Law Society of Singapore v Chong Wai Yen Michael and others

Chao Hick Tin JA (delivering the grounds of decision of the court):

[2] These proceedings emanated from investigations by the Corrupt Practices Investigation Bureau (“CPIB”) into five law firms for having purportedly given gratifications to a company named Asprez Loans Connections Pte Ltd (“Asprez”) in consideration for Asprez referring conveyancing related matters to them. The investigations revealed that Asprez was set up by a former business development manager of thethird respondent named Tan Sinn Aeng Ben (“Ben Tan”). On the instruction of thethird respondent, Ben Tan registered Asprez on 7 June 2004. At all material times, Asprez effectively operated under the stewardship of thethird respondent. The main function of Asprez was to procure conveyancing business by promise of payment of referral fees to real estate agents. In return, the real estate agents were expected to refer clients to Asprez. Upon engaging the services of Asprez, real estate agents would select a lawyer from Asprez’s panel of lawyers to attend to the conveyancing aspects of each transaction so referred by them. The firms of the four respondents were, at different periods, on Asprez’s panel of lawyers. At the end of its investigation, CPIB, on 15 October 2008, referred the matter to the Law Society.

[3] Charges were subsequently preferred by the Law Society against the four respondents for making payments to Asprez in consideration of the latter’s referrals of conveyancing work. A Disciplinary Tribunal (“DT”) was appointed on 7 July 2010 to conduct formal investigations and to hear the charges brought against them. Save for the fourth respondent, the other respondents admitted to the charges preferred against them. Having heard the guilty pleas of the first, second and third respondents and after a full hearing in respect of the fourth respondent, the DT found that causes of sufficient gravity for disciplinary action existed under s 83 of the Act against the four respondents pursuant to s 93(1)(c) of the Act.

[4] Pursuant to the findings of the DT, the Law Society instituted the present show cause proceedings against the four respondents. At the hearing before us, the fourth respondent maintained his position taken before the DT that the charges preferred against him had not been proven. We rejected this argument which we will now explain.

[5] The fourth respondent faced two charges, viz, one under s 83(2)(e) and another under s 83(2)(b) of the Act, and two alternative charges under s 83(2)(h) of the Act (although nothing turned on the alternative charges). The charges on which the fourth respondent was found guilty by the DT were as follows:

[6] The relationship between the fourth respondent and Asprez (“the two parties”) commenced on or before 3 January 2006 when the two parties entered into an agreement (“the Agreement”) which read as follows:

[7] After the Agreement was entered into, the fourth respondent’s firm, David Siow, Chua & Tan LLC, was placed onto Asprez’s panel of lawyers. During the period of 6 February 2006 to 1 August 2006, the fourth respondent made seven payments totalling $33,850 to Asprez. These payments constituted the basis of the charges against the fourth respondent. The fourth respondent did not dispute that the payments were made to Asprez. What he disputed was the purpose for which the payments were made. The Law Society’s case was that the fourth respondent made these payments in consideration of Asprez’s referrals of conveyancing work to his firm. However, the fourth respondent contended that the payments were for consultancy and training services rendered by Asprez to him or his firm. We pause, parenthetically, to observe that all three purposes, ie, provision of consultancy, training and referrals of conveyancing services, were listed in the preamble of the Agreement (at [6] above).

[8] In finding the fourth respondent guilty of the charges, the DT relied upon two main pieces of evidence, ie, the Agreement and various invoices seized from the office of Asprez during a raid conducted by CPIB (collectively referred to as “the invoices”). Each of the invoices was addressed to the fourth respondent’s firm. The details of the invoices were as follows:

(a) Invoice No. 06/D0201 dated 6 February 2006 for $600;

(b) Invoice No. 06/D0301 dated 2 March 2006 for $2,400;

(c) Invoice No. 06/D0401 dated 4 April 2006 for $7,800;

(d) Invoice No. 06/D0501 dated 4 May 2006 for $4,350;

(e) Revised Invoice No. 06/D0501 dated 4 May 2006 for $3,850;

(f) Invoice No. 06/D0601 dated 1 June 2006 for $6,400;

(g) Invoice No. 06/D0701 dated 1 July 2006 for $6,000; and

(h) Invoice No. 06/D0801 dated 1 August 2006 for $6,800.

[9] Attached to each of the invoices (see [8] above) was a list which purportedly detailed conveyancing transactions undertaken by the fourth respondent or his firm (collectively referred to as “the attached lists”). The contents of the attached lists tallied with theconveyancing register of files of the fourth respondent’s firm. In the DT’s view, the totality of the evidence was compelling to prove the charges against the fourth respondent. At [15] of the DT’s report against the fourth respondent as contained in The Law Society of Singapore v Michael Chong Wai Yen and Others [2011] SGDT 6, the DT stated:

[10] It was held in Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (“Phyllis Tan”) that this court would be slow to disturb findings of fact made by a DT, previously known as a disciplinary committee (see [27] of Phyllis Tan):

[11] As the fourth respondent neither disputed having entered into the Agreement nor disputed having made the payments which formed the subject matter of the charges against him, the purpose for which the fourth respondent made the payments to Asprez was critical. In the present case, it was necessary for this court to reassess the DT’s finding in this regard because it was premised upon hearsay evidence. At this juncture, we would observe that the Evidence Act (Cap 97, 1997 Rev Ed) applies to proceedings before a DT by virtue of rule 23(1) of the Legal Profession (Disciplinary Tribunal) Rules (Cap 161, R 2, 2010 Rev Ed):

[12] The fourth respondent’s challenge to the DT’s finding was founded on the premise that the DT should not have taken cognisance of the invoices and the attached lists in arriving at its conclusion because the makers of those documents had not testified before the DT. Only two witnesses were called to testify for the Law Society, ie, Ben Tan and Vincent Lim (an investigator from CPIB), neither of whom was the maker of the invoices and the attached lists.

[13] In our opinion, this submission of the fourth respondent had merits. The contents of the invoices and the attached lists were clearly hearsay. In Jeffrey Pinsler SC, Evidence and the Litigation Process (LexisNexis, 3 Ed, 2010) (“Pinsler’s Evidence and the Litigation Process”), the concept of hearsay was explained thus (at para 4.01):

[14] In the light of the fact that the DT had relied upon hearsay evidence in determining the fourth respondent’s guilt, which it should not have, it became necessary for us to consider whether, without relying upon the invoices and the attached lists, the critical finding that the payments made by the fourth respondent to Asprez were for the specific purpose of procuring conveyancing legal work was clearly wrong or against the weight of the admissible evidence.

[15] Apart from the invoices and the attached lists, the other crucial pieces of evidence adduced by the Law Society were the Agreement, the fact that the fourth respondent had admitted to having made the material payments to Asprez, and a publicity flyer of Asprez aimed at enticing housing agents to use the services of Asprez (“the publicity flyer”). As the publicity flyer was an important piece of evidence, it shedding substantial light on the operations of Asprez, we set it out below:

[16] From the publicity flyer, it was clear that Asprez was soliciting referrals of conveyancing work from housing agents through promise of financial reward. Upon such referral of conveyancing work to Asprez, housing agents were to select a lawyer from Asprez’s panel of lawyers to provide legal representation. It was also abundantly clear that the scheme, as described in the publicity flyer, was to induce housing agents, by the use of monetary reward, to engage Asprez’s panel of lawyers – a panel which included the fourth respondent’s firm.

[17] On the basis of existence of the Agreement and the publicity flyer, we were satisfied that a prima facie case against the fourth respondent had been made out. The Agreement listed referrals of conveyancing work to the fourth respondent and/or his firm as one of its objectives (see [6] above). After the Agreement was entered into, the publicity flyer was created and payments were effected by the fourth respondent to Asprez.

[18] The effect of the Law Society having established a prima facie case against the fourth respondent was that the evidential burden shifted to him to disprove that payments were made to Asprez in consideration of referrals of conveyancing legal work. The concept of shifting of evidential burden (albeit in the context of a criminal case) is explained in Pinsler’s Evidence and the Litigation Process (at para 12.08):

[19] We turn now to consider the fourth respondent’s evidence and whether it sufficed in discharging the evidential burden. The fourth respondent denied that Asprez had ever referred conveyancing legal work to him. In addition, he denied that there was ever any agreement with Asprez that the latter would refer conveyancing legal work to him and/or his firm. This position was maintained by the fourth respondent in his Statement of Defence (see paras 7, 8, 11 thereof) as well as during his testimony before the DT, notwithstanding the explicit wording of the Agreement.

[20] In rebuttal, the fourth respondent claimed that one David Foo, a director of Asprez, provided consultancy and training services to his firm (see para 9 of his Statement of Defence). Further, the fourth respondent claimed that Asprez had expanded his network with bankers and conveyancing agents by enabling the fourth respondent to give presentations on various legal topics to such persons. It was for these services provided by Asprez that the fourth respondent claimed to have made the payments to Asprez which formed the subject matter of the charges.

[21] We will now consider the fourth respondent’s evidence in respect of the Agreement. He admitted to having drafted the Agreement. Therefore, it was incumbent upon him to explain why he had included the phrase “referrals of conveyancing services” as one of the objectives of the Agreement (at [6] above) when, according to him, no such services were desired or actually provided by Asprez. When cross examined on this issue by counsel for the Law Society at the hearing before the DT, thefourth respondent’s answers were nebulous and evasive (see Notes of Evidence, Day 5, at pp 40 – 42):

[22] It is quite plain, from the exchanges above, that the fourth respondent simply could not provide any explanation as to why he had chosen to include the word “referral” in the preamble of the Agreement. Instead, he doggedly maintained that he had abided by the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed) as amended by Legal Profession (Professional Conduct) (Amendment) Rules 2001 and Legal Profession (Professional Conduct) (Amendment) Rules 2005 (“the relevant Professional Conduct Rules”) and the Legal Profession (Publicity) Rules (Cap 161, R 13, 2000 Rev Ed) (“Publicity Rules”), both sets of rules being explicitly referred to in the Agreement (see [6] above). However, as pertinently pointed out by counsel for the Law Society whilst cross examining the fourth respondent, there would have been absolutely no need to make reference to the relevant Professional Conduct Rules or the Publicity Rules if all that Asprez was providing to the fourth respondent and/or his firm was merely consultancy and training services (see Notes of Evidence, Day 5, at pp 40 – 41):

Quite simply, this answer of the fourth respondent to the question posed by counsel for the Law Society is a non sequiter.

[23] Thefourth respondent further testified that he had expressly referred to Rule 11B which was introduced vide s 410/2001, viz, Legal Profession (Professional Conduct) (Amendment) Rules 2001 (“Rule 11B”)) whilst drafting the Agreement in order not to fall foul of the relevant Professional Conduct Rules. We will now see in what way Rule 11B was germane. It reads:

[24] Clearly, Rule 11B deals solely with agreements for referrals of conveyancing services. Given thefourth respondent’s position that the Agreement only pertained to training and consultancy services, it was incumbent upon him to explain why Rule 11B was incorporated into the Agreement which he had drafted. When pressed by counsel for the Law Society as to why Rule 11B was even referred to when, according to him the Agreement had nothing to do with the referral of conveyancing services, the fourth respondent was again evasive and gave a wholly incoherent answer (see Notes of Evidence, Day 5, at pp 47 – 48):

[25] From the matters referred to in [21] – [24] above, we were satisfied that the fourth respondent was either less than truthful or he just could not provide any credible answer. His attempted replies to those very pertinent questions simply did not make sense. Thus, the inevitable conclusion was that the fourth respondent and Asprez had entered into an agreement for referral of conveyancing work from the latter to the former.

[26] While from the foregoing it was plain that the fourth respondent intended to receive referrals of conveyancing work from Asprez by entering into the Agreement, the fourth respondent could still disprove the charges by showing that the payments made to Asprez were not in consideration for having received such referrals. We will now turn to consider his explanations for having made the payments to Asprez. In this regard, the fourth respondent claimed to have been accorded opportunities to deliver presentations to bankers and property agents, as well as mingle with such persons, at events organised by Asprez. It was for such business opportunities which were made available by Asprez to the fourth respondent that the payments were effected to Asprez. However, he was unable to furnish any evidence, other than his bare assertions, which showed that Asprez had in fact organised such events or activities (see Notes of Evidence, Day 6, at p 6):

[27] In respect of the alleged presentations made by him at events purportedly coordinated by Asprez, the fourth respondent – while claiming to have used materials whilst making such presentations – was not able to furnish any evidence of those materials which he had used to make the presentations. This was conceded during cross examination (see Notes of Evidence, Day 6, at p 8):

[28] The fourth respondent further claimed that some of the payments made were in respect of logistical and administrative expenses incurred by Asprez for arranging the events and yet he was unable to state exactly what he was paying for. He simply did not know how much he would be billed by Asprez in respect of such expenses as could be seen from his answers in cross-examination (see Notes of Evidence, Day 5, at pp 30 – 31):

The fourth respondent’s evidence in respect of the alleged services rendered by Asprez to him and/or his firm lacked credibility. He not only failed to adduce any documentary evidence to prove that he had indeed made presentations at the purported business gatherings, he also could not provide any reasonable account for the sums of monies paid to Asprez. At the hearing of the show cause proceedings before us, in order to give him a further opportunity to prove what he alleged, we enquired if the fourth respondent had diary entries pertaining to his attendance at the events purportedly organised by Asprez. His counsel answered in the negative.

[29] In the premises, we found that the fourth respondent failed to rebut the prima facie case presented by the Law Society against him. It was evident that the Agreement which the fourth respondent entered into with Asprez involved referrals of conveyancing work to the him and/or his firm, and, viewing it together with the publicity flyer (see [15] above), we had no hesitation in holding that the payments to Asprez were made pursuant to the Agreement in consideration for such referrals. In the result, we hold that the charges against the fourth respondent had been proven beyond a reasonable doubt even without having to rely on the invoices and the attached lists, which we have earlier ruled to be hearsay evidence (see [13] above).

[30] We now set out in brief the case raised against each of the other three respondents. As against the first respondent, the Law Society proceeded only with one charge under s 83(2)(h) of the Act to which he pleaded guilty. The charge (as amended on 28 October 2010) read:

[31] The first respondent was an advocate and solicitor of 11 years standing. During the material times, he was a partner at Messrs Chee & Michael Chong Partnership. In circumstances similar to that of the fourth respondent, the first respondent joined Asprez’s panel of lawyers towards the end of 2005 on the understanding that Asprez would, in exchange for payment, refer conveyancing legal work to the first respondent and/or his firm. Thereafter, from December 2005 to August 2006, a period of nine months, the first respondent made payments to Asprez which totalled $157,900. The payments were in consideration of Asprez referring conveyancing legal work to the first respondent and/or his firm. The first respondent pleaded guilty to this charge.

[32] The Law Society proceeded on one charge, under s 83(2)(h) of the Act, to which the second respondent pleaded guilty. The charge read:

[33] The second respondent was an advocate and solicitor of 22 years standing. At all material times, he was a director of Asia Law Corporation. The second respondent joined Asprez’s panel of lawyers sometime in 2004 on the understanding that Asprez would, in exchange for payment, refer conveyancing legal work to the second respondent and/or his firm. Thereafter, from December 2004 to February 2006, a period of 15 months, the second respondent made payments to Asprez which totalled $79,400.

[34] After representations, the Law Society proceeded on three charges against the third respondent under ss 83(2)(b) and 83(2)(e) of the Act. The third respondent pleaded guilty to the following three charges:

[35] The third respondent was an advocate and solicitor of 17 years standing prior to him ceasing practice in January 2007. At all material times, he was the sole proprietor of KK Yap & Partners. As stated at [2] above, Asprez was set up by Ben Tan on the instruction of the third respondent with the aim of using it to obtain referral of conveyancing legal work from real estate agents for consideration

[36] From June 2004 to August 2006, using funds provided by the third respondent and/or his firm, Asprez paid sums of approximately $200 to various unidentified real estate agents for each file and/or client referred to Asprez. Such work and/or client were, in turn, referred to the third respondent and/or his firm. Plainly, the payments made were referral fees provided by the third respondent and/or his firm to the said estate agents in consideration of work and/or clients referred to him and/or his law firm through Asprez.

[37] Documents seized from the third respondent showed the magnitude of the dealings between the third respondent and Asprez. Between October 2005 and March 2006, Asprez issued the following invoices to the third respondent’s firm:

[38] In total, during the period October 2005 to March 2006, the third respondent and/or his firm paid Asprez a sum of $410,000 in respect of the referrals of conveyancing work.

[39] As noted in [30], [32] and [34] above, the first, second and third respondents pleaded guilty to the respective charges proceeded against them. We now turn to the appropriate sanction that should be imposed on the four respondents.

[40] In this regard, we will first refer to the mitigating factors highlighted by counsel for each of the respondents.

[41] His counsel underscored the fact that the first respondent was a first time offender who demonstrated contrition by pleading guilty at the first available opportunity. In addition, the first respondent submitted that he was not the perpetrator of the agreement between him and/or his law firm and Asprez. Instead, he was approached by David Foo who mooted the idea of liaising with Asprez. The first respondent also submitted that his act of terminating the agreement with Asprez was a clear demonstration of his genuine remorse.

[42] The second respondent pointed out that he ran foul of the professional rules as a result of being solicited by Ben Tan of Asprez. In any event, he was truly remorseful for his conduct and this was evidenced by his terminating the agreement with Asprez even before CPIB commenced investigations. In support of his submission that he was of good character, the second respondent provided evidence of voluntary services rendered to several organisations.

[43] The third respondent contended that all three charges against him were essentially based upon the same conduct complained of. As such, he submitted that this court should not enhance his punishment based on the number of charges he faced. In this regard, he argued that all three charges were really different ways of complaining about the same conduct. In support of this contention, the third respondent relied on the case of Law Society of Hong Kong v Solicitor [2009] HKEC 271 where the Hong Kong Court of Appeal stated at [25]:

[44] In this regard, we ought to mention that s 40 of the Interpretation Act (Cap 1, 2002 Rev Ed) (“Interpretation Act”) which applies only to the commission of criminal offences, although not referred to by the third respondent, is nevertheless germane as disciplinary proceedings are quasi-criminal in nature which could lead to the imposition of punitive sanction(s). That section reads:

[45] The statutory predecessor of s 40 of the Interpretation Act, ie, s 41 of the Interpretation Act (Cap 1, 1985 Rev Ed), was considered in the case of Tan Khee Koon v Public Prosecutor [1995] 3 SLR(R) 404 (“Tan Khee Koon”). In that case, the appellant was tried and convicted on a charge of having attempted to corruptly receive gratification of $20,000, as well as on a separate charge of having received gratification amounting to approximately $5,260. In respect of the latter charge, the evidence revealed that out of the sum of $5,260, $4,500 was actually in part payment of the sum of $20,000 which the appellant attempted to receive. The question then was whether there was “double counting” in respect of the charge for having received $4,500, and the attempt to receive $20,000. The court ruled in the affirmative. The reasoning of the court, at [104] – [109], was as follows:

[46] An analysis of the three charges against the third respondent (at [34] above) reveals certain common elements. The gravamen of the first charge was that the third respondent made payments amounting to $200 for each file which was referred to him by real estate agents via Asprez in the period from June 2004 to August 2006. As for the second charge, the third respondent was charged for having procured or attempting to procure legal business through Asprez by paying a sum of $410,000 from October 2005 to March 2006, with the emphasis being on procurement of legal business through payment incentive. Finally, in respect of the third charge, the third respondent was charged with having made arrangements to reward Asprez with $410,000 for referring legal business to him or his firm from October 2005 to March 2006, with the emphasis being on making arrangements to obtain legal work through monetary incentive.

[47] It would be apparent that the elements of the second and third charges are very similar, ie, to obtain legal work by the payment or offer of monetary incentive. The conduct of the third respondent which was the basis of the first charge against him could be regarded as the follow-up to the acts which formed the basis for the second and third charges. What the principle in Tan Khee Koon prohibits is the charging of a person for having arranged (or attempted) to cheat the victim and (emphasis added) the actual act of cheating itself. While it would appear that the second and third charges were distinct from that of the first charge, it is clear that, following the spirit of the principle enunciated in Tan Khee Koon, the real wrongdoing of the third respondent in respect of all three charges was in sharing legal fees earned with someone who was not entitled to enjoy any portion of the fees. Thus in determining the appropriate punishment, the number of charges brought against an advocate and solicitor in such circumstances should not be given much weight. Instead, the relevant factors would be, inter alia, the period during which the wrongdoing was carried out and the quantum of the fees shared with someone who was not entitled to receive those fees.

[48] We pause, at this juncture, to observe that the same principle (discussed at [43] – [47] above) applies equally to the charges against the fourth respondent. The first charge against the fourth respondent was for having procured employment for himself and/or his firm through Asprez by paying $33,850 for the period February 2006 to August 2006. The second charge was for having rewarded Asprez with the same sum of money over the same period for referring clients to him and/or his firm. These two charges were based on the same wrongdoing, the difference being that each charge emphasised a different aspect of the wrongdoing. The acts of procuring legal business through paying Asprez and rewarding Asprez through payment for referrals were essentially the same acts. Thus we accepted the submission that the fourth respondent should not be punished as if he had committed two separate offences. At this juncture, we would observe that the practice of preferring multiple charges based upon the same misconduct should be eschewed.

[49] In addressing the court on the appropriate sentence, the third respondent submitted that he was remorseful and highlighted the fact that he had voluntarily ceased practise since January 2007, soon after CPIB sought his assistance in its investigations. His departure from KK Yap & Partners was premised on his desire not to compromise the reputation of the firm. He left the legal profession in January 2007 as he did not wish to enhance the “risk of embarrassing the profession” arising from the present wrongdoing. The third respondent submitted that he was really contrite and thus did not challenge the allegations at the inquiry stage before the Inquiry Committee and pleaded guilty to the charges brought against him by the Law Society before the DT. He did not file any defence either.

[50] On the significance of his voluntary act of ceasing practice since January 2007, which amounted to a “four year suspension”, he relied upon the case of Law Society of Singapore v Tan Chwee Wan Allan [2007] 4 SLR(R) 699 (“Allan Tan”) in support of the argument that his voluntary cessation of legal practise constituted a weighty mitigating factor. In Allan Tan, this court stated at [51]:

[51] Lastly, the third respondent made the point that he was of good character, and that his offending conduct did not compromise his clients’ interests in any way.

[52] In mitigation, after this court had made its determination on the finding of guilt, counsel for the fourth respondent submitted that the latter was of good character, and that he was remorseful for having committed the offences. In addition, the fourth respondent strongly asserted that there was little public interest in imposing a suspension of a protracted period due to the shortage of lawyers in Singapore.

[53] In considering the appropriate sanctions, we would refer to two previous cases where similar wrongdoings, albeit of a wholly different magnitude, were committed, ie, Law Society of Singapore v Tan Buck Chye Dave [2007] 1 SLR(R) 581 (“Tan Buck Chye Dave”) and Phyllis Tan.

[54] In Tan Buck Chye Dave, the respondent, who pleaded guilty to three charges under s 83(2)(e) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“the LPA”), attempted to procure employment in respect of conveyancing matters by offering to pay varying sums of money to estate agents. This court, in imposing a suspension of 6 months, stated (at [31] of Tan Buck Chye Dave) that “there were strong mitigating factors in the present case. If they had not been present, we would have been compelled to impose an even more severe sanction on the respondent.” The mitigating factors referred to by the court were the following:

(a) None of the conveyancing transactions (tainted by payment of referral fees) were actually completed (at [19] of Tan Buck Chye Dave);

(b) The respondent’s inability to complete the conveyancing transactions was due to his own volition (at [20] of Tan Buck Chye Dave);

(c) The respondent pleaded guilty at the first opportunity (at [22] of Tan Buck Chye Dave); and

(d) There was no proven dishonesty on the part of the respondent (at [23] of Tan Buck Chye Dave).

[55] The factor stated at (b) above warrants elaboration. The respondent there was approached by an entrapping investigative agency which sought to know what the respondent would be willing to offer the former for introducing clients to the latter. The entrapping agency and the respondent struck an agreement under which for every conveyancing business referred, the respondent would pay the entrapping agency $200 per deal. After the agreement was reached, the respondent did not follow up on the agreement at all by contacting the entrapping agent. It was through this voluntary omission on the part of the respondent that no conveyancing deals were actually done under the offending arrangement.

[56] It was quite clear that Tan Buck Chye Dave represented a case in which the respondent was contrite soon after the arrangement was reached. He was guilty of an attempt to commit the offence and the only reason why he did not carry out what was agreed upon was his belated sense of realisation that what he had agreed to do was wrong. The conduct of the respondent in Tan Buck Chye Dave represented culpability at the lower end of the scale.

[57] The respondent in Phyllis Tan, on the other hand, was preferred with one charge for professional misconduct under s 83(2)(e) and an alternative charge under s 83(2)(h) of the LPA for attempting to procure employment in respect of a conveyancing matter by offering remuneration in the form of a gift voucher worth $200 (see [2] of Phyllis Tan). The respondent contested the charges but was eventually found guilty of both the main and alternative charges. The respondent was suspended for a period of 15 months.

[58] We must, at this juncture, observe that the misconduct committed by the four respondents in these proceedings involved the most severe of illicit referral agreements that have been dealt with by this court. Previous cases involving similar misconduct paled in comparison with the pecuniary magnitude of the offending conduct of the four respondents. The systematic manner in which referrals were obtained by the four respondents in the present cases, via Asprez, was also unprecedented and audacious, as compared to the previous cases.

[59] Quite clearly, all four respondents should be punished with sanctions far exceeding those imposed in Tan Buck Chye Dave and Phyllis Tan. Save for the pleas of guilt of the first to third respondents, the mitigating factors present in Tan Buck Chye Dave (at [54] above]), which this court gave much weight to, were absent in respect of the four respondents. The four respondents’ offending conduct emanated from pure avarice, and extended over protracted periods of time. Their misconduct was systematic, involving large number of referrals and significant sums of money, unlike that of an isolated misconduct involved in Phyllis Tan.

[60] The culpabilities and mitigating factors of the first and second respondents were largely similar notwithstanding the differences in the period during which the offending conduct was carried out and the sums involved. The first respondent paid remuneration amounting to $157,900 over a period of approximately 9 months, whilst the second respondent paid the sum of $79,400 over a period of approximately 15 months. Evidently, the first respondent had paid a larger sum of money over a shorter period of time as compared to the second respondent. The mitigating factors put forth by counsel (at [41] – [42] above]) for both respondents also did not differ substantially.

[61] Bearing in mind that for an isolated act of misconduct in Phyllis Tan a penalty of 15 months suspension was imposed, it must follow that a much more severe penalty should be imposed on the first and second respondents. In our judgment, doubling the period of suspension imposed in Phyllis Tan for both these two respondents would be amply warranted and we accordingly so ordered.

[62] The Law Society recognised that the third respondent should receive a heavier sentence than the first and second respondents. In this regard, the Law Society highlighted the fact that the third respondent was the brain which hatched this scheme of paying estate agents in return for referral of conveyancing work to listed legal firms and who, for the purpose of implementing that scheme, created the entity, Asprez. Secondly, the Law Society underscored the fact that, unlike the first and second respondents, the third respondent had previously been involved in disciplinary proceedings for similar offences.

[63] In The Law Society of Singapore v Ong Poh Pway Lina and Another [2002] SGDSC 1, the third respondent and his partner offered to refund half of the legal fees paid by the owners of a collective sale of residential units in Phoenix Mansion if such owners were to engage them to act in the purchase of a new property within 6 months from completion. The Disciplinary Committee found that no cause of sufficient gravity existed for disciplinary action. The third respondent and his partner were each reprimanded pursuant to s 93(1)(b) of the LPA.

[64] In The Law Society v Yap Kok Kiong [2006] SGDSC 14, the third respondent pleaded guilty to a charge under s 83(2)(h) of the LPA for having “engaged in the practice of giving rewards in the form of gift vouchers to real estate agents who referred clients and business to M/S K K Yap & Partners”. The Disciplinary Committee found that no cause of sufficient gravity for disciplinary action existed and the third respondent was again reprimanded by the Disciplinary Committee.

[65] We agreed with the submission of counsel for the Law Society that the third respondent’s culpability far exceeded that of the other three respondents. We noted that not only had he previously been reprimanded for similar misconduct, and never seemed to have learned, he had in the present case gone from bad to worse, by conjuring an illicit business model – by orchestrating the setting up of Asprez – and committing the same misconduct on a larger scale and in the process, encouraging and facilitating the other three respondents to commit the same misconduct. In short, he was the mastermind and the villain, and seemed to us to be incorrigible. In the circumstances, and in the interest of upholding the integrity of the profession, we felt that he ought to be struck off the Roll and we so ordered.

[66] In determining the appropriate penalty to be imposed on the fourth respondent, we noted that unlike the other respondents, the fourth respondent did not admit to the charges but claimed trial. However, we also noted that the amount which he had paid to the estate agent was the smallest among the four respondents which would necessarily mean that he had received the least number of referrals from the estate agents. Moreover, the period of his involvement in the scheme was also the shortest among the four respondents. Notably, his challenge based on the inadmissibility of part of the Law Society’s evidence (at [10] – [14] above), was not entirely without merit.

[67] All considered, we felt that imposing on him a similar penalty as that imposed on the first and second respondents would not be inappropriate, because while he had (unlike the first and second respondents) claimed trial and had taken a technical objection against the Law Society’s case (though as stated not without merit), this had to be balanced against the fact that he received the least number of referrals and was involved in the scheme for the shortest period.

[69] In response to this argument, the Law Society averred that, based on s 93 of the Act, the DT “simply did not have the power to accept and give effect to the third respondent’s Undertaking.”

[70] It was abundantly clear that this argument of the third respondent is wholly without merit. It showed a lack of understanding of the disciplinary process under the Act.

[71] After hearing a matter referred to it, the DT can, in conclusion, only make one of three findings as provided for in s 93 of the Act:

[72] Upon the DT’s finding that cause of sufficient gravity exists pursuant to s 93(c) above, s 94 of the Act requires the Law Society to make an application under s 98 of the Act. Section 94 provides:

[73] Upon an application being made under s 98, the court of three Judges has the power to deal with the advocate and solicitor in question in accordance with s 83 of the Act :

[74] The crux of the third respondent’s argument was that the DT should have accepted the Undertaking and made a finding under s 93(1)(b) of the Act that “while no cause of sufficient gravity for disciplinary action exists under that section, the advocate and solicitor should be reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed”. In our opinion, this argument distorts the statutory duty of the DT under s 93(1) of the Act which requires the DT to consider all the circumstances of the case and make a determination accordingly. The effect of the third respondent’s argument amounts to saying that the DT should not have made a determination that a cause of sufficient gravity existed when the evidence clearly justified the making of such a determination and for the case to proceed further before the court of three Judges to be dealt with under s 83(1) of the Act. The third respondent’s argument would subvert the disciplinary process under the Act and consequently usurp the jurisdiction of the court of three Judges to impose the appropriate punishment for the misconduct in question: see Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 (“Jasmine Gowrimani”) at [24] and [26]. The argument is wholly without merit and seems to be premised upon the untenable assumption that this court would only impose a punishment of a 5 year suspension and a penalty of $20,000 on the third respondent.

[76] We reiterate our view in [58] above that the misconduct on the part of the four respondents was most severe in terms of scale and magnitude as compared to those which have been previously dealt with by this court. In the light of all the relevant circumstances, we ordered that the first, second and fourth respondents be suspended for a period of 30 months and that the third respondent be struck of the roll.