Law Society of Singapore v Nalpon, Zero Geraldo Mario [2022] SGHC 81

Introduction

This is an application by the Law Society of Singapore (“the Law Society”) pursuant to s 98(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) for an order that Mr Zero Geraldo Mario Nalpon (“Mr Nalpon”) be made to suffer punishment under s 83(1) of the LPA for his conduct in relation to Magistrate’s Appeal No 9269 of 2018 (“the MA”) and subsequent events. Mr Nalpon is an advocate and solicitor of 26 years’ standing and is the sole proprietor of Nalpon & Co. Disciplinary Tribunal 1 of 2020 (“the DT”), which was convened to investigate the complaints against Mr Nalpon, found him guilty of the charges preferred by the Law Society and determined that cause of sufficient gravity for disciplinary action existed under s 83 of the LPA.

Criminal proceedings against Mr Nalpon’s client

Mr Nalpon acted for the accused in the case Public Prosecutor v Lim Chee Huat [2018] SGDC 272, where on 5 September 2018 District Judge Mathew Joseph (“the DJ”) convicted the accused on a charge of drug consumption under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). On 12 September 2018, the accused filed his notice of appeal against his conviction and sentence. In view of the notice of appeal filed, the DJ wrote and released his written Grounds of Decision on 18 October 2018 (hereinafter referred to as “the DJGD”). The appeal (hereafter referred to as “the Magistrate’s Appeal” or “the MA”), at which Mr Nalpon again represented the accused, was heard on 1 March 2019 by a Judge of the General Division of the High Court (“the Judge”). On 24 May 2019, the Judge dismissed the accused’s appeal in Lim Chee Huat v Public Prosecutor [2019] 5 SLR 433 (“HC Judgment”). However, the Judge found that the DJ had failed to fully appreciate the material that was tendered before him, as there was substantial reproduction of the Prosecution’s submissions in the DJGD and an absence of an assessment of the submissions from both sides, such that the Judge could not accord any deference to the DJ’s findings (HC Judgment at [52]–[56]).

In February 2019 and again in May 2019, Mr Nalpon published material relating to the MA proceedings on a “Public” Facebook group named “Law Society versus Zero Nalpon” (“the Facebook Group”). These acts formed the subject of the first charge against Mr Nalpon (“the First Charge”).

Non-publication direction and costs order against Mr Nalpon

On 21 February 2019, leave was granted to the AG to issue a non-publication direction under s 13(1) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”) directing Mr Nalpon to cease publishing the material he had published on the Facebook Group in February 2019 (“the NPD”). Mr Nalpon removed this material on 23 February 2019.

Complaints

On 17 and 20 June 2019, pursuant to s 85(3)(b) of the LPA, two complaints against Mr Nalpon (each a “Complaint”, and collectively, “the Complaints”) were lodged with the Law Society, with a further request that the matters be referred to a Disciplinary Tribunal. The Complaints, written under the AGC’s letterhead, set out the facts giving rise to the First and Second Charges. Paragraphs 1 and 2 of each Complaint stated that the “Attorney-General” referred the complaint to the Law Society and requested for the matter to be referred to a Disciplinary Tribunal. Both Complaints were signed off by Mr Tan Kiat Pheng, the Chief Prosecutor of the AGC (“CP Tan”), in the following manner:

Charges

The Law Society initially proceeded on only the First Charge, an alternative to the First Charge (which is not material for present purposes), and the Second Charge. The details of these two charges are as follows:

(a) The First Charge, which was brought under s 83(2)(b) of the LPA and cited r 13 of the Legal Profession (Professional Conduct) Rules 2015 (“the PCR”), related to Mr Nalpon’s alleged publication of material concerning the MA proceedings which amounted to a contempt of court and/or was calculated to interfere with a fair trial of the case and/or prejudice the administration of justice.

(b) The Second Charge, which was brought under s 83(2)(h) of the LPA, related to Mr Nalpon’s alleged wilful failure to comply with the Costs Order; Mr Nalpon’s publication of a false allegation that the AGC had requested for payment to be made to a separate entity other than the AG; and Mr Nalpon’s publication of the exchange of correspondence between himself and the AGC on this matter.

On 9 March 2020, Mr Nalpon filed a preliminary application to the DT seeking an order to strike out the Complaints. On 16 March 2020, Mr Nalpon filed his Defence in the DT proceedings.

According to the Law Society, on or around 9 March 2020, it came to the attention of its director, Mr K Gopalan (“Mr Gopalan”), that Mr Nalpon had allegedly published material relating to the DT proceedings on the Facebook Group from January to March 2020. In publishing this material, Mr Nalpon had also made several comments regarding the DT proceedings and the parties involved therein.

On 10 April 2020, the Law Society applied for leave to amend its Statement of Case to prefer the following additional charges against Mr Nalpon relating to these further publications and comments (“the Third and Fourth Charges”):

(a) The third charge (brought under s 83(2)(b) and, in the alternative, s 83(2)(h) of the LPA), which related to Mr Nalpon’s alleged publication of material concerning the DT proceedings which was calculated to interfere with the fair trial of a case and/or prejudice the administration of justice, in breach of the Law Society’s Practice Direction 6.1.1 on Media Comments and Internet / Social Media Posts (“PD 6.1.1”) and/or r 13 of the PCR.

(b) The fourth charge (brought under s 83(2)(b), and in the alternative, s 83(2)(h) of the LPA), which related to Mr Nalpon’s alleged publication of material containing adverse and/or discourteous remarks on the conduct or character of the Law Society, its solicitors, the DT Secretariat and/or the DT, in breach of PD 6.1.1 and/or r 13 of the PCR.

Disciplinary proceedings and the DT’s determination

On 19 October 2020, the DT dismissed Mr Nalpon’s striking out application, but granted the Law Society’s application for leave to amend its Statement of Case (“the DT’s Decision”).

Thereafter, the hearing before the DT took place on 14 and 15 December 2020 (“the DT Hearing”). At the close of the Law Society’s case, Mr Nalpon made a submission of no case to answer on two grounds: (a) first, that the proceedings were void because the wrong party had filed the Complaints (namely, CP Tan instead of the AG), in breach of s 85(3)(b) of the LPA; and (b) second, that the complainant was not called to give evidence and most of the documents (including the Complaints) had not been admitted into evidence.

The DT rejected Mr Nalpon’s submission of no case to answer as it was satisfied that the Law Society had established a prima facie case apropos each of the Charges. The DT then invited Mr Nalpon to enter his defence, but he declined to give any evidence-in-chief, and the proceedings were thereafter brought to a close.

In its report dated 14 June 2021 (“the DT’s Report”), the DT set out its grounds for rejecting Mr Nalpon’s submission of no case to answer, and found Mr Nalpon guilty on all four charges (without making any findings on their alternatives). The DT determined that cause of sufficient gravity for disciplinary action existed under s 83 of the LPA.

The parties’ cases

The Law Society submits that the DT’s determination should be affirmed, and urges this court to find that cause of sufficient gravity for disciplinary action under s 83 of the LPA exists in respect of each of the four charges. It seeks sanctions of “the highest and most severe level” against Mr Nalpon under s 83(1) of the LPA, to properly reflect the true severity of his misconduct.

Mr Nalpon’s main submissions in response can be summarised as follows:

(a) First, that the Complaints are void because they were not filed by the AG in compliance with s 85(3)(b) of the LPA.

(b) Second, that the proceedings against him stemmed from the AGC’s displeasure at the publication of his criticisms regarding the DJ’s plagiarism, and that these acts of publication were not in contempt of court and/or in breach of r 13 of the PCR.

(c) Third, that his non-payment of the Costs to the AGC could not amount to misconduct, particularly because the AGC had no basis in law to compel him to pay the Costs in its name.

(d) Fourth, that the Third and Fourth Charges relate to his publication of material concerning the present DT proceedings, which are completely unrelated to the Complaints lodged by the AG against him which initially formed the subject of the DT proceedings.

Issues before this court

The facts of this case and the arguments made before us raised the following issues for our determination:

(a) First, are the proceedings against Mr Nalpon void because the Complaints were not filed by the AG personally?

(b) Second, was the DT entitled to investigate and make determinations in respect of the Third and Fourth Charges?

(c) Third, has due cause been shown under s 83(2) of the LPA in respect of the relevant charges, such that Mr Nalpon should be subject to the sanctions set out in s 83(1) of the LPA? If so, what is the appropriate sanction that should be imposed on Mr Nalpon?

We will address each of these issues in turn.

Whether the proceedings were void for non-compliance with s 85(3)(b) of the LPA

We begin with Mr Nalpon’s contention that the disciplinary proceedings against him were void because the Complaints were not filed by the AG personally in compliance with s 85(3)(b) of the LPA. Section 85(3)(b) provides that, where certain office holders refer a matter to the Law Society and request that it be referred to a Disciplinary Tribunal, the Law Society must apply to the Chief Justice for the appointment of a Disciplinary Tribunal:

In the present case, Mr Nalpon contends that the Complaints were made by CP Tan, purportedly on behalf of the AG. Mr Nalpon further contends that this is impermissible because only the AG had the statutory power to file the Complaints under s 85(3)(b) of the LPA, and the AG did not have the power to delegate the making or signing of the Complaints to his staff to perform on his behalf. Mr Nalpon argues that, in any event, there is no evidence that CP Tan was duly appointed to act for the AG or to sign the Complaints on the AG’s behalf.

We reject this argument. On the material before us, it is plain that the Complaints were duly made by the AG himself in accordance with s 85(3)(b).

In this regard, and as we pointed out to Mr Nalpon during the hearing before this court, a distinction should be drawn between the exercise of a power and the signification of the exercise of that power. In relation to Ministers’ powers, this is reflected in s 35 of the Interpretation Act 1965 (2020 Rev Ed) (“the IA (2020 Rev Ed)”):

Section 35 can be contrasted with s 36 of the IA (2020 Rev Ed), which allows a Minister to delegate the exercise of a statutory power to an officer designated by him, who would then exercise that power on the Minister’s behalf. Thus, in Asia Development Pte Ltd v Attorney-General [2020] 1 SLR 886 (“Asia Development”) at [12], the Court of Appeal distinguished the question of whether the Minister’s exercise of power was properly signified from the question of whether it had to be exercised by the Minister in person. The Court of Appeal characterised s 35 of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the IA”), which is substantively identical to the present s 35, as serving “an evidentiary function, in that acts of a Minister would be deemed to be such if signified under the hand of the relevant Permanent Secretary or of a public officer duly authorised in writing by the Minister” [emphasis added] (Asia Development, also at [12]).

Returning to the matter of the AG’s powers, s 85(3)(b) of the LPA empowers the AG to refer to the Law Society information touching upon the conduct of regulated legal practitioners, and to request that the matter be referred to a Disciplinary Tribunal. It does not specify how the AG’s exercise of such powers ought to be signified. In the present case, it is clear on the face of the Complaints that these statutory powers were in fact exercised by the AG, and were not delegated or devolved to another officer. This is indicated both by the fact that CP Tan signed off on each Complaint “for and on behalf of the ATTORNEY-GENERAL”, and by the identification of the “Attorney-General” as the party referring the complaint to the Law Society and requesting for the matter to be referred to a Disciplinary Tribunal in paras 1 and 2 of each Complaint. Contrary to Mr Nalpon’s interpretation, the natural reading of the phrase “for and on behalf of the ATTORNEY-GENERAL” does not indicate that CP Tan was “doing the job” of making the Complaints in the AG’s place, but rather that CP Tan was conveying the AG’s decisions under s 85(3)(b) to the Law Society. Mr Sabapathy, a DPP who was involved in preparing the Complaints, also gave evidence that the Complaints were referred by the AG and that the letters conveying the Complaints were approved by the AG before being signed off by CP Tan. As Mr Sabapathy explained, “[t]he AG makes the decision, we [ie, officers of the AGC] execute that decision after the authorisation is given”.

For the same reason, we find the parties’ and the DT’s references to s 27(2) of the IA to be, with respect, rather misconceived. Section 27(2) provides that where a written law confers a power on the holder of an office as such, the power may be exercised by the holder of the office for the time being or by a person duly appointed to act for him. This provision would allow the AG’s powers under s 85(3)(b) of the LPA to be exercised by the individual holding the office of the AG at any given time or by a person duly appointed to act for the AG. As these powers were exercised by the AG himself in the present case, the question of whether CP Tan was a person duly appointed to act for the AG in this regard does not arise.

The Complaints were therefore duly made by the AG, and there is no non-compliance with s 85(3)(b) of the LPA on the facts. Having said this, we observe that there has been some inconsistency in the identification of the complainant in the present case which, in future cases, should be avoided. Mr Nalpon draws the court’s attention to a letter from the AGC to the DT Secretariat dated 4 December 2020, which sought leave for a Deputy Attorney-General and two State Counsel to attend the DT Hearing. The letter stated that “the AGC is an ‘interested party’ as it was the AGC’s complaints against [Mr Nalpon] dated 17 June and 20 June 2019 which gave rise to the present proceedings” [emphasis added]. In Asia Development at [16], the Court of Appeal observed that it would be helpful in future cases to “carefully explicate which party made the decision in question and the statutory powers engaged”, and that this would have “ameliorated much of the confusion in the proceedings below”. While these observations were made in respect of the Minister of Finance and the Inland Revenue Authority of Singapore, they are equally pertinent in the present case, where more care could have been taken to avoid referring to the “AG” and “AGC” interchangeably.

In view of the above, it is not necessary for this court to decide whether, as a matter of law, the power conferred on the AG under s 85(3)(b) of the LPA can be validly devolved to certain AGC officers under the principle set out in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (“the Carltona principle”). Nevertheless, in view of the Law Society’s submission that the Carltona principle governing the devolution of Ministerial powers applies equally to the powers and functions of the AG, such that the power in s 85(3)(b) need not be exercised by the AG personally, we feel we ought to make a brief observation on the question.

In our view, even if the Carltona principle is extended beyond the powers and functions of Ministers and is applied to the powers and functions of the AG, the nature of the power conferred by s 85(3)(b) of the LPA cannot be described as “unremarkable” (in contrast to the Court of Appeal’s characterisation of the Minister’s powers to reduce or remit duties and waive conditions under s 74(1) read with s 74(2B) of the Stamp Duties Act (Cap 312, 2006 Rev Ed) at [10] of Asia Development). Section 85(3)(b) of the LPA, in contrast to s 85(1), confers on a very select group of office holders a power of a relatively exceptional nature by granting their complaints special weight, according them a statutory “shortcut” that bypasses the usual procedure of an inquiry by an Inquiry Committee before a complaint can come before a Disciplinary Tribunal. The Explanatory Statement annexed to the Legal Profession (Amendment) Bill (Bill No 20 of 1986), which introduced an earlier iteration of s 85(3)(b), noted that one of the purposes of the Bill was “to abridge the disciplinary process in instances when the Supreme Court or a judge thereof or the Attorney-General complains against an advocate and solicitor” [emphasis added]. This procedural abridgement, in turn, carries substantive connotations regarding the gravity of the complaint being referred by such an office holder. We return to this point at [35] below. For present purposes, it suffices for us to say that we are not persuaded that the Carltona principle would permit the devolution of the AG’s powers under s 85(3)(b), although we leave this question open for determination in a future case where it is more directly in issue.

Whether the DT was entitled to investigate and make determinations in respect of the Third and Fourth Charges

Having rejected Mr Nalpon’s submission that the disciplinary proceedings against him are void in their entirety, we turn now to the Third and Fourth Charges. The DT was satisfied that it was entitled to investigate the Third and Fourth Charges. It took the view that it was “seized of the broad remit of section 89(4) LPA” and that the Third and Fourth Charges encapsulated the gravamen of the Complaints (DT’s Report at paras 99–102).

The parties’ submissions before us on this point are essentially the same as their submissions before the DT. The Law Society argues that the Third and Fourth Charges were preferred pursuant to s 89(4) of the LPA, and that there is no requirement thereunder that the additional charges must pertain to the complaints which gave rise to the disciplinary proceedings. The Law Society further submits that the case of Law Society of Singapore v Yeo Khirn Hai Alvin and another matter [2020] 4 SLR 858 (“Alvin Yeo”) did not lay down the general proposition that a Disciplinary Tribunal’s duty is limited to investigating the complaint and the charges preferred in connection with the complaint, and that such a proposition would be contrary to the wording and purpose of s 89(4). On the other hand, Mr Nalpon emphasises that the Third and Fourth Charges have “nothing whatsoever to do with the AG or AGC” and were “totally unrelated” to the Complaints.

Having carefully considered the scheme of things laid down in Part VI of the LPA, and in particular s 85, we are, with respect, unable to agree with the Law Society’s position and the DT’s determination on this point. In our view, the DT was not empowered to investigate and make determinations in respect of the Third and Fourth Charges, because s 89(4) is inapplicable to proceedings commenced by a complaint made by the AG under s 85(3)(b) of the LPA.

The relevant provisions of s 89 of the LPA read as follows:

While s 89(4) of the LPA may appear to have conferred a “broad remit” on the DT to prefer additional charges against Mr Nalpon if further misconduct on his part subsequently came to light and an application was made to the DT in relation thereto, it is clear on a close reading of s 89 that this additional jurisdiction of the DT under s 89(4) would only have applied if the DT had been appointed following the Council’s determination under s 87 that there should be a formal investigation. This determination is, in turn, made by the Council after considering the report of the Inquiry Committee.

Therefore, s 89(4) applies directly in a case where the complaint is made in the typical manner under s 85(1) of the LPA. However, the position is different where disciplinary proceedings are commenced pursuant to a complaint made by the AG and the AG has requested that the matter be referred to a DT under s 85(3)(b) of the LPA. Section 85(3)(b), as we have observed at [29] above, confers on specified office holders a power of a relatively exceptional nature, which allows complaints referred by these office holders, by virtue of their positions, to bypass the usual procedure of an inquiry by an Inquiry Committee because these complaints are ipso facto taken to disclose cause of sufficient gravity to warrant formal investigation by a Disciplinary Tribunal straightaway. As explained in Alvin Yeo at [64]:

The effect of the Law Society’s position, if accepted, would be to allow further complaints not referred by the AG (or any of the other specified office holders) to utilise this statutory “shortcut”. This would be the case even where the further complaints do not relate to the original complaint, given that s 89(4) refers broadly to “information touching on or evidence of the conduct of the regulated legal practitioner which may give rise to proceedings under this Part” [emphasis added]. Indeed, this is illustrated by the facts of the present case, where the Third and Fourth Charges fall well outside the scope of the AG’s Complaints: they concern Mr Nalpon’s publication of material regarding the DT proceedings and adverse and/or discourteous remarks about various parties involved in those proceedings, and are based on acts which took place after the Complaints were filed. In our view, the Law Society’s proposed approach would truncate the statutory framework and the proper process laid out in the LPA and would deprive the legal practitioner in question of the opportunity to present his case before, and have his case reviewed by, an Inquiry Committee.

The Law Society has not adduced any provision of the LPA equivalent to s 89(4) that would apply where the complaint is referred directly to a DT by any of those specified office holders. On the contrary, Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 477 and Law Society of Singapore v Manjit Singh s/o Kirpal Singh and another [2015] 3 SLR 829 (“Manjit Singh”), where s 89(4) was used, were both cases involving complaints made by lay complainants under s 85(1) (clients of the legal practitioners in question). The Law Society’s argument based on the purpose of s 89(4) is also, with respect, misconceived. It relies on [73] of Manjit Singh, where the Court of Three Judges remarked that “it is clear that the object of s 89(4) was to facilitate the efficient disposal of complaints of misconduct levelled against a solicitor so as to avoid multiplicity of disciplinary proceedings against the same solicitor, subject always to the overriding consideration that the solicitor concerned should always have a fair opportunity to defend himself in relation to the new charge(s)” [emphasis added]. The practical concern to ensure efficiency in the disposal of complaints cannot override the distinct statutory schemes laid down in the LPA, and it would be wrong to extend the applicability of provisions like s 89(4) to circumstances not envisaged under that provision.

It follows from this that the DT constituted to hear the First and Second Charges did not have the jurisdiction to hear and investigate the Third and Fourth Charges and make determinations thereon (see Alvin Yeo at [79(b)]). Accordingly, the DT’s findings in respect of the Third and Fourth Charges should be set aside. The DT only had the jurisdiction to investigate and make determinations on the First and Second Charges. True, it would appear that in order to hold Mr Nalpon accountable for the misconduct specified in the Third and Fourth Charges (if established), a fresh Disciplinary Tribunal may need to be constituted. But we do not think that that must necessarily follow. The important prerequisite is that the substance of the complaints specified in the Third and Fourth Charges had to have emanated from the AG or one of the other specified office holders. That is the key factor. Since there was no compliance with this requirement, this part of the decision of the DT was made in excess of its jurisdiction. We turn now to consider whether due cause has been shown in relation to the First and Second Charges.

The First Charge

The First Charge is that Mr Nalpon breached r 13 of the PCR by publishing material concerning proceedings which amounted to a contempt of court and/or was calculated to interfere with a fair trial of a case and/or prejudice the administration of justice, and that he was thereby guilty of grossly improper conduct in the discharge of his professional duty or guilty of improper conduct or practice as an advocate and solicitor under s 83(2)(b) of the LPA. The particulars of the First Charge refer to several posts Mr Nalpon made on the Facebook Group in February and May 2019 relating to the MA proceedings.

The relevant provision of the PCR is r 13(6), which provides:

The Law Society contends that Mr Nalpon’s conduct in publishing a series of posts concerning issues in the MA proceedings while the MA was still pending amounted to sub judice contempt of court within the scope of s 3(1)(b)(i) of the AJPA, which reads:

Section 28 of the AJPA further provides that the standard of proof for establishing contempt of court is that of beyond reasonable doubt.

The relevant posts published by Mr Nalpon in the Facebook Group are the following:

(a) A post on 11 February 2019 (“the 11 February 2019 Post”) which stated: “I have discovered that a Judge has plagiarized the Substantive portion of the DPP’s Submissions …”. Attached to the post was a copy of Mr Nalpon’s letter to the Chief Justice dated 11 February 2019 (“the Letter to the CJ”), which included the following statements:

(b) A post on 21 February 2019 (“the 1st 21 February 2019 Post”), which simply stated “Hmmm…”and attached a copy of a letter dated 20 February 2019 from Ms Juthika Ramanathan, the Chief Executive of the Supreme Court (“the CE’s Letter”). The CE’s Letter noted that, as Mr Nalpon had lodged an appeal against the decision of the DJ in the MA, if (as Mr Nalpon contended) the outcome of the case had been impacted by the matters raised in his Letter to the CJ, this was “more appropriately dealt with at the appeal”. The CE’s Letter went on to state that Mr Nalpon’s complaint would be dealt with “only after the appeal ha[d] been heard”.

(c) A further post, also published on 21 February 2019 (“the 2nd 21 February 2019 Post”), stated:

The post attached a copy of a letter from Mr Kow Keng Siong (for the AG) to Mr Nalpon dated 20 February 2019 (“CP Kow’s Letter”). CP Kow’s Letter stated that Mr Nalpon’s 11 February 2019 Post and Letter to the CJ pertained to matters which were sub judice and in breach of s 3(1)(b) of the AJPA in view of the pending MA. CP Kow’s Letter further noted that Mr Nalpon was making “fundamentally similar claims” against the DJ in the appeal as in his Letter to the CJ, and requested him to remove the 11 February 2019 Post with immediate effect.

(d) Following the issuance of the NPD on 21 February 2019, Mr Nalpon removed the 11 February 2019 Post and the 1st and 2nd 21 February 2019 Posts on 23 February 2019. Subsequently, on 24 May 2019, Mr Nalpon re-published the 11 February 2019 Post and the 2nd 21 February 2019 Post (including the attached copies of his Letter to the CJ and CP Kow’s Letter) (“the 24 May 2019 Posts”), prefacing each post with the following:

Mr Nalpon does not deny that his publication of the material relating to the MA proceedings was intentional, nor is there any other reason to indicate that the mens rea requirement of intentional publication is not satisfied. Mr Nalpon also does not dispute that the actus reus requirement in s 3(1)(b)(i) of the AJPA – that his publications prejudged an issue in a pending court proceeding and this prejudgment prejudiced, interfered with or posed a real risk of prejudice to the pending court proceeding – is satisfied.

We find that the 11 February 2019 Post and the attached Letter to the CJ were indeed publications which prejudged an issue in pending court proceedings within the first limb of s 3(b)(i) of the AJPA. The notice of appeal in the MA was filed in September 2018. At the time of the 11 February 2019 Post, the MA proceedings were well underway. The issue of the DJ’s alleged plagiarism and bias was squarely before the Judge in the MA, having been raised by Mr Nalpon as a key ground for his client’s appeal in his MA submissions dated 19 February 2019:

Paragraphs 82 to 84 of these submissions, and paras 85 to 104 which followed the heading “Details of Plagiarism”, reproduced almost word-for-word the contents of Mr Nalpon’s Letter to the CJ. This was acknowledged by Mr Nalpon during the hearing before us.

The Judge ultimately found that the DJ had indeed copied the Prosecution’s submissions to such a degree that only minimal weight could be given to the DJ’s decision on conviction and sentence (HC Judgment at [17]). However, at the time of the 11 February 2019 Post, the extent and implications of the DJ’s judicial copying were issues which had yet to be adjudicated by the Judge in the pending MA proceedings, and the 11 February 2019 Post prejudged these issues by stating Mr Nalpon’s assertions regarding the DJ’s plagiarism and the unfairness, bias and limited analysis in the DJGD as though these assertions were irrefutable facts.

We find Mr Nalpon’s contention, that his complaint regarding the DJ’s plagiarism was not crucial to his MA submissions and that the Judge was cognisant that the issue of plagiarism did not form part of the “substantive appeal” (based on [12] of the HC Judgment), entirely disingenuous. The very first issue dealt with by the Judge was the issue of judicial copying, which formed the bulk of the judgment (HC Judgment at [18]–[60]), and it is plain that the Judge at [12] of the HC Judgment was simply distinguishing the issue of judicial copying from the issues relating to conviction and sentence.

Mr Nalpon further contends that his allegation of plagiarism cannot be sub judice because the act of plagiarism is a factual matter which does not require judicial determination. However, the issue that clearly did require judicial determination in the MA (and which the Judge considered at length) was the effect of this judicial copying on the DJGD and, consequently, the weight to be placed on the DJ’s decision on conviction and sentence, bearing in mind Mr Nalpon’s own client’s submission that the DJ’s conduct necessitated the remittal of the case for retrial before a different judge (see the HC Judgment at [11]). As we explained during the hearing before us, what we find objectionable is the fact that Mr Nalpon’s 11 February 2019 Post on the Facebook Group involved the publication of a complaint which related directly to a crucial point taken in a pending appeal, and where the appeal had yet to be heard and decided by the appropriate court. Mr Nalpon simply had no regard for the fact that the appeal had yet to be heard and decided upon.

Such published views posed a real risk of prejudice to or interference with the pending MA proceedings within the second limb of s 3(b)(i) of the AJPA. The AJPA does not define a “real risk”, but the common law definition of a “real risk” (preserved by virtue of s 8(3) of the AJPA) is one that is not merely a “remote possibility” or a “fanciful” risk, though whether there is indeed a real risk in a particular case “depends very much on the court’s objective assessment of the relevant facts of the case itself” [emphasis in original]: see Shadrake Alan v Attorney-General [2011] 3 SLR 778 at [25]–[29]. Furthermore, as Woo Bih Li J (as he then was) held in Attorney-General v Wham Kwok Han Jolovan and another matter [2020] 3 SLR 446 at [63]–[64] and [76] (albeit in the context of applying the test of “risk” in s 3(1)(a)(ii) of the AJPA), it will almost always be relevant to consider the audience of the alleged contemnor for the conduct in question, which will include a consideration of the general size of such audience, even though the consideration of the general size of that audience does not require a quantitative “accounting exercise” and is not determinative.

In the present case, Mr Nalpon’s posts were made on the Facebook Group, which was a “Public” group with around 579 members in February 2019. Moreover, the Letter to the CJ specifically identified not only the DJ, but also the case number of the pending MA. In these circumstances, we agree with the Law Society’s submission that Mr Nalpon’s publication of these posts posed a real risk of damaging the integrity and credibility of the MA regardless of whether this in fact influenced the decision of the Judge. By these publications, which were deliberate, Mr Nalpon sought to galvanise public sentiment in his client’s favour while the MA, in which the very same point had been submitted for determination, had yet to be heard by a judge.

Mr Nalpon also relied on the fact that the Judge had said that he was not in any way affected by Mr Nalpon’s publication of his complaint against the DJ. We reject this argument as well. Explanation 2 of s 3 of the AJPA makes clear that a publication of any matter falling within s 3(1)(b) is not incapable of posing a real risk of prejudice to or interference with the course of pending court proceedings, by reason only that the court is presided by a judge with legal and professional experience. One needs to draw a distinction between “real risk” and what in fact happened. Whether a publication posed a real risk must be determined objectively at the time of publication, and not whether eventually the judge who heard the case was in fact affected. In the circumstances of this case, there was plainly a real risk of prejudice or interference arising from the 11 February 2019 Post.

We pause here to note that the 1st 21 February 2019 Post did not make any comments regarding the MA proceedings, and that the 2nd 21 February 2019 Post merely stated that Mr Nalpon “[did] not accept” the arguments contained in CP Kow’s Letter and would “deal with them in due course”. Although the CE’s Letter and CP Kow’s Letter, which were attached to these posts, made reference to Mr Nalpon’s earlier comments in his 11 February 2019 Post and Letter to the CJ, they stated clearly the correct position that these matters should properly be dealt with after the pending MA proceedings had concluded. As for the 24 May 2019 Posts, Mr Nalpon was careful to publish these after the MA had been determined earlier that day. At this point, the MA proceedings were no longer “pending”. In our judgment, the 1st and 2nd 21 February 2019 Posts and the 24 May 2019 Posts therefore do not disclose sub judice contempt of court within s 3(1)(b) of the AJPA beyond a reasonable doubt, and r 13(6)(a) of the PCR is not satisfied in respect of these publications. There is also insufficient evidence to establish beyond a reasonable doubt that these publications were “calculated to interfere with the fair trial of a case or to prejudice the administration of justice” under r 13(6)(b) of the PCR. Nonetheless, even though these posts do not in themselves amount to a breach of s 13(6) of the PCR for the reasons we have explained, they demonstrate that Mr Nalpon (having received the CE’s Letter and CP Kow’s Letter) was well aware that the MA proceedings were the appropriate forum for ventilating his allegations against the DJ and that his publications on the Facebook Group might be sub judice, and yet still chose to proceed in publishing them.

Mr Nalpon’s defence based on s 16 of the AJPA is, in our view, wholly unmeritorious. Section 16(1) of the AJPA provides that a person is not guilty of contempt of court under s 3(1)(a) of the AJPA by reason that he has made a report to the Chief Justice alleging misconduct or corruption on the part of a judge, so long as that report is made in good faith and discloses grounds which (if unrebutted) would provide a sufficient basis for investigating the allegation. This defence is unavailable to Mr Nalpon for at least two reasons. First, s 16(1) provides a defence only to scandalising contempt under s 3(1)(a), and not to sub judice contempt under s 3(1)(b). Second, as the DT correctly found (DT’s Report at [44]) and as the Law Society submits, s 16(1) only applies to the making of a report to the Chief Justice, and not to the further publication of that report.

We therefore find that Mr Nalpon is guilty of such a breach of r 13(6)(a) of the PCR as amounts to “improper conduct … as an advocate and solicitor”, as well as conduct that is “grossly improper”, within s 83(2)(b) of the LPA. Whether particular conduct is “grossly improper” depends on whether the conduct is dishonourable to the solicitor concerned as a man and dishonourable in his profession, and conduct may be “grossly improper” notwithstanding that there is no dishonesty, fraud or deceit: see Law Society of Singapore v Wong Sin Yee [2018] 5 SLR 1261 (“Wong Sin Yee”) at [23] and Law Society of Singapore v Ezekiel Peter Latimer [2019] 4 SLR 1427 (“Ezekiel Peter Latimer (2019)”) at [37]. Given Mr Nalpon’s clear and wilful breach of the sub judice rule, we are of the view that his conduct crosses the threshold of being dishonourable to himself and dishonourable in the legal profession. Furthermore, on the “totality of the facts and circumstances of the case”, Mr Nalpon’s misconduct is “sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA” [emphasis in original omitted] (Law Society of Singapore v Udeh Kumar s/o Sethuraju and another matter [2017] 4 SLR 1369 (“Udeh Kumar”) at [30]). Due cause has therefore been made out in respect of the First Charge.

The Second Charge

(a) A post published on 16 June 2019 (“the 16 June 2019 Post”), which attached a copy of Mr Sabapathy’s letter to Mr Nalpon dated 13 June 2019:

(b) Further posts publishing copies of the correspondence exchanged between Mr Nalpon and Mr Sabapathy from 17 to 19 June 2019, with the following captions (“the Further Posts”):

The three letters from Mr Nalpon which were attached to the Further Posts maintained his position that Mr Sabapathy had not cited any provision in the Rules of Court to support the claim for the Costs to be paid to an entity other than the AG. Mr Nalpon’s letter dated 18 June 2019 also stated that he felt Mr Sabapathy was “over-reacting when the amount [he] so desperately [sought] to recover was a mere $2,600.00”.

The appropriate sanction

The final issue for this court’s determination is the appropriate sanction that should be imposed on Mr Nalpon under s 83(1) of the LPA. Mr Nalpon did not make any written submissions on this point. In its skeletal arguments, the Law Society submitted that Mr Nalpon should be struck off the roll or suspended for a period exceeding two years, but this position was taken on the basis that the DT’s findings on the Third and Fourth Charges should be upheld.

Given the dearth of directly relevant precedents, it is apposite to restate the applicable general principles, which are well established. Cases involving grossly improper conduct without dishonesty or deceit will generally attract a monetary penalty, but the presence of aggravating factors may justify the imposition of more severe sanctions (such as a suspension from practice or being struck off the roll): see Law Society of Singapore v Tan See Leh Jonathan [2020] 5 SLR 418 (“Jonathan Tan”) at [10]. A fine is not appropriate where the legal practitioner’s misconduct was not mere inadvertence: see Jonathan Tan at [13]. Where there are multiple instances of misconduct complained of, the court will view the misconduct in totality and consider the overall gravity in determining the appropriate sanction: see Udeh Kumar at [87].

The following aggravating factors are present in this case:

(a) First, Mr Nalpon’s conduct demonstrated a wilful disregard for the professional standards expected of legal practitioners. His publications on the Facebook Group were exhibitionist and self-aggrandising at the expense of the integrity of pending court proceedings (in the case of the First Charge) and the AGC in its legitimate attempts to seek his compliance with the Costs Order (in the case of the Second Charge). The blatant nature of Mr Nalpon’s misconduct warrants a period of suspension: see Jonathan Tan at [11] and Law Society of Singapore v Ezekiel Peter Latimer [2020] 4 SLR 1171 (“Ezekiel Peter Latimer (2020)”) at [4].

(b) Second, Mr Nalpon is a senior practitioner of 26 years’ standing. This should be taken into account against him in determining the length of his suspension. It is well established that the more senior an advocate and solicitor, the more damage he does to the integrity of the legal profession: see Law Society of Singapore v Nathan Edmund [1998] 2 SLR(R) 905 at [33] and Ezekiel Peter Latimer (2020) at [4].

(c) Third, Mr Nalpon has broadly similar disciplinary antecedents which may be taken into account under s 83(5) of the LPA. On 24 January 2014, in the proceedings in Originating Summons No 864 of 2013, Mr Nalpon was censured by the Court of Three Judges in respect of three charges under s 83(2)(h):

(i) making offensive remarks against certain DPPs in letters to the AG;

(ii) attaching and disseminating these letters via e-mail to certain third parties not involved in the subject matter of those letters, with intent to embarrass and humiliate those DPPs and the AGC; and

(iii) knowingly making statements, in an e-mail to certain third parties (including members of the Bar), which would undermine the integrity of the AG’s office.

The considerations above justify a reasonable period of suspension, and we take the view that a period of 15 months (out of the maximum of five years under s 83(1)(b) of the LPA) would be appropriate. In imposing this penalty, we have borne in mind that only the 11 February 2019 Post amounted to contempt.

Conclusion

For the foregoing reasons, we order that Mr Nalpon be suspended from practice for a period of 15 months in respect of the First and Second Charges.