The Law Society of Singapore v Seah Zhen Wei Paul
[2024] SGHC 224 High Court (General Division) 2 September 2024 • C3J/OA 12/2023|C3J/OA 11/2023 • 114 min read
30 cases cited
(27 SG, 3 foreign)
Outcome
Sentence imposedwe sentenced him to three-years’ suspension commencing on 1 June 2024. In OA 11, we sentenced Mr Seah to three-years’ suspension commencing on 17 August 2024.172 We ordered Mr Seah to pay the Law Society costs of $10,000, inclusive of disbursements, in OA 11, which sum reflected his concession on liability at the start of the hearing.
Source: [2024] SGHC 224, High Court (General Division), decided 2 September 2024. Read directly from the judgment.
Key facts
| Court | High Court (General Division) |
|---|---|
| Decided | |
| Judges | Belinda Ang Saw Ean, See Kee Oon, Woo Bih Li |
| Charges / claim | Legal Profession |
| Outcome | Sentence imposed |
| Sentence / award | $10,000 |
| Counsel | Abraham Vergis, Chan Kah Keen Melvin, Davinder Singh s/o Amar Singh, Pillai Pradeep G |
Source: [2024] SGHC 224, High Court (General Division), decided — eLitigation. Updated .
Catchwords
Practice Areas
Counsel (4)
Case Significance
The Law Society of Singapore v Seah Zhen Wei Paul [2024] SGHC 224 was decided by a Court of 3 Supreme Court Judges, comprising Belinda Ang Saw Ean JCA (delivering the grounds of decision of the court), Woo Bih Li JAD and See Kee Oon JAD, with the matter heard on 5 and 9 April 2024 and the decision issued on 4 September 2024. The proceedings comprised two applications, C3J/OA 11 of 2023 ("OA 11") and C3J/OA 12 of 2023 ("OA 12"), brought by the Law Society of Singapore against Mr Seah Zhen Wei Paul and Mr Rethnam Chandra Mohan respectively, for the respondents to be sanctioned under s 83(1) of the Legal Profession Act 1966 (Cap 161, 2009 Rev Ed).
According to the grounds of decision, Mr Seah was called to the Singapore bar on 20 May 2006, was an advocate and solicitor for around 14 years, and was at all material times a partner in Tan Kok Quan Partnership. Mr Mohan was called to the bar on 21 March 1992, was an advocate and solicitor for around 28 years, and was at all material times practising as a partner in Rajah and Tann Singapore LLP. The matter concerned professional conduct and breach, and the court referred to the Companies Act, the Evidence Act, the Interpretation Act and the Legal Profession Act. In OA 11 the Law Society was represented by Pillai Pradeep G, and Abraham Vergis SC appeared for Mr Seah; in OA 12 Chan Kah Keen Melvin represented the Law Society, with Davinder Singh s/o Amar Singh also appearing as counsel for a respondent.
Summary
SUPREME COURT OF SINGAPORE
4 September 2024
Case Summary
Law Society of Singapore v Seah Zhen Wei Paul and another matter [2024] SGHC 224
C3J/OA 11/2023; C3J/OA 12/2023
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Decision of the Court of 3 Supreme Court Judges (delivered by Justice Belinda Ang):
Outcome: The Court of 3 Supreme Court Judges allowed the applications and imposed a term of suspension of three years on each respondent.
Background to the applications
1 C3J/OA 11/2023 (“OA 11”) and C3J/OA 12/2023 (“OA 12”) were two applications brought by the Law Society of Singapore (the “Law Society”) for the respondents to be sanctioned under s 83(1) of the Legal Profession Act 1966 (Cap 161, 2009 Rev Ed) (“LPA”). What was common in all the disciplinary charges against the respondents was the relationship each respondent had as an officer of the court with the court bearing in mind the court’s core function of upholding the administration of justice.
2 The key question was whether the settlement of High Court Suit No 965/2012 (“Suit 965”) rendered the appeal in CA/CA 146/2019 (“CA 146”) academic; and relatedly, whether the Respondents knew or ought to have known that, and whether they knowingly allowed CA 146 to continue before the Court of Appeal despite the settlement.
Facts
1 The respondents – Mr Seah Zhen Wei Paul (“Mr Seah”) and Mr Rethnam Chandra Mohan (“Mr Mohan”) – were the counsel involved in CA/CA 146/2019. Mr Seah represented the appellants, and Mr Mohan represented the respondent. The appellants in CA 146 were the joint and several liquidators of Sembawang Engineers and Constructors Pte Ltd, a company in compulsory liquidation (“SEC”). The respondent in CA 146 was Metax Eco Solutions Pte Ltd (“Metax”).
2 Sometime in late 2010 or early 2011, SEC and Metax contracted for Metax to suppy goods to SEC. On 25 July 2011, Metax purported to rescind this contract. SEC commenced Suit 965 on 12 November 2012 for the wrongful repudiation of the contract. Metax counterclaimed against SEC for, inter alia, a sum of $2,134,196.66. After the parties had filed their written closing and reply submissions, all that was left was the parties’ oral closing submissions before the trial judge (the “Judge”).
3 Eventually, SEC was placed under Judicial Management on 27 June 2016. The hearing of oral closing submissions for Suit 965 was adjourned to 23 and 30 October 2017. On 7 August 2017, SEC was ordered to be wound up in HC/CWU 90/2017. During discussions between Metax and the liquidators of SEC (the “Liquidators”), Metax rejected the Liquidators’ proposal to have Suit 965 determined solely based on the written closing submissions. The Liquidators had to decide whether to proceed with oral closing submissions, which could lead to costs being payable to Metax and these costs would stand in priority to other claims against SEC. Moreover, the Liquidators would also have been exposed to the risk of bearing the costs of the litigation personally and from the date when Suit 965 was filed.
4 On 4 January 2019, the Liquidators filed an ex parte application in HC/SUM 79/2019 (“SUM 79”) for directions on, amongst other things, how the estate costs rule operates where legal proceedings were commenced before the winding up order was made and the defendant ultimately succeeds. The Judge directed, on 6 May 2019, that a successful defendant is entitled to be paid its entire costs from the beginning of the legal proceedings in priority to the other expenses of the liquidation.
5 The Liquidators filed an appeal against the whole of the Judge’s decision on 26 July 2019. The appeal in CA 146 was fixed for hearing on 20 January 2021 before a five-judge coram. In the interim, the parties engaged in negotiations to settle the claim and counterclaim and protracted negotiations over the issue of Metax’s participation in CA 146 if a settlement was achieved. The parties entered into a settlement agreement on 28 November 2019 (the “Settlement Agreement”).
6 In anticipation of the settlement, it was proposed by the Liquidators, at the outset, that Metax’s participation in the appeal would be as a nominal respondent. Mr Mohan for Metax was initially not keen with that suggestion. He wanted to keep open Metax’s right to participate in the appeal as it was named as the respondent. In any event, pursuant to the Settlement Agreement, Mr Mohan’s firm, Rajah & Tann LLP, wrote a letter to the Supreme Court Registry stating that the respondent would not be filing a Respondent’s Case, Skeletal Arguments, Appeals Information Sheet or any other document in CA 146.
7 At the start of the hearing, the Court of Appeal inquired of Mr Mohan as to why Metax had not filed its Respondent’s Case. Mr Mohan informed the Court of Appeal that the parties had entered into an agreement in respect of Metax’s involvement in the appeal but did not inform the Court of Appeal that Suit 965 had been settled. He adopted the position that the parties before the Court of Appeal were ready to assist the Court of Appeal. Mr Seah was asked the same question some time after Mr Mohan’s response. Mr Seah also did not inform the Court of Appeal that Suit 965 had been settled. He merely echoed Mr Mohan’s assurance that the parties were before the Court of Appeal ready to assist the court in the spirit of what was agreed. At the close of Mr Seah’s oral submissions, the Court of Appeal revisited Mr Mohan’s earlier answer and asked him if the agreement between the appellants and the respondent was in the nature of a settlement. Mr Mohan confirmed that the agreement was in the form of a settlement. Thereafter, the Court of Appeal dismissed the appeal and directed the respondents to disclose all facts and offer any explanation as to why the matter was allowed to proceed despite the settlement. After receiving an explanation from each of the respondents, the Court of Appeal released its written grounds of decision on 3 March 2021 wherein the Court of Appeal found that the respondents had deliberately misled the court.
8 On 19 March 2021, the Registrar of the Supreme Court referred the conduct of Mr Seah and Mr Mohan to the Law Society pursuant to s 85(3)(b) of the LPA for the matter to be referred to a disciplinary tribunal (“DT”).
9 The DT concluded that all of the charges against the respondents were made out. Pursuant to s 93(1)(c) of the LPA, the DT found that cause of sufficient gravity in respect of both respondents existed under s 83 of the LPA and that the matter should be referred to the Court of 3 Supreme Court Judges (“C3J”).
10 During the hearing of the two applications before the C3J, Mr Abraham Vergis SC, counsel for Mr Seah, confirmed that Mr Seah was no longer contesting the two sets of charges against him.
Decision
11 The Judge, in granting the directions in SUM 79, had the specific dispute, Suit 965, in mind. Plainly, Suit 965 was the subject matter of SUM 79: at [16].
12 The terms of the Settlement Agreement detailed the calibrated answers that were prepared in response to a series of anticipated questions from the Court of Appeal. This went well beyond what was required to safeguard the interest of Metax in the appeal, which was already provided for in other specific terms in the Settlement Agreement: at [27].
13 The minute sheet for CA 146 was relevant and admissible pursuant to ss 32(1)(b) and 37 of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”): at [56].
14 The Court of Appeal’s grounds of decisions for CA 146 (the “GD”) was admissible pursuant to s 7, read with s 45 of the Evidence Act: at [59].
15 In any event, s 59 of the Evidence Act permits the court to take judicial notice of the GD: at [59].
16 It is plain that a solicitor’s duty to the court is an incident of his position as an officer of the court and as an integral participant in the administration of justice that goes to ensuring the integrity of the rule of law in the legal system. A well-established aspect of the solicitor’s duty to the court is in assisting the court to reach a proper resolution of the dispute in a prompt and efficient manner. It is incumbent upon solicitors to assist the court in the efficient utilisation of its limited resources: at [63].
17 On the totality of the facts and circumstances of the case, Mr Seah’s conduct as disclosed by each set of charges was sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA.
18 The Law Society did put its case to Mr Mohan. That said, the manner of cross-examination could have been more direct and focused: at [92]–[94].
19 The Settlement Agreement rendered CA 146 academic. There was nothing to the point that because SUM 79 was filed in CWU 90, it was divorced from Suit 965. Suit 965 formed the substratum of SUM 79: at [102] and [104].
20 Mr Seah and Mr Mohan knew that CA 146 was academic following the settlement and knowingly misled the court. Even accepting Mr Mohan’s evidence that he referred to Ms Doreen Chia’s notes of the proceedings in SUM 79, as opposed to the court’s minute sheet dated 6 May 2019, the contents of her notes similarly reflected the parties’ understanding that SUM 79 was based on the factual substratum of Suit 965: at [102] and [106].
21 The Court of Appeal was misled by the respondents: at [102].
22 The general tenor of the Settlement Agreement was noteworthy. The parties had effectively scripted their narratives in anticipation of queries from the Court of Appeal. There was no intention to disclose the settlement unless queried. If there were no queries, the respondents agreed not to volunteer the information thereby misleading the Court of Appeal into thinking that there were live questions to be resolved between the parties in CA 146. In the Settlement Agreement, the parties had agreed that Metax would not file a Respondent’s Case; and that Metax would rely on its submissions below. This stance gave a misleading impression that Metax was opposing the appeal: at [108].
23 Mr Mohan may have thought about his duties to the court and at the same time been mindful of the same. But the problem that surfaced was the result of his failed attempt to strike a right balance that properly met the various duties owed by him to the court as an officer of the court as well as to his client: at [112].
24 Mr K Gopalan’s evidence as to Mr Mohan’s state of mind was irrelevant because it was based on Mr K Gopalan’s own opinion: at [113].
25 Ms Doreen Chia’s evidence that Mr Mohan told her that he had formed the view that CA 146 could proceed did not bring Mr Mohan’s case far. Her testimony was bereft of details and could not oppose the weight of the evidence that pointed to Mr Mohan’s subjective knowledge: at [114].
26 The first set of charges against Mr Mohan for knowingly misleading the court were made out. Due cause was shown which was sufficiently serious to warrant the imposition of a sanction: at [115].
27 Mr Mohan and Mr Seah were equally culpable. Mr Mohan’s conduct was so grave as to amount to improper conduct under s 83(2)(b) of the LPA, and not s 83(2)(h), as determined by the DT: at [115].
28 Mr Seah and Mr Mohan permitted the Court of Appeal to proceed on an incorrect perception of Suit 965. The respondents had at the forefronts of their minds their duty to the court which required them not to knowingly mislead the court or risk the court being misled by deliberate omissions that gave an incomplete picture. There was dishonesty in the way they went about bringing the appeal to the Court of Appeal and they both knowingly misled the court: at [116].
29 Rule 9(1) of the PCR imposes substantive obligations. Mr Mohan breached r 9(1)(a) of the PCR. There had also been a waste of judicial time and resources which was a consequence of his breach of duty to the court in choosing to continue with CA 146: at [120] and [122].
30 The second set of charges against Mr Mohan for causing a waste of time and resources of the five-coram Court of Appeal were made out and due cause existed in relation to those charges. Mr Mohan’s conduct as disclosed by each set of charges was sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA: at [124].
31 On the appropriate sanction, given the respondents’ misconduct that involved dishonesty, the starting position would be a striking off unless such a sanction was disproportionate considering the exceptional facts of the case: at [125].
32 Before the presumptive sanction of striking off applies, it is necessary to determine whether the dishonest conduct implies a character defect that renders the errant solicitor unsuitable for the profession, or if the dishonest conduct has undermined the administration of justice: at [137].
33 The presumption is only rebutted if there are truly exceptional facts to show that a striking off would be disproportionate: at [143].
34 In the context of whether a striking off could be excessive, the court will examine the facts closely to determine the appropriate sanction considering the aggravating and mitigating factors where applicable. As for mitigating circumstances in individual cases, they will be considered so long as they do not undermine and are consistent with the two paramount objectives – protection of the public and safeguarding confidence in the profession. Conversely, where aggravating factors are concerned, a factor that aggravates an errant solicitor’s personal culpability would generally tend also to aggravate the adverse impact on the public confidence in the administration of justice: at [145].
35 In the court’s deliberation on whether a striking off is excessive, the facts and circumstances must be assessed holistically. The non-exhaustive factors in Law Society of Singapore v Chia Choon Yang [2018] 5 SLR 1068, at [40], should be open to adaptation if the context of the case permits it in the court’s assessment of the existence of “exceptional facts” in a disciplinary case: at [145]–[146].
36 It was appropriate to order a composite sanction, ie, one sanction in respect of all the charges that each respondent faced: at [153].
37 The respondents fully appreciated and were mindful of their two duties – to their clients and to the court – but they nevertheless fell short of observing their overriding duty to the court: at [154].
38 The respondents’ misconduct involving dishonesty did not attest to a character defect. Several points stood out as mitigating circumstances, which were taken into consideration because they did not militate against the two paramount objectives on sanction: at [155].
39 A conflict of duty arose during the respondents’ professional work by virtue of the instructions of their clients. It is not wrong and unreasonable for the solicitor to take steps to seek and maintain a right balance between the opposing duties. The difficulty that the solicitor faces is to attain a proper equilibrium: at [155].
40 If in following clients’ instructions, and because of the solicitor’s duty to the court, the solicitor encounters an ethical dilemma, the fault is that of the solicitor if his paramount duty to the court is sidelined. It is open to the solicitor to inform his client of the conflicting duty on account of the instructions, and if necessary, to discharge himself from acting for the client. It is also open to a solicitor to seek the assistance of either a more senior lawyer within the firm or seek an independent counsel’s advice before deciding what to do: at [156].
41 A striking off even in the present case involving dishonesty which had the effect of undermining the administration of justice would be a disproportionate sanction: at [158].
42 First, the respondents’ act of dishonesty did not go beyond a failure to disclose at the earliest opportunity the truth of a settlement of Suit 965 that would render CA 146 academic: at [159].
43 Second, this was not a case where the respondents acted with total indifference to their obligations owed to the court: at [160].
44 Third, the dishonest acts were done in the erroneous belief that the respondents would discharge their respective duties to the court and to their clients with the chosen strategy as expressed in the Settlement Agreement: at [161].
45 If it is not possible to achieve a proper equilibrium from balancing opposing obligations, the wider duty to the court trumps the duty to the client: at [162].
46 Fourth, neither Mr Seah nor Mr Mohan had anything to gain, personally or financially, from pursuing the appeal in CA 146: at [163].
47 Fifth, the misconduct ultimately did not cause any loss to the parties or other third parties: at [164].
48 Sixth, the respondents had an unblemished record, and their misconduct was an isolated incident that was out of character. A term of suspension was a proportionate and sufficient sanction for the respondents; they would have to gradually salvage their now blemished reputations in the years ahead and practise in the shadow of these proceedings for some time: at [165].
49 Seventh, understanding can be accorded if there were legitimate and reasonable grounds. Although the courts strictly pursue the efficient administration of justice, the courts do not do so doggedly: at [166].
50 Therefore, the court sentenced both Mr Seah and Mr Mohan to a suspension for a period of three years each: at [167].
51 The court emphasised that the outcome of this case had to be restricted to its specific, and exceptional, facts. Amongst other things, the dynamics between the different parties involved, the absence of any personal benefit for the respondents, and the interests the respondents’ clients had in entering into the Settlement Agreement all contributed to the finding on the appropriate penalty. If the facts were different, the sanction might have very well been a striking off: at [168].
52 A suspension of two years, as proposed by the Law Society, was too low bearing in mind: (a) the fact of dishonesty; (b) that the solicitors had plenty of time to re-consider their plans before the Settlement Agreement was reached; and (c) the elaborate details not to disclose the settlement to the Court of Appeal at the earliest opportunity: at [169].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.
Who were the respondents in Law Society of Singapore v Seah Zhen Wei Paul [2024] SGHC 224?
The respondents were Mr Seah Zhen Wei Paul, a partner in Tan Kok Quan Partnership called to the bar on 20 May 2006, and Mr Rethnam Chandra Mohan, a partner in Rajah and Tann Singapore LLP, each facing sanction under s 83(1) of the Legal Profession Act.
Which judges heard Law Society of Singapore v Seah Zhen Wei Paul [2024] SGHC 224?
The matter was heard by a Court of 3 Supreme Court Judges comprising Belinda Ang Saw Ean JCA, who delivered the grounds of decision, together with Woo Bih Li JAD and See Kee Oon JAD, in C3J/OA 11 and 12 of 2023, with the decision issued on 4 September 2024.
Statutes Cited
Cases Cited (30)
SG (1)
SLR (26)
[1997] 1 SLR(R) 555 [1999] 1 SLR(R) 266 [2005] 3 SLR(R) 449 [2006] 4 SLR(R) 587 [2006] 4 SLR(R) 817 [2007] 1 SLR(R) 292 [2009] 1 SLR(R) 753 [2009] 2 SLR(R) 587 [2010] 3 SLR 560 [2010] 4 SLR 137 [2010] 4 SLR 534 [2011] 1 SLR 606 [2016] 5 SLR 1141 [2017] 4 SLR 1369 [2018] 5 SLR 1068 [2018] 5 SLR 1261 [2019] 5 SLR 876 [2020] 5 SLR 1080 [2021] 1 SLR 1135 [2022] 1 SLR 590 [2022] 3 SLR 1417 [2023] 1 SLR 602 [2023] 3 SLR 509 [2023] 4 SLR 1280 [2024] 3 SLR 1786 [2024] 4 SLR 1441
UK (3)
[1944] AC 111 [1969] 1 AC 191 [2014] EWHC 2974
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Referenced in
Statutes interpreted in this judgment
Legal concepts & references
Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGHC 224)