondent was struck off the roll.

Digest :

Law Society of Singapore v Vivienne Wee Chui Ling Originating Summons No 10 of 1996 High Court, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

1694 Professional discipline -- Misconduct

9 [1694] LEGAL PROFESSION Professional discipline Misconduct Grossly improper conduct Delay in reporting employee's criminal misappropriation Restitution as motive Concurrent findings of fact Penalty Legal Profession Act (Cap 217), ss 84, 94 & 98.

Summary :

This was an appeal from the order of the High Court in Singapore that the appellant, an advocate and solicitor of Singapore, be suspended from practice for two years See [1981] 2 MLJ 215. The appellant employed a number of solicitors as assistants in his practice. The appellant discovered by March 1976 that one of these assistants had misappropriated a large amount of money from clients' accounts. The appellant did not disclose the fact of the defalcations by the assistant to the Law Society or the police until some 13 or 14 months later, during the course of which he endeavoured to obtain restitution from the assistant. The appellant was charged before a Disciplinary Committee with grossly improper conduct in the discharge of his professional duty, the charge being based on his failure to report earlier the criminal breach of trust committed by the assistant. The Disciplinary Committee found that a cause of sufficient gravity existed for disciplinary action and the finding was brought before the High Court by the Law Society. The appellant gave evidence as to his motives to show that his failure to report was a mere error of judgment but the Disciplinary Committee found that the dominant motive for his non-disclosure was his own financial protection, to ensure, if possible, that he himself was not out of pocket but got back full restitution for all that the firm had lost or might be liable for. The High Court also rejected the appellant's submissions and found the appellant guilty of grossly improper conduct in the discharge of his professional duty and ordered that he be suspended from practice for two years. The appellant appealed.

Holding :

Held: (1) in this case there were concurrent findings of fact with which it is the established and invariable practice of the Privy Council not to interfere, particularly as the finding was dependent upon the credibility of the oral evidence of the appellant as a witness; (2) the High Court with its familiarity with the conditions which obtain in the legal profession in Singapore is in a much better position than the Privy Council to assess the appropriate penalty for grossly improper conduct. The Privy Council would hesitate long before interfering with the High Court's assessment and there was no sufficiently strong ground to entitle it to do so in this case.

Digest :

HL Wee v The Law Society of Singapore [1982] 2 MLJ 293 Privy Council Appeal from Singapore (Lord Diplock, Lord Brandon of Oakbrook and Sir John Megaw).

1695 Professional discipline -- Misconduct

9 [1695] LEGAL PROFESSION Professional discipline Misconduct Improper conduct Using grossly offensive language and threatening gestures Encouraging gallery of the court to bring court into contempt and disrepute Using court as a forum for expressing political views Improper statements Whether conduct amounts to professional misconduct Sentence Suspension for two years Legal Profession Act (Cap 217), s 84(2)(b), & (h) and 93(2).

Summary :

The respondent, an advocate and solicitor, acted as counsel for several political detainees in 13 private summonses. The political detainees alleged that certain police officers had wrongfully used criminal force against them contrary to s 352 of the Penal Code. The Attorney General complained to the President of the Law Society of the conduct of the respondent in the proceedings connected with the private summonses aforesaid. The statement of the case against the respondent before the Disciplinary Committee was: (i) using grossly offensive and improper expressions and threatening gestures to defence counsel in the course of the proceedings and adjournments; (ii) making improper statements in the course of the proceedings; (iii) improperly conducting himself in a manner to encourage the gallery of the court to bring the court into contempt and disrepute; (iv) improperly seeking to convert the court into a forum for expressing political views unconnected with the issue before the court. The Disciplinary Committee found that (a) the respondent made improper remarks addressed to counsel appearing for the defendants and to the defendants during the many adjournments during the trial; (b) the respondent was guilty of contempt of court which was dishonourable conduct amounting to professional misconduct; (c) the respondent abused his rights as counsel and used the court as a political forum and was guilty of professional misconduct. The majority of the Disciplinary Committee also found that the respondent's interjection during the trial of one of the defendants was an insulting and grossly improper remark made in the face of the court amounting to professional misconduct. The Disciplinary Committee came to the conclusion that the respondent's conduct was not of sufficient gravity to come within s 84(2)(b) of the Legal Profession Act (Cap 217, 1970 Ed) but was conduct which fell within s 84(2)(h) of the said Act. They also ordered the respondent to pay S$2,000 to the Law Society as costs and disbursements pursuant to s 93(2) of the said Act. On application to the court under s 84 of the said Act

Holding :

Held: (1) the findings of the Disciplinary Committee and the conclusions they had reached were proper and the court accepted the same; (2) the conduct and words spoken by the respondent were both disgraceful and dishonourable and in the interests of the profession, the proper administration of justice and of the public a serious view should be taken of this matter and the respondent should be suspended from practice for two years; (3) no case has been made out for the court to interfere with the order of costs made by the Disciplinary Committee. The respondent should also pay the costs of this application.

Digest :

Re TT Rajah; The Law Society of Singapore v Thampoe T Rajah [1973] 1 MLJ 79 High Court, Singapore (Wee Chong Jin CJ, Kulasekaram and Tan Ah Tah JJ).

1696 Professional discipline -- Misconduct

9 [1696] LEGAL PROFESSION Professional discipline Misconduct Impropriety Whether solicitor acted improperly in failing to release sum of money to complainant for sale of property Whether conflict of interests in acting for both parties in sale

Summary :

The respondent acted on behalf of Madam Teo, who was the nominee of her husband, Pan, in the purchase of a property for S$285,000. An option ('the first option') was granted to be exercised by 18 May 1990 on payment of 10% of the purchase price and completion was to take place on 9 August 1990. Pan intended to resell the property to his friend, Lee, for S$330,000. However, Pan was persuaded to grant an option ('the second option') to the respondent's father instead. The second option was signed by Pan on behalf of his wife but the option was held in the name of the respondent's mother. This option was to be exercised by 4 June 1990 on payment of S$32,000, which together with the S$1000 option money already paid would constitute 10% of the purchase price of S$330,000. Completion was to take place on 8 August 1990. As Lee was still interested in purchasing the property, Pan wanted to know if the second option would be exercised and was assured by the respondent that it would. Around 8 or 9 June, the respondent informed Pan that the second option had been exercised by Ng, a former employee of the respondent and connected to Chay who was a close friend of the respondent. The respondent gave Pan a personal cheque for S$32,000 and a letter signed by his mother nominating Ng 'to purchase' the property. Although the second option did not provide for the option holder to nominate a purchaser, Pan did not object to Ng exercising the option as he thought that the sub-purchase was in any event being taken up by the respondent or his family. The respondent asked Pan not to bank in the cheque for S$32,000 until 25 June as he was facing cash flow problems. However, the cheque was dishonoured and it was discovered that it had been drawn on the account of one Gatot Yoewono, of which the respondent was an authorized signatory. Nevertheless, the respondent assured Pan that he would complete the purchase of the property. Subsequently, the time for completion under the sub-sale was extended as the loan for the purchase could not be released on time. In view of this, the respondent purportedly on the instructions of Pan asked the vendor in the main sale for an extension of the completion date to which the latter agreed to extend till 26 September. About 25 September, the respondent told Pan that 'the purchaser' would not be proceeding with the purchase under the second option. As Pan did not have time to arrange for funds to complete the purchase under the main sale independent of the sub-sale, he agreed to the respondent's suggestion to allow Superfast Renovation Pte Ltd ('Superfast') to take over the purchase under the first option. The respondent and Chay were the two directors of Superfast. The sale to Superfast was completed on 26 September 1990 but the respondent failed to make available a sum of S$72,500 to be paid to Madam Teo as the respondent had assured her she was entitled to. This sum comprised the deposit already paid by Madam Teo under the first option and the difference in the purchase price between the first and second options. At the disciplinary hearing, the disciplinary committee having heard the witnesses preferred the testimony of Pan's to that of the respondent's, the two being materially different and found the four of five charges formulated against the respondent to have been made out, namely that the respondent had acted improperly in: (a) acting as solicitor for Madam Teo, the respondent's mother, Ng and Chay in the purchase and sub-sale of the property; (b) falsely representing to Pan that he had collected 10% of the purchase price (S$32,000) in the sub-sale of the property; (c) drawing a cheque for S$32,000 which was subsequently dishonoured; and (d) failing to ensure that the S$72,500 would be available for payment on completion of the sale of the property. As such, the High Court ordered the respondent to show cause why he should not be dealt with under s 83 of the Legal Profession Act (Cap 161).

Holding :

Held, affirming the charges made out by the disciplinary committee: (1) there was no reason to disagree with the disciplinary committee's finding that Pan's evidence reflected the true version of events. In considering the appropriate punishment, the degree of culpability in respect of the alleged conduct, whether the solicitor was motivated by dishonest intentions and whether the alleged conduct implied such a defect of character as to make him unfit for his profession would, amongst other things be considered; (2) by acting for all the parties concerned, the respondent had acted in conflict of interests as a result of which he could not service such interests properly and thus, engaged in acts of impropriety which showed a defect of character not in keeping with the integrity of his profession. In the result, the respondent was suspended from practice for three years and was ordered to pay the costs of the Law Society in both the show cause and disciplinary proceedings.

Digest :

Re Loo Choon Beng Originating Summons No 258 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1697 Professional discipline -- Misconduct

9 [1697] LEGAL PROFESSION Professional discipline Misconduct Keeping witness out of way of prosecution Advocates and Solicitors Ordinance, ss 25 and 26D Professional misconduct What amounts to grossly improper conduct.

Summary :

This case was concerned with the professional conduct of the respondent, an advocate and solicitor of this court. The respondent was engaged in the defence in police court proceedings of a person charged with permitting another person to drive a car whilst not covered by the necessary insurance, under s 48 of the Road Traffic Ordinance. It appeared that the respondent's client had permitted a serving soldier named Heyes to drive a car which did not belong to the client but which he used with the owner's permission. The basis of the charge was that the permission of the owner did not extend to Heyes and that Heyes was not a licensed driver. Heyes was charged separately under the same section and also with other motoring offences. He was defended by an officer. The case of the respondent's client was fixed for hearing on 20 March and that of Heyes on 21 March. It appeared that the prosecution not unnaturally wanted the case of Heyes tried first. The respondent equally naturally wished to avoid this. In point of fact on the application of the officer defending, the case against Heyes was on 21 March postponed till 4 April. On 20 March when his client's case came on the prosecution asked for an adjournment because they wanted to call Heyes as a witness. The respondent opposed this application, pointing out that his client had arranged to go on leave on the day fixed for the hearing of the case of Heyes. Heyes was at this time on duty in the Federation. He had not been subpoenaed and it did not appear that any steps had been taken to secure his attendance. It appeared that the prosecution had expected they would have the adjournment asked for and in consequence did not have the other witness present. The magistrate who was under the impression that a subpoena had been served on Heyes granted an adjournment but, in view of the coming departure of the client, only until 25 March. The respondent appeared to have considered this attempt by the prosecution as something underhand. On 25 March Heyes was brought to the court by the respondent and left waiting in a parked motor car some distance away from the court. When the case was called the respondent said that the case on 20 March had been adjourned because Heyes as a witness was not available. The respondent also said that even now Heyes had not been subpoenaed by the prosecution and that he was not wanted by them as a witness. But the prosecution officer replied that Heyes was wanted as a prosecution witness. The Disciplinary Committee which inquired into the matter found that the respondent had been guilty of grossly improper conduct. He had deliberately arranged for Heyes to be kept out of the way of the prosecution.

Holding :

Held: the respondent was guilty of grossly improper conduct and his conduct was entirely unworthy of a member of the Bar and he should be suspended from practice for three months and pay the costs of these proceedings.

Digest :

Re JLP Harris, An Advocate & Solicitor [1953] MLJ 161 High Court, Singapore (Murray-Aynsley CJ, Brown and Buttrose JJ).

Annotation :

[Annotation: See Bhandari v Advocates Committee [1956] 1 WLR 1442; [1956] 3 All ER 742.]

1698 Professional discipline -- Misconduct

9 [1698] LEGAL PROFESSION Professional discipline Misconduct Misconduct outside Singapore Whether solicitor subject to disciplinary proceedings in Singapore Jurisdiction of Disciplinary Committee

Summary :

JL was an advocate and solicitor both in Singapore and in Brunei. He was charged with grossly improper conduct as an advocate and solicitor under s 80(2)(b) of the Legal Profession Act (Cap 161). He was alleged to have received money in Brunei for services performed for a client without accounting for the money to his employers, a firm of Brunei solicitors. JL raised a preliminary point regarding the jurisdiction of the Disciplinary Committee. The Disciplinary Committee came to the conclusion that the question of jurisdiction had to be decided by the High Court. The committee proceeded to make a determination that a cause of sufficient gravity existed for disciplinary action under the Legal Profession Act (Cap 161). JL was called upon to show cause why he should not be disciplined.

Holding :

Held, dismissing the application for an order absolute: (1) where the jurisdiction of a tribunal is challenged, the tribunal must decide the question of jurisdiction for itself. Without jurisdiction, it has no power to proceed further into the matter at issue. The Disciplinary Committee was therefore competent to decide the question of whether it had jurisdiction to make a determination under the Act; (2) a Singapore solicitor can be disciplined for misconduct committed abroad so long as the misconduct is committed in discharge of his duty as a Singapore solicitor. The corollary of this is that where a Singapore solicitor is also qualified as a solicitor in some other country, then any misconduct by him in the discharge of his professional duty as a foreign solicitor does not subject him to disciplinary proceedings under the first limb of s 80(2); (3) the charge against JL alleged dishonesty in relation to his conduct as an employee for a firm of Brunei solicitors. The conduct complained of was not in JL's capacity as a Singapore solicitor and therefore the charge should have been dismissed.

Digest :

Re Joseph Linus [1990] 3 MLJ 392 High Court, Singapore (Wee Chong Jin CJ, Chan Sek Keong and Chua JJ).

1699 Professional discipline -- Misconduct

9 [1699] LEGAL PROFESSION Professional discipline Misconduct Nature of Conviction under ss 109 & 409, Penal Code (FMS Cap 45) Disciplinary Committee appointed Appellant struck off the roll Appeal Conduct of advocate and solicitor in his professional capacity Appeal record not before Disciplinary Committee Fresh inquiry Penal Code (FMS Cap 45), ss 109 & 409 Legal Profession Act 1976, ss 93(2)(a), 100, 100(1) & 101(1) Advocates and Solicitors (Disciplinary Enquiry) Procedure Rules 1970, r 10.

Summary :

The appellant, a practising advocate and solicitor, was convicted in the sessions court under s 109 and 409 of the Penal Code (FMS Cap 45) with abetting the commission of criminal breach of trust in respect of a sum of RM29,500. He was sentenced to six months' imprisonment and a fine of RM20,000. His appeal to the High Court was dismissed. Subsequently, a Disciplinary Committee appointed by the Chief Justice to hold a formal inquiry under s 100 of the Legal Profession Act 1976 (Act 166) made an order that the appellant be struck off the roll of advocates and solicitors. He now appeals against that order on six grounds, among them that the Disciplinary Committee failed to fully appreciate the facts that the conviction of the appellant did not touch upon the conduct of the appellant as an advocate and solicitor and that the Committee was not in possession of the appeal record of the sessions court.

Holding :

Held: it is not every kind of misconduct of the advocate and solicitor which the Disciplinary Committee should be concerned with but only misconduct committed in his professional capacity. The provisions of s 100(1), added by Act A567, came into force since 16 December 1983 and are inconsistent with the provisions of s 93(2)(a), which should be read subject to s 100(1), so that the words 'a criminal offence as makes him unfit to be a member of his profession' appearing in s 93(2)(a) should be read and understood to mean a criminal offence committed in his professional capacity.

Digest :

WE Balasingam v The Bar Council [1986] 1 MLJ 334 High Court, Kuala Lumpur (Wan Hamzah SCJ, Harun and Zakaria Yatim JJ).

1700 Professional discipline -- Misconduct

9 [1700] LEGAL PROFESSION Professional discipline Misconduct Negligence Improper conduct Improper letter to dispose of movable property of company with branch in Malaysia Company subject to winding up in Singapore Breach of undertaking to Attorney General Legal Profession Act (Cap 217), ss 84(2)(b) and 90.

Digest :

Re Francis T Seow; The Law Society of Singapore v Francis T Seow [1973] 1 MLJ 199 High Court, Singapore (Wee Chong Jin, Winslow and Tan Ah Tah JJ).

See LEGAL PROFESSION, Vol 9, para 1606.

1701 Professional discipline -- Misconduct

9 [1701] LEGAL PROFESSION Professional discipline Misconduct Overcharging Commission for introduction of purchaser

Summary :

R acted for C in the purchase of property. C asked R to find a purchaser for the re-sale of the property. C introduced his friend M, who found Y as a prospective purchaser. A sale and purchase agreement was prepared under which the property was to be sold to Y for S$2.25 million. C also agreed in a written document ('the note') to pay M a commission of 50 cents a square foot for securing a buyer; half of this commission was to be paid to R. Subsequently, C entered into an agreement (the 'commission agreement') under which he was to pay R S$119,000 as commission for securing a buyer. Disputes later arose regarding the sale of the property to Y. Y sued C. C retained K as his solicitor. R assisted K on matters of fact, attending at his office and swearing an affidavit in support of C's case. He also attended court to give evidence. R sent C a bill of costs for S$150,000 for professional charges in connection with the property. This bill included the S$119,000 payable under the commission agreement. C complained to the Law Society. A disciplinary committee ('DC') was convened. The DC determined that there was cause for disciplinary action on the ground that R had been guilty of grossly improper conduct in charging excessive and unconscionable fees.

Holding :

Held, suspending R for two months: (1) the first issue was whether the agreements for commission were made with R in his professional capacity. Although introducing a buyer did not involve any professional skill or service, that did not divest R of his character as a solicitor. The non-professional work was part of R's retainer as C's solicitor. In negotiating for the commission, R's character as solicitor was so inextricably part of the transaction that his own legal costs were merged with the commissions; (2) C had freely agreed to pay to R the commission under the agreement. There was no evidence of pressure or that R had taken advantage of C. Such commission was not, under the circumstances, unconscionable or excessive; (3) as for the commission agreement, however, it was found that C had agreed because he urgently needed R's assistance at the time to write a letter of demand to Y. He needed the money urgently to pay his creditors. R agreed to write the letter of demand only on condition that C agreed to the commission. It was held that R had abused his position as a solicitor in obtaining for himself a hefty commission in such circumstances; (4) the commission payable was far in excess of what C paid to M, who had done most of the work. It was grossly excessive; (5) the bill of costs was also grossly excessive. R charged S$30,000 for work done in connection with C's case against Y when R's role was merely to give evidence on certain matters. The fees charged bore no relation to the work done; (6) solicitors rendering exorbitant or excessive bills, ie bills for sums totally out of all proportion to work done, lay themselves open to disciplinary action; (7) however, R had not sought to enforce the commission agreement or the bill of costs. No payment had been made to him. Nonetheless, the fact remained that he took advantage of C and abused his position as a solicitor. R was suspended for two months.

Digest :

Re Abdul Rahim Rajudin [1989] 1 MLJ 289 High Court, Singapore (Wee Chong Jin CJ, Sinnathuray and Thean JJ).

Annotation :

[Annotation: Affirmed on appeal. See [1991] 1 MLJ 257.]

1702 Professional discipline -- Misconduct

9 [1702] LEGAL PROFESSION Professional discipline Misconduct Overcharging Grossly improper conduct

Summary :

A was an advocate and solicitor. He was charged with grossly improper conduct in that, inter alia, he took advantage of a client to demand unconscionable commissions for putting through certain transactions relating to the sale of property. The facts on which the charge was based were as follows. In 1980 A acted for PC (the client) in the sale of property to PY. It was agreed that A would get a commission on 25 cents per square foot. PC and PY later fell out and PC instructed A to write to PY demanding further payment on account of the purchase price. A asked for a new commission agreement under which he would get S$1.25 per square foot. PC's evidence was that he had no choice but to agree to the new commission agreement as he needed A's help to get money from PY to pay his creditors. A's evidence was that the increased commission was a gift from PC. The Disciplinary Committee found that a case had been made out for disciplinary action. The High Court made an order suspending A for two months (see [1989] 1 MLJ 289) for grossly improper conduct. A appealed to the Privy Council.

Holding :

Held, dismissing the appeal: the Privy Council agreed with the High Court that the inference from the evidence was that PC had been pressured into signing the commission agreement. The commission charged was unconscionable. The High Court was fully entitled to reach the conclusion that A's conduct amounted to grossly improper conduct in the discharge of his professional duty. The appeal was accordingly dismissed with costs.

Digest :

Abdul Rahim Rajudin v The Law Society of Singapore [1991] 1 MLJ 257 Privy Council on appeal from Singapore (Lords Bridge, Brandon, Ackner, Goff and Lowry).

1703 Professional discipline -- Misconduct

9 [1703] LEGAL PROFESSION Professional discipline Misconduct Overcharging in conveyancing bill Grossly improper conduct Whether dishonesty or deceit necessary

Summary :

The respondent was an advocate and solicitor and had been in private practice since 1983. In May 1988, the respondent was instructed to act for Wee Tiong Co Pte Ltd in the purchase of a property known as 85 Amoy Street ('the property') for the sum of S$250,000. The complainant was subsequently substituted as the purchaser and the respondent continued to act as solicitor for the purchaser. On 23 June 1988, well before completion, the respondent rendered a bill for S$19,997.85, inclusive of disbursements. Out of this sum the fees charged for acting in the purchase of the property was S$6,725 ('the conveyancing fee') and a sum of S$3,000 was charged for the filing of an application for lapsing of the caution ('the application fee'). The bill was paid in full by the complainant. On 26 September 1990, the complainant made a complain about the respondent on various matters, including the bill dated 23 June 1988. The respondent was charged with grossly improper conduct in that the conveyancing fee and the application fee were far in excess of and disproportionate to what he was entitled to charge. The respondent did not deny the overcharging, and in fact after the letter of complaint was sent, gave the complainant credit for the total amount overcharged. Before the Inquiry Committee the respondent claimed that at the time of rendering the bill, he had little experience in conveyancing matters and that he had left the preparation of the bill to his clerk. He also claimed that a specimen bill obtained from another firm was used to prepare the bill in question. He unfortunately could not produce the specimen bill. At the Disciplinary Committee hearing the respondent claimed that he had based the conveyancing fee on the valuation report which was S$1,025,000. Evidence was led to show that the respondent had, by 23 June 1988, done about 30 conveyancing transactions. In these transactions the respondent had also seen the valuation reports, yet his bills had not been based on those valuation reports but on the actual purchase consideration. The respondent also claimed that the application fee was based on the amount the owner could borrow from the mortgagee, ie US$1.8m. This explanation was not contained in his defence. The Disciplinary Committee found the respondent guilty of grossly improper conduct and he was asked to show cause. Before the High Court the respondent's main contention was that there was no finding of dishonesty, fraud or deceit on his part by the Disciplinary Committee, and as such, his admittedly improper act of overcharging was not grossly improper conduct.

Holding :

Held, suspending the respondent for three months: (1) an intention to deceive is not necessarily always an element of grossly improper conduct. The mere fact of overcharging may in law amount to grossly improper conduct whether or not it does depends on the individual circumstances of each case and deceit is a separate consideration altogether; (2) not every case of overcharging would constitute grossly improper conduct. Inevitably there would be some diversity of opinion as to what would or would not be correct in each case, and where the line ought to be drawn; (3) the extent to which a client is overcharged is a very strong factor against an advocate and solicitor accused of overcharging amounting to grossly improper conduct. This is so whether or not there is any allegation of dishonesty or deceit; (4) the main justification for the conveyancing fee charged was the valuation report the respondent asserted he had relied on, but this report was prepared in 1980 for purposes totally unrelated to the transaction in 1988. Furthermore, in previous conveyancing transactions the respondent had always used the purchase consideration, and not a valuation report, to calculate his conveyancing fees; (5) as for the application fee, this was allegedly based on the account of the owner's total debts owed to the mortgage, but this account contained on its face items of debt not described as having any necessary or exclusive connection with the property in question; (6) the respondent's explanations were simply outrageous.

Digest :

Re Han Ngiap Juan [1993] 2 SLR 81 High Court, Singapore (Yong Pung How CJ, Goh Joon Seng and Karthigesu JJ).

1704 Professional discipline -- Misconduct

9 [1704] LEGAL PROFESSION Professional discipline Misconduct Partnership with unauthorized person Neglect to procure registration of deeds Fees and expenses paid by client Partnership with unqualified person Ordinance No 101 (Courts), ss 90(5)(b), 91(b) and (i).

Summary :

The fact of a partnership between a solicitor and an unqualified person is not sufficient ground for striking the solicitor off the rolls of the court. The only penalty attaching to such an offence is a fine up to RM500. The particular provision of s 90(5)(b) Ordinance No 101 (Courts) prevails over the general provision of s 91(2)(i). A charge under s 90(5)(b) is not a subject for inquiry by a Bar Committee.

Digest :

Re A Solicitor [1933] MLJ 147 High Court, Straits Settlements (Murison CJ and Whitley J).

1705 Professional discipline -- Misconduct

9 [1705] LEGAL PROFESSION Professional discipline Misconduct Penalty Striking off Conviction for aiding another to omit attending court Whether respondent ought to be struck off Whether suspension sufficient Whether fact that respondent was not prime mover relevant Legal Profession Act (Cap 161), ss 83 & 98

Summary :

The respondent, an advocate and solicitor, was convicted in the district court on three counts of abetting his clients to omit attending court by producing false medical certificates. It was not disputed that the convictions pertained to acts done by the respondent acting in his capacity as an advocate and solicitor and implying a defect of character which made him unfit for his profession, and that due cause had been shown. The only issue before the court was the question of determining the appropriate penalty. It was urged that a suspension was the more appropriate penalty as it was his partner, one Guru, who had effective control over the administration of the firm, and who was the prime mover of the arrangement whereby the false medical certificates were obtained. Guru himself had earlier been similarly convicted in respect of other clients of the firm. He had been sentenced to three weeks' imprisonment besides being fined $1,000, unlike the respondent who had not been given a custodial sentence. Guru had also been dealt with under s 83(1) of the Legal Profession Act (Cap 161) by being struck off the roll of advocates and solicitors.

Holding :

Held, striking the respondent off the roll of advocates and solicitors: (1) the principles of sentencing for a criminal offence had little relevance when it came to meting out the appropriate penalty for professional misconduct. An advocate and solicitor was an officer of the court. As such it was the bounden duty of every advocate and solicitor, no matter whether he was the precedent partner in the firm or just a legal assistant or whether he had a great many years of practice behind him or just a few years, to uphold the integrity of the administration of justice in the courts and not to thwart it by delaying the judicial process by such nefarious means as the ones in this case; (2) the seriousness of the offences of which the respondent was convicted could not be minimized on any account. When an advocate and solicitor intentionally abetted a client from delaying the judicial process, which very process it was his bounden duty to uphold, it showed an extreme defect of character. Bearing in mind that s 2(1) of the Act expressly provided that no qualified person was to be admitted as an advocate and solicitor unless he was of good character, a period of suspension even for the full period of five years would be neither adequate nor appropriate. There was only one penalty appropriate in this case and that was being struck off the roll of advocates and solicitors.

Digest :

Law Society of Singapore v Dhanwant Singh [1996] 1 SLR 429 High Court, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1706 Professional discipline -- Misconduct

9 [1706] LEGAL PROFESSION Professional discipline Misconduct Powers of Bar Committee

Summary :

The power given to the Bar Committee under s 12 of the Advocates and Solicitors Enactment 1914 to report on complaints is a statutory power, and must be exercised strictly in accordance with the enactment which gives no power to the Bar Committee to formulate charges. The acting district officer, Teluk Anson, made a complaint to the Bar Committee against AB, an advocate and solicitor of the Supreme Court of the Federated Malay States. The complaint was in respect of the conduct of AB in attesting the execution of the transfer of a certain piece of land. The Bar Committee framed the following charge against AB: 'That you knowingly attested the thumb print of the transferor and the signature of the transferee upon a transfer of land by one Ng Ah Poy to one Ong Chuan Lee when in fact the thumb print alleged to be that of Ng Ah Poy, the transferor, was that of Ong Chuan Lee, the transferee' and enquired into the truth of the complaint on 23 August 1930. At the inquiry the charge was read over to AB and, after evidence had been taken, the Bar Committee reported adversely on the conduct of AB to the court.

Holding :

Held: the Advocates and Solicitors Enactment 1914 gives no power to the Bar Committee to formulate charges and the defect, in formulating a charge, was fatal and deprived the report of any statutory effect.

Digest :

Re A Solicitor [1931-32] FMSLR 11 Supreme Court, Federated Malay States (Elphinstone CJ and Mudie J).

Annotation :

[Annotation: See now Legal Profession Act, Part VII.]

1707 Professional discipline -- Misconduct

9 [1707] LEGAL PROFESSION Professional discipline Misconduct Preparation of false affidavit Professional misconduct Preparation of false affidavit Advocates and Solicitors Ordinance (Cap 188), ss 25 and 30.

Summary :

The preparation by a professional man of an affidavit that is untrue, and that is known to him to be untrue, is a very serious offence. In some cases of this kind the appropriate penalty would be either to strike off the offender (if it was a very bad case) or to suspend him for a period. In this case the court recorded a censure and ordered the respondent to pay costs.

Digest :

Re An Advocate & Solicitor [1962] MLJ 125 High Court, Singapore (Rose CJ, Tan Ah Tah and Chua JJ).

1708 Professional discipline -- Misconduct

9 [1708] LEGAL PROFESSION Professional discipline Misconduct Procedure Show cause motion Motion made ex parte Striking off the roll Application by motion made ex parte Validity of order made thereon Affidavits Whether filing after order applied for amounts to an irregularity Advocates and Solicitors Ordinance, No 32 of 1934, s 26; Civil Procedure Rules 1934, O 49 r 4; O 36 r 19.

Summary :

Although s 26 of the Advocates and Solicitors Ordinance 1934 does not specifically provide that applications for an order to show cause thereunder shall be made ex parte, such applications nevertheless fall within O XLIX r 4 RSC 1934 and notice thereof need not be given to the parties to be affected thereby. Provided that affidavits setting forth facts upon which an ex parte order is sought are filed at the same time as the motion itself, there can be no objection to further supplementary affidavits being made and filed prior to the hearing of the motion. Motions, filed on behalf of the respondents to the above originating motion, to set aside for irregularity an ex parte order made under s 26 of the Advocates and Solicitors Ordinance dismissed.

Digest :

Re Three Advocates and Solicitors [1936] MLJ Rep 191 High Court, Singapore (Huggard CJ and Terrell J).

Annotation :

[Annotation: Re King & Co's Trade Mark [1892] 2 Ch 462 applied. Section 26 was introduced by Ordinance No 6 of 1936. There was nothing corresponding to it in any earlier ordinance. See now Profession Act (Cap 161, 1985 Ed), s 95.]

1709 Professional discipline -- Misconduct

9 [1709] LEGAL PROFESSION Professional discipline Misconduct Relevance of standard required of barrister or solicitor in England

Summary :

The respondent advocate and solicitor was found to be guilty of grossly improper conduct within the meaning of s 80(2)(b) as well as guilty of conduct within the meaning of s 80(2)(h). See, however, Re An Advocate [1964] MLJ 1 where it was held that the effect of s 12(g) (the precursor of s 80(2)(h)) is that it operates in matters not otherwise provided for in the Act.

Digest :

Re Ram Goswami [1988] 3 MLJ 376 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Thean JJ).

See LEGAL PROFESSION, Vol 9, para 1634.

1710 Professional discipline -- Misconduct

9 [1710] LEGAL PROFESSION Professional discipline Misconduct Relevance of standard required of barrister or solicitor in England Advocate on professional visit to branch office in Kuching Taking active part in business of selling ladies wear Importing advertising etc, allowing use of hotel bedroom for displaying goods Whether conduct improper Fused profession Meaning of 'if a barrister or solicitor in England' Advocates Ordinance (Laws of Sarawak 1958, Cap 110), ss 2, 4, 12(g) & 13.

Summary :

The respondent, an advocate of Sarawak, is resident in Singapore, where he also practises as an advocate and solicitor. In November 1962 he visited Kuching in the course of carrying on his practice, and, to favour a personal friend in Singapore, he imported with him ladies wear, arranged for advertisements and representatives, settled accounts with respect to them, attended to customs formalities in his own name and took the unsold goods back to Singapore. He had also allowed his hotel room to be used for displaying, selling and trying on the goods especially for the purposes of sale. Again in December the goods were brought to Kuching under the same circumstances and this time they were left with a trading company for sale on commission. The present proceedings were instituted by the Attorney General to have the respondent struck off the roll of advocates or suspended from the practice for infringing s 12(g) of the Advocates Ordinance (Laws of Sarawak, 1958, Cap 110) which reads: 'Any advocate may be suspended from practising in Sarawak, or his name may be struck off the roll of advocates ... by order of a judge for any of the following causes (g) if he does any act which, if done in England, would render him liable to be disbarred or struck off the roll of the court or suspended from practice, if a barrister or solicitor in England'.

Holding :

Held: (1) the words 'if a barrister or solicitor in England' have no reference to the original qualifications of an advocate; (2) the effect of s 12(g) is that in matters not otherwise provided for in the ordinance, an advocate must not depart from the standard required of a barrister in England or from that required of a solicitor in England. (3) whatever the precise meaning of s 12(g), the conduct of the respondent in these transactions was improper conduct such as would justify action in England to disbar a barrister or suspend him from practice or to strike off a solicitor or suspend him from practice and therefore fell within the ambit of the paragraph; (4) as the respondent had not been given any opportunity to comply with any demand to discontinue his engagement in the business and as he had undertaken not to repeat this conduct, neither of the penalties to which he had rendered himself liable, should be imposed on him. Quaere: the more restricted standard expected of a barrister in England is not expected of a member of a completely fused profession.

Digest :

Re An Advocate [1964] MLJ 1 High Court, Kuching (Wylie CJ).

1711 Professional discipline -- Misconduct

9 [1711] LEGAL PROFESSION Professional discipline Misconduct Respondent borrowed money from client Whether respondent took sufficient care to protect client's interests Whether respondent should be struck off the roll Legal Profession Act (Cap 161), ss 83(1), 83(2)(b), 83(2)(j) & 93(1)(c)

Summary :

The respondent, an advocate and solicitor, was instructed by Muthuperavi s/o KV Mookaiyya to apply for the reinstatement of his Singapore permanent residence status. On being advised by the respondent that this application would be facilitated if he offered to refund the moneys he had withdrawn from his Central Provident Fund account before leaving Singapore, Muthuperavi deposited $35,000 with the respondent on 6 May 1988. On 9 May 1988, the respondent withdrew the entire sum from his firm's client account for his own personal use. On 21 November 1991, Muthuperavi instructed other solicitors to act for him. The respondent was requested to pay over the sum of $35,000 but he failed to do so. Accordingly, Muthuperavi made a formal complaint to the Law Society. One day prior to the hearing before a disciplinary committee, the respondent paid Muthuperavi all sums due to him and the latter withdrew his complaint and became unavailable as a witness at the hearing. As a result, the Law Society proceeded on only two out of four original charges. The first charge alleged that the respondent had breached the Legal Profession (Solicitors' Accounts) Rules but the disciplinary committee found that this charge had not been made out. The second charge alleged that the respondent had discharged his professional duty in a grossly improper manner by applying the $35,000 deposited with him for his personal use. In addition to the facts above, the disciplinary committee also made the following findings. On 8 May 1988, a loan of $35,000 was offered by Muthuperavi to the respondent, the terms of which were recorded at the respondent's office the next day. However, no such agreement was produced before the committee. The respondent had not informed Muthuperavi of the nature and extent of his financial difficulties. Neither did he advise him to seek independent advice. The respondent did not pay any interest, furnish any security or make any provision for repayment. Eventually, the respondent repaid the outstanding sums to Muthuperavi only on the basis that the latter would withdraw his complaint. Having found these facts, the disciplinary committee concluded that the second charge was proved and that cause existed for disciplinary action under s 83 of the Legal Profession Act. At the 'show cause' proceedings, the respondent's defence was that he had only applied the $35,000 for his personal use after he had been offered the sum as a loan. Held, ordering that the respondent be struck off the roll: (1) this was not a normal case of borrowing but a borrowing from funds deposited with the respondent for a particular purpose. This situation required the respondent to exercise even greater care to ensure that his client was placed in a position to make a free and informed decision about the proposed transaction, and in particular to insist that the client take independent advice. However, the respondent had failed to appreciate the care required of him. Such failure showed an unfitness to remain on the roll; (2) despite the fact that the respondent had repaid the sums outstanding, leniency was inappropriate in this case. That the respondent had proposed to make repayment only on condition that Muthuperavi withdraw his complaint exacerbated his misconduct. Furthermore, what was relevant was the propriety of his conduct at the time when the act was committed and not whether the client ultimately suffered any loss. Thus, the respondent was ordered to be struck off the roll of advocates and solicitors.

Digest :

Re Shan Rajagopal [1994] 3 SLR 524 High Court, Singapore (Yong Pung How CJ, Karthigesu JA and LP Thean JA).

1712 Professional discipline -- Misconduct

9 [1712] LEGAL PROFESSION Professional discipline Misconduct Solicitor asked to show cause why he should not be dealt with consequent on a report of the Disciplinary Committee Failure to appear to show cause Legal Profession Act (Cap 217), s 84.

Summary :

In this case the Disciplinary Committee appointed under the provisions of the Legal Profession Act, found that the respondent marched unannounced and without prior appointment to the inner private chambers of the late Mr Justice D'Cotta in the absence of the solicitors for the other side and was discourteous, rude and insolent to the late judge. The Disciplinary Committee also found that the respondent uttered a threat to report the late judge to 'high authority' and that he addressed the late judge in an angry tone of voice. The respondent was asked to show cause why he should not be dealt with under the provisions of s 84 of the Legal Profession Act (Cap 217, 1970 Ed) but he failed to appear to show cause under the show cause order.

Holding :

Held: having regard to the findings of the Disciplinary Committee and the respondent not having appeared in response to the show cause order, the court found the respondent's conduct to be such as to come within the provisions of s 84(2)(b) of the Legal Profession Act. The conduct of the respondent deserved the maximum punishment provided under s 84 and it was ordered that he be struck off the Roll of the court.

Digest :

Re KE Hilborne [1984] 2 MLJ 94 High Court, Singapore (Wee Chong Jin CJ, Kulasekaram and Thean JJ).

1713 Professional discipline -- Misconduct

9 [1713] LEGAL PROFESSION Professional discipline Misconduct Standard of conduct to be applied where the two branches of the legal profession are fused Whether dependent on advocate's original qualifications

Summary :

An advocate was guilty of misconduct which, if committed in England, would have rendered either a barrister or a solicitor practising there liable to disciplinary proceedings.

Holding :

Held: (1) the references in s 12(g) of the Advocates Ordinance (Cap 110) to a barrister and a solicitor are not references to the original qualifications of the particular advocate involved; (2) s 12(g) must be limited in its meaning as, taken literally, it would prevent the carrying on of a fused profession; (3) as it was clear that the conduct in this case would be misconduct in England whether it was a barrister or a solicitor that was involved, it was unnecessary to decide the precise limitations of s 12(g).

Digest :

In Re An Advocate [1960-1963] SCR 294 Supreme Court, Sarawak, North Borneo and Brunei

1714 Professional discipline -- Misconduct

9 [1714] LEGAL PROFESSION Professional discipline Misconduct When guilty of paying money to a tout Application to show cause Letter to advocate and solicitor informing him of investigation on charge of paying money to a tout Disciplinary Committee set up Disciplinary Committee making further allegation that advocate and solicitor had received costs other than taxed costs Whether Disciplinary Committee had power to investigate Whether allegations proved beyond reasonable doubt Whether duty of solicitor to make inquiries Legal Profession Act (Cap 217), ss 84, 88 and 93.

Summary :

There is no statutory rule in Singapore which is equivalent to r 4 of the English Solicitors' Practice Rules 1936 and as the respondent was not specifically charged with having failed to make reasonable inquiry before accepting instructions it was unnecessary for the court to consider whether or not the respondent had contravened s 84(2)(h) of the Legal Profession Act (Cap 217, 1970 Ed).

Digest :

Re An Advocate and Solicitor [1978] 2 MLJ 7 High Court, Singapore (Wee Chong Jin CJ, Chua and Rajah JJ).

See LEGAL PROFESSION, Vol 9, para 1679.

1715 Professional discipline -- Misconduct

9 [1715] LEGAL PROFESSION Professional discipline Misconduct When preparatory acts for commission of offence excusable Legal profession Improper conduct Professional duty Allegation of grossly improper conduct in the discharge of Preparatory acts for the commission of the offence of forgery Complaints before Disciplinary Committee Discplinary action Solicitor asked to show cause Highly exceptional circumstances Legal Profession Act (Cap 161, 1985 Ed), ss 80 & 94.

Summary :

In this case, complaints were made to the Disciplinary Committee that the respondent had conspired with three other persons to forge the will of his deceased father-in-law and that he had been guilty of grossly improper conduct in the discharge of his professional duty. The Disciplinary Committee in their report found that the evidence adduced could not sustain a charge of criminal conspiracy to forge the will and that the respondent was not guilty of an attempt to forge the will of the deceased. In the view of the Committee, what the respondent did were preparatory acts but they found that the respondent's conduct was unbefitting of a solicitor as an officer of the Supreme Court and a member of an honourable profession and accordingly determined that cause of sufficient gravity for disciplinary action existed under s 80 of the Legal Profession Act (Cap 161, 1985 Ed). The respondent was therefore called upon to show cause why he should not be dealt with under the section.

Holding :

Held: (1) in normal circumstances where a solicitor carries out such preparatory acts as the respondent did, there would be no doubt that such acts would amount to grossly improper conduct within the meaning of s 80 of the Legal Profession Act meriting the appropriate punishment as therein prescribed; (2) the circumstances in which the respondent carried out the preparatory acts in this case were highly exceptional. He was in an emotional state after the death of his father-in-law and he immediately abandoned what he was doing; (3) having regard to the very exceptional circumstances, the preparatory acts carried out by the respondent did not amount to grossly improper conduct in the discharge of his professional duty; (4) while no cause of sufficient gravity exists for disciplinary action under s 80 of the Act, such improper conduct merits a severe reprimand from the Disciplinary Committee under s 94(1) of the Act.

Digest :

Re Jiwat G Advani, An Advocate and Solicitor [1988] 1 MLJ 477 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Thean JJ).

1716 Professional discipline -- Misconduct

9 [1716] LEGAL PROFESSION Professional discipline Misconduct When punishable by fine or censure

Summary :

Held: (1) in the circumstances of the case, the Disciplinary Committee was wrong to draw the inference from the admitted facts and the respondent's admission that he had contravened r 6 that the contravention was wilful. Nevertheless, having regard to the fact that the Solicitors' Accounts Rules 1967 were rules which every practising solicitor ought to know, and the fact that the respondent, a senior advocate and solicitor, was in practice for many years before and after the promulgation of the rules, his contravention, in the court's opinion, warranted disciplinary actions and the imposition of a penalty; (2) the respondent should be censured.

Digest :

Re HE Cashin, an advocate and solicitor [1988] 1 MLJ 380 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Chua JJ).

See LEGAL PROFESSION, Vol 9, para 1624.

1717 Professional discipline -- Misconduct

9 [1717] LEGAL PROFESSION Professional discipline Misconduct When punishable by fine or censure Disciplinary proceedings Improper conduct Comment at the close of the case that by refusing to reopen proceedings the court was 'setting a seal on dishonesty' Penalty of $250 imposed by Law Society Legal Profession Act (Cap 217), ss 84(2), 88(1)(b), 89(1) and 93.

Summary :

The appellant is an advocate and solicitor in Singapore. The Council of the Law Society of Singapore decided that the appellant was guilty of improper conduct as such and ordered that he should incur a penalty of S$250. The improper conduct of the appellant was in connection with certain proceedings before the Court of Appeal. The appellant wanted to reopen the proceedings. The Court of Appeal refused the application. The appellant then made the comment that by refusing to reopen the appeal the Court of Appeal 'set the seal upon dishonesty'. Counsel appearing for the other side in those proceedings (Mr C) challenged the appellant to repeat his words outside the court. The appellant then wrote to Mr C a letter including the phrase 'I stated to the two judges present that in my opinion in refusing to reopen the appeal they were setting a seal on dishonesty'. The appellant appealed to Chua J to set aside the order of the Law Society. Chua J refused the application and affirmed the penalty. On appeal to the Court of Appeal, the appeal was dismissed ([1973] 1 MLJ 189). The appellant then appealed to the Privy Council.

Holding :

Held: (1) the question to consider was whether the remark was made to the court after the court had finally and in terms refused to reopen the appeal or whether it was made in the nature of a submission in the course of seeking to persuade the court to reopen the appeal. The Court of Appeal concluded that the remark was made after the judges had refused to reopen the appeal and the Board concurred in that finding; (2) the remark made by the appellant was offensively critical of the judges, was intended to be so, and by any ordinary standards of the profession constituted improper conduct by the appellant; (3) the ability of the Council of the Law Society to act under ss 88(1)(b) and 89(1) of the Legal Profession Act (Cap 217, 1970 Ed) was not restricted to one or more of the paragraphs under s 84(2) of the said Act. It could still be a subject matter of disciplinary action by the Council by the imposition of a penalty.

Digest :

Hilborne v Law Society of Singapore [1978] 1 MLJ 229 Privy Council Appeal from Singapore (Lord Diplock, Lord Fraser of Tullybelton and Lord Russell of Killowen).

Annotation :

[Annotation: Question of appeal to Privy Council in such cases dealt with in dicta.]

1718 Professional discipline -- Misconduct

9 [1718] LEGAL PROFESSION Professional discipline Misconduct Whether element of deceit essential Advocates and Solicitors Ordinance 1947, ss 26 and 27 Suspension Discipline 'Grossly improper conduct' Intention to deceive Requisition for company meeting Signatures from original document pasted on new amended document Some signatories no longer shareholders No intention to deceive.

Summary :

The question in this appeal was whether on the facts of the case the appellant, an advocate and solicitor practising in the Federation of Malaya, was guilty of grossly improper conduct in the discharge of his professional duties so as to render him liable to suspension under s 26(1) of the Advocates and Solicitors Ordinance 1947. The facts were briefly as follows: The appellant was instructed to act for certain shareholders in the Foh Hup Omnibus Co, a company incorporated under the Companies Ordinance 1940, who, being dissatisfied with the conduct of an annual general meeting of the company, desired to call an extraordinary general meeting of the company with a view to removing the directors and secretaries and replacing them by their own nominees. For that purpose a requisition was prepared consisting of three documents in identical terms, which were signed by 24, 29 and 37 shareholders respectively, totalling 90, and handed to the appellant. He wrote to the then secretaries of the company stating that he had been instructed by 90 shareholders to forward a copy of the signed requisition for an extraordinary general meeting of the company and adding that the secretaries might have inspection of the requisition at the office of the Registrar of Companies, Kuala Lumpur, to whom he was forwarding the original list. A few days later the Registrar returned the requisition and requested the appellant to deposit it at the registered office of the company, calling his attention to s 115 of the Companies Ordinance 1940, pursuant to which the requisition should have stated the names of the dissatisfied shareholders' nominees for appointment as directors and secretaries. A new requisition was subsequently prepared to effect that amendment. The appellant cut off the signatures from the original requisition and attached them by pasting them on to the sheets of the new amended requisition, and signed his name across the joint of each of the three composite documents. At the date of the later purported requisition certain of the alleged 90 signatories were in fact, and contrary to the appellant's brief, no longer shareholders of the company. The Disciplinary Committee appointed under s 27 of the Advocates and Solicitors Ordinance were of opinion that the appellant had been guilty of grossly improper conduct within the meaning of s 26(2)(b) of the ordinance, but that he did not act with intention to deceive. The finding was accepted by the Supreme Court, who suspended the appellant from practising for a period of six months.

Holding :

Held: (1) for an advocate and solicitor knowingly and deliberately to submit a false document intending to be acted upon was grossly improper conduct as being dishonourable both to himself and to his profession. The submission of such a document with such intention in itself involved an element of 'deceit'; (2) a finding of an intention to deceive is not always an essential element in grossly improper conduct.

Digest :

Rajasooria v Disciplinary Committee [1955] MLJ 65 Privy Council Appeal from the Federation of Malaya (Lords Tucker, Cohen, Somervell of Harrow and Mr LMD de Silva).

1719 Professional discipline -- Misconduct

9 [1719] LEGAL PROFESSION Professional discipline Misconduct Writing letters to the Attorney General Whether letters were threatening Whether action would amount to misconduct

Summary :

In 1988, JB Jeyaretnam successfully appealed against a decision of the Singapore High Court striking him off the roll of Advocates and Solicitors. In allowing his appeal, the Privy Council had gone behind Jeyaretnam's criminal convictions and found them to be wrong. After the decision was announced, the Attorney General in his advice to the President stated that the decision was flawed because the convictions were not before the Privy Council and because he (the Attorney General) had not been given an opportunity to be heard. On 5 September 1989, the respondent wrote a letter to the Attorney General stating that although the latter was aware of the proceedings before the Privy Council, he had not made any application to be heard. The respondent gave the Attorney General 14 days to reply if he indeed knew of the proceedings and whether he indeed made no application to be heard. The respondent stated that he would make the letter public if he did not receive a reply. The Attorney General replied on 14 September 1989 clarifying the position. Notwithstanding this reply, the respondent wrote again on 20 September 1989 asking the Attorney General to answer further questions and stating that the Attorney General never wanted to be heard before the Privy Council. On 27 September 1989, the Attorney General lodged a complaint against the respondent with the Law Society. On 30 October 1989, the respondent published the correspondence between himself and the Attorney General by faxing the letters to various law firms in Singapore. The respondent was referred to the Disciplinary Committee on two charges of having threatened the Attorney General and on a further charge of falsely accusing the Attorney General. The Disciplinary Committee determined that cause of sufficient gravity for disciplinary action existed against the respondent.

Holding :

Held, suspending the respondent from practice for two years: (1) it was very clear that when the respondent wrote the letters, it was in his capacity as an advocate and solicitor, on a matter that concerned his profession. Indisputably he was taking to task another member of his profession; (2) an advocate and solicitor does not act in his professional capacity only when he is acting for his client. It would be misconduct if an advocate and solicitor were to threaten or abuse a judge. There was no difference in the nature of misconduct if the threat was uttered against the Attorney General in respect of the latter's professional duty. Similarly if an advocate and solicitor were to unjustifiably discredit his professional brethren, that would be an act done in a professional capacity; (3) an advocate and solicitor may be disciplined even though the conduct or act in question had nothing to do with his character as a solicitor; (4) in his letters the respondent had sought to show that the Attorney General was less than honest when he (the Attorney General) asserted that he was denied an opportunity of being heard by the Privy Council. The respondent had clearly shown himself to be on the warpath to 'expose' the Attorney General. The threat was apparent; (5) the writing of offensive and abusive letters could subject a solicitor to disciplinary action. What the respondent had done were acts which would render him liable to be disbarred or struck off the roll of the court or suspended from practice or censured if he were a barrister or solicitor in England; (6) the office of Attorney General, like that of a judge, was an essential pillar of our legal system and no advocate and solicitor should be allowed to undermine the integrity of that office. The misconduct here was serious.

Digest :

Re Gopalan Nair [1993] 1 SLR 375 High Court, Singapore (Yong Pung How CJ, Chao Hick Tin J and GP Selvam JC).

1720 Professional discipline -- Non-payment of counsel's fees

9 [1720] LEGAL PROFESSION Professional discipline Non-payment of counsel's fees Duty of instructing solicitor to pay counsel's fees Counsel may not sue for fees Counsel at fault in not negotiating fee

Digest :

Re Peter Yap [1991] 1 MLJ 129 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Yong Pung How JJ).

See LEGAL PROFESSION, Vol 9, para 1748.

1721 Professional discipline -- Overcharging

9 [1721] LEGAL PROFESSION Professional discipline Overcharging Investigation by disciplinary committee Grossly improper conduct Bill of costs False time sheet Dishonesty

Summary :

The respondent was an advocate and solicitor. On 24 July 1989 he was instructed by Madam Chang Ka Geck ('Chang') to act in the winding up of the estate of Tan Joo Tat, the husband of Chang who died in Singapore on 3 July 1989. The respondent accepted the instructions. Letters of administration were granted on 2 October 1989 and the total value of the estate was found to be S$68,394.53. On 19 December 1989 the respondent rendered a bill in the sum of S$23,000 for his professional services and S$604.60 as disbursements. Chang was dissatisfied with the bill and following her complaint the respondent agreed to reduce the professional fees by 5% to S$21,850. This reduction failed to satisfy Chang who, after settling the bill, wrote to the Law Society on 2 January 1990 concerning the amount of the bill. A disciplinary committee was appointed to investigate the complaint, and a charge of grossly improper conduct was framed against the respondent. Besides Chang and her friend, Andy Teo, the Law Society called G Raman, a lawyer with considerable experience in estate matters. G Raman gave evidence that the he would have charged only about S$4,000 for the work done. The respondent produced a time sheet to justify his billing. The said time sheet had been produced only on the first day of the hearing and had not been included in the agreed bundle of documents. The disciplinary committee found several entries in the time sheet to be grossly exaggerated. For example, the respondent having spent four hours in preparing his fee note, or spending 1[1/2] hours attending to Chang to hand over his fee note and other documents and asking her to sign a cheque. In the course of the hearing the respondent was asked if he would consider having his bill taxed. His reply was that he would if the proceedings before the committee were withdrawn. This was unacceptable to the Law Society. The disciplinary committee found that the respondent's fee note was in excess of and grossly disproportionate to what he was entitled to charge; that such overcharging amounted to grossly improper conduct; that the grossly improper conduct contained elements of moral turpitude, namely, dishonesty as well as deceit. After the disciplinary committee delivered its findings, the respondent refunded the sum paid by Chang. The respondent was ordered by the court to show cause why he should not be dealt with under the provisions of s 83 of the Legal Profession Act (Cap 161, 1990 Ed).

Holding :

Held, suspending the respondent from practice for three months: (1) it was settled law that solicitors rendering exorbitant or excessive bills lay themselves open to disciplinary action, for they have abused the trust and confidence reposed in them; (2) in the present case, a bill for S$23,000 in relation to a S$68,394 estate could not have been expected to be received with equanimity by a lay client. In the circumstances there was a duty on the part of the respondent to explain and justify it. In the result, this turned on the accuracy of the time sheet, which he claimed at the eleventh hour that he had kept, and which the disciplinary committee found to be false. The disciplinary committee's findings were completely justified; (3) in considering the penalty the court emphasized one glaring factor, which was that the respondent was given a chance to have the bill taxed, but indicated that he would do so only on the condition that the proceedings were withdrawn. The court also considered the fact that the respondent had refunded the whole fee.

Digest :

Re Lau Liat Meng [1992] 2 SLR 203 High Court, Singapore (Yong Pung How CJ, Lai Kew Chai and FA Chua JJ).

1722 Professional discipline -- Practice and Etiquette Rules

9 [1722] LEGAL PROFESSION Professional discipline Practice and Etiquette Rules Accounts Failure to keep books and accounts Breach of Rules of Etiquette Duty of Solicitor Discovery of misappropriation by employee Advocates and Solicitors Ordinance (Cap 188), s 25

Summary :

In this case the facts showed that there had been defalcations of client's money by an employee of the advocates and solicitors. The respondents after knowing of the defalcations continued their practice and in so doing utilized the moneys of one or more of their clients to effect payments for and on behalf of other of their clients. The total loss had since been made good by the respondents.

Holding :

Held, censuring the respondents: in all circumstances the respondents had been sufficiently penalized by having to replace a very considerable sum of money and the court did not propose to impose any penalty but merely to censure them.

Digest :

Re Two Advocates and Solicitors [1965] 4 MC 53 High Court, Singapore (Wee Chong Jin CJ, Ambrose and Winslow JJ).

1723 Professional discipline -- Practice and Etiquette Rules

9 [1723] LEGAL PROFESSION Professional discipline Practice and Etiquette Rules Accused should plead guilty or claim trial by his own mouth and not through his counsel or advocate Legal Profession (Practice and Etiquette) Rules 1978, r 16.

Summary :

Obiter: an unrepresented person may be forgiven for producing newspaper reports in aid of his submission in court. It would be a sad day for the legal profession if qualified advocates and solicitors have to rely on newspaper reports alone to back up their submissions on sentencing trends.

Digest :

Abdul Kadir bin Abdul Rahman v Public Prosecutor [1984] 1 MLJ 80 High Court, Johore Bahru (Shankar J).

1724 Professional discipline -- Practice and etiquette rules

9 [1724] LEGAL PROFESSION Professional discipline Practice and etiquette rules Counsel swear an affidavit on a substantive allegation for clients Whether considered direct involvement in client's case Whether counsel should appear and conduct case Legal Profession (Practice and Etiquette) Rules 1978, r 28

Digest :

Abdul Halim bin Abdul Hanan & Ors v Pengarah Penjara, Taiping & Ors [1996] 4 MLJ 54 High Court, Ipoh (Kang Hwee Gee J).

See CIVIL PROCEDURE, para 304.

1725 Professional discipline -- Practice and Etiquette Rules

9 [1725] LEGAL PROFESSION Professional discipline Practice and Etiquette Rules Duties of counsel Legal Profession (Practice and Etiquette) Rules 1978, rr 2, 6 & 24 Legal Profession Act 1976, s 77(3).

Summary :

In this case, the accused was alleged to have committed criminal breach of trust. He originally pleaded guilty but was subsequently allowed to withdraw his plea. The hearing was fixed for 4 October 1979 in the presence of counsel. Subsequently counsel applied successfully for the postponement of the trial to 4 February 1980 and then to 9 September 1980, as he claimed to be engaged in other courts. The records were called on revision.

Holding :

Held: (1) the general rule is that trial dates are fixed at the convenience of the court on a first come first served basis; (2) in this case, counsel had no good or cogent reasons to apply for postponement and when the dates for trial were fixed he should not have accepted briefs which clashed with the trial date of the case; (3) the case should be fixed for trial on an early date.

Digest :

Public Prosecutor v Mohtar bin Abdul Latiff [1980] 2 MLJ 51 High Court, Kuala Lumpur (Harun J).

1726 Professional discipline -- Practice and Etiquette Rules

9 [1726] LEGAL PROFESSION Professional discipline Practice and Etiquette Rules Effect of breach

Summary :

Per curiam: the Practice and Etiquette Rules 1978 only regulate the professional practice, etiquette, conduct and discipline of an advocate and solicitor. The rules do not regulate the procedure of legal proceedings in the High Court. The Bar Council has no power under the Legal Profession Act to make rules to regulate the procedure of legal proceedings.

Digest :

Asia Commercial Finance (M) Bhd v Bank Bumiputra Malaysian Bhd & Ors [1988] 1 MLJ 33 High Court, Kuala Lumpur (Zakaria Yatim J).

See LEGAL PROFESSION, Vol 9, para 1553.

1727 Professional discipline -- Practice and Etiquette Rules

9 [1727] LEGAL PROFESSION Professional discipline Practice and Etiquette Rules Lawyers briefing press on matters pending before the court Legal Profession (Practice and Etiquette) Rules 1978, rr 45, 46 & 47.

Summary :

Obiter: lawyers should refrain from briefing the press on matters pending before the court, especially when they have not been properly briefed before it.

Digest :

Cheak Yoke Thong v Public Prosecutor [1984] 2 MLJ 119 Federal Court, Kuala Lumpur (Salleh Abas LP, Abdul Hamid CJ and Seah FJ).

1728 Professional discipline -- Practice and Etiquette Rules

9 [1728] LEGAL PROFESSION Professional discipline Practice and Etiquette Rules Practice and Etiquette Legal Profession (Practice and Etiquette) Rules 1978, r 28.

Summary :

Obiter: the practice of solicitors themselves filing contentious affidavits in pending applications should be discouraged. The parties are the litigants and it is they who should be giving evidence. The rules relating to conduct and etiquette in the profession quite clearly say that a solicitor should not appear as such in a matter in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact.

Digest :

Million Group Credit Sdn Bhd v Lee Shoo Khoon & Ors [1986] 1 MLJ 315 High Court, Johore Bahru (Shankar J).

1729 Professional discipline -- Procedure

9 [1729] LEGAL PROFESSION Professional discipline Procedure Absence of lay member of disciplinary committee during greater part of hearing Whether 'meeting' encompassed 'hearing' Whether the 'transaction of any business' included meetings as well as hearings Whether disciplinary proceedings void because of member's absence Legal Profession Act (Cap 161, 1994 Ed), s 90(1), (6) & (7)

Summary :

The respondent acted as solicitor for two brothers, Heng Teo Meng (Meng) and Heng Teo Bong (Bong), in an attempted sale of a piece of property (the property) which was mortgaged to Malayan Banking Bhd. Meng had defaulted in the repayment of the mortgage and on 5 January 1985, the bank informed the respondent that they were proceeding with arrangements for a public auction to sell the property. On 8 February, Meng and Bong agreed to sell the property to one Ng Soo Khim (Ng) and a deposit of S$5,000 was paid by Ng. An option was subsequently prepared by the respondent, which was expressed to expire on 1 March 1985. The date of the option was altered from 1 March 1985 to 8 February 1985 on the instruction of the respondent. The option was exercised on 1 March by Ng. On the same day, Ng paid to Bong S$130,000 as a 'loan' which was not recoverable in the event of completion of the sale. However, the bank did not consent to the sale, and the sale became abortive. The property was subsequently sold by the bank as the mortgagee at a public auction on 7 March 1985. Ng then commenced proceedings against Bong in S 4722/85 for the return of the sums which had been paid by him for the property. The respondent gave evidence for Bong at the trial. He testified that he prepared the option on 8 February 1985. The option had been wrongly dated 1 March 1985, so he instructed his clerk to have the date altered to 8 February 1985. He handed the option to Meng on the same day, and it was returned to him subsequently after execution. The trial judge found that the respondent did not tell the truth in that respect and found that the option had been prepared and signed on 1 March 1985 and, on the respondent's instruction, was backdated to 8 February 1985. The trial judge then lodged a complaint to the Law Society of Singapore on the conduct of the respondent. A disciplinary committee was subsequently formed to investigate the complaint, and before the committee, the Law Society of Singapore formulated three charges against the respondent. The disciplinary committee found that they had no jurisdiction to hear and investigate the first charge which related to alleged evasion of stamp duty and defrauding the bank, but found the other two charges against the respondent to have been made out, namely, (1) that he was guilty of fraudulent or grossly improper conduct in falsely dating the option to reflect that it was granted on 8 February when it was only granted on 1 March (the second charge), and (2) that he had lied on oath while giving evidence in S 4722/85 by asserting that the option was prepared on 8 February (the third charge). Upon the Law Society's ensuing application, the High Court ordered the respondent to show cause why he should not be dealt with under s 83 of the Legal Profession Act (Cap 161) (the Act). As a preliminary point, the respondent contended that the decision of the disciplinary committee was void as the lay member of the disciplinary committee had not been present throughout the greater part of the hearing and had not heard all the evidence and submissions presented before the committee.

Holding :

Held, dismissing the preliminary point and discharging the order to show cause: (1) the effect of sub-ss (6) and (7) of s 90 of the Act was that the lay member was not counted as a member for the purpose of constituting the quorum of the disciplinary committee 'for the transaction of any business', which must of necessity include the hearing of evidence of witnesses, receiving and examining documents and listening to arguments made by the parties concerned. The term 'meeting' in s 90(6) meant not only an assembly of the members themselves but also included a hearing where parties concerned appeared to give evidence and advance arguments; (2) there was no breach of the rules of natural justice in the present situation as the function of the lay member was merely that of an observer. He had no right to vote, was not required to be present at every meeting and was not counted as a member for the purpose of constituting a quorum; (3) in relation to the second charge, in the absence of any improper motive on the part of the respondent, the alteration of the date of the option per se was not improper, as such alteration had no effect on the option itself; (4) in relation to the third charge, the Law Society had failed to prove beyond reasonable doubt that the respondent had given false evidence in S 4722/85.

Digest :

Re Teo Choo Hong [1995] 2 SLR 594 High Court, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

1730 Professional discipline -- Procedure

9 [1730] LEGAL PROFESSION Professional discipline Procedure Advocate and solicitor convicted of criminal offences Defect of character making him unfit for his profession Disciplinary proceedings Plea of autrefois convict or res judicata rejected Two years' suspension from practice Legal Profession Act (Cap 217), s 84(1) & 84(2)(a) &(b) Penal Code (Cap 103), s 213.

Summary :

In the present disciplinary proceedings the complaint was that the respondent had been convicted of criminal offences (see [1981] 2 MLJ 215 and [1982] 2 MLJ 293) implying a defect of character which made him unfit for his profession. The respondent submitted that he was entitled to have the show cause order discharged on the grounds: (1) of autrefois convict; or (2) of a doctrine of estoppel, namely issue estoppel, or res judicata in its wider sense; and (3) of the court's inherent jurisdiction to stay proceedings on the ground that they were oppressive and an abuse of its process.

Holding :

Held: (1) in the present case, on the assumption that the doctrine of autrefois is available in disciplinary proceedings against an advocate and solicitor, the respondent's plea of autrefois convict must fail. One essential ingredient which is necessary to prove in the present proceedings is the respondent's conviction of one or more criminal offences. This ingredient is unnecessary to support a complaint in the first disciplinary proceedings and it follows that the respondent has not been put to peril of disciplinary punishment for the same complaint or 'offence' as that which he is charged; (2) on the facts before the court, the plea of issue estoppel, even if the plea is available in the present disciplinary proceedings, has not been successfully made out by the respondent. It was plain on the facts, which show that the respondent was determined to exhaust all possible avenues in relation to these criminal convictions, that it would be against the interest of the public for the Law Society to withhold applying to the High Court for a show cause order on the delay charge until the Disciplinary Committee which had only recently been appointed had heard the convictions charge and had reported its findings; (3) the delay charge and the convictions charge although both arise from substantially the same facts have different legal characteristics and the failure to hear together the two show cause orders, one made from 31 January 1981 and the other on 17 September 1982, did not amount to oppression and injustice to the respondent.

Digest :

Re An Advocate and Solicitor [1984] 1 MLJ 331 High Court, Singapore (Wee Chong Jin CJ, Sinnathuray and Chua JJ).

Annotation :

[Annotation: The case was reversed in a later decision reported in [1985] 1 MLJ 1.]

1731 Professional discipline -- Procedure

9 [1731] LEGAL PROFESSION Professional discipline Procedure Appeal against decision of Bar Council Whether appeal made out of time Whether service of summons made out of time Legal Profession Act 1976 (Act 166), s 103

Summary :

The appellant had made a complaint to the Bar Council under s 95 of the Legal Profession Act 1976 (Act 166) ('the Act') against the respondent, an advocate and solicitor, of his conduct in certain legal proceedings in respect of which the appellant had appointed the respondent as his legal representative. The appellant alleged that the respondent had failed to so represent him and had thereby breached the agreement made between them. On 7 May 1992, the appellant was informed that the Bar Council had investigated his complaint and was of the view that the respondent had not contravened any provision under the Act, or the rules made thereunder. Accordingly, it was determined that the appointment of a disciplinary committee was unnecessary. The appellant was also informed that if he was dissatisfied with the decision of the Bar Council, he could appeal to a High Court judge under s 103 of the Act within 14 days from the date of receipt of the Bar Council's letter (ie from 7 May 1992). On 16 May 1992, the appellant filed an originating summons ('the summons') appealing against the decision of the Bar Council, which summons was served on the respondent only on 15 July 1992. On the date of the hearing, the respondent made the preliminary objection that as the service of the notice of appeal had not been made within the prescribed time of 14 days, there was no valid appeal before the court and that therefore the summons should be dismissed. On the other hand, the appellant contended that he had complied with s 103 of the Act in filing the appeal on 16 May 1992 and that the section did not require the summons to be served on the respondent within the 14 days which was prescribed only for making appeals. The appellant further contended that service of the summons need only be made within the time prescribed in O 28 of the Rules of the High Court 1980 which the appellant had done.

Holding :

Held, dismissing the appeal: (1) an appeal is brought only when the notice of appeal is served on the respondent. As the appellant failed to serve the summons on the respondent within the 14 days prescribed for appealing against the Bar Council's decision, the appeal had accordingly been made out of time. The court thus allowed the respondent's preliminary objection and dismissed the appeal; (2) the appellant made no application to extend the time to serve the notice of appeal on the respondent. But even if he had done so, the court could not have entertained his application as there was no provision under the Act enabling the court to do so. Per curiam: s 103(3) of the Act specifically requires a copy of the documents stated in s 103(2) to be served on the Bar Council but makes no mention of service of the same documents on the respondent. In the context of this case, the court suggests that s 103 of the Act be amended accordingly to reflect the procedure to be followed, ie service of all relevant documents not only on the Bar Council but also on the respondent, such service to be made within the 14 days prescribed to make an appeal. This would assist an appellant acting in person (as did the appellant in this case) to take the necessary actions within the time prescribed and avoid any confusion.

Digest :

Abdul Jamil bin Abdul Mutalib v Darshan Singh Khaira [1993] 3 MLJ 187 High Court, Penang (T Selventhiranathan JC).

1732 Professional discipline -- Procedure

9 [1732] LEGAL PROFESSION Professional discipline Procedure Breach of natural justice Professional misconduct Non-disclosure to client of taxed costs already recovered Disciplinary Committee Failure to make specific charge against advocate and solicitor in respect of non-disclosure Finding of grossly improper misconduct Whether violation of the principles of natural justice Champertous agreements Whether court can without hearing evidence act on Disciplinary Committee's findings Advocates and Solicitors Ordinance (Cap 188, 1955 Ed), ss 25(1) & (2), 26, 27, 28, 29, 30, 49 & 57(b).

Summary :

Natural justice requires adequate notice of charges and the provision of opportunity to meet them. This requirement was not met in relation to the adverse finding on the receipt of the S$500 by the appellant.

Digest :

Lau Liat Meng v Disciplinary Committee [1967] 2 MLJ 141 Privy Council Appeal from Singapore (Viscount Dilhorne, Lord Hodson, Lord Guest, Lord Upjohn and Sir Hugh Wooding).

See LEGAL PROFESSION, Vol 9, para 1614.

1733 Professional discipline -- Procedure

9 [1733] LEGAL PROFESSION Professional discipline Procedure Charges Information referred by Attorney General to Law Society Law Society may not frame charges outside scope of information referred

Digest :

Re Lim Chor Pee [1991] 2 MLJ 154 High Court, Singapore (Wee Chong Jin CJ, Thean and Coomaraswamy JJ).

See LEGAL PROFESSION, Vol 9, para 1587.

1734 Professional discipline -- Procedure

9 [1734] LEGAL PROFESSION Professional discipline Procedure Disciplinary committee's determination under s 90 of Legal Profession Act (Cap 162, 1985 Ed) Whether specific words spelt out in s 90 should be used before a matter can be proceeded with under s 80

Summary :

On 1 April 1987, a disciplinary committee was appointed ('the Committee') under the Legal Profession Act (Cap 162, 1985 Ed) ('the Act') to hear and investigate four charges against one Tang King Kai ('TKK'). The Committee found in respect of the first and fourth charges that TKK should be reprimanded under s 90(1)(b) of the Act. In respect of the second charge, the Committee found the negligence of TKK amounted to 'grossly improper conduct in the discharge of his profession and duty within the meaning of s 80(2)(b)'. In respect of the third charge, the Committee found that 'TKK's conduct comes within s 80(2)(b) of the Act and he should be dealt with accordingly'. Under s 90(1) a disciplinary committee is required to determine whether there was cause of sufficient gravity for disciplinary action under s 80 and if not, whether a solicitor should be reprimanded. Following this, the Law Society applied for and obtained an order that TKK should show cause as to why he should not be dealt with under s 80 of the Act. In this application, the Law Society applied for an order, inter alia, to stay the previous order. The issue was whether the findings of the Committee in respect of the second and third charges amounted to a finding that there was cause of sufficient gravity for disciplinary action under s 80 of the Act. The issues argued before the court were therefore as follows: (a) must there be an express reference in the report in terms of the wording of s 90(1)(c) before a matter may be proceeded with further under s 80 of the Act? (b) if so, could the Committee reconvene and make a report in the proper terms in spite of the fact that the chairman of the committee had passed away; (c) if the answer to (b) is in the negative, could the Committee be reconstituted by appointment of a new chairman who, together with existing members, proceed to make a report in the proper terms?

Holding :

Held, dismissing the application: (1) a disciplinary committee has a duty to make the appropriate determination under s 90(1) of the Act. A proper determination may be made even if the specific words spelt out in s 90(1)(c) were not used, as long as the meaning of the Committee's determination is clear; (2) in relation to the second charge, the fact that the Committee found TKK guilty of grossly improper conduct within the meaning of s 80(2)(b) must necessarily mean that the matter is of a gravity that warrants the striking off the roll or suspension from practice or censure under s 80(1). It was clear that the Committee intended that the complaint was of sufficient gravity to proceed under s 80 and that a reprimand would not do. Even if the Committee had intended that the grossly improper conduct was not of sufficient gravity to proceed under s 80 and that a reprimand would do, the Committee would have so pronounced as it did in relation to the first and fourth charges; (3) in respect of the third charge, the words ' ... and he should be dealt with accordingly' in the committee's report made it clear that the Committee had decided that TKK should be dealt with under s 80; (4) the object of Part 7 of the Act is to provide a fair system to discipline errant solicitors and ensure that they are dealt with appropriately in the interest of the public. A fair construction should be given to these provisions instead of a purely technical one; (5) there would be no necessity, therefore, to examine the second and the third issues argued before the court. However, if the issues were to be decided, then it would not be in order for the three remaining members of the Committee to reconvene and carry on where it left off and submit a report afresh or a supplementary report since the three-member committee minus the chairman is not a committee within the meaning of the Act. A new chairman would have to be appointed and there would have to be a complete rehearing with new members of the disciplinary committee.

Digest :

Re Tang King Kai [1991] 3 MLJ 91 High Court, Singapore (Chao Hick Tin J).

1735 Professional discipline -- Procedure

9 [1735] LEGAL PROFESSION Professional discipline Procedure Disciplinary Committee confined to matters referred by the Council Application to show cause Letter to advocate and solicitor informing him of investigation on charge of paying money to a tout Disciplinary Committee set up Disciplinary Committee making further allegation that advocate and solicitor had received costs other than taxed costs Whether Disciplinary Committee had power to investigate Whether allegations proved beyond reasonable doubt Whether duty of solicitor to make inquiries Legal Profession Act (Cap 217), ss 84, 88 and 93.

Summary :

In this case as a result of a complaint by the director of the CPIB the Council of the Law Society, after referring the matter to the Inquiry Committee and deciding that there should be a formal investigation wrote to the respondent informing him that there will be a formal investigation into the complaint of payment of moneys to a tout for bringing in accident cases. The matter was referred to a Disciplinary Committee and the Disciplinary Committee then specified the following complaints against the respondent: (a) payment of moneys to a tout for bringing in accident cases and (b) receiving other than taxed costs from accident victims. After hearing and investigating the matters, the Disciplinary Committee submitted their report in effect stating that the charges were proved. An application was thereupon made calling upon the respondent to show cause why he should not be dealt with under s 84 of the Act.

Holding :

Held: (1) by virtue of s 88 of the Legal Profession Act (Cap 217, 1970 Ed) it is the Council of the Law Society that formulates charges against an advocate and solicitor and under s 93(1) of the Act a Disciplinary Committee appointed by the Chief Justice can only investigate matters referred to it by the Council and cannot decide on its own motion to investigate matters not specifically referred to it by the Council. Therefore all or any of the matters relating to the receiving and accepting of moneys from accident victims other than taxed costs could not properly have been heard by the Disciplinary Committee and hence were not properly before the court.

Digest :

Re An Advocate and Solicitor [1978] 2 MLJ 7 High Court, Singapore (Wee Chong Jin CJ, Chua and Rajah JJ).

1736 Professional discipline -- Procedure

9 [1736] LEGAL PROFESSION Professional discipline Procedure Disciplinary proceedings Suspension for two years Subsequent disciplinary proceedings Facts substantially the same Autrefois convict and acquit Abuse of disciplinary process Legal Profession Act (Cap 217), ss 84, 85, 91-93, 94.

Summary :

In this case the appellant was an advocate and solicitor practising under the name of Braddell Brothers, of which firm he was the sole proprietor. In February 1976 he found that a legal assistant in his employment called Santhiran had misappropriated moneys from his firm's clients' account amounting to just short of S$300,000. When he discovered the defalcations, the appellant did not make any report to the Law Society or to the police. Santhiran continued in the employment of the appellant and made restitution of substantially the whole of the sums he had taken. It was only later that the appellant reported to the Law Society and the police. The first disciplinary proceedings against the appellant were commenced by the Inquiry Committee in 1978 and subsequently the Council of the Law Society having received the findings of the Inquiry Committee applied to the Chief Justice for the appointment of a Disciplinary Committee to investigate the appellant's failure to report the criminal breach of trust committed by Santhiran to the Law Society earlier. Meanwhile the appellant was charged and convicted of offences under s 213 of the Penal Code of accepting restitution of property to himself in consideration of concealing an offence. The Inquiry Committee commenced the second disciplinary proceedings based on the conviction. The appellant applied to have the inquiry adjourned pending his appeal against the conviction but this was refused. The disciplinary proceedings on the first charge were heard in the High Court on 16 March 1981 and the appellant was suspended for two years. The appellant's appeal against his conviction was dismissed. With the coming into force of the Legal Profession Act (Cap 217, 1970 Ed), a new Inquiry Committee was appointed to inquire into the second charge and eventually the proceedings were heard by the High Court on 21 and 22 February 1983. An order was made that the appellant be suspended from practice for two years (see [1984] 1 MLJ 331). The appellant appealed against this order. The essence of the appellant's attack on the second order was as follows. Both sets of disciplinary proceedings arose from exactly the same conduct by the appellant and although it was possible to attach a different label in each case to the particular form of professional misbehaviour alleged, the gravamen of the complaint against him in each case was either identical or so nearly so as to entitle him either to rely on the principle of autrefois convict or on the closely analogous principle that the unnecessary duplication of proceedings was an abuse of process which the court has an inherent jurisdiction to restrain.

Holding :

Held: (1) the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory code by which a profession is governed. The principles laid down in Connelly v Director of Public Prosecutions [1964] AC 1254 are apt to apply to the circumstances in this case and enable the appellant to rely on the order made against him in the first proceedings as a complete bar to further disciplinary action against him in the second proceedings; (2) even if the facts cannot be brought within the strict test laid down in Connelly v Director of Public Prosecutions, the second proceedings in this case brought by the Law Society against the appellant following the first proceedings were an abuse of the disciplinary process.

Digest :

Harry Lee Wee v Law Society of Singapore [1985] 1 MLJ 1 Privy Council Appeal from Singapore (Lord Keith of Kinkel, Lord Elwyn-Jones, Lord Bridge of Harwich, Lord Brightman and Lord Templeman).

1737 Professional discipline -- Procedure

9 [1737] LEGAL PROFESSION Professional discipline Procedure Disqualification of judge in show cause action

Summary :

Held, allowing the appeal: the Chief Justice should not have sat as a member of the full bench of the High Court which heard the show cause proceedings, since one of the primary submissions of the appellant was that the Chief Jutice's own decision on the appeal from Judge Khoo and his refusal to reserve questions of the law for the Court of Criminal Appeal were erroneous. Section 95(6) of the Legal Profession Act (Cap 161, 1985 Ed) is not mandatory but directory only.

Digest :

JB Jeyaretnam v Law Society of Singapore [1988] 3 MLJ 425 Privy Council Appeal from Singapore (Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle).

See LEGAL PROFESSION, Vol 9, para 1633.

1738 Professional discipline -- Procedure

9 [1738] LEGAL PROFESSION Professional discipline Procedure Duties of council Complaint against solicitor's conduct in his professional capacity Solicitors' Accounts Rules 1967 r 6 Legal Profession Act (Cap 217), ss 84(2)(h) & (j), 86(1), 96(1)(a) & 96(4)(b) Scope of Legal Profession Act (Cap 217), s 86(1).

Summary :

On 22 December 1983, the appellant who is an advocate and solicitor, wrote to The Law Society of Singapore making certain allegations touching on the conduct of another advocate and solicitor, Mr Cashin. He alleged principally that Mr Cashin (a) made untrue statements in his affidavit and (b) committed a breach of r 6 of the Solicitors' Accounts Rules 1967 in that a cheque for the sum of S$20,000 made out payable to him personally was credited to the clients' account of his firm of Murphy & Dunbar. The Law Society in their reply dated 28 February 1984 dismissed the complaint. The appellant then applied to court for: (a) a declaration that the Law Society be directed to refer his said letter of 22 December 1983 to the Inquiry Committee under s 86(1) of the Legal Profession Act (Cap 217, 1970 Ed) (the Act), and (b) further or in the alternative, in the event that the Council of the Law Society (the Council) determined under s 96(1)(a) of the Act that a formal investigation was not necessary, the Law Society be ordered to apply for the appointment of a Disciplinary Committee under s 96(4)(b) of the Act. The learned Chief Justice dismissed the said application on the ground that there was no complaint against Mr Cashin in relation to his conduct in a professional capacity. The appellant appealed.

Holding :

Held, allowing the appeal: (1) the Council must on receipt of an application or a complaint consider whether it comes within s 86(1) of the Act. However, the Council should not consider further whether the application or complaint discloses a prima facie case against the advocate and solicitor concerned; (2) the first allegation does not touch upon Mr Cashin's conduct in his professional capacity. However, if an advocate knowingly deposes to an untrue statement in an affidavit, such conduct may well fall within para (h) of s 84(2) of the Act. The second allegation, namely, a breach of r 6 of the Solicitors' Accounts Rules 1967 does pertain to Mr Cashin's conduct in his professional capacity and is also matter falling within para (j) of s 84(2). Having regard to the allegations the Council should have referred the appellant's letter to the Inquiry Committee.

Digest :

P Suppiah v The Law Society of Singapore [1986] 1 MLJ 459 Court of Appeal, Singapore (Lai Kew Chai, Thean and Chua JJ).

1739 Professional discipline -- Procedure

9 [1739] LEGAL PROFESSION Professional discipline Procedure Effect of hearsay evidence

Summary :

Section 169 of the Evidence Act applies to proceedings before the Disciplinary Committee by virtue of r 14 of the Advocates and Solicitors (Disciplinary Proceedings) Rules 1963 and accordingly, the improper admission or rejection of evidence shall not be a ground of itself for reversal of the findings of the Disciplinary Committee unless independently of the evidence objected to and admitted, there is no sufficient evidence to justify the findings, or unless if the rejected evidence had been received, it would have varied the findings.

Digest :

Re Ram Goswami [1988] 3 MLJ 376 High Court, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Thean JJ).

See LEGAL PROFESSION, Vol 9, para 1634.

1740 Professional discipline -- Procedure

9 [1740] LEGAL PROFESSION Professional discipline Procedure Evidence Professional misconduct Non-disclosure to client of taxed costs already recovered Disciplinary Committee Failure to make specific charge against advocate and solicitor in respect of non-disclosure Finding of grossly improper misconduct Whether violation of the principles of natural justice Champertous agreements Whether court can without hearing evidence act on Disciplinary Committee's findings Advocates and Solicitors Ordinance (Cap 188), ss 25(1) & (2), 26, 27, 28, 29, 30, 49 & 57(b).

Summary :

It is unnecessary for the court to hear evidence in every disputed disciplinary proceeding under the ordinance. It can act on the findings of the Disciplinary Committee. The court however retains control and has a discretion in a proper case, as for example, if fresh evidence is found, to hold a rehearing.

Digest :

Lau Liat Meng v Disciplinary Committee [1967] 2 MLJ 141 Privy Council Appeal from Singapore (Viscount Dilhorne, Lord Hodson, Lord Guest, Lord Upjohn and Sir Hugh Wooding).

See LEGAL PROFESSION, Vol 9, para 1614.

1741 Professional discipline -- Procedure

9 [1741] LEGAL PROFESSION Professional discipline Procedure Failure to give notice Disciplinary proceedings Conviction for criminal offence Inquiry Committee investigating on its own motion Striking off the roll Failure to notify person concerned of investigation Investigation a nullity Instigating the dishonest removal of property Causing files to disappear Whether grossly improper conduct Penal Code, ss 107, 108A and 201 Legal Profession Act (Cap 217), ss 84, 85, 86, 87, 88, 90, 91, 93, 94 and 98.

Summary :

This was an appeal from the decision of the High Court ([1973] 2 MLJ 54) which decided that the appellant should be struck off the roll. The appellant appealed to the Privy Council and the main grounds of appeal were (a) in failing to give the appellant notice of the new or renewed inquiry after he was convicted in the magistrate's court the Disciplinary Committee had failed to comply with s 87(5) of the Legal Profession Act (Cap 217, 1970 Ed) and this failure vitiated all subsequent disciplinary proceedings against the appellant; (b) despite the fact that the appellant had pleaded guilty and been convicted of the offence of instigating the offence of dishonest removal of property the appellant was not correctly convicted; (c) although the appellant had admitted the charge under s 201 of the Penal Code of causing files to disappear, the appellant had in fact submitted no offence under s 201; (d) the penalty inflicted by the High Court was excessive.

Holding :

Held, dismissing the appeal; (1) s 87(5) of the Legal Profession Act (Cap 217, 1970 Ed) should be construed as an imperative provision and as the Inquiry Committee had not complied with it the second inquiry by it was a nullity. It did not follow however that all subsequent proceedings before the Disciplinary Committee and the High Court were nullities; (2) the conclusion of the High Court that part of that conduct fell within the meaning of s 84(2)(a) was vitiated by the earlier procedural error of the Inquiry Committee; but this in their Lordship's view was immaterial in view of the fact that it was throughout relevant to and valid as regards s 84(2)(b).

Digest :

Isaac Paul Ratnam v Law Society of Singapore [1976] 1 MLJ 195 Privy Council Appeal from Singapore (Lord Cross of Chelsea, Lord Simon of Glaisdale and Lord Edmund-Davies).

1742 Professional discipline -- Procedure

9 [1742] LEGAL PROFESSION Professional discipline Procedure Investigation by disciplinary committee Findings Bias Rules of natural justice Duty of chairman of disciplinary committee Quashing findings

Summary :

The applicant was an advocate and solicitor. He was found guilty of misconduct by the Disciplinary Committee ('the DC') and asked to show cause before a court of three judges. The applicant took out a motion for an order of certiorari to quash the findings and determination of the DC on the ground, inter alia, that the respondent ('CS') was biased. CS was the chairman of the DC. The applicant alleged that CS had met with the applicant's legal assistant ('SS') twice during the currency of the DC's hearings and had threatened SS and suggested to SS that CS had made up his mind about the veracity of the witnesses. SS was a material witness for the applicant in the DC proceedings. At the commencement of the application for certiorari, CS made two preliminary objections. First, that the applicant was not entitled to rely on statements made in CS's affidavits as additional grounds in support of the applicant's case. Alternatively the applicant should amend the originating motion. Secondly, CS objected to the applicant's application to cross-examine CS on his affidavits. It was also suggested that the applicant was not entitled to subject the decision of the DC to judicial review as the matter would be considered by the court of three judges.

Holding :

Held, quashing the findings of the DC: (1) no amendment to the notice of motion was required. If CS's own admissions were capable of providing additional legal grounds to impugn his decision, the applicant was entitled to rely on them; (2) the nature of the disputes between CS and SS on the one hand, and between the applicant and the CS on the other, made this an appropriate case that CS and SS submit to cross-examination. Grave injustice might have been caused to the applicant if he were not allowed to test the truth of CS's account of the conversations. The truth of SS's account was central to the applicant's primary case just as much as the truth of CS's account was central to his defence; (3) the 'show cause' proceedings were different from the judicial review proceedings, both with respect to the law as well as the procedure. In the former, the court went into the merits of the findings and determination of the DC on the basis of the evidence recorded by the DC. It did not hear oral evidence at all. In the latter, the court did not deal with the merits of the decision but with its legality on ordinary administrative law grounds. Bias, as an aspect of procedural impropriety, was one of the grounds. The DC's decision was therefore subject to judicial review notwithstanding that the applicant might still have the right to show cause; (4) there were discrepancies in SS's evidence, but this alone did not make him totally unreliable. Justice would not be done by making specific findings on the actual words and expressions uttered by CS or SS at the two encounters. A fair approach was to compare the two accounts on a broad basis, having regard to the fact that what was more important was not necessarily the precise words used by the parties but their impressions on the person to whom they were spoken in the context and the circumstances in which they were spoken. On that basis the court was not persuaded that CS had spoken all the words as recollected by SS nor that whatever words CS had used were intended to intimidate, threaten, warn or otherwise indicate to SS that he should not give evidence on behalf of the applicant; (5) bias may be actual or imputed. The important thing was not what the applicant might think about the judge but the appearance, as it presented itself to the objective observer. The court would set aside as void a decision of a tribunal which was infected by the appearance of a real likelihood of bias or if a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. A higher standard of conduct was required of judges. The standard required of the chairman of the DC under the Legal Profession Act (Cap 161) was just as high, and was commensurate with the standing of that office; (6) a decision maker should have no contact with any party to the proceedings or any witnesses in the absence of the other party or his counsel; (7) CS's advice given to SS at the first encounter ('You should tell the truth and as you may get into trouble if you don't') could reasonably mean or imply that CS did not believe SS would be an independent or impartial witness, because he was the applicant's witness. It did not matter whether at that time CS was aware of the nature and substance of the evidence that SS would be giving. Since CS had great experience in the conduct of trials and disciplinary inquiries, it must have occurred to CS that SS would not have been called to give evidence on behalf of the applicant unless his evidence was favourable to the applicant. Against the known background that SS was then an employee of the applicant, the advice of CS would have engendered a reasonable suspicion that CS had formed the view that there was a possibility of SS giving untruthful evidence in favour of the applicant; (8) similarly CS's utterances to SS at the second meeting might give the impression to reasonable people that SS's evidence was not being believed because of his relationship with the applicant. The reference, direct or indirect, to the relationship between SS and the applicant during the second conversation would have reinforced the perception of the state of mind of CS at the first encounter. The fact was that CS had talked to SS on both occasions on the same subject matter: SS's testimony at the inquiry, in a context when SS was an employee of the applicant; (9) there was evidence on which reasonable people might believe that CS might or could not bring an unprejudiced mind to the disciplinary inquiry. The contents of the two conversations gave an appearance of a real likelihood of bias; (10) although the other members of the DC had filed affidavits stating that CS had not influenced their decision, it would not be proper to count heads and say there was a majority of unbiased members. One has to look at the whole picture; (11) the duty of the chairman of the DC was to hear the disciplinary inquiry in the presence of both parties and their counsel. CS should not have given any advice to SS, even if it was intended as fatherly advice, or to express his views on the credibility of a witness except in the presence of counsel so that counsel would have had the opportunity of answering such views. CS had acted wrongly and contrary to the rules of natural justice in not hearing the other side; (12) there was a firm basis for quashing the findings and determination of the DC; (13) CS had participated in the proceedings and strenuously resisted the applicant's application, but only because the applicant had put his case at a level at which CS was given no choice but to defend his conduct and reputation. The applicant had failed to prove the main charge of actual bias in the form of the threat to SS. If the motion had been based solely on this charge, it would have been dismissed. The applicant had succeeded on a much less serious charge. In the circumstances, each party should pay his own costs.

Digest :

Re Kalpanath Singh [1992] 2 SLR 639 High Court, Singapore (Chan Sek Keong J).

1743 Professional discipline -- Procedure

9 [1743] LEGAL PROFESSION Professional discipline Procedure Investigation by disciplinary committee Jurisdiction of disciplinary committee Inquiry committee Procedure to be adopted

Summary :

S was an advocate and solicitor. One of S's clients, A, made a complaint against S claiming that S had overcharged him and not returned a S$1,000 deposit paid to S. S claimed that he never received such a deposit. The matter was referred to the inquiry committee which made a report to LS. LS then framed a charge of falsely denying the receipt of the aforesaid sum and referred S to the disciplinary committee, which ordered S to show cause why he should not be dealt with under s 80 of the Legal Profession Act (Cap 161, 1990 Ed) ('the Act').

Holding :

Held, discharging the order nisi: (1) essentially the complaint was that S, having been paid a sum of S$1,000 by A as part of his fees, did not perform any service that justified that sum and refused to refund it to A; (2) the charge framed was different from the complaint both in form and in substance; (3) LS was in error in framing such a charge and bringing it before the disciplinary committee for hearing and investigation, as the disciplinary committee had no jurisdiction over such a matter and to make a determination thereon; (4) when a complaint was received LS was first required to refer the matter to the inquiry committee. The inquiry committee would then make a report to LS. LS should consider the report and make its determination according to the circumstances of the case; (5) where LS determined that there should be a formal investigation, then under s 86 of the Act it should apply to the Chief Justice to appoint a disciplinary committee 'which shall hear and investigate the matter'; (6) 'matter' must be the application or complaint that has been received by LS, that had been inquired into and reported upon by the inquiry committee; (7) the subject matter of the charge preferred against S before the disciplinary committee was never inquired into by the inquiry committee. The inquiry committee had inquired into the letter of complaint and had submitted a report to LS; (8) based on that report LS had applied to appoint a disciplinary committee. The disciplinary committee had no jurisdiction to hear and investigate anything else other then the complaint; (9) the disciplinary committee was in error in hearing and investigating the charge and making a determination thereon.

Digest :

Re Seah Pong Tshai [1992] 1 SLR 399 High Court, Singapore (Yong Pung How CJ, Lai Kew Chai and Thean JJ).

1744 Professional discipline -- Procedure

9 [1744] LEGAL PROFESSION Professional discipline Procedure Investigation by inquiry committee Inquiry committee recommending that solicitor be penalized Report of committee Application for report Whether solicitor is entitled to report When application is to be made

Summary :

P was an advocate and solicitor against whom a complaint was made by a client. D referred the matter to the inquiry committee who recommended no formal investigation but did recommend that P be penalized. P applied to be heard by the council of D and also requested a copy of the inquiry committee report. D refused to supply a copy unless directed by court. P took out an originating summons seeking an order for discovery of the report.

Holding :

Held, dismissing P's application: (1) s 85(3) of the Legal Profession Act (Cap 161, 1990 Ed) ('the Act') provided that before an order could be made for the payment of a penalty the advocate and solicitor should be given a reasonable opportunity to be heard; (2) to proceed with such a hearing without disclosing to P the material that the council had before it would be unfair. In denying P the report D would be refusing P his statutory right to a reasonable opportunity to be heard. The right to have copies of all documents adverse to P or that may be adverse to him that are in the possession of D was an integral aspect of the right to be heard; (3) however as P had sought an order for discovery, and there was pending a cause or matter against D, the court had no power to make such an order. P should have sought a declaration that he was entitled to a copy of the report of the committee.

Digest :

John Abraham v The Law Society of Singapore [1991] 3 MLJ 359 High Court, Singapore (Rajendran J).

1745 Professional discipline -- Procedure

9 [1745] LEGAL PROFESSION Professional discipline Procedure Investigation by inquiry committee Professional misconduct Whether complainant should be given report of inquiry committee Construction of the phrase 'reasons in writing' Legal Profession Act (Cap 161, 1990 Ed), s 87(3)

Summary :

P lodged a complaint with the Law Society (D) against K, an advocate and solicitor, alleging that K was guilty of professional misconduct in the discharge of his duties when he acted for P in various matters. P's complaint was referred to an inquiry committee ('IC') for investigation. The IC met and later reported to the Council of the Law Society ('the council') that the complaint did not merit a formal investigation by a disciplinary committee ('DC'). P was then informed that his complaint was dismissed. Later, at the request of P, the council reproduced the IC's findings in a letter dated 10 August 1991 which was sent to P. P then applied under s 96 of the Legal Profession Act (Cap 161) ('the Act') for the following orders: (a) that a copy of the report of the IC together with a copy of the explanations of K be forwarded to P by D; (b) that D be directed to apply to the Chief Justice for the appointment of a DC to hear and investigate P's complaint against K. D submitted that the council had complied with s 87(3) of the Act by giving the 'reasons in writing' to P in the letter dated 10 August 1991.

Holding :

Held: (1) the phrase 'reasons in writing' appear identically in s 96(2) and s 86(5) and it had to be determined exactly what the intention of Parliament was in using this phrase; (2) (rejecting the use of the literal rule of construction and adopting the purposive rule) the legislative purpose of s 87(3) when read together with s 96 is to require the council to give its explanations to the complainant to enable him to decide whether he should invoke the right of appeal and if there is such an appeal, to enable the court to review the decision; (3) the reasons to be given to P pursuant to s 87(3) must include the reports of the IC and the explanation of K.

Digest :

Low Gim Siah v Law Society of Singapore [1992] 1 SLR 166 High Court, Singapore (Goh Phai Cheng JC).

1746 Professional discipline -- Procedure

9 [1746] LEGAL PROFESSION Professional discipline Procedure Legal Profession Act 1976 (Act 166), ss 98 & 99 Whether mandatory or directory Principles applied

Summary :

This appeal revolved around the question whether the provisions as to time set forth in ss 98 and 99 of the Legal Profession Act 1976 (Act 166) ('the Act') in the form it took prior to its amendment by the Legal Profession (Amendment) Act 1992 which came into force on 1 April 1992 are mandatory or directory. The Honorary Secretary of the Bar Council ('the Council') made a complaint dated 6 June 1987 under the Act against the respondent advocate and solicitor and his partner, Malek, with respect to the mismanagement of their firm's trust account. On 3 July 1987 the Council referred this complaint to the State Bar Committee, Pahang ('the Committee'). On 3 September 1987 the Committee forwarded its report and recommendation to the Council. On 26 October 1987, the Council applied to the Chief Justice, Malaya, for the appointment of a Disciplinary Committee to investigate the complaints. It had only six weeks (under s 98 of the Act) from the date of receipt of the report and recommendation of the Committee to apply to the Chief Justice for the appointment of a Disciplinary Committee, ie its last day for doing so was 15 October 1987. It was therefore out of time by about 12 days. In the court below, Eusoff Chin J decided that the provisions as to time were mandatory and that consequently, the appointment of the Disciplinary Committee was invalid, null and void [see para 1620 below]. The defendants appealed.

Holding :

Held, dismissing the appeal: (1) it will have to decide that question for itself from the words Parliament has used; (2) the answer to this question depends on the Act as a whole, the legislative intention viewed from the context of the particular provision, the importance of the provision and the consequences of non-compliance with it; (3) on a reading of the timetable provided under ss 93 to 103 under Pt V of the Act, the expeditious disposal of complaints is what is sought to be enforced by the Act in providing for safeguards against delay, in order to ensure that an innocent advocate and solicitor clears himself of any stain or suspicion of misconduct as soon as possible, or, conversely, that a guilty advocate and solicitor is dealt with as soon as possible, in the public interest. The very object of expeditious disposal of complaints under the Act would be defeated if the steps to be taken consequent thereto could be treated casually and lightly; (4) the Privy Council case of Montreal Street Railway Co is readily distinguishable as unlike here, no provision as to time was in issue. This is an important distinguishing feature as provisions as to time are always mandatory unless the court is given a power to extend the relevant time limit; (5) as a general principle, where a statute regulates the exercise of a right or power, or the use of a prescribed procedure, express reference to time being made, there is a marked inclination on the part of the court to regard the relevant provision as one which must be strictly and meticulously followed out; (6) ss 93 to 103 of the Act present a picture of a code of procedure in which time is given a place of paramount importance. This is emphasized by s 101(3) by the contrast it displays when compared with ss 96, 98 and 99 in which time is mentioned. This is a clear indication by the legislature that time is of the essence with regard to the various steps in considering a complaint against an advocate and solicitor prescribed by ss 96, 98 and 99 except the step prescribed by s 101(3), when time may be extended; (7) in seeking Parliament's intention, the court will have to strike a balance between the risk of prejudice caused by any delay and the risk that a proper inquiry into a complaint will not be attained if the appointment of the Disciplinary Committee is held to be null and void; (8) in construing a statutory provision, what the court endeavours to do is to construe it according to the subject and intent of Parliament. The court cannot ask Parliament what its intention was;the final task of construction is always to ascertain the meaning of what the draftsman had said rather than what the draftsman meant to say.

Digest :

Majlis Peguam Malaysia & Ors v Joseph Au Kong Weng [1993] 2 MLJ 57 Supreme Court, Kuala Lumpur (Edgar Joseph Jr SCJ).

1747 Professional discipline -- Procedure

9 [1747] LEGAL PROFESSION Professional discipline Procedure Legal Profession Act 1976 (Act 166), ss 98 & 99 Whether mandatory or directory Principles applied

Summary :

The Bar Council ('the complainant') made a complaint on 6 June 1987 against the plaintiff and his partner, Malek, with respect to mismanagement of the trust account of Messrs Malek & Joseph Au. On 3 July 1987, the Bar Council referred its complaint to the State Bar Committee, Pahang ('the Committee'). On 3 September 1987, the Committee forwarded its report and recommendation to the Bar Council. On 26 October 1987 (54 days later), the Bar Council applied to the Chief Justice to appoint a Disciplinary Committee to investigate the complaint. The question put to the court was whether the time frames prescribed in ss 98 and 99 of the Legal Profession Act 1976 (Act 166) ('the Act') were mandatory or merely directory. It was the Bar Council's contention that because of the numerous complaints received, it had become impossible for the time frames fixed by the various sections of the Act to be complied with. A State Bar Committee and Inquiry Committee of the Bar Council each meet once a month and because of that, a complaint received from the Bar Council may take a month before it is seen by a State Bar Committee or the Inquiry Committee.

Holding :

Held: (1) the intention of the Act is quite clear in that when it comes to disciplining an advocate and solicitor, the required actions to be taken must be done within the time frames provided for by the Act. Otherwise, serious inconvenience and injustice may be suffered by both the complainant and the advocate and solicitor facing the complaint; (2) further, counsel for the Bar Council admitted to the court that the Bar Council was consulted before the Act was taken to Parliament. Therefore, it cannot be said that the time frames fixed by the Act for completion of the various stages of the disciplinary actions have been fixed arbitrarily by the legislature; (3) the purpose of fixing the time frames is to ensure speedy disposal of complaints. Where, therefore, the situation is such that it has become impossible to comply with the time frames, the matter should be brought to the government's attention to have the time frames amended. But as long as they remain, the clear intention is that the time frames are mandatory; (4) the time frame of six weeks fixed by s 98 of the Act for the Bar Council to peruse the report and recommendation received from the State Bar Committee and to decide whether or not to apply to the Chief Justice is not absurd but reasonable; (5) the wordings of s 99(1) give the meaning that the period of 14 days must be intended to be mandatory. However, in view of s 99(3), the fact that the Chief Justice in this case took more than five months to appoint the present Disciplinary Committee does not mean that he had not appointed the Disciplinary Committee within the 14 days. There might have been revocations and substitutions of members of the Disciplinary Committee before the present Disciplinary Committee was finally approved and appointed; (6) since the mandatory period of six weeks prescribed by s 96 has not been complied with by the Bar Council, its application to the Chief Justice, and the subsequent appointment of the Disciplinary Committee by the Chief Justice are rendered invalid, null and void.

Digest :

Au Kong Weng Joseph v Bar Council, States of Malaya & Ors Originating Summons No R8-177-9-1989 High Court, Kuala Lumpur (Eusoff Chin J).

1748 Professional discipline -- Procedure

9 [1748] LEGAL PROFESSION Professional discipline Procedure Locus standi of Law Society Disciplinary Proceedings Conviction of advocate and solicitor Income tax offence Composition of other tax offences Tampering with witness Information of Attorney General to Law Society Inquiry Committee's report Disciplinary Committee Six charges against advocate and solicitor Disciplinary Committee deleting certain paragraphs in statement of case of Law Society Whether Disciplinary Committee must investigate all charges Judicial review Application for mandamus Locus standi Legal Profession Act (Cap 217), ss 84, 85, 86, 87, 88, 89, 90, 91, & 93 Advocates & Solicitors (Disciplinary Proceedings) Rules 1963, r 10.

Summary :

The Law Society did have the 'sufficient interest' and therefore the locus standi to apply for mandamus compelling the Disciplinary Committee to investigate all the changes.

Digest :

Re An Advocate & Solicitor; ex parte The Law Society of Singapore for Judicial Review [1987] 2 MLJ 21 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai and Thean JJ).

See LEGAL PROFESSION, Vol 9, para 1695.

1749 Professional discipline -- Procedure

9 [1749] LEGAL PROFESSION Professional discipline Procedure Necessity of statutory declaration Disciplinary proceedings Complaint received by Inquiry Committee Action taken on complaint Complainant subsequently requested to make statutory declaration Argument that complaint should be supported by statutory declaration Copy of statutory declaration not given to advocate and solicitor Legal Profession Act (Cap 217), ss 86(3), 87.

Summary :

This was an appeal from the judgment of the High Court, Singapore ([1975] 1 MLJ 59) which ordered the appellant to be struck off the roll of advocates and solicitors of the Supreme Court of Singapore. The disciplinary proceedings in the case had started with a complaint addressed by the complainant, Mrs Seah Huang, to the Law Society of Singapore. This was referred by the Council of the Law Society to an Inquiry Committee appointed under the Legal Profession Act (Cap 217, 1970 Ed). The Inquiry Committee wrote to the appellant and made further inquiries. The Committee later asked the complainant to make a statutory declaration setting out the facts. No copy of the statutory declaration was sent to the appellant. Subsequently, the Inquiry Committee reported to the Council on the complaint and the Council informed the appellant that it had been decided that a full investigation by a Disciplinary Committee should be held. The Disciplinary Committee was appointed by the Chief Justice and after the hearing and investigation the Disciplinary Committee found the appellant guilty of the charges brought against him. The Law Society then applied that the appellant be struck off the roll or suspended from practice or censured and the High Court ordered that the appellant be struck off the roll. The appellant appealed to the Privy Council. On the appeal it was contended that s 86(3) of the Legal Profession Act (Cap 217, 1970 Ed) requires that every written complaint should be supported by a statutory declaration or affidavit and that this is a condition precedent to the Inquiry Committee assuming jurisdiction to inquire into and investigate the matter. It was also contended in the alternative that as a statutory declaration was in fact obtained from the complainant the proper inference was that the Inquiry Committee did not begin their inquiry and investigation until this statutory declaration had been received. If so, it was argued it was their duty to provide the appellant with a copy before they embarked on their inquiry. Failure to do so rendered all subsequent proceedings by the Inquiry Committee and the Disciplinary Committee a nullity.

Holding :

Held, dismissing the appeal: (1) upon its true construction s 86(3) of the Legal Profession Act (Cap 217, 1970 Ed) left to the Inquiry Committee a discretion to decide whether or not a particular written application or complaint should be supported by any statutory declaration or affidavit and if so what statutory declarations or affidavits should be called for and by whom they should be made. If, in their discretion, they did not think any statutory declaration or affidavit to be necessary at that stage they were entitled to begin their inquiry or investigation without it; (2) in this case both the Disciplinary Committee and the High Court drew the inference from the facts that the inquiry and investigation were begun by the Inquiry Committee before the statutory declaration was obtained from the complainant. This inference was not unreasonable and the finding of the High Court on this point should be accepted; (3) the argument which was brought before the High Court but not persisted in at the appeal, that the failure to provide the appellant with a copy of the statutory declaration was contrary to the rules of natural justice, was devoid of substance. The appellant had in fact ample notice of what was alleged against him before the Inquiry Committee started their investigation.

Digest :

Chan Chow Wang v Law Society of Singapore [1978] 2 MLJ 131 Privy Council Appeal from Singapore (Lord Diplock, Lord Russell of Killowen and Lord Scarman).

1750 Professional discipline -- Procedure

9 [1750] LEGAL PROFESSION Professional discipline Procedure Powers of Disciplinary Committee Disciplinary Proceedings Conviction of advocate and solicitor Income tax offence Composition of other tax offences Tampering with witness Information of Attorney General to Law Society Inquiry Committee's report Disciplinary Committee Six charges against advocate and solicitor Disciplinary Committee deleting certain paragraphs in statement of case of Law Society Whether Disciplinary Committee must investigate all charges Judicial review Application for mandamus Locus standi Legal Profession Act (Cap 217), ss 84, 85, 86, 87, 88, 89, 90, 91, & 93 Advocates & Solicitors (Disciplinary Proceedings) Rules 1963 r 10.

Summary :

The matters as set out in the deleted paragraphs in the statement of case should be investigated by the Disciplinary Committee, which was in no position to decide on any of the questions without hearing evidence.

Digest :

Re An Advocate & Solicitor; ex parte The Law Society of Singapore for Judicial Review [1987] 2 MLJ 21 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai and Thean JJ).

See LEGAL PROFESSION, Vol 9, para 1695.

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