Law Society of Singapore v Seah Zhen Wei Paul and another matter [2024] SGHC 224

Introduction

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”) against Mr Seah Zhen Wei Paul (“Mr Seah”) and Mr Rethnam Chandra Mohan (“Mr Mohan”) (collectively, the “Respondents”), respectively, for them to be sanctioned under s 83(1) of the Legal Profession Act 1966 (Cap 161, 2009 Rev Ed) (“LPA”). Mr Seah was called to the bar in Singapore on 20 May 2006 and was an advocate and solicitor of the Supreme Court of Singapore for around 14 years. He was, at all material times, a partner in Tan Kok Quan Partnership (“TKQP”). Mr Mohan was called to the bar in Singapore on 21 March 1992 and was an advocate and solicitor of the Supreme Court of Singapore for around 28 years. At all material times, Mr Mohan was practising as a partner in Rajah and Tann Singapore LLP (“R&T”).

The Law Society in OA 11 was represented by Mr Pillai Pradeep G (“Mr Pillai”) and Mr Abraham Vergis SC (“Mr Vergis”) appeared on behalf of Mr Seah. In OA 12, Mr Chan Kah Keen Melvin (“Mr Chan”) represented the Law Society and Mr Davinder Singh s/o Amar Singh SC (“Mr Singh”) appeared on behalf of Mr Mohan.

As with any application for disciplinary action, there were two potential issues that arose before this court: (a) whether due cause of sufficient gravity for disciplinary action against the Respondents had been shown; and (b) if so, what the appropriate sanction should be. One day before the hearing on 5 April 2024 before this court, TKQP informed the Supreme Court Registry that Mr Seah was reversing his prior position, which was to contest the charges, and was electing instead not to contest the charges against him. This was confirmed orally by his counsel, Mr Vergis, at the hearing on 5 April 2024. That left only the issue of the appropriate sanction to be determined. As for Mr Mohan, both issues were strenuously contested.

Notably, 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. 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. An important aspect of this question related to the terms of the settlement agreement that were concluded by way of exchanges of e-mails on 28 November 2019 (the “Settlement Agreement”). Evident from the plain reading of the structure of the terms of settlement was the existence of a scheme that the Respondents had willingly acted upon to bring the appeal before the Court of Appeal. The factual issue common to both Respondents was of them embarking on the scheme which, inter alia, involved (a) not discontinuing Suit 965 and the counterclaim pending the outcome of CA 146 when Suit 965 was already settled; and (b) not informing the Court of Appeal about the settlement at the earliest opportunity, but only if it became necessary to do so. And the query common to both Respondents was whether all of that (ie, the scheme) was meant to mislead the Court of Appeal by giving the impression that the appeal was alive and that there was in existence a real controversy of importance between the parties to CA 146 for a five-judge coram to resolve. We will address the issue of whether the Court of Appeal was misled. To the extent that the Respondents as officers of the court knew that the court would be misled or that they were aware that there was a risk that it might be misled, they were required to take steps to avoid that result. Importantly, the Respondents, who participated in CA 146 as advocates conducting litigation and exercising rights of audience, undoubtedly owe a duty to the court in relation to an advocate and solicitor’s crucial role in the legal system. It was within this context that the gravity of the disciplinary charges was examined, and the sanction ordered reflected the seriousness of the defaults in accordance with the principles on disciplinary sentencing to be applied to such defaults.

This court delivered its decision on 9 April 2024 after hearing the parties on 5 April 2024. We were satisfied that due cause sufficiently serious to warrant the imposition of disciplinary sanctions was made out in relation to the disciplinary charges for both OA 11 and OA 12. We duly imposed a suspension for a term of three years on both Mr Seah and Mr Mohan. In relation to OA 11, the term of suspension was to commence on 17 August 2024. In relation to OA 12, the term of suspension commenced on 1 June 2024. We indicated to the parties on 9 April 2024 that full written grounds would be provided in due course, and we do so below.

History of the various proceedings and events leading to the filing of CA/CA 146/2019

The Respondents were the counsel involved in CA 146. Mr Seah represented the appellants, and Mr Mohan represented the respondent.

The appellants in CA 146 were the joint and several liquidators (the “Liquidators”) of Sembawang Engineers and Constructors Pte Ltd, a company in compulsory liquidation (“SEC”). SEC was a Singapore-incorporated private limited company which was placed in compulsory liquidation on 7 August 2017. The respondent in CA 146 was Metax Eco Solutions Pte Ltd (“Metax”), a subcontractor in the construction industry.

High Court Suit 965/2012

Sometime in late 2010 or early 2011, SEC and Metax contracted for Metax to supply goods to SEC. On 25 July 2011, Metax purported to rescind this contract: Tan Ng Kuang Nicky (the duly appointed joint and several liquidator of Sembawang Engineers and Constructors Pte Ltd (in compulsory liquidation)) and others v Metax Eco Solutions Pte Ltd [2021] 1 SLR 1135 (the “GD”) at [6]. SEC commenced Suit 965 in the High Court on 12 November 2012 for the wrongful repudiation of the contract claiming damages in the sum of $3,657,037.42. Metax counterclaimed against SEC for, inter alia, a sum of $2,134,196.66. Up until 24 October 2013, Metax was represented by Allen & Gledhill LLP, from which point on Mr Mohan and his team from R&T were appointed to act for Metax in Suit 965. SEC was initially represented by MPillay until 28 August 2015. Thereafter, there was no firm of solicitors on record until TKQP was appointed to act for SEC in Suit 965 on 16 October 2017.

HC/CWU 90/2017

On 7 August 2017, SEC was ordered to be wound up in HC/CWU 90/2017 (“CWU 90”). Mr Tan Chuan Thye SC and his team from R&T acted for the Liquidators. However, due to issues of conflict, TKQP was appointed to act for the Liquidators in all issues relating to Metax. On 8 September 2017, Metax filed a proof of debt with the Liquidators for the sum of $2,728,692.46. On 23 October 2017, the Judge in Suit 965 granted the Liquidators’ application for a stay of proceedings in Suit 965 till 23 October 2018.

HC/SUM 79/2019 filed in CWU 90

On 4 January 2019, the Liquidators filed an ex parte application in HC/SUM 79/2019 (“SUM 79”) pursuant to s 273(3) of the Companies Act (Cap 50, 2006 Rev Ed) (“Companies Act”) for directions on, amongst other things, the following:

(a) should the Liquidators decide to continue legal proceedings against a defendant (which were commenced before the winding up order was made), and the defendant ultimately succeeds in these legal proceedings, would the successful defendant be entitled to be paid its costs in priority to the other general expenses of the liquidation (ie, including the remuneration and expenses of the Liquidators); and

(b) in such event:

(i) would the successful defendant be entitled to be paid such costs only from the point in time when the Liquidators expressly elect to continue the legal proceedings; or

(ii) would the successful defendant be entitled to be paid its entire costs from the beginning of the legal proceedings?

The hearings for SUM 79 took place over two half-days on 29 April and 6 May 2019 before the Judge who was also presiding over Suit 965. At the end of the hearing on 6 May 2019, the Judge directed as follows:

The Liquidators initially did not file an appeal against the Judge’s decision in SUM 79 by the stipulated deadline of 6 June 2019. As such, they filed an application to the Court of Appeal for an extension of time to file their Notice of Appeal vide CA/OS 16/2019 (“OS 16”) on 11 June 2019. This application was allowed on 22 July 2019. The Liquidators filed an appeal against the whole of the Judge’s decision on 26 July 2019. This appeal was CA 146, which underpinned the disciplinary proceedings brought by the Law Society against the Respondents.

We digress from our narration of the history of the various proceedings to set out the specific exchange between the Judge and counsel for the Liquidators, Mr Seah, which showed that the Judge in granting the directions at [14] above, had the specific dispute, Suit 965, in mind. The sole material fact of relevance to SUM 79 was the undisputed status of the pending proceedings, namely the hearing of oral closing submissions. Plainly, Suit 965 was the subject matter of SUM 79, and, factually, its status was of a pending action with oral closing submissions not yet heard. We will come to this later when we address the Respondents’ contention that the subsequent settlement of Suit 965 did not render CA 146 moot because SUM 79 was filed in CWU 90, and it was a set of proceedings that was separate and independent of Suit 965.

During the second hearing on 6 May 2019, the Judge questioned Mr Seah on why the questions asked in SUM 79 were phrased generally as opposed to requesting for directions specific to the facts of the case. Mr Seah repeatedly made the point that SUM 79 was argued against the factual substratum of Suit 965 – the case involving Metax – as opposed to it being a general question of law. Mr Mohan also agreed that the application was confined to the specific facts of the case (ie, Suit 965 where oral closing submissions had not been heard). On this point, we consider it important to reproduce the relevant exchanges between the Judge (“Ct” in the Notes of Argument), Mr Seah (“PS” in the Notes of Argument) and Mr Mohan (“CM” in the Notes of Argument):

CA/CA 146/2019

We return to the chronology of the proceedings. CA 146 was filed on 26 July 2019 where the Liquidators were the appellants and Metax was the respondent. The Settlement Agreement was reached on 28 November 2019. In anticipation of the settlement, it was proposed, at the outset, that Metax’s participation in the appeal would be as a nominal respondent. Mr Mohan for Metax was 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. We will elaborate on the developments that unfolded in the negotiations later. For now, the key aspects of what the parties had agreed to on 28 November 2019 in the Settlement Agreement, and indeed acted upon thereafter to advance the appeal, were as follows:

Pursuant to the Settlement Agreement, on 20 October 2020, R&T wrote a letter to the Supreme Court Registry stating as follows:

The appeal was fixed for hearing on 20 January 2021 before a five-judge coram. 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 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 in relation to CA 146. Mr Seah was asked the same question sometime 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:

After Mr Seah made oral submissions for over an hour, the Court of Appeal revisited the earlier answer that Mr Mohan had given for not filing Metax’s Respondent’s Case. The minute sheet of the hearing reflects the exchange between the Court of Appeal and Mr Mohan as follows:

After discovering that the parties to CA 146 had, in fact, entered into a settlement agreement, the Court of Appeal not only dismissed the appeal but also gave the parties seven days to disclose all facts and offer any explanations as to why the matter was allowed to proceed despite the settlement.

On 27 January 2021, both Mr Seah and Mr Mohan wrote to the Supreme Court Registry to offer their respective explanations. Mr Seah explained that following the Judge’s decision in SUM 79, the Liquidators instructed TKQP to commence negotiations with Metax with a view to settling Suit 965. At or around the same time (ie, late May 2019/ early June 2019), the Liquidators approached TKQP and communicated their view that it would be important to have the matters in SUM 79 canvassed before the Court of Appeal. Eventually, a settlement agreement was concluded on 28 November 2019. Mr Seah explained that their negotiations took place for almost six months from 29 May 2019 to 28 November 2019 and that Metax was not coerced to agree to the terms of the settlement. It had the benefit of legal advice, and it was able to put forward counter proposals. Mr Seah also explained that there was no intention to mislead the Court of Appeal or cause the perversion of justice. He apologised to the Court of Appeal for any concern and inconvenience that had been caused by counsel’s conduct of CA 146.

Mr Mohan explained that the parties had engaged in protracted negotiations over the issue of Metax’s participation in CA 146. TKQP’s initial offer was for, amongst other things, Metax to pay SEC $100,000 within three working days of a concluded settlement agreement. Importantly, Mr Mohan stated that on 8 July 2019, TKQP suggested that Metax continue participating in CA 146 as a nominal respondent. To this, R&T responded on 16 July 2019:

Furthermore, Mr Mohan stated that Metax’s instructions were to accept the Liquidators’ proposal to settle Suit 965. As a consequence of the settlement, Metax was bound to comply with the terms of the Settlement Agreement. Metax and Mr Mohan thus had to balance the terms of the Settlement Agreement against the need to assist the Court of Appeal. We will address Mr Mohan’s contention later. It suffices to note here that the terms of settlement, in particular para (c) (at [20] above), 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. In addition, we noted the inclusion of a provision that allowed Mr Mohan to depart from the terms of the Settlement Agreement should any of the terms clash with his duty to the court.

The Court of Appeal’s written decision

After considering the letters from TKQP and R&T, as well as the terms of the Settlement Agreement, the Court of Appeal released its written grounds of decision (“GD”) on 3 March 2021. The Court of Appeal explained: (a) why it did not deal in substance with the question of law that was presented to the court in the appeal; (b) how the Court of Appeal was misled by the way the appeal was brought; and (c) the waste of the court’s time that ensued. Notably, the purpose of the GD was to also place on record the Court of Appeal’s strong disapproval of how the matter came before the court and to deplore the conduct of all involved (GD at [1]).

We begin with the Court of Appeal’s ruling that “all parties and their counsel deliberately entered into an agreement to suppress the disclosure of relevant information to the court unless the court should specifically ask for the same” [emphasis in original] (GD at [56]). In short, the true position that the parties had settled Suit 965 would only be revealed if the Court of Appeal persisted in its queries. The parties were content to leave the Court of Appeal with the impression that Suit 965 was being held in abeyance pending the outcome of CA 146 (GD at [86]).

The Court of Appeal reiterated the general principle that the court will decline to hear cases or arguments that do not involve a live dispute between the parties (GD at [62], referring to Sun Life Assurance Company of Canada v Jervis [1944] AC 111). The Court of Appeal found that the counsel in CA 146 were both experienced litigators and should have known that that is the law and indeed did know that the result of any settlement of Suit 965 would be that the appeal would be rendered academic. The counsel and the Liquidators allowed the appeal to continue and in taking that course, rather than to apprise the court of the true status, the parties chose to mislead the Court of Appeal. The counsel and the Liquidators were patently in serious breach of their duties to the court (GD at [85]).

Consequently, those responsible wasted the court’s time not only for the hearing itself but also in relation to all the preparatory and procedural work that had been done from 20 October 2020 onwards (GD at [29]). Lastly, the Court of Appeal expressed the court’s strong disapproval of how the matter came before the court and deplored the conduct of those involved (GD at [91]). The Court of Appeal described the apologies proffered to the court as simply “pro forma without any real acknowledgment of the default” (GD [87]). On 19 March 2021, the Registrar of the Supreme Court wrote a complaint (the “Complaint”) to the Law Society to refer the conduct of Mr Seah and Mr Mohan pursuant to s 85(3)(b) of the LPA for the matter to be referred to a disciplinary tribunal (“DT”). The Complaint referred to the GD – wherein the Court of Appeal deplored the Respondents’ conduct and found that the Respondents had deliberately misled the court.

The Charges

The Law Society preferred two sets of charges against Mr Seah and Mr Mohan each. We set out the charges faced by each respondent in turn.

Mr Seah

Each set of charges faced by Mr Seah was similarly worded. We reproduce the relevant language of the charges:

As the Law Society stated in its written submissions in OA 11, the first set of charges against Mr Seah relate to a breach of duty to assist in the efficient administration of justice. The second set of charges relate to misleading the Court of Appeal.

With regard to Mr Seah’s charges, rr 9(1)(a), 9(1)(e) and 9(2)(a)(i) of the Legal Professional (Professional Conduct) Rules 2015 (the “PCR”) provide as follows:

Mr Mohan

We reproduce the charges for Mr Mohan:

Proceedings before the DT and the DT’s decision

Mr Seah and Mr Mohan strenuously defended the charges. Both denied that CA 146 was academic following the settlement of Suit 965. They had behaved properly as officers of the court and had always acted in good faith in bringing CA 146 before the Court of Appeal. A common thread to both Respondents’ defences was their honest belief that CA 146 could proceed. We briefly outline the Respondents’ submissions before the DT.

Mr Seah submitted that the Court of Appeal’s findings in the GD were neither relevant nor admissible. His inability to disclose privileged communications should not be held against him. Furthermore, on the first set of charges preferred against Mr Seah, he submitted that the Law Society failed to prove that Suit 965 was the underlying dispute in CA 146. The appeal in CA 146 was brought in respect of the Judge’s findings in SUM 79. SUM 79 was not a summons arising under Suit 965. Instead, it was a summons brought under CWU 90. The directions sought in SUM 79 were also general directions; they were not tied to Suit 965. As such, the appeal in CA 146 was not rendered academic simply because Suit 965 was settled. In any event, a wastage of the court’s time and resources by itself is not misconduct; the Law Society failed to prove that the Respondents had knowingly wasted the court’s time and resources. As for the alleged breach of r 9(1)(a) of the PCR, Mr Seah submitted that the Law Society’s case was misconceived because r 9(1) only states principles and does not impose substantive obligations.

On the second set of charges, Mr Seah submitted that he did not knowingly mislead or attempt to mislead the Court of Appeal – the evidence demonstrated that Mr Seah had the honest belief that he was not suppressing any relevant information from the Court of Appeal.

Even if found guilty of misconduct, Mr Seah submitted that his subjective intentions and beliefs should be taken into consideration in deciding the appropriate sanction. Furthermore, Mr Seah’s readiness to apologise and the many character references that attested to his reputation should be factored into the assessment of the appropriate sanction too.

Mr Mohan first submitted that the Court of Appeal’s decision, observations, views, comments, and/or findings in its judgment, GD and the minute sheet for CA 146 (the “Minute Sheet”) were inadmissible because a DT is supposed to hear a matter de novo. Mr Mohan further submitted that the burden of making out the two sets of charges rested on the Law Society. The Law Society had to establish that Mr Mohan knew at and from the time of the Settlement Agreement that the appeal in CA 146 was academic and there were no live issues. The first set of charges required the Law Society to show that Mr Mohan knowingly misled the Court of Appeal on the basis that he was fully aware that there were no live issues for determination in CA 146. The second set of charges, in effect, required the Law Society to show that Mr Mohan was fully aware that there were no live issues for determination in CA 146. Mr Mohan submitted that the evidence showed that he had honestly formed the view that CA 146 could proceed even if Suit 965 was settled.

From the time Mr Mohan came to the view that the appeal could proceed, his concerns and focus were purely on getting the settlement done as soon as possible, on being able to truthfully inform the Court of Appeal why Metax had not filed a respondent’s case, on assisting the Court of Appeal with submissions to ensure that the finality of the settlement would not be affected, and on ensuring that he would not be asked to do anything improper.

In respect of the second set of charges, Mr Mohan submitted that r 9(1) of the PCR does not impose substantive legal obligations, and that the Law Society did not prove otherwise.

We turn first to two preliminary points that were addressed by the DT. First, the DT found that the Minute Sheet of the Court of Appeal in CA 146 dated 20 January 2021 and the GD were admissible. Having said that, the DT noted the de novo nature of disciplinary proceedings and found that findings and observations of a court in relation to a lawyer’s professional conduct were not binding on a disciplinary tribunal that had been appointed to investigate and determine the charges against the lawyers.

As a second preliminary point, the DT found that no adverse inference was to be drawn against Mr Seah for not producing documents that were protected by client privilege.

In relation to the second set of charges against Mr Seah and the first set of charges against Mr Mohan, the DT’s findings were as follows: (a) CA 146 was academic following the settlement of Suit 965 which was plainly the subject matter of CA 146; (b) the Respondents’ failure to bring the true state of affairs to the Court of Appeal’s attention when there was a duty to do so as officers of the court meant that the court had been misled; and (c) the overall circumstances bore out the Respondents’ requisite state of mind to mislead the Court of Appeal – (i) the Respondents must have known that courts in Singapore do not hear cases in the abstract to opine on academic points of law however novel and important, (ii) the fact that the Settlement Agreement included a term providing that the parties were at liberty to inform the Court of Appeal that Suit 965 was being held in abeyance pending the outcome of CA 146 supported the DT’s view that the Respondents had the requisite knowledge or were at least reckless; and (iii) the term in the Settlement Agreement that the Court of Appeal was to be informed of the Settlement Agreement “[o]nly if necessary” and the fact that the Respondents acted in accordance with that term also led to the inference that they had the requisite knowledge. As officers of the court who owed a duty of candour to assist the court in matters before the court, there ought to have been no hesitation about bringing the fact of the settlement to the attention of the Court of Appeal at the earliest opportunity, but the Respondents had failed to do so.

In the final analysis, the DT rejected the Respondents’ defences that they honestly believed that the appeal in CA 146 could proceed notwithstanding the settlement of the claims between the Liquidators and Metax in Suit 965. The DT accepted the Law Society’s case that the failure to inform the Court of Appeal of the settlement unless and until asked amounted to a breach of both Respondents’ duty to the court and had the effect of misleading the court.

Therefore, the second charge, and its two alternative charges, against Mr Seah was made out. The DT found that Mr Seah’s conduct constituted improper conduct under s 83(2)(b) of the LPA.

As to the first charge and the alternative charge against Mr Mohan, the DT found that the Law Society’s case against Mr Mohan for knowingly misleading the Court of Appeal in CA 146 was made out beyond a reasonable doubt. That is to say that Mr Mohan had knowingly misled the Court of Appeal by omitting to inform the court of the settlement. The DT also rejected Mr Mohan’s claim that he honestly believed that the appeal in CA 146 could proceed.

However, the DT found Mr Mohan less culpable than Mr Seah and found Mr Mohan guilty of misconduct unbefitting an advocate and solicitor under s 83(2)(h) of the LPA.

Finally, the DT found that the first charge and its two alternative charges against Mr Seah and the second charge and its alternative charge against Mr Mohan pertained to the Respondents' duty to assist in the efficient administration of justice vis-à-vis the appeal process before the Court of Appeal. In relation to those charges, the DT found that r 9(1) of the PCR did impose substantive legal obligations. Specifically, r 9(1)(a) prohibits a lawyer from acting contrary to the administration of justice.

The DT found that the charges relating to the Respondents’ duty to assist in the efficient administration of justice were made out. In other words, rr 9(1)(a) and 9(1)(e) were breached. The DT noted that the Respondents allowed and/or facilitated the appeal in CA 146 to proceed notwithstanding the appeal being academic which resulted in the wastage of time and resources of a five-judge coram in the Court of Appeal. The DT found both Mr Seah and Mr Mohan guilty of misconduct unbefitting an advocate and solicitor under s 83(2)(h) of the LPA.

On a related note, the DT found that certain aspects of the evidence given by Mr K Gopalan (“Mr Gopalan”) and Ms Doreen Chia Ming Yee (“Ms Chia”) were irrelevant. Mr Gopalan’s evidence was, amongst other things, that Mr Mohan probably held the belief that he was doing the right thing and that he was not claiming that Mr Mohan was dishonest in any way. Ms Chia’s evidence was that after SEC and Metax had entered into the Settlement Agreement, in or around early to mid-August 2019, Mr Mohan had formed the view that the Liquidators could still proceed with CA 146. The DT found that Mr Gopalan’s and Ms Chia’s evidence was irrelevant because the fact remained that the appeal in CA 146 had been rendered academic regardless of Mr Mohan’s state of mind. Moreover, Mr Gopalan’s evidence of Mr Mohan’s state of mind was a matter of his opinion and irrelevant.

Thus, pursuant to s 93(1)(c) of the LPA, the DT found that cause of sufficient gravity in respect of both solicitors existed under s 83 of the LPA and that the matter should be referred to the Court of Three Judges. As we turn to consider the matter, we highlight that we will elaborate on the DT’s findings and reasoning in our discussions below whenever necessary.

Admissibility of the Court of Appeal’s Minute Sheet and the GD in CA 146

A preliminary point concerned the Court of Appeal’s Minute Sheet dated 20 January 2021 for CA 146 and the Court of Appeals’ GD. The Law Society submitted that both documents were relevant and admissible. For this preliminary point, the Law Society relied on ss 32 and 37 of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act”) and Law Society of Singapore v Udeh Kumar s/o Sethuraju and another matter [2017] 4 SLR 1369 (“Udeh Kumar”) and Tan Beng Hui Carolyn v Law Society of Singapore [2023] 1 SLR 602 (“Carolyn Tan”). In addition, the Law Society clarified that it was not seeking to draw an adverse inference from Mr Seah’s inability to disclose privileged communications between his firm and the Liquidators. We will therefore address only the admissibility issue.

As mentioned, Mr Seah was no longer contesting liability. Mr Mohan submitted that the DT erred in finding that the Minute Sheet for CA 146 and the GD were admissible. We begin by noting that the parties agree that disciplinary proceedings before a disciplinary tribunal occur on a de novo basis and that the Court of Appeal’s GD and Minute Sheet were not conclusive findings that were binding on the DT. The DT reached this conclusion too (see [43] above). As such, the question before this court was not whether the DT or the Court of 3 Supreme Court Judges should look to the Minute Sheet and GD as conclusive evidence for certain matters; instead, the question was simply whether they were relevant and admissible.

We agreed with the DT that the Minute Sheet was relevant and admissible pursuant to ss 32(1)(b) and 37 of the Evidence Act. The two provisions provide as follows:

The Court of Three Judges in Udeh Kumar found that the minute sheets relied upon by the Law Society in making its case in an originating summons were admissible. A minute sheet falls within two exceptions to the hearsay rule. First, under s 32(1)(b) of the Evidence Act, statements “made by a person in the ordinary course of a trade, business, profession or other occupation” are relevant and admissible. In particular, minute sheets fall under either s 32(1)(b)(i) – entries in books kept in the ordinary course of a profession or in the discharge of a professional duty – or s 32(1)(b)(iv) – documents constituting or forming part of the records of a profession that are recorded, owned or kept by a person, body or organisation carrying out that profession: Udeh Kumar at [13] and Carolyn Tan at [47]. We noted that pursuant to s 32(4)(b) of the Evidence Act read with O 15 rr 16(7) of the Rules of Court 2021 (“ROC”), the Law Society would have had to serve a formal notice on the Respondents stating the grounds under s 32(1) of the Evidence Act that allowed the Minute Sheet to be admitted. However, like the courts in Udeh Kumar and Carolyn Tan, we were prepared to exercise our discretion under O 3 r 2(4)(a) to waive such non-compliance since Mr Mohan was aware that the Law Society was seeking to refer to the Minute Sheet: see Udeh Kumar at [14] and Carolyn Tan at [47].

Second, s 37 of the Evidence Act provides that entries into a public record by public officers in the discharge of their official duties are relevant evidence. Section 2(1) of the Interpretation Act 1965 (2020 Rev Ed) defines a “public officer” as the holder of any office of emolument in the service of the Government. Section 76(a) of the Evidence Act defines “public documents” to include the documents recording the acts of public officers (including judicial officers) in Singapore. Thus, the minute sheet for CA 146 was relevant and admissible evidence: Udeh Kumar at [15] and Carolyn Tan at [46].

We also agreed with the DT that the GD was proof of relevant facts and was admissible. Section 7, read with s 45 of the Evidence Act, provides that facts which are the occasion, cause or effect of relevant facts or facts in issue are relevant. The GD contained the bases of the court’s holding and conclusion that the court was engaged in a consideration of wholly hypothetical issues and arguments because the Respondents had allowed an appeal that was academic to proceed as if the issue was still alive, and in doing so, had deliberately misled the Court of Appeal and consequently wasted the court’s time since 20 October 2020 (see GD at [29] and [85]). The purpose of the GD, as stated by the Court of Appeal, was not only to set out why it was inappropriate to deal with the substance of the question of law in the appeal but to also record the court’s strong disapproval of how CA 146 came before the Court of Appeal (see GD at [1]). In terms of admissibility, we were able to take judicial notice of the GD pursuant to s 59 of the Evidence Act, read with Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd [2009] 2 SLR(R) 587 at [27]. It was indisputably clear that the GD authoritatively set out the reasons for the Court of Appeal’s decision.

Therefore, both the Minute Sheet for CA 146 and the GD were relevant and admissible. With this, we consider the submissions on the substance of the applications that were before us.

Overview of the duty owed to the court as an officer of the court

We begin with the seminal remarks of Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227:

Rule 4 of the PCR sets out the principles to guide the interpretation of the PCR. For present purposes, the relevant principles are found in Rule 4(a) to (c), which read as follows:

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.

We begin with V K Rajah JA’s instructive observations in Bachoo Mohan Singh v Public Prosecutor and another matter [2010] 4 SLR 137:

The court in Law Society of Singapore v Ravindra Samuel [1999] 1 SLR(R) 266 (“Ravindra Samuel”) explained the significance of a solicitor’s duty of candour in his position as an officer of the court in the legal system in the following terms:

Indeed, the obligation not to mislead the court has been described as the bare minimum required of a solicitor (Jeffrey Pinsler, “Ethics in Litigation: Issues Raised by the Legal Profession (Professional Conduct) Rules 1998” (1998) SAcLJ 284 at 286):

Furthermore, the High Court in Public Trustee and another v By Products Traders Pte Ltd and others [2005] 3 SLR(R) 449 at [30] found:

To make out a breach of the duty not to mislead the court (ie, the mental state that is required to establish a breach of r 9 of the PCR 2015), it must be shown that a false statement was made to the court by a solicitor: (a) knowing it is false; (b) without belief in its truth; or (c) recklessly, without caring whether it is true or false: Udeh Kumar at [34]–[36], citing Derry v Peek (1889) 14 App Cas 337 (“Derry v Peek”).

With these observations in mind, we turn to examine the misconduct complained of and determine the overall gravity of the misconduct.

The Law Society’s case in OA 11 and OA 12

We set out in brief the Law Society’s case in respect of OA 11 and OA 12 in turn.

OA 11 – Mr Seah

On the first set of charges, Mr Pillai submitted that r 9(1) of the PCR imposed substantive obligations. A settlement of Suit 965 rendered CA 146 academic and by proceeding with it wasted judicial resources. Mr Pillai submitted that the DT rightly rejected Mr Seah’s claim that he neither wasted the Court of Appeal’s time nor impeded the administration of justice. The DT held that the charge in relation to the wastage of judicial resources had been made out and that such conduct amounted to “misconduct unbefitting an advocate and solicitor” as per s 83(2)(h) of the LPA. Mr Pillai reminded the court that s 83(2)(h) is a broader “catch-all” provision and the standard applied in the inquiry is less strict than that in s 83(2)(b) (see explanation at [98]–[99] below); what needs to be shown is merely that a solicitor is guilty of such conduct as would render him unfit to remain as a member of an honourable profession. Liability under s 83(2)(h) of the LPA usually follows on a finding of liability under s 83(2)(b).

On the second set of charges, Mr Pillai submitted that Mr Seah did knowingly mislead the Court of Appeal, as suggested in the GD and reflected in the drafting of the Settlement Agreement which obliged parties to effectively suppress disclosure of Suit 965. During the hearing of CA 146 on 20 January 2021 itself, it transpired that Mr Seah persisted in the suppression of disclosure of the settlement. He informed the Court of Appeal that “the spirit of the agreement” was that the parties would assist the Court of Appeal and this statement was made after Suit 965 was already settled. The settlement could have been disclosed to the Court of Appeal, but Mr Seah instead chose to perpetuate the suppression of disclosure. The Law Society argued that Mr Seah had clearly created a false impression by concealing the truth. The “spirit of the agreement” was not that the parties would assist the court; the “spirit of the agreement” was that the parties had settled Suit 965 which was not to be disclosed at the earliest opportunity. All that amounted to improper conduct under s 83(2)(b) of the LPA.

On the appropriate sanction, the Law Society sought a suspension for a term of two years. It submitted that the facts of the case were sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA. Mr Seah was dishonest and acted fraudulently. The presumptive sanction in cases of dishonesty is striking off if the relevant conduct is indicative of a character defect rendering the solicitor unfit for the profession, or if it undermines the administration of justice. However, the Law Society argued that considering the circumstances, this was an exceptional case and an order for striking off was disproportionate. While the culpability was high, amongst other things, there was no financial gain.

OA 12 – Mr Mohan

Mr Chan for the Law Society submitted that the first charge and its alternative against Mr Mohan were made out. There were two elements to the charges that were both satisfied: (a) Mr Mohan did in fact mislead the court, and (b) he did so knowingly. Mr Mohan’s submission that he changed his mind and came to the view that CA 146 was not academic was an afterthought. Furthermore, in so far as Metax was concerned, Mr Mohan must have known that there were no issues of “general application” in CA 146. Once Suit 965 was settled, there were no live issues in dispute between the Liquidators and Metax. Mr Mohan knew that CA 146 was academic, and the Settlement Agreement reflected as much. Relatedly, the Law Society submitted that the DT correctly found that Mr Gopalan’s and Ms Chia’s evidence on Mr Mohan’s state of mind was irrelevant (see [52] above). Furthermore, parts of Ms Chia’s evidence contradicted Mr Mohan’s position.

Additionally, Mr Chan submitted that the Law Society did put its case to Mr Mohan and satisfied the rule in Browne v Dunn (1893) 6 R 67 (“Browne v Dunn”); there is no formal rule of procedure that requires a cross-examiner to use the express words “you are not telling the truth” or “I put it to you that the charge is made out”. Mr Mohan was cross-examined and given the opportunity to state his case in response to the charges.

On Mr Mohan’s state of mind, Mr Chan submitted that Mr Mohan knew that by not disclosing the settlement of Suit 965, the Court of Appeal’s impression of CA 146 was that it was an appeal to resolve a dispute between the parties on an important question of law. Mr Chan submitted that the Settlement Agreement itself supported the DT’s finding that Mr Mohan had the requisite mental state. It showed, amongst other things, that the parties had agreed not to voluntarily inform the Court of Appeal of the settlement. Mr Chan reminded the court that the essence of the Law Society’s case against Mr Mohan was that Mr Mohan’s very failure to inform the Court of Appeal of the settlement until he was asked amounted to a breach of Mr Mohan’s duty to the court and had the effect of misleading the Court of Appeal.

On the second set of charges, Mr Chan submitted that the DT correctly found that r 9(1)(a) of the PCR imposes substantive obligations (see [50] above). The Court of Appeal’s time was wasted, and Mr Mohan allowed CA 146 to proceed causing that wastage.

On the appropriate sanction, the Law Society sought a suspension for a term of two years. Mr Chan’s submissions on sanction were similar to the Law Society’s submissions in OA 11 (see [74] above).

OA 11 - Due cause was established under s 83(1) of the LPA against Mr Seah

As mentioned at [3] above, on 4 April 2024, one day before the hearing for OA 11 and OA 12, TKQP wrote to the Supreme Court Registry to inform that Mr Seah wished to revise his position in that he did not seek to contest the two sets of charges that the DT found were made out against him. As to the appropriate sanction, Mr Seah sought a suspension for a period of six months to one year given the circumstances of his case and sought to defer the commencement of the term of suspension to 17 August 2024.

At the beginning of the hearing on 5 April 2024, Mr Vergis confirmed that Mr Seah no longer contested the two charges. Specifically, as regards the first set of charges, Mr Seah accepted the DT’s findings at paras 61–71 and at para 79 of the Report dated 19 July 2023 issued by the Disciplinary Tribunal in respect of the Respondents (the “DT’s Report”). Similarly, as regards the second set of charges, Mr Seah accepted the DT’s findings at paras 89–93 and at paras 96 and 97 of the DT’s Report. We have set out these paragraphs in full in an annex to this decision below (see [A.1] below). It was also not disputed, and we agreed with the DT, that as regards the first set of charges, Mr Seah’s conduct constituted misconduct unbefitting an advocate and solicitor or as a member of an honourable profession under s 83(2)(h) of the LPA. Further, it was not disputed, and we agreed with the DT, that Mr Seah’s conduct in relation to the second set of charges constituted improper conduct within s 83(2)(b)(i) of the LPA for breaching r 9 of the PCR.

Conclusion on the two sets of charges against Mr Seah

Besides determining that an errant solicitor’s conduct falls within the ambit of s 83(2) of the LPA, the court “must also be satisfied that on the totality of the facts and circumstances of the case, the [solicitor’s] misconduct was sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA” [emphasis omitted]: Udeh Kumar at [30] and Law Society of Singapore v Seah Choon Huat Johnny and another matter [2024] 3 SLR 1786 at [27].

All in all, we accepted that 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. We applied what we have said at [116] below about Mr Seah’s improper conduct.

We will elaborate on the appropriate sanction for Mr Seah after we discuss the issue of whether due cause was shown under s 83(1) of the LPA in relation to Mr Mohan.

OA 12 – Whether due cause was shown under s 83(1) of the LPA in relation to Mr Mohan

Mr Mohan highlighted that the Law Society’s case in relation to both charges was premised on Mr Mohan being “fully aware” that CA 146 was academic, and that Mr Mohan had “knowingly misled” the Court of Appeal. But, according to Mr Mohan, the Law Society did not make out these arguments for three reasons.

First, the Judge’s views in SUM 79 led Mr Mohan to understand that it remained open to argument in Suit 965 or in any other case that the ruling in SUM 79 did not apply because the directions in SUM 79 were general in nature. Moreover, Mr Mohan was determined to discharge his duties to the court and wanted to honestly express Metax’s position to the Court of Appeal. By mid-August 2019, Mr Mohan came to the view that even if Suit 965 was settled, CA 146 may not be rendered academic. Notably, Mr Mohan discussed his view that CA 146 was not rendered academic with Ms Chia, whom he assumed would have reviewed her contemporaneous notes of the SUM 79 hearings before their discussion. The Law Society did not put or suggest to Mr Mohan that he did not honestly believe that the issue in CA 146 may still be live and may not be academic. Mr Mohan held this view consistently, even after the hearing for CA 146. The Law Society did not put or suggest to Mr Mohan that he was lying and that he intended to conceal the settlement and only inform the court of the settlement as a last resort.

Second, the Law Society’s case had shifted from arguing that Mr Mohan knew that CA 146 was academic to arguing about whether Mr Mohan knew that Metax had no interest in the appeal and whether Mr Mohan should have disclosed the settlement. There was a significant difference between arguing that the appeal was academic and arguing that the appeal was academic to Metax. Moreover, alleging that Mr Mohan “must have known” was different from having to show that Mr Mohan in fact “knew” that the appeal was academic in that the former pertains to constructive knowledge whilst the latter pertains to actual knowledge.

Third, Mr Mohan submitted that the DT erred in finding that r 9(1)(a) of the PCR imposed a substantive obligation.

Beyond the charges, Mr Mohan submitted that the correct interpretation of the Judge’s views in SUM 79 were irrelevant; the question was whether the Law Society could show that Mr Mohan did not honestly form the view that CA 146 could proceed after refreshing his mind on the proceedings in SUM 79. Furthermore, the DT erred in accepting the Law Society’s changed case.

On the applicable sanction, Mr Mohan’s case was that his conduct was not dishonest. Even if his conduct was dishonest, it neither revealed a character defect, nor undermined the administration of justice. Regardless, there were exceptional circumstances militating against a sanction of striking off. He submitted that the appropriate penalty was a censure or a fine. In any event, the Law Society’s submission of a suspension for two years was without basis because the DT itself was of the view that Mr Mohan’s conduct was less severe than Mr Seah’s conduct. If a term of suspension was to be imposed, Mr Mohan’s position was that he should receive six months’ suspension commencing from 1 June 2024.

In light of the Law Society’s case against Mr Mohan and his case as set out above, three main issues arose for our consideration:

Whether the Law Society put its case to Mr Mohan

Mr Mohan’s case was that the Law Society failed to put its case to Mr Mohan during his cross-examination before the DT (see [86] above) and that omission contradicted the rule in Browne v Dunn ([76] supra). We disagreed. The purpose of this rule is to secure procedural fairness in litigation: Ong Pang Siew v Public Prosecutor [2011] 1 SLR 606 at [81]. Notably, this rule is flexible: Liza bte Ismail v Public Prosecutor [1997] 1 SLR(R) 555 at [68]. It does not impose a formal requirement on parties to use formulaic recitations of a party’s case to a witness, with an invitation merely to agree or disagree. Indeed, a court should consider the totality of the evidence in a case when evaluating an objection that a witness had no opportunity to provide evidence on the other side’s position and contradictory evidence on the relevant issue: Hong Leong Singapore Finance Ltd v United Overseas Bank Ltd [2007] 1 SLR(R) 292 at [42].

We make two points. First, the Notes of Evidence (“NEs”) suggested that the Law Society did put its case to Mr Mohan. First, Mr Mohan was cross-examined on his subjective knowledge of whether CA 146 was academic after the Settlement Agreement was entered into:

Second, Mr Mohan was also cross-examined on whether he had deliberately suppressed information pertaining to the settlement before the Court of Appeal. As such, Mr Mohan was cross-examined on the Law Society’s case and he had understood the questions as going towards: (a) his honest belief on whether CA 146 was rendered academic, and (b) the allegation that he had deliberately suppressed information before the Court of Appeal. He was given sufficient notice of the Law Society’s case during his cross-examination, and he had the opportunity to challenge the Law Society’s case. Thus, we found that Mr Mohan was given notice of the Law Society’s case and he had the opportunity to respond to it. That said, we accept that the manner of cross-examination could have been more direct and focused.

Whether the first charge against Mr Mohan was made out

Preliminary comments

We preface our discussion of the charges by stating an observation that we raised during the hearing on 5 April 2024. The charges framed in respect of Mr Seah and Mr Mohan were substantially similar in that the first set of charges preferred against Mr Seah corresponded to the second set of charges preferred against Mr Mohan, and vice versa. However, we found it unsatisfactory in the light of the many common facts that the charges were not presented in the same sequence for each Respondent. Secondly, charges which were substantially the same were worded differently which initially caused us to consider whether they were in fact substantially the same or not in the first place. Thirdly, different provisions were relied upon, ie, for Mr Seah, the First Alternative to the 1st Charge mentioned a breach of r 9(1)(a) and/or r 9(1)(e) of the relevant professional rules but for Mr Mohan, the equivalent charge, ie, the Alternative 2nd Charge, referred to a breach of r 9(1)(a) only. This gave rise to the possibility that even if both solicitors were in breach of r 9(1)(e) only, Mr Seah would be found liable but not Mr Mohan.

We appreciate that the counsel representing the Law Society in OA 11 and OA 12 were appointed separately and might have different views on the charges to be prosecuted. Nevertheless, unless there were good reasons for the differentiation, the terms of the charges for each of the Respondents should not be different for the reasons mentioned, especially where the charges arose from the same transaction. The Law Society and their counsel should have ensured better coordination between counsel.

Mr Mohan was charged for “improper conduct” under s 83(2)(b) and “misconduct unbefitting an advocate and solicitor” under s 83(2)(h) in his first charge and the alternative to the first charge respectively. The applicable law for ss 83(2)(b) and 83(2)(h) of the LPA was not in dispute between the parties and we will briefly outline it.

The question of “improper conduct” under s 83(2)(b) of the LPA focuses on whether the conduct of a lawyer is “dishonourable to [him] as a man and dishonourable to his profession”. A lawyer’s conduct may be grossly improper notwithstanding that there is no dishonesty, fraud or deceit: Iskandar bin Rahmat v Law Society of Singapore [2022] 1 SLR 590 (“Iskandar”) at [40].

Section 83(2)(h) is a broader “catch-all” provision operating when a solicitor’s conduct does not fall within any of the other subsections of s 83(2) but is nonetheless considered unacceptable. On the standard of “unbefitting conduct”, a solicitor only needs to be shown to have been guilty of such conduct as would render him unfit to remain as a member of an honourable profession. Practically, the court may consider whether reasonable people, on hearing what the solicitor had done, would have said without hesitation that as a solicitor he should not have done it. To make out a breach of s 83(2)(h), it is sufficient if the respondent’s conduct brings him discredit as a lawyer or brings discredit to the legal profession as a whole: Law Society of Singapore v Wong Sin Yee [2018] 5 SLR 1261 at [24]. Ordinarily, liability under s 83(2)(b) is also followed by a finding of liability under s 83(2)(h) on the basis that the greater encompasses the lesser: Iskandar at [45].

The first set of charges also alleged that Mr Mohan breached r 9(2)(a) of the PCR, which imposes an obligation on lawyers not to knowingly mislead or attempt to mislead, a court.

We have already explained the duty of candour at [64]–[68] above. It is useful to emphasise that to make out a breach of the duty not to mislead the court (ie, the mental state that is required to establish a breach of r 9 of the PCR), it must be shown that a false statement was made to the court by a solicitor (a) knowing it is false; (b) without belief in its truth; or (c) recklessly, without caring whether it is true or false: Udeh Kumar at [34]–[36], citing Derry v Peek. In relation to the charges against Mr Seah and Mr Mohan for misleading the court in CA 146 by their deliberate suppression or omission of material information, only the first limb of Derry v Peek – “knowing it is false” – was in dispute here.

Analysis

We approached the analysis of this issue in two parts: (a) was the Court of Appeal allowed to be misled by the Respondents’ omission; and (b) what was the Respondents’ state of mind at the hearing of CA 146. In answer to (a) and (b), first, we agreed with the DT that the Settlement Agreement had indeed rendered CA 146 academic for the reasons stated below. Second, we also agreed with the DT that Mr Seah and Mr Mohan knew that CA 146 was academic following the settlement and knowingly misled the court. We were in no doubt that the Court of Appeal was misled by the Respondents. The Settlement Agreement, the structure of the scheme in the Settlement Agreement and the Minute Sheet of CA 146 that recorded what transpired at the hearing of CA 146 provided compelling evidence of how the Respondents went about the management and conduct of CA 146 that left the Court of Appeal with the misimpression that there was a dispute to be resolved in CA 146. That was a false impression of the true state of affairs until the Court of Appeal queried and was apprised of the settlement of Suit 965 that had the effect of rendering the appeal in CA 146 academic.

We move on to examine Mr Mohan’s arguments. We were not persuaded and doubted the veracity of Mr Mohan’s belief that a settlement of Suit 965 would not in and of itself prevent CA 146 from proceeding before the Court of Appeal because the Judge in SUM 79 decided the question to be of general application and not restricted to Suit 965.

We disagreed with Mr Mohan’s submission that CA 146 pertained to matters beyond Suit 965 in that the Judge’s directions in SUM 79 were generally phrased such that they applied to the entirety of CWU 90 and were not confined to Suit 965. 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. This much was made clear in the exchanges between the Judge, Mr Seah and Mr Mohan (see [18] above). The minute sheet showed Mr Seah assuring the Judge in SUM 79 that the general questions in SUM 79 were meant to answer the factual situation in Suit 965 (ie, that oral closing submissions had yet to be heard). Mr Seah even offered, subject to his clients’ instructions, to amend the questions in SUM 79 to confine them to Suit 965. Furthermore, sub-paragraph (a) of the Settlement Agreement (see [20] above) documented the parties’ agreement to hold Suit 965 in abeyance, which was a strong indicator of the parties’ subjective knowledge of the connection between Suit 965 and CA 146. This connection was also reflected in sub-paragraph (e) pursuant to which the parties agreed that the outcome of CA 146 would not bind Suit 965.

Next, on Mr Mohan’s subjective knowledge, he submitted that he honestly believed that CA 146 could proceed because it pertained to matters beyond Suit 965. Mr Mohan’s case was that after reviewing Ms Chia’s notes of the proceedings before the Judge in SUM 79, he came to the view that CA 146 could proceed. From then on, he was focused on reaching the settlement as soon as possible to be able to tell the Court of Appeal why Metax did not file a Respondent’s Case.

We had no difficulty rejecting his contention. CA 146 was the Liquidators’ appeal against the Judge’s directions in SUM 79. Even accepting Mr Mohan’s evidence that he referred to Ms Chia’s notes of the proceedings in SUM 79, as opposed to the court’s Notes of Argument 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.

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.

Furthermore, the Respondents had agreed, if they were queried on the status of Suit 965, to inform the Court of Appeal that Suit 965 was held in abeyance pending the determination of CA 146. That was plainly a lie since Suit 965 had already been settled. The reason for the lie was to give the Court of Appeal the misleading impression that Suit 965 was still a live issue. Otherwise, they should have and would have said that it had been settled. Significantly Mr Mohan’s position before the DT was that he did not know what the reference to holding the suit in abeyance meant. In our view, this would not be true of any solicitor let alone one with his years of experience.

At the hearing before us, Mr Mohan argued that he was never going to say that Suit 965 was held in abeyance pending the outcome of CA 146 and that is why he did not in fact say this to the Court of Appeal. However, while it was true that he did not orally say to the Court of Appeal that Suit 965 was held in abeyance pending the outcome of CA 146, he did not explain to the DT that that was because he knew that it was a lie. Indeed, his position was to the contrary. As mentioned, his position then was that he did not know what holding the Suit in abeyance meant. It seems to us that he did not orally mention the abeyance to the Court of Appeal only because the opportunity did not arise in that the Court of Appeal eventually learned about the settlement on further query at the hearing.

Mr Mohan only informed the Court of Appeal of the settlement after the court had heard Mr Seah’s oral submissions (see [23] above). Even then, this was only done in the face of a direct question from the Court of Appeal, and Mr Mohan again kept to the agreed calibrated response. This sequence of events before the Court of Appeal in CA 146 was not disputed before us. We note that even when he had the opportunity, Mr Mohan did not apprise the Court of Appeal of his belief that the Liquidators could proceed with CA 146 notwithstanding the settlement and this was also not mentioned in his letter of explanation dated 27 January 2021. As stated above, he mentioned it only in the DT hearing. We also do not accept his argument that he was unclear as to what the Court of Appeal was displeased about when he rendered his letter of explanation.

Mr Mohan claimed that he had acted honestly and within the bounds of his duties as an officer of the court (see [86] above). The point here is that he 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, as the Court of Three Judges noted in Law Society of Singapore v Kasturibai d/o Manickam [2024] SGHC 55 (“Kasturibai”) at [27]. In acting in accordance with his client’s instructions to secure a settlement and, therefore, on the face of it, in accordance with his client’s interests, the steps Mr Mohan took nonetheless interfered with his duties as an officer of the court. In that process, he knowingly misled the Court of Appeal into thinking that there was still a live dispute in CA 146.

We also agreed with the DT that Mr Gopalan’s evidence as to Mr Mohan’s state of mind was irrelevant. Mr Gopalan’s evidence as to Mr Mohan’s state of mind was based on his own opinion. It was not based on any direct interaction with Mr Mohan.

As for Ms Chia’s evidence that Mr Mohan told her that he had formed the view that CA 146 could proceed, it 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.

In the circumstances, the first set of charges against Mr Mohan were made out and we found that due cause was shown which was sufficiently serious to warrant the imposition of a sanction. In our judgment, Mr Mohan and Mr Seah were equally culpable and to that extent, we disagreed with the DT. We held that Mr Mohan’s misconduct 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 (see [49] above).

Importantly, in our view, both Mr Seah and Mr Mohan permitted the Court of Appeal to proceed on an incorrect perception of Suit 965. The Respondents had the option of not misleading the court while still safeguarding their clients’ interest. As mentioned earlier, Metax’s interest was already safeguarded in the Settlement Agreement, and Mr Mohan’s conduct was quite inexplicable (see [27] above). We also did not accept that Mr Mohan had to do anything more under the Settlement Agreement as he claimed. It was clear that even a reversal of the Judge’s decision in SUM 79, which was in Metax’s favour, would have had no adverse consequences on Metax given the terms of the settlement that specifically cover such an eventuality. In our judgment, to the extent that the Respondents knew that the court would be misled or that there was such a risk, their duty to the court and, even basic common sense and decency, would require them to take steps to avoid that result. The Respondents like any other lawyer, were always able to avoid misleading the court or to remove the risk of the court being misled. After all, it was Mr Mohan who inserted the particular clause – “For the avoidance of doubt, nothing in this letter requires a party and/or solicitor to act in breach of any law and/or its duties to the Court” – in the Settlement Agreement. Similarly, Mr Vergis spoke of Mr Seah’s reminders to his team of their duty to the court. Without doubt, the Respondents had at the forefront 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. In context, their statements to the Court of Appeal as recorded in the Minute Sheet before the court stood down for about 15 minutes were misleading even if not literally false on its face. In this case, they each ended up on the wrong side of their duty to the court. In our judgment, there was dishonesty in the way they went about bringing the appeal to the Court of Appeal and they both knowingly misled the court.

We wish to make a further point. As mentioned, the terms of the settlement anticipated the questions that could be raised by the Court of Appeal. We did not accept Mr Singh’s reasoning that there could not have been any premeditation to mislead the Court of Appeal since Mr Mohan and Mr Seah had not spoken to each other. The absence of direct contact between the two was not germane. They were copied in on the e-mail exchanges between their respective teams. The planned responses on the management and conduct of CA 146 in the Settlement Agreement were the product of protracted negotiations over a period of six months. The outcome of the long negotiations was after deliberations. It was unlike a situation where a solicitor, in the midst of court proceedings, had to make a decision quickly and under pressure, which might lead to an outcome that was considered imprudent and unwise.

Whether the second charge against Mr Mohan was made out

The second charge referred to Mr Mohan’s breach of his duty to assist in the administration of justice in the conduct of CA 146 (see [35] above). He was charged for breaching r 9(1)(a) of the PCR such that he was guilty of “improper conduct” under s 83(2)(b) and “misconduct unbefitting an advocate and solicitor” under s 83(2)(h) in the second charge and the alternative to the second charge respectively. We first consider a preliminary issue of whether r 9(1) of the PCR may impose substantive obligations.

Whether r 9(1) of the PCR imposes substantive obligations

Rule 9(1) of the PCR outlines principles that should guide a solicitor’s conduct of proceedings. In particular, r 9(1)(a) imposes a duty on a solicitor to assist in the administration of justice. Mr Mohan submitted that r 9(1) does not impose a substantive obligation – it merely states principles to guide the interpretation of the substantive provisions in r 9. We disagreed with this.

Rule 9(1) does impose substantive obligations. Sundaresh Menon CJ in Re Parti Liyani [2020] 5 SLR 1080, at [35], found that “[t]he paramount duty of any advocate and prosecutor is to assist the court in the administration of justice. This duty is enshrined in r 9(1) of the [PCR]”.

In The Law Society of Singapore v Koh Tien Hua [2020] SGDT 6 (“Koh Tien Hua (DT)”), at [36], the disciplinary tribunal found that the errant solicitor had violated the principles of r 9(1)(a). In Koh Tien Hua (DT), the charges alleged breaches of r 9(1) of the PCR, which were found to be made out: Koh Tien Hua (DT) at [4]. Further, as the DT found in The Law Society of Singapore v Ravi s/o Madasamy [2020] SGDT 8, at [98], there is nothing in the authorities that indicates that the interpretative provisions in the PCR cannot impose substantive obligations. Thus, we found that r 9(1) is capable of imposing substantive obligations.

Whether Mr Mohan was guilty under the second charge

For the reasons we have given above at [107]–[112], we took the view that Mr Mohan had breached r 9(1)(a) of the PCR. We also found that there had 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 and, as the Court of Appeal noted, “[i]n taking this course, rather than apprise this court of the true state of affairs, the parties chose to deliberately mislead this court. Both counsel and the Liquidators were patently in serious breach of their duties to the court” (GD at [85]). A solicitor’s failure to assist the court adequately would result in the waste of judicial time and resources: Zhou Tong and others v Public Prosecutor [2010] 4 SLR 534 at [2]. The Court of Appeal in its written grounds (at GD [29]) noted that those responsible wasted the court’s time not only for the hearing itself but also in relation to all the preparatory and procedural work that had been done from 20 October 2020 onwards.

We should explain that whilst the observations of the Court of Appeal in its written grounds (ie, [29] and [85]) do not bind the Court of 3 Supreme Court Judges whose jurisdiction is distinct from the civil jurisdiction of the Court of Appeal, the Court of 3 Supreme Court Judges could not completely ignore the observations made by the Court of Appeal (see Loh Der Ming Andrew v Koh Tien Hua [2022] 3 SLR 1417 (“Koh Tien Hua”) at [51]). That said, we concluded that the second set of charges against Mr Mohan were also made out and we found that due cause existed in relation to those charges.

We accepted that on the totality of the facts and circumstances of the case, 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.

What was the appropriate sanction

We now turn to the question of sanction pursuant to s 83(1) of the LPA and the appropriate sanction to be imposed on the Respondents. We noted that the Law Society did not press for the sanction of striking off but instead sought for a suspension for a term of two years for each Respondent. Each Respondent sought a period of 6 months. Both the Law Society and the Respondents pointed to the presence of exceptional facts to warrant an imposition of a term of suspension. We will discuss later the parties’ contention that a striking off would be a disproportionate sanction in the present case. Suffice to say for now that 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. The court would have to examine the facts more closely to determine the appropriate sanction: Law Society of Singapore v Chia Choon Yang [2018] 5 SLR 1068 (“Chia Choon Yang”) at [24]). The facts would need to be exceptional to disapply or rebut the presumptive sanction of striking off: Chia Choon Yang at [39].

Sentencing considerations

The courts in determining the appropriate penalty in cases of disciplinary proceedings considers a range of sentencing considerations. The sentencing considerations or sentencing objectives are well established. They are as follows (see Law Society of Singapore v Hanam, Andrew John [2023] 4 SLR 1280 (“Andrew John”) at [131]):

The courts have said many times that sanctions serve the primary purpose of safeguarding the public interest. In selecting the appropriate sanction, the court’s concern is with the paramount considerations outlined at [126(a)] and [126(b)] which are the protection of the public and the upholding of public confidence in the integrity of the legal profession (see Andrew John at [132]; Law Society of Singapore v Ravi s/o Madasamy [2016] 5 SLR 1141 (“Ravi 2016”) at [54]). Generally, deterrence as outlined at [126(c)] above is also a consideration if it is aligned with and advances the two paramount considerations (see Ravi 2016 at [54(b)]).

It is not surprising that the courts have adopted a strict approach to punishing a solicitor’s misconduct involving dishonesty and the justification for the strict approach is simply the court’s concern with the protection of the public and upholding public confidence in the integrity of the legal profession. Thus, a sanction that responds to the paramount objectives of ensuring that the public and then the profession are adequately protected from the risk of harm is viewed appropriate in the circumstances of misconduct involving dishonesty even if that sanction might be seen as excessive purely from the perspective of the actual culpability of the offender (see Ravi 2016 at [41] and Law Society of Singapore v Choy Chee Yean [2010] 3 SLR 560 at [49]–[50])).

It follows that in disciplinary cases, a solicitor’s misconduct involving any form of dishonesty is treated with utmost severity. This includes conduct which might be described as “technical dishonesty”, which include false attestations, and are an aspect of dishonesty: Law Society of Singapore v Mohammed Lutfi bin Hussin [2023] 3 SLR 509 at [23] and [42]. Therefore, the courts have rejected the notion that there is a “spectrum of dishonesty” inviting a “spectrum of punishment”, and held that dishonesty will almost invariably lead to an order for the striking off of the advocate and solicitor: Udeh Kumar at [101]–[104] and affirmed in Chia Choon Yang at [18]–[20].

The court in Chia Choon Yang at [39] identified three broad categories of misconduct which are seen as being indicative of a character defect rendering the solicitor unfit to remain a member of the profession, or if the misconduct involves dishonesty which undermines the administration of justice. As this case engaged the third category of cases, we quote from the relevant part of [39]:

As such, in the absence of exceptional facts where striking off would be disproportionate, the presumptive sanction of striking off applies (a) where the dishonesty reveals a character defect rendering the errant solicitor unsuitable for the profession, or (b) where the dishonesty undermines the administration of justice. In such cases, personal culpability and mitigating factors have little relevance: Chia Choon Yang at [39]. The two broad categories were expressed as an “overarching principle” that encapsulates the typical cases where dishonesty would invariably lead to striking off: (a) where the dishonesty is integral to the commission of a criminal offence of which the solicitor has been convicted; (b) where the dishonesty violates the relationship of trust and confidence inherent in a solicitor-client relationship; and (c) where the dishonesty leads to the breach of the solicitor’s duty to the court or otherwise impedes the administration of justice: Chia Choon Yang at [19]–[20].

As explained in Koh Tien Hua at [73], the third category of cases (outlined at [130] above) concerns cases where the errant solicitor was fraudulent in his dealings with the court or breaches his duty of candour and violates his obligations as an officer of the court.

In Law Society of Singapore v Nor’ain bte Abu Bakar and others [2009] 1 SLR(R) 753 (“Nor’ain”), two of the three errant solicitors were struck off. That case concerned solicitors withholding salient information from the court and perpetrating fraud on the court. The court there looked at the involvement of the three lawyers in dishonestly concealing material information from the court. In that case, the first and third respondents had perpetrated a fraud on the court by causing it to order payment out of a huge sum of money and their misconduct was egregious and warranted their being struck off. In respect of the second respondent, the Law Society accepted that the second respondent was less culpable than the first and third respondents. The second respondent had appeared in place of or together with the first respondent in some of the relevant proceedings. The disciplinary tribunal had recorded that the second respondent had accepted her conduct as being improper and that she had played a lesser role in the entire affair (at [69]). For those reasons, the Law Society decided not to base the charges against her on fraud or deceit or misleading the court. She was charged instead for gross impropriety unbefitting an advocate and solicitor. The second respondent was suspended for a period of three years: Nor’ain at [94].

In Law Society of Singapore v G B Vasudeven [2019] 5 SLR 876 (“Vasudeven”), the respondent was guilty of misconduct involving dishonesty that fell within the second and third broad categories of cases identified in Chia Choon Yang (see [131] above): Vasudeven at [11]. The respondent deceived his client into believing that bankruptcy proceedings which he had been instructed to commence against a third party were in progress. To maintain this deception, the respondent prepared a fictitious court document and fictitious affidavits, and forged the electronic seal of the Supreme Court as well as the signature and stamp of a Commissioner for Oaths. The respondent was struck off the roll as (a) he had violated the relationship of trust and confidence between solicitor and client; and (b) he also violated his obligations as an officer of the court by creating fictitious court documents: Vasudeven at [11] and [12].

In Udeh Kumar, the Court of Three Judges considered a total of 11 charges against the errant solicitor. The charges were broadly categorised into three groups. The first set of charges concerned the solicitor’s failure to use best endeavours to avoid unnecessary adjournments, expense, and waste of the court’s time. The second set of charges concerned the alleged breach of r 56 of the PCR in deceiving or misleading the court by making false and inaccurate statements. The third set of charges related to events that led to the solicitor advising his client to obtain a medical certificate under false pretences in a seeming attempt to excuse the client’s absence from court in circumstances that amounted to a subversion of the course of justice (Udeh Kumar at [6], [21], [38]–[40] and [57]–[59]). The court found that all 11 charges were made out and that due cause of sufficient gravity existed in relation to each charge. The court also noted that the 11 charges were similar in that they went to the heart of the relationship between the solicitor, as an officer of the court, and the court itself, in connection with its core function of administering justice: Udeh Kumar at [84]. As to the appropriate penalty, the court considered that the solicitor’s misconduct was egregious and ordered that he be struck off: Udeh Kumar at [101] and [112].

Given the critical nature of a solicitor’s duty of candour to the court which stems from his role as an officer of the court, all these cases are clear examples of cases involving dishonesty such as fraudulent conduct that revealed a character defect that rendered the errant lawyer unsuitable for the profession. Fraudulent conduct invariably undermines the administration of justice. As to the court’s firm attitude where fraud or dishonest conduct affects the administration of justice, the observations of the court in Ravi 2016 at [48] are apposite, and we gratefully adopt them here:

Notably, 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: Chia Choon Yang at [39].

We pause here to make the following observations. The situation in the present case is different from Law Society of Singapore v Chung Ting Fai [2006] 4 SLR(R) 587 (“Chung Ting Fai”) and Koh Tien Hua. In addition, the parties had not referred us to any direct or analogous precedent cases.

In Chung Ting Fai, the possibility of an appeal against an order was raised between the client and the respondent solicitor, Mr Chung Ting Fai (“Mr Chung”) after the stipulated time frame for an appeal had lapsed. In preparing the draft affidavit in support of the intended application for leave to appeal out of time, Mr Chung inserted numerous inaccurate statements in the draft affidavit: Chung Ting Fai at [22]–[23]. Notably, it was observed in Chung Ting Fai at [50] that an errant solicitor who knowingly drafts a false affidavit for self-serving reasons would be struck off. Mr Chung was suspended for a period of one year because the court found that Mr Chung had not acted out of self-interest but instead had been motivated by “misplaced zealousness” to obtain an extension of time to appeal on behalf of his client: Chung Ting Fai at [35]. Importantly, Mr Chung’s acts were merely preparatory in that he had not filed the affidavit and, above all, his client would have been in the position to reject the draft as was the case there. In other words, there was no dominant intention to mislead the court. If Mr Chung had filed the affidavit with numerous inaccuracies, the result would have been a deception of the court (at [37]).

In Koh Tien Hua, the court there found that the dishonest conduct did not reveal a character defect nor did it undermine the administration of justice, and, accordingly, the presumption of striking off did not apply in the first place. The court then considered whether it should nevertheless strike off the errant solicitor applying the factors listed in Chia Choon Yang at [40]. To that end, it is correct that the context in which the discussion in Koh Tien Hua took place was different from the present case.

The court in Koh Tien Hua held that the content of the solicitor’s misstatements was irrelevant to the query made by the assistant registrar. The solicitor was simply attempting to downplay or excuse his failure to comply with the court’s direction; the solicitor’s remarks were essentially ignored by the assistant registrar: Koh Tien Hua at [74] and [84]. Even though the misstatements to the court were ineffective, the court expressed little tolerance for the solicitor’s dishonesty and imposed a substantial period of suspension. A firm stance was adopted because any dishonesty that blights the solicitor’s conduct at all is serious as it strikes at the core of the trustworthiness and the integrity of the solicitor, and in a broader sense the integrity of the profession and the legitimacy of the administration of justice (Ravi 2016 at [48] and Koh Tien Hua at [85]).

The solicitor in Koh Tien Hua also attempted to conceal matters from his client. There was no real prejudice that the client suffered. The court found that the real nature of the solicitor’s wrong was his woefully inadequate management of his client’s affairs – the court emphasised that the client’s actual legal position in the case was not compromised by the solicitor’s conduct (at [112]). The solicitor’s deceptions were ultimately of no consequence for two of the charges. They had no bearing on the proceedings before the assistant registrar. For a third charge, though the nature and extent of the solicitor’s deception were more severe, the solicitor’s conduct revealed a lack of moral courage, an appalling management of the client relationship and a lack of judgment (at [106] and [113]). Furthermore, the solicitor did not benefit from his dishonesty (at [114]). Neither did the solicitor’s dishonest conduct cause his client any harm. Nevertheless, the court did consider the potential harm in that the solicitor’s misconduct could have affected his client’s legal position (at [115]). In the round, the court found that striking off was not warranted and imposed a term of suspension of three years (at [122]).

We now come to the situation where the imposition of the presumptive penalty of a striking off could be excessive as being a disproportionate sentence. As mentioned, the presumption is only rebutted if there are truly exceptional facts to show that a striking off would be disproportionate. Cases of misconduct involving dishonesty with exceptional facts are said to be extremely rare viewed from the perspective of the court’s paramount concerns which are the protection of the public and upholding of public confidence in the integrity of the profession, and these concerns do go well beyond the specific personal circumstances of the solicitor in question. In other words, an errant solicitor’s personal culpability and mitigating factors generally have little relevance “in cases where the presumptive position of striking off applies” (see Law Society of Singapore v Ravi s/o Madasamy and another matter [2024] 4 SLR 1441 at [56]). In practical terms, what this means, as explained in Ravi 2016, is that a sanction that satisfies the court’s paramount considerations would be considered appropriate even if that sanction might be seen as excessive from the perspective of the actual culpability of the errant solicitor. Plainly, the need to protect the public and uphold confidence in the profession will impact on the way in which the court approaches all and not just cases involving dishonesty (see Ravi 2016 at [49]).

In our view, there is no reason in principle why a similar reasoning and approach ought not to apply where an errant solicitor seeks to rebut the presumptive position of striking off. In exceptional cases where an order for striking off might conceivably be disproportionate, the observations made in Ravindra Samuel (see [65] above) are equally relevant since the same question is asked in determining the appropriate sentence: “whether the solicitor in question is a fit and proper person to be an advocate and solicitor of the court, and the orders to be made are to be directed to ensuring that, to the extent that he is not, his practice is restricted.” The pertinent inquiry is the same here: whether the solicitor’s dishonesty is indicative of a character defect rendering him unfit for the profession, or if it undermines the administration of justice. What happens if the dishonesty did not attest to a character defect, but the dishonesty somehow affected the administration of justice? What should the court’s approach be in such a situation where the presumptive sanction of striking off could be excessive? Relatedly, what can constitute an exceptional case?

To this end, 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 (see Ravi 2016 at [34]). We emphasise that in the court’s deliberation on whether a striking out is excessive, the facts and circumstances must be assessed holistically. In our view, the non-exhaustive factors in Chia Choon Yang at [40] are generic in nature; they 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. After all, the question of whether the facts of a case are “exceptional” in the context of a solicitor’s duty of candour depends on the context in which misconduct arises, the convention in his professional work as a solicitor, and practical judgment.

The court in Chia Choon Yang set out the following non-exhaustive list of factors for cases that do not trigger the presumptive sanction of striking off to determine whether it is nevertheless the appropriate sanction (Chia Choon Yang at [40]):

With these principles and observations in mind, we turn to consider the appropriate sanction in the present case which as we mentioned engaged the third category of cases identified in Chia Choon Yang.

The parties’ submissions on the existence of “exceptional facts”

The Law Society accepted that the presumptive sanction in cases of dishonest conduct is striking off if the relevant conduct is indicative of a character defect or if dishonest conduct undermines the administration of justice. However, the Law Society argued that this case was an exceptional case and an order for striking off would be disproportionate; while the culpability was high, amongst other things, there was no financial gain. On that basis, the Law Society sought a suspension of two years for both Respondents (see [74] and [79] above).

Mr Vergis on behalf of Mr Seah submitted that he honestly believed the appeal in CA 146 continued to be a live matter even after the Settlement Agreement was entered into. Mr Vergis accepted that the final settlement agreement did imply dishonesty that undermined the administration of justice. But, Mr Seah’s honest belief was that the appeal continued to be a live issue, in so far as it remained relevant to the disposition of other outstanding matters that the Liquidators were facing, and that background context should be taken into account. It was an exceptional case in that the appeal did have relevance to other matters, albeit they related to matters that were not referred to in SUM 79. Mr Seah was also deeply remorseful for his actions and had apologised on multiple occasions, which was a strong mitigating factor.

Moreover, Mr Seah had no personal or financial incentive in pursuing CA 146. Mr Seah also accepted that he had made an omission by failing to bring the settlement to the Court of Appeal’s attention. We noted the additional points raised by Mr Vergis before us during the hearing, in particular, that Mr Seah had cautioned his team on the importance of being transparent and accurate with the court. Mr Vergis pointed us to an exchange of e-mails on 30 and 31 August 2019 where Mr Seah had emphasised on the need to be accurate and transparent with the court. Despite the fact that the e-mails were heavily redacted, Mr Seah’s case was that he intended to comply with his obligations to the court.

We also noted Mr Vergis’s explanation of the circumstances in which this case transpired. The Liquidators, senior and experienced practitioners, were hoping to correct an error in the Judge’s decision in CA 146 and they could be expected to be putting a lot of pressure on Mr Seah to make sure the appeal was heard. In the round, Mr Seah just took a step too far and failed to strike a balance in the duties he owed to his clients and the duties owed to the court.

Mr Singh, on behalf of Mr Mohan, submitted, amongst other things, on Mr Mohan’s insistence on having a clause in the Settlement Agreement that would have allowed him to disclose the fact of the settlement to the Court of Appeal. Moreover, Mr Singh stated that this was a situation where Mr Mohan had been prevailed upon by the circumstances where he thought he could still discharge his duties to the court. On the application of the principles from Chia Choon Yang, Mr Singh relied on three facets of this case to submit that this was an exceptional case: (a) the DT itself came to the view that Mr Mohan’s conduct was less severe than Mr Seah’s; (b) the DT found that while Mr Mohan’s duty of responsibility towards his client was laudable, it caused an error of judgment on his part that fell short of his duty to assist in the administration of justice, and (c) the DT found that due cause was shown under s 83(2)(h) and not s 83(2)(b) of the LPA.

Our decision

Since the charges faced by each Respondent arose from the same circumstances, we deemed it appropriate for a composite sanction, ie, one sanction in respect of all the charges that each faced. The analysis of the sanction would naturally be focused on the element of dishonesty in the context of the Respondents’ approach to navigating their duty to their clients whilst ensuring that they observed their duty to the court.

Having considered the circumstances leading to the filing of CA 146, and in particular the terms of the Settlement Agreement, and the performance thereof in relation to CA 146, it was clear that the Respondents had acted dishonestly in that they knowingly misled the Court of Appeal by giving the Court of Appeal the mistaken impression that there were live issues between the parties to CA 146 that the Court of Appeal was to resolve. Their dishonest conduct undermined the administration of justice. The Respondents’ seniority at the bar was an aggravating factor. Mr Seah had been in practice for 14 years. Mr Mohan was a senior member of the bar for just under three decades. The Court of Appeal in its GD stated that the Respondents as senior and experienced litigators should know the law which is that the court would decline to hear cases or arguments that do not involve a live dispute between the parties (GD at [62], and noted that the Respondents knew that the result of any settlement of Suit 965 would be that the appeal would be rendered academic. In our view, the evidence showed that 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. As noted, the Respondents engaged in conduct that was prejudicial to or undermined the administration of justice.

That said, we nevertheless accepted that their misconduct involving dishonesty did not attest to a character defect. We also accepted that several points stood out as mitigating circumstances in the present case. They collectively made up the exceptional facts needed to rebut the presumptive sanction of striking off. We emphasise that the mitigating circumstances in the present case were taken into consideration because they did not militate against the two paramount objectives of sanction – protection of the public and safeguarding confidence in the profession. In this case, a conflict of duty arose during the Respondents’ professional work by virtue of the instructions of their clients. To be clear, we recognised that, in practice, circumstances might present themselves whereby lawyers ostensibly have difficulty navigating and managing clients’ instructions with the duty owed to the court: see Kasturibai at [27]. To be clear, 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 without which the solicitor risks being subject to disciplinary action.

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. He ought to assess the situation before he puts himself in that ethical dilemma. In such cases, a solicitor is not excused from fulfilling his duty to the court which prevails over his duty to his client. In fact, such cases call for a degree of judgment in following the clients’ instructions. Such cases also call for a solicitor to dispense his professional duties with moral courage and independence in the face of pressures from the clients. 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 (see the Lord Chief Justice Lord Thomas of Cwmgiedd’s observations in Alastair Brett v The Solicitors Regulation Authority [2014] EWHC 2974 (Admin) at [110]).

In the present case, Mr Seah followed the clients’ instructions to appeal the decision in SUM 79 to correct a point of law which was seen as inconvenient to the Liquidators’ commercial interests. In the case of Mr Mohan, he followed the clients’ instructions to settle Suit 965 and at the same time he cooperated with the Liquidators to the extent of not impeding the appeal process. The chosen pathway and strategy that they agreed to placed them in a position of having two irreconcilable duties which arose entirely from their fault. We foreshadow an unusual feature of this case which is that in essence, the Respondents were opposing counsel, and each tried to meet the distinct interests of their two distinct clients. This formed their underlying motive which then led to their dishonest conduct. The Respondents, in particular Mr Seah, did not even think (as it did not cross his mind) of asking the Court of Appeal to grant leave to proceed with CA 146 notwithstanding the settlement of Suit 965, although he might have failed in that endeavour.

After a close and holistic examination of the facts and circumstances, we concluded that 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. Several points stood out as we examined the nature of the dishonest acts involved and they formed the bases of our reasons for imposing a term of suspension rather than a striking off.

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. Having entered into the Settlement Agreement, the Respondents did not take further steps to aggravate their breach. They did not fabricate facts or evidence before the Court of Appeal: see Koh Tien Hua at [67]. The core of the Respondents’ wrongdoing was their non-disclosure of the settlement to the Court of Appeal. The settlement was disclosed after Mr Mohan was questioned further on the parties’ agreement not to file a Respondent’s Case in CA 146. It was then that the Respondents became frank in their responses and disclosed the status of Suit 965.

Third, the dishonest acts were done in the erroneous belief that they would discharge their respective duties to the court and to their clients with the chosen strategy as expressed in the Settlement Agreement. As we see it, the Respondents did not appreciate at the time that it was impossible to discharge their duty to the court and their duty to the clients in the manner stated in the Settlement Agreement. We were prepared to accept that there appeared to be no ill intent underlying the instructions to appeal except that with the settlement of Suit 965 that came about after CA 146 was filed, the settlement of Suit 965 rendered the Liquidators’ instructions to appeal on a point of law problematic. The Settlement Agreement and the structure of the scheme on the conduct of CA 146, whilst appallingly misguided and ill-conceived, appeared to have been driven by what was thought to be a doable work-around in pursuit of balancing the conflict of duty faced by the Respondents even though they were aware that their duty to the court must prevail. That approach would not justify and excuse the Respondents’ default, but it helped explain why it was more acceptable to see those acts as having stemmed from lapses of judgment and discernment rather than as demonstrative of a defect in the character of each Respondent.

What ought to be seen with clarity by the Respondents was clouded in the sense that the strategy adopted, contrary to the Respondents’ thinking, did not go hand in hand with the two duties. The strategy adopted was perceived unwisely and erroneously as striking a practical balance between ethics and service to clients. The upshot is that the Respondents had not kept a closer eye on the wider duty to the court. We recognised that solicitors do from time to time find themselves in a dilemma being caught in the middle between two opposing obligations – the duty to court and duty to client. The practical approach would be in finding and maintaining a right balance between the opposing duties. In this regard, discernment and common sense are needed. 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. In the present case, the Respondents failed to achieve that right balance and it resulted in disciplinary sanction against the Respondents. The failure to be candid with the court led to misleading conduct and undermined the administration of justice.

Fourth, it was relevant that neither Mr Seah nor Mr Mohan had anything to gain, personally or financially, from pursuing the appeal in CA 146. Mr Seah represented the Liquidator on a pro bono basis. Similarly, even before the settlement negotiations began, Mr Mohan had agreed to stop charging Metax any more fees. It is not apparent and the Law Society had not suggested that the Respondents’ motivations were due to business interests.

Fifth, the misconduct ultimately did not cause any loss to the parties or other third parties. There was no loss to the Liquidators who had no legal right to proceed with an appeal that was rendered academic because of the settlement of Suit 965. CA 146 was an attempt to seek a legal opinion on a point of law from the Court of Appeal, something the Liquidators as appellants were not entitled to in the first place. For Metax, its interest was already safeguarded by the terms of the settlement, and it was already paid under the settlement. There was nothing in CA 146 that would have affected the both of them. The dishonesty in the present case was serious, but in the end, it had serious consequences only for the Respondents who assisted in the matter on a pro bono basis. From this perspective, a less drastic sanction than a striking off would be appropriate.

Sixth, the Respondents had an unblemished record, and their misconduct was an isolated incident that was out of character. It was unlikely that the Respondents would mislead the court again. We were further persuaded that 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.

Seventh, as stated in Koh Tien Hua at [75], although the courts strictly pursue the efficient administration of justice, the courts do not do so doggedly, and understanding can be accorded if there were legitimate and reasonable grounds. We have explained, in some detail, that the Respondents did consider their duty to the court; but in the end their misconduct was the product of their inability to properly balance their duties owed to the court and to their clients.

For the reasons stated, we sentenced both Mr Seah and Mr Mohan to a suspension for a period of three years each. Mr Seah’s three-year suspension was to commence from 17 August 2024, and Mr Mohan’s suspension was to commence on 1 June 2024.

We emphasise that the outcome of this case must 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 our finding on the appropriate penalty. Just as in Chung Ting Fai at [50], if the facts were different, the sanction might have very well been a striking off.

On the other hand, 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.

Conclusion

For these reasons, we found that due cause of sufficient gravity existed for disciplinary sanction against Mr Mohan in OA 12, and we 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.

Annex: