Law Society of Singapore v Chiong Chin May Selena

Chao Hick Tin JA (delivering the judgment of the court):

[1] This proceeding, Originating Summons No 16 of 2012, is commenced by the Law Society of Singapore (“the Law Society”) against the respondent, Chiong Chin May Selena (“Chiong” or “the Respondent”), pursuant to s 98 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) requiring Chiong to show cause why she should not be dealt with under s 83(1) of the LPA, following complaints made by Chiong’s client, Heng Siew Lee (Wang XiuLi) (“Heng” or “the Complainant”).

[2] Chiong is an advocate and solicitor of some 17 years’ standing, having been admitted as such on 29 April 1995. In September 2009, Chiong was engaged by Heng to handle her proposed divorce proceeding. Sometime in March 2010, Heng lodged a formal complaint with the Council of the Law Society under s 85(1) of the LPA. The essence of the complaint was that Chiong had not diligently handled the matter relating to Heng’s proposed divorce from her husband.

[3] The nub of the complaint made by Heng against Chiong was summarised in a statement prepared by the Law Society (“the Statement”) as follows:

[4] The Statement then went on to detail the facts and events upon which the allegations were based. In the result, the Law Society framed four main charges and four alternative charges against Chiong. The four main charges, which were all brought under s 83(2)(b) of the LPA, were as follows:

[5] The wording of the four alternative charges was the same as that of the corresponding main charges, save that the alternative charges were brought under s 83(2)(h) of the LPA. In the alternative charges, the phrase “grossly improper conduct in the discharge of your professional duty within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap 161)” [italics in original omitted] in the main charges was substituted with the phrase “misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Profession Act (Cap 161)” [italics in original omitted]. Unless otherwise indicated, all references hereafter to the charges against Chiong should be read as references to the main charges and the corresponding alternative charges collectively.

[6] On 23 March 2011, Chan Sek Keong CJ, in exercise of his power under s 90(1) of the LPA, appointed Chan Leng Sun SC as President and Cheo Chai Beng Johnny as member of a Disciplinary Tribunal (“the DT”) to hear and investigate the charges framed against Chiong.

[7] The first hearing date of the DT was fixed for 15 June 2011. However, Chiong arrived late for the hearing and did not even file any defence or affidavit in reply. The Law Society did not object to giving Chiong time to file her defence and affidavit, and the hearing was adjourned to 2 August 2011. At the second hearing on 2 August 2011, Heng appeared as witness for the Law Society and Chiong represented herself.

[8] The Law Society filed its closing submissions on 2 September 2011. Chiong was granted an extension of time and only filed her closing submissions on 29 September 2011. Leave was granted by the DT to the Law Society to file reply submissions on 18 November 2011. The DT also gave Chiong an opportunity to respond to the Law Society’s closing submissions, which she did not avail herself of.

[9] In its report dated 9 December 2011 (“the Report”), the DT made the following findings based on the evidence adduced before it (see [36] and [38] of the Report):

[10] The above findings were made based on the evidence set out at [8]–[31] of the Report. Accordingly, the DT concluded at [40] of the Report that Chiong had breached rr 12, 17 and 21(1) of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“the LP(PC)R”), which read:

[11] For the first, second and third main charges and the alternative first, second and third charges, the Law Society took a “global” approach, and did not specifically link each of the instances described at [36] of the Report to a particular charge. Instead, the Law Society submitted that the facts alleged were to be taken cumulatively, and that there was significant overlap between each charge. The DT agreed with the Law Society, and determined at [40] of the Report that the allegations made in the first three main charges and their alternatives had been proved (ie, Chiong had breached rr 12, 17 and 21(1) of the LP(PC)R).

[12] The DT further determined at [41] of the Report that these breaches amounted to grossly improper conduct in the discharge of Chiong’s professional duty within the meaning of s 83(2)(b) of the LPA, and, in the alternative, to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of s 83(2)(h) of the LPA. The DT thus opined that taken as a whole, there was cause of sufficient gravity for disciplinary action under s 83(2)(b) of the LPA, and, alternatively, under s 83(2)(h) of the LPA.

[13] As for the fourth main charge and the alternative fourth charge, the DT found that:

[14] In the light of the above findings, the DT determined that the fourth main charge and the alternative fourth charge were made out, and that there was cause of sufficient gravity for disciplinary action under s 83(2)(b) of the LPA (and, alternatively, under s 83(2)(h) of the LPA).

[15] In considering the charges preferred against Chiong, the Law Society submitted that the starting point was the case of Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 (“Ng Chee Sing”), where the Court of Three Judges held at [45] that gross or excessive delay in attending to a client’s matter could be serious enough to constitute unbefitting conduct:

[16] The Law Society further argued that the absence of dishonesty did not necessarily mean that there was no professional misconduct, and drew an analogy between the facts of Ng Chee Sing and the facts of the present case. The Law Society highlighted the fact that Chiong had left Heng in the dark about the status of her divorce matter. Besides having to actively enquire about the status of her divorce proceeding, Heng was misled by Chiong into believing that it was the Housing and Development Board (“HDB”) that had delayed her matter, and that no replies had been forthcoming from HDB despite enquiries.

[17] Alternatively, the Law Society submitted that Chiong’s conduct in the handling of Heng’s divorce matter was negligent to the extent that it was “‘inexcusable’, and ‘such as to be regarded as deplorable by [her] professional colleagues’” [emphasis in original omitted], making Chiong unfit to remain as a member of an honourable profession under s 83(2)(h) of the LPA. Although there were various “degrees of negligence” (see Re Lim Kiap Khee; Law Society of Singapore v Lim Kiap Khee [2001] 2 SLR(R) 398 (“Lim Kiap Khee”) at [19]), “the gravity of a negligent act must be viewed in the context of the matter, taking into account all the circumstances of the case”: see Lim Kiap Khee at [19]–[20].

[19] Finally, the Law Society submitted that there was also an issue of an apparent character defect or deficiency as regards Chiong, and urged this court to mete out a sentence that would reflect not just the seriousness of Chiong’s breaches, but also the importance of observing the LP(PC)R.

[20] Consistent with the dilatory stance which she had demonstrated in the handling of Heng’s matter, Chiong did not file any written submissions for the first hearing before this court on 2 July 2012. Instead Chiong appeared in person at the hearing and orally requested for an adjournment to file her written submissions. We granted her an adjournment to 17 July 2012 and directed her to file her written submissions by 12 July 2012.

[21] At the second hearing before us on 17 July 2012, Chiong submitted that the first three main charges and the first three alternative charges were not made out. Chiong based her case principally on the written submissions that she filed on 12 July 2012, which we set out below:

[22] During oral arguments, Chiong also submitted that the fourth main charge and the alternative fourth charge were not made out. Chiong relied on the documentary evidence before the court and submitted that at the material time, it was not clear to her that Heng had on 15 March 2010 unequivocally withdrawn her authority to act for Heng. Thus, Chiong contended that she could not be faulted for purporting to act for Heng on 16 March 2010 despite having had notice of Heng’s intention to terminate her services.

[23] Since liability on all four main charges and the corresponding alternative charges is disputed by Chiong, we shall address that issue first. The question of the appropriate sanction will only arise for consideration if we find Chiong guilty of any of the charges preferred against her.

[24] After carefully reviewing the evidence, we are satisfied that on the basis of the incontrovertible documentary evidence before us, the DT was justified in concluding that the matters complained of at [36] of the Report (except in relation to the allegation at para 36(l) concerning the failure to promptly return Heng’s documents following the termination of Chiong’s services: see [40] below) were established. It will be noted that in her written submissions (see [21] above), Chiong did not really answer the first three main charges (or the alternative first three charges). She said that she did not cheat Heng. But, that is not the substance of the first three charges, which concern her neglect in handling the divorce matter entrusted by Heng to her. We agree with the DT that while some of the matters complained of were relatively mild in themselves, “[c]umulatively, there was a pattern of chronic irresponsibility and very poor handling of [Heng]’s matter” (see the Report at [38]) on Chiong’s part. She took a rather lackadaisical attitude to her responsibility as a solicitor, even to the extent of creating a false excuse for her inaction (ie, alleging that she was waiting for HDB’s response when HDB had already responded).

[25] In Re Marshall David; Law Society of Singapore v Marshall David Saul [1971–1973] SLR(R) 554, this court declared at [23] that “grossly improper conduct” was “conduct which [was] dishonourable to [the respondent solicitor] as a man and dishonourable in his profession”. In Lim Kiap Khee, this court held (at [19]) that an intention to deceive need not be present to constitute “grossly improper conduct” under s 83(2)(b) of the then equivalent of the LPA. In our view, there was ample evidence to support the allegations made under the first three charges. The only question on which we hesitated was whether the misconduct alleged in the first three charges necessarily constituted “grossly improper conduct”. While we have no problems in so classifying the misconduct which is the subject matter of the third charge (where there was deliberate misrepresentation vis-à-vis HDB’s response), we do have some difficulties in relation to the misconduct complained of in the first and second charges, which misconduct smacks more of incompetence, disorganisation or lack of care on the part of Chiong rather than any deliberate act on her part to mislead Heng or mishandle the latter’s divorce matter. The following observations of Professor Tan Yock Lin in The Law of Advocates and Solicitors in Singapore and West Malaysia (Butterworths Asia, 2nd Ed, 1998) at p 811 are apposite:

[26] In our opinion, it would be more appropriate to regard the misconduct set out in the first and second charges as “misconduct unbefitting an advocate and solicitor” within the meaning of s 83(2)(h) of the LPA. To this extent, we vary the findings of the DT. While we find Chiong guilty of the third main charge, we find her guilty only of the alternative first charge and the alternative second charge.

[27] The fourth charge relating to acting for the Complainant after she had withdrawn Chiong’s authority to act is a more serious charge compared to the first three charges. In our view, on this charge, the issue is whether or not the DT was correct to find that the Law Society had discharged its burden of proof for each and every element of the charge. For convenience, we shall again set out the fourth main charge:

[28] It is a trite proposition that disciplinary proceedings are quasi-criminal in nature: see Law Society of Singapore v Chong Wai Yen Michael and others [2012] 2 SLR 113 at [44]. Therefore, the Law Society has the burden of proving its case beyond a reasonable doubt: see Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR(R) 308 at [6]. As framed, the following elements must be proved in relation to the fourth charge:

(a) that on 15 March 2010, Heng unequivocally revoked her instructions for the firm, Edmond Pereira & Partners (“the Firm”), or Chiong specifically to act on her behalf;

(b) that Chiong was aware of Heng’s unequivocal revocation of her authority to act by 15 March 2010; and

(c) that Chiong, despite such knowledge of the revocation of her authority to act, continued to act for Heng on 19 March 2010 by sending a letter to the solicitor acting for Heng’s husband and backdating it to 16 March 2010.

[29] In order to prove the first element of the fourth charge, the Law Society relied on two emails that Heng sent. The first email (“the First Email”), which was sent by Heng to the personal email address of Mr Edmond Pereira (“Mr Pereira”) on 15 March 2010 at 9.54pm, was as follows:

[30] The second email, which had exactly the same content as the First Email, was forwarded by Heng to Mr Pereira’s office email address on 16 March 2010 at 6.50pm, which was after the Firm’s office operating hours.

[31] In our view, it is not immediately apparent that the First Email sent by Heng on 15 March 2010 unequivocally revoked the Firm’s authority to act for her. As a client, Heng was entitled to withdraw the Firm’s authority to act on her behalf, and upon such an instruction being given, neither the Firm nor any member thereof would thereafter be authorised to act on her behalf. It is also not clear that Heng specifically revoked Chiong’s authority to act on her behalf, while at the same time maintaining the Firm’s retainer.

[32] It is important to closely examine what Heng wrote. While Heng expressly stated in the First Email that she “wished to ceased [sic] [her] contract” with Chiong, she immediately went on to state that she “hoped that [the] [F]irm [could] follow up [on her] case by assigning another lawyer to [her]”. In other words, the substance of the First Email was that Heng intended to retain the Firm to act for her, although she wanted to change the solicitor in charge of her case. In our view, the First Email was a request by Heng to the Firm to assign someone else in place of Chiong to handle her matter. It in no way revoked Heng’s instructions for the Firm to act for her. Furthermore, Heng’s intention to “ceased [sic] [her] contract” with Chiong was framed as a request or an expression of future intent, rather than as an instruction. Thus, it was not at all clear that Chiong no longer had authority to act on Heng’s behalf after Heng sent the First Email. This also showed a recognition by Heng that it was the prerogative of the Firm to assign a particular lawyer to handle her matter.

[33] We therefore find that on 15 March 2010, Heng did not unequivocally revoke her instructions for the Firm or Chiong to act on her behalf.

[34] As for the second element of the fourth charge, the DT found at [44] of the Report that Chiong “admitted in her testimony that she knew on 15 March 2010 that the Complainant had terminated her services”. This finding was presumably based on the following testimony of Chiong given under cross-examination:

[35] However, and with respect to the DT, we find that Chiong might have been confused as to the exact date on which Heng withdrew her authority to the Firm to act for her. Looking at the transcripts immediately following the “admission” above, the picture painted seemed to suggest that while Chiong knew that Heng was visibly upset when she turned up at the Firm’s premises on 15 March 2010, she was not certain that the authority of the Firm to act for Heng was withdrawn on that date:

[36] We find that Chiong’s evidence, while not a model of clarity, is consistent with the documentary evidence before us, such as the First Email. Indeed, Chiong’s answers, as quoted above, are quite confusing. It seemed that Heng was unhappy not with the Firm, but with Chiong because the latter had not acted expeditiously enough. Even as late as 17 March 2010, Heng was still in communication with Mr Pereira, when she sent an email to him stating:

[37] The tone of the First Email suggests that Heng wanted early action on her matter without further delay, rather than that she wanted to terminate her retainer of the Firm. To Heng’s email of 17 March 2010, Mr Pereira replied on 18 March 2010 stating:

[38] In our view, Mr Pereira’s reply did not indicate that he thought Heng was terminating her retainer of the Firm. He was going to act on her request that her matter be looked into “without dragging further”, and especially that someone else in the Firm be assigned to handle her matter in place of Chiong. Therefore, for the second element, we do not think the evidence supported the charge that Chiong was conscious that Heng had revoked the authority of the Firm to act for Heng by the time Chiong wrote the letter dated 16 March 2010 to the law firm acting for Heng’s husband, M/s A Alagappan & Co.

[39] With regard to the third element of the fourth charge, the fact that Chiong sent a letter to M/s A Alagappan & Co dated 16 March 2010, which letter was received on 19 March 2010, and that Chiong continued to act for Heng after 15 March 2010 were both not in dispute and do not require further consideration. However, there is no evidence that Chiong wrote the letter on 19 March 2010 and backdated it to 16 March 2010. It could well be that she wrote it on 16 March 2010, but, in her disorganised way, only got it dispatched on 19 March 2010.

[40] In the light of the above, we would, with respect, differ from the DT and hold that the fourth main charge and the alternative fourth charge have not been made out against Chiong. We do not agree with the DT’s finding at [44] of the Report that Chiong “knew on 15 March 2010 that the Complainant had terminated her services” and that Chiong “had no authority to write such a letter [ie, the letter to M/s A Alagappan & Co dated 16 March 2010] on 16 March 2010”.

[41] We now turn to consider the appropriate sanction to be imposed on Chiong in respect of the third main charge, the alternative first charge and the alternative second charge (collectively, “the relevant charges”). Section 83(1) of the LPA sets out the scope of the power of the court to deal with an errant advocate and solicitor as follows:

[42] In its submissions, the Law Society relied particularly on [47] of the Report, where the DT stated:

[43] The principles that apply in determining the appropriate sanction where dishonesty or deceit is not involved were recently restated in Law Society of Singapore v Tay Choon Leng John [2012] 3 SLR 150 (“John Tay”) in the context of the 2008 amendment to s 83(1) of the LPA, which now provides (via s 83(1)(c)) that a monetary penalty of up to $100,000 – a punishment which was not previously available to the court – may be imposed for misconduct. In John Tay, this court endorsed at [57] its previous decision in Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] 4 SLR 1184, where it held (at [36]):

[44] While this passage relates to the specific offence of overcharging amounting to grossly improper conduct, it stands for the general proposition that cases involving grossly improper conduct without dishonesty or deceit will generally attract a monetary penalty. Having said that, it does not follow that in every case involving grossly improper conduct, monetary penalties will necessarily be sufficient. Much would depend on the overall circumstances, including whether or not dishonesty or deceit is involved. As this court stated in John Tay at [59]:

[45] Aggravating circumstances, such as a previous disciplinary record of misconduct, may justify a departure from the aforesaid starting point, leading to the imposition of more serious sanctions, such as suspension from practice or – in more extreme cases – striking the advocate and solicitor off the roll. Here, we note that in 2005, Chiong was suspended from practice for one year for breaches of the Legal Profession (Solicitors’ Accounts) Rules (Cap 161, R 8, 1999 Rev Ed) as well as s 77(2) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (for permitting her husband, who was not an advocate and solicitor, to be a co-signatory of the office and client’s accounts of her firm): see Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR(R) 320.

[46] The Law Society submitted that based on the overall circumstances, Chiong’s misconduct was “severe in terms of the scale and magnitude” of the way in which she intentionally misled Heng (in relation to the third charge), and that the acts complained of were not committed innocently or inadvertently. We agree. While Chiong is acquitted by us of the fourth main charge (and the alternative fourth charge) of acting without authority, the DT’s finding that Chiong “behaved irresponsibly towards [Heng] for the entire duration of her service” (see the Report at [47]) remains unaffected.

[47] Moreover, the lack of remorse on Chiong’s part was evident in her written submissions before us, where she maintained that she had “done nothing to justify the Complainant’s wrath and her vicious complaint” even in the face of incontrovertible evidence, going so far as to describe Heng’s conduct as a “totally unjustifiable and unexpected vicious attack” upon her and to describe Heng as “sensitive and neurotic”. We would also emphasise here that the misconduct in relation to the third charge comes close to deceit.

[48] In the light of the above considerations, including Chiong’s previous misconduct, we do not think that a penalty of a fine would be adequate. We thus impose a sanction of six months’ suspension from practice on Chiong in respect of the relevant charges. This order of suspension shall take effect immediately unless Chiong or the Law Society shall, within ten days of the date of this judgment, write in to the court to request otherwise.