The Law Society of Singapore v Ismail bin Atan [2017] SGHC 190

The respondent is a solicitor of about 20 years’ standing. The complainant is the Attorney-General. The complaint relates to certain events that concern a female legal executive employed by Messrs Salem Ibrahim LLC, the firm of which the respondent was a member at the material time. We refer to the female legal executive as “the victim”. The victim reported directly to the respondent at the time of the relevant events.

The events which give rise to the present proceedings took place on 4 July 2013. Those events centre around what transpired between the respondent and the victim in a hotel room on the second floor of the VIP Hotel (“the Hotel”) located at 5 Balmoral Crescent, Singapore. The respondent accepts that he was accompanied by the victim to the Hotel on that day. He contends that at that time, he was working on a claim for a client who had been injured in an accident at the Hotel and who was bringing a claim against the Hotel. The accident in question had occurred in the public reception area of the Hotel. However, the respondent asserts that he booked a room on the second floor in order to understand the layout of the Hotel and the room. This was to enable him to prepare his client for cross-examination. We pause to say that this assertion makes no sense; and the respondent has not been able to explain to us, in a credible way, why it would ever have been reasonable or necessary to book a room on the second floor in order to prepare for cross-examination in connection with the accident that took place in the public reception area of the ground floor.

In any case, the respondent maintains that while surveying the second floor, a member of the staff appeared and he then persuaded the victim to go into the room with him to avoid any suspicion. Central to the respondent’s case is his contention that there was no physical contact between him and the victim during the period they were both in the room. They were allegedly in the room for a while and then left. This is a point of significance to which we will return.

The victim’s version of events is to the contrary. She contends that she was asked by the respondent to accompany him to the Hotel. The respondent suggested that they get a room to avoid suspicion whilst they surveyed the property. He then entered the room with the victim but proceeded to outrage her modesty by grabbing her, trying to hug and kiss her, kissing her, rubbing his body against her and doing various other acts. He also repeatedly suggested that they have an affair. They left the Hotel after that interlude in the room and returned to the office. According to the victim, she confided in her co-worker, Mindy, on all that had happened later that same evening. She was not challenged on this in cross-examination.

The gravamen of the charges, which were brought, in the alternative, under: (a) s 83(2)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”); (b) s 83(2)(b) of the LPA read with r 53A of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) and s 71 of the LPA; and (c) s 83(2)(h) of the LPA, centres on what transpired in the time that the respondent and the victim were in the room together. But the respondent also places much reliance on events after that. In particular, he relies on the fact that the victim did not immediately make a scene at the Hotel but accompanied him back to the office and subsequently even expressed her willingness to continue working in the firm though for somebody else other than the respondent; it was only when this was not acceded to that she then made her complaints public. On this basis, the respondent contends that this was a case of a person who was disappointed in her job aspirations and who took it out on him.

Before we consider some other facts that are relevant, we pause to make one observation. In his submissions before us, the respondent took issue with the fact that his arguments to this effect had not been considered by the disciplinary tribunal (“the DT”). With respect, this is mistaken because the DT did consider this at [28(e)] of its report in The Law Society of Singapore v Ismail bin Atan [2016] SGDT 11, but it also rejected it. Prior to dealing with the DT’s grounds for rejecting the defence advanced by the respondent, it is necessary to mention a few other facts.

First, on 10 July 2013, the victim resigned from the firm after her complaint to the management and her request for a transfer were not acceded to. She sent the respondent her resignation letter by email, copying the email to most of the rest of the staff in the firm. The letter was in these terms:

The respondent has not brought any action against the victim for the publication of this email.

Second, the victim lodged a police report on 16 July 2013 against the respondent which culminated in proceedings being brought against him for outrage of modesty under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed). Subsequent to that, representations were made on the respondent’s behalf to the Public Prosecutor, in the course of which the respondent offered to pay compensation and to apologise in return for having the offence compounded. This was initially rejected by the Public Prosecutor.

Sometime before the trial was to take place, it transpired that the victim, who had by then moved to Kuala Lumpur, could not return to Singapore to give evidence as she had just given birth. The Public Prosecutor then revisited the offer of composition and, in due course, the respondent furnished a letter of apology in these terms:

The matter was duly compounded and the Attorney-General then lodged the present complaint to the applicant.

The DT was troubled by the fact that the respondent’s explanation for taking the room on the second floor made no sense at all given the facts that were relevant to the case he was allegedly working on. The DT was also favourably struck by the victim’s evidence, which it accepted. The DT also noted that the victim’s story was directly corroborated by the respondent’s letter of apology, which also completely contradicted the respondent’s present position that nothing had transpired between them in the room. We share those concerns of the DT. We find it unfathomable that if the respondent was truly, as he claims, an innocent victim of a major fraud perpetrated on him by a jealous and destructive colleague, he would sit idly by despite the inflammatory tone of the email and, worse, sign a letter of apology and issue it to the Public Prosecutor saying that he was sorry for the “unwarranted physical contact” that he had imposed on the victim without her consent. To put it bluntly, the letter was an admission by the respondent that what the victim said was essentially true and, while not necessarily conclusive in and of itself, it would bear substantial weight absent a compelling explanation. No such explanation has been forthcoming.

The respondent said that he had taken the advice of his counsel in the criminal proceedings. Perhaps his agreement to composition was driven by the need to avoid the even more serious consequences of a conviction. But the letter of apology which was forthcoming from the respondent, and which was meant to make amends with the victim, leaves him with a mountain to climb in these proceedings.

The respondent’s main contention is that the victim’s conduct immediately after the incident was more consistent with his version of events than with hers. We do not agree.

First, the victim’s evidence that she told everything to Mindy on the very day of the incident was not even challenged in cross-examination. This is material because the respondent’s contention is that the victim went public with these allegations only because her attempt to get a transfer within the firm failed. But well before any of this, and very shortly after the incident, the victim had already conveyed the essence of her complaint to a co-worker.

Second, the victim was subjected to a grave outrage of her modesty by a senior colleague who was her direct boss. It is unsurprising, in our judgment, that she took refuge first in her co-worker, Mindy, and soon thereafter in her husband. It is also unsurprising that her initial endeavour when she raised the issue with management was to find a way to preserve her job by seeking an alternative position within the firm, before giving up because there was no response to her efforts.

Having regard to all the evidence, we are satisfied that the DT was correct to convict the respondent of the charges brought.

We turn then to the question of the appropriate sanction in this case. We begin with the observation that the respondent’s conduct was egregious. He had abused a junior colleague after leading her to a confined space under the pretext of carrying out work on a case. He had also abused the dominance he exercised over her by virtue of the position he held in the firm and then engaged in conduct that constituted a serious criminal offence upon her person. Furthermore, the offence appears to have been premeditated with a considerable degree of planning, and involved multiple unsolicited advances. Additionally, the respondent was a senior lawyer, having been in practice for about 16 years at the material time, and it is well established that the more senior an advocate and solicitor, the more damage he does to the integrity (and therefore the standing) of the legal profession (Law Society of Singapore v Nathan Edmund [1998] 2 SLR(R) 905 at [33]). We also note that the respondent exhibited no remorse whatsoever before either the DT or this court, choosing to maintain his innocence despite the strong objective evidence to the contrary. It is also disturbing that he cast various aspersions on the victim and sought to portray her as a jealous and destructive colleague hell-bent on perpetrating a major fraud in her unfounded quest for vindication. While the respondent’s conduct perhaps did not involve dishonesty, in our judgment, it belies a defect of character that is so serious that it renders the respondent unfit to be a member of this honourable profession.

In Law Society of Singapore v Ravi s/o Madasamy [2016] 5 SLR 1141 (“Ravi s/o Madasamy”), we held (at [31]) that the imposition of sanctions in disciplinary proceedings is guided by the following considerations: (a) the protection of members of the public who are dependent on solicitors in the administration of justice; (b) the upholding of public confidence in the integrity of the legal profession; (c) deterrence against similar defaults by the same solicitor and other solicitors in the future; and (d) the punishment of the solicitor who is guilty of misconduct. There will no doubt be cases where these considerations pull in different directions. In such cases, it is the protection of the public and the upholding of public confidence in the integrity of the legal profession that are paramount (Ravi s/o Madasamy at [41]). However, what is significant for present purposes is our observation in Ravi s/o Madasamy (at [34]) that in cases where aggravating factors are present, all the aforementioned considerations will generally pull in the same direction. The present case falls squarely within this description. Given, in particular, our earlier observations (see [18] above), the present case is replete with aggravating factors, on the one hand, and devoid of mitigating circumstances, on the other. More to the point, the aforementioned considerations call unquestionably for nothing less than a serious sanction in the present case.

In Law Society of Singapore v Ravindra Samuel [1999] 1 SLR(R) 266 (“Ravindra Samuel”), Yong Pung How CJ held (at [15]) that:

It is obvious from this extract that dishonesty is not some sort of a threshold or prerequisite that must be satisfied before a solicitor is liable to be struck off. Thus, the fact that the present case perhaps did not involve dishonesty is, in and of itself, not determinative. In our judgment, the applicable principle is this: even in cases that do not involve dishonesty, where a solicitor conducts himself in a way that falls below the required standards of integrity, probity and trustworthiness, and brings grave dishonour to the profession, he will be liable to be struck off. Indeed, if a solicitor’s conduct is so egregious as to bring such dishonour to the profession, it must invariably follow that such conduct indicates that the solicitor “lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner”. Based on what we have earlier noted (see [18] above), this test is amply satisfied in the present case. The respondent had acted disgracefully and reprehensibly, and we have no qualms in concluding that his conduct has brought grave dishonour to the profession.

In the final analysis, the question to be asked is whether the solicitor in question is a fit and proper person to be an advocate and solicitor of the court. In Ravindra Samuel, Yong CJ put it this way (at [13]):