Law Society of Singapore v Choy Chee Yean

Andrew Phang Boon Leong JA (delivering the judgment of the court):

[1] This is an application by the Law Society of Singapore (“the Law Society”) pursuant to section 98(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) for an order that the Respondent be made to suffer such punishment as provided for in section 83(1) of the Act.

[2] The Respondent was admitted to the roll of advocates and solicitors of the Supreme Court of Singapore (“the roll”) on 20 March 1993 and, at all material times, he practised as a Partner in a leading Singapore law firm (“the firm”). On 21 April 2008, the Respondent pleaded guilty, in the District Court of the Hong Kong Special Administrative Region, to a charge of burglary contrary to ss 11(1)(b) and (4) of the Hong Kong Theft Ordinance (Cap 210) (“the HK Theft Ordinance”). The charge stated that on 17 January 2008, the Respondent had entered a hotel room in Hong Kong and stolen a bag, a blue tooth earphone, a charger, an iPod, a mobile phone, a mobile phone SIM card as well as a Palm Pilot (PDA). These items were valued by the police to be worth HK$9,500. On 23 April 2008, the Hong Kong District Court convicted and sentenced the Respondent to 12 months imprisonment, suspended for two years.

[3] On 24 April 2008, the Respondent wrote to inform the Law Society of his conviction and stated that he had voluntarily suspended himself from practice. Since 2 January 2009, he has been employed by the firm in a non-practising capacity. On 3 July 2009, a Disciplinary Tribunal (“the Tribunal”) was appointed to hear and investigate the complaint against the Respondent pursuant to s 90(1) of the Act.

[4] The Law Society was of the view that the offence committed by the Respondent would, if committed in Singapore, be an offence contrary to s 380 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). The Law Society formulated the following charge against the Respondent, as follows (though see now below at [8]):

Sections 83(1) and 83(2)(h) of the Act provide as follows:

[5] On 17 January 2008, the Respondent arrived in Hong Kong on a business trip and checked into Room 1939 of the Novotel Citygate Hotel. The occupant of Room 1935 had left the room at 10.45pm and was unsure whether he had properly closed the door of his room. At 11.50pm, when the occupant of Room 1935 returned to his room, he found some items missing. He immediately contacted the hotel staff who subsequently viewed the video recording of the CCTV which monitored the corridor outside that room. The Respondent was seen in the video to be at the door of Room 1935 five times. There was no image of the Respondent entering the room due to the position of the camera. There were two occasions when the Respondent was out of sight for about one minute. He was later seen walking with some items in his left hand towards Rooms 1938 and 1939. Room 1938 was unoccupied while Room 1939 was occupied by the Respondent. The lobby manager, along with the hotel’s security manager and some police officers, went to the Respondent’s room. They searched his room and discovered the missing items under the Respondent’s bed. A fingerprint was lifted on the outside of the door at Room 1935 and was found to match the fingerprint impression of the right middle finger of the Respondent.

[6] The Respondent was subsequently charged with the offence of burglary under ss 11(1)(b) and (4) of the HK Theft Ordinance. Section 11 of the HK Theft Ordinance reads as follows:

Section 2 of the HK Theft Ordinance equates the meaning of “steal” with that of “theft”. Section 2 reads as follows:

[7] The Respondent subsequently appointed a leading criminal lawyer, Mr Andrew Bruce SC, to represent him in the criminal proceedings before the Hong Kong District Court. He also consulted two psychiatrists in Hong Kong. They were Dr Stephen Ng Wai Mang (“Dr Ng”) and Dr Lo Chun Wai (“Dr Lo”), respectively. Both the psychiatrists diagnosed the Respondent as suffering from Major Depressive Disorder. On 21 April 2008, the Respondent pleaded guilty to the charge and did not dispute the elements of the charge. However, in mitigation, the Respondent submitted that he was suffering from Major Depressive Disorder at the time of the offence which affected his judgment and awareness of his conduct. Dr Ng and Dr Lo were called to give evidence. As already mentioned, the Hong Kong District Court convicted and sentenced the Respondent to 12 months imprisonment, suspended for two years.

[8] At the proceedings before the Tribunal on 22 September 2009, the Law Society tendered the following Amended Charge upon receiving representations from the Respondent (“the Amended Charge”):

The Law Society also removed all references to the Penal Code from its Statement of Claim. The understanding between the Law Society and the Respondent was set out in a letter from the firm dated 10 September 2009 to counsel for the Law Society, as follows:

[9] The Respondent pleaded guilty to the Amended Charge. However, he informed the Tribunal that he would be leading evidence on the issue of dishonesty in order to refute the plea of guilt. The Respondent filed two affidavits, his own and that of the psychiatrist he had been consulting since 2 May 2008, Dr Ko Soo Meng (“Dr Ko”). Dr Ko was cross-examined by counsel for the Law Society, Mr Michael Khoo SC. The Respondent contended that he had pleaded guilty because he felt that he was unable to undergo the approximate one-year period that the actual criminal proceedings might take if he did not plead guilty before the Hong Kong court, not least because he was afraid that his mental condition would deteriorate further as a result. There was also the prospect of at least three years of incarceration if he was convicted after trial (which was apparently the “tariff” in Hong Kong for such cases). Dr Ko was of the opinion that the Respondent had been suffering from a psychiatric condition known as a Major Depressive Episode before and up to the date of the incident in Hong Kong. In his view, the Respondent’s conduct on the date of the incident was the result of and consistent with a Major Depressive Episode and the Respondent could not have formed the intention to carry out the acts in question in order to cause gain to himself or loss to the victim.

[10] The Law Society did not adduce any psychiatric evidence to refute the diagnosis made by Dr Ko. However, it was submitted that Dr Ko’s evidence was weak as it was overly reliant on the reports of Dr Ng and Dr Lo. There was no credible evidence that the Respondent was suffering from a Major Depressive Episode at the time of the offence and even if there was, this did not detract from the fact that the Respondent had the requisite mens rea for the offence. The Respondent’s guilty plea in Hong Kong was proof (albeit inconclusive) of his having acted dishonestly.

[11] The Tribunal found that sufficient gravity for disciplinary action against the Respondent existed under s 83(2)(h) of the Act. The Tribunal found that the evidence given by Dr Ko was flawed and weak. Dr Ko was overly reliant on the reports of Dr Ng and Dr Lo and he appeared to have had a limited knowledge of the facts. Significant weight had to be placed on the Respondent’s guilty plea and resulting conviction in Hong Kong. His plea was unequivocal and he had expressly admitted to the elements of the offence. However, the Tribunal found that the Law Society had failed to discharge the burden of proving, beyond a reasonable doubt, that the Respondent had been dishonest. The Tribunal was of the view that the Law Society had failed to comprehensively test the evidence adduced by the Respondent and that the Law Society could also have adduced evidence from a psychiatrist to affirmatively prove that the Respondent’s behaviour and CCTV footage demonstrated that the Respondent had not, in fact, been acting under the influence of a Major Depressive Episode.

[12] The Respondent had also been admitted as a solicitor in Hong Kong on 4 January 2000. However, he did not hold a practising certificate at the time of commission of the offence. Following his conviction in Hong Kong, the Director of Compliance of the Law Society of Hong Kong applied under s 9A of the Hong Kong Legal Practitioners Ordinance (Cap 159) that the Respondent be required to answer the allegation in the following Complaint:

Practice Direction I2, which came into effect on 1 June 1995, states that solicitors in Hong Kong are required to comply with the standards of practice and rules of conduct set out in The Hong Kong Solicitors’ Guide to Professional Conduct first published by the Law Society of Hong Kong in 1995 and revised from time to time. Principle 1.02 of The Hong Kong Solicitor’s Guide to Professional Conduct Volume 1 reads as follows:

[13] The Respondent appeared before the Hong Kong Solicitors Disciplinary Tribunal (“the Hong Kong Tribunal”) on 17 December 2009. The Tribunal suspended the Respondent for five years and imposed some conditions on his right to practise after the suspension (see also below at [42]).

[14] In its written submissions to this Court, the Law Society argued that the Tribunal had erred in holding that the burden was on the Law Society to positively establish that the Respondent was dishonest at the time of the offence. According to the Law Society, the Respondent had pleaded guilty to the disciplinary charge but there was a divergence between the parties on the factual basis for sentencing, ie, whether the Respondent should be considered to have been guilty of dishonest conduct for the purposes of sentencing. Therefore, the Tribunal conducted a particular form of a Newton hearing: a reverse Newton hearing to determine the issue of dishonesty. In the reverse Newton hearing, the Respondent was required to prove that he was not dishonest because the issue of dishonesty related to extraneous matters which the Law Society could not have proved as part of its case had there been a trial. The disputed facts as to whether the Respondent was dishonest were within the Respondent’s exclusive knowledge and, therefore, the Respondent had the burden of disproving dishonesty on a balance of probabilities. The Respondent had failed to discharge this burden as the relevant evidence clearly demonstrated that the Respondent had a dishonest intent at the time he misappropriated the items concerned.

[15] Further, in oral submissions before this court, Mr Khoo, argued, inter alia, that the Respondent, having pleaded guilty to the charge of burglary which itself incorporated the element of dishonesty, could not now argue that he had not been dishonest because the absence of the element of dishonesty would have entailed a rejection of the Respondent’s plea of guilt in the first place. The attempt by the Respondent in the present proceedings to argue that he had not been dishonest was, in substance, a collateral attack on his conviction.

[16] On the appropriate sentence, the Law Society, in its written submissions, argued that the Respondent should be struck of the roll in accordance with established case law involving solicitors guilty of proven dishonesty. Interestingly, during oral submissions, after Mr Khoo had sight of the sentence imposed by the Hong Kong Tribunal, Mr Khoo submitted that the sentence imposed here should be at least the same as that imposed by the Hong Kong Tribunal.

[17] Before this court, counsel for the Respondent, Ms Aurill Kam, submitted that the Law Society had the burden of proving, beyond a reasonable doubt, that the Respondent had been dishonest. Having secured a plea of guilt by the Respondent to a disciplinary charge without dishonesty (and thereby avoiding the burden of proving dishonesty), it would be unfair for the Law Society to have the Respondent sentenced on a more serious charge involving dishonesty and yet also have the burden of proof transferred to the Respondent. The Respondent submitted that a Newton hearing was not necessary and could not be used as a pretext or disguise for inflating the misconduct beyond the elements alleged and pleaded to in the Amended Charge. The Respondent emphasised that it was common ground between the parties that the Hong Kong conviction was not conclusive as to any issue in the current proceedings. As we point out below, this raises the key issue as to whether the Hong Kong conviction can be considered by this court and, if so, what weight should be placed upon it (see also below at [22]) – an issue which we will consider in more detail below.

[18] The Respondent had explained his reasons for pleading guilty although he felt that he did not possess any criminal intent at the time he allegedly misappropriated the items. It was therefore incumbent on the Law Society to challenge the Respondent with regard to his reasons for pleading guilty. Yet, the Law Society had chosen not to call any evidence of its own before the Tribunal to demonstrate that the Respondent had been dishonest and sought to rely solely on the fact of the Respondent’s plea of guilt in Hong Kong. In any event, the evidence demonstrated that the Respondent had not acted dishonestly. The Respondent was suffering from a Major Depressive Episode that impaired his ability to form a dishonest intent.

[19] On the issue of sentence, the Respondent submitted that he should not be struck off the roll as he had not been dishonest. This was a case where the misconduct stemmed from mental infirmity. The decision of this court in Law Society of Singapore v Chiong Chin May Selena [2005] 4 SLR(R) 320 (“Chiong Chin May Selena”) was referred to by the Respondent as guidance on the approach to be taken in such cases. In that case, the solicitor had failed to prepare or maintain (for her sole proprietorship) any of the requisite financial records or documents that was mandated by the Legal Profession (Solicitors’ Accounts) Rules (Cap 161, R8, 1999 Rev Ed). She was found to have been suffering from manic-depressive psychosis and had earlier been hospitalised and underwent intensive electro-convulsive therapy for post-natal depression. The court in that case suspended her from practice for one year, coupled with an undertaking that she would not commence another sole proprietorship. The court had observed (at [34]) that “the appropriate punishment must be tempered by some measure of sensitivity to the [solicitor’s] plight …. The [solicitor] is clearly an able person who ought to be able to practice once her medical condition [stabilised]”. The Respondent submitted that a fixed term of suspension would be inappropriate and arbitrary in the current case as there was no certainty as to when the Respondent would recover from his mental illness. The paramount consideration of the protection of the public would be adequately served by the Respondent’s voluntary undertakings not to apply for a practising certificate without: (i) medical certification of fitness; (ii) consent of the Law Society; and (iii) leave of court. Therefore, the Respondent argued, the appropriate punishment was a censure coupled with the undertakings.

[20] The approach adopted by the Respondent in the present proceedings was not unlike that adopted in the Hong Kong disciplinary proceedings (with one salient difference, which we will touch on below (at [26])). The gist of the Respondent’s case before this court was that he had pleaded guilty to the charge of burglary before the Hong Kong District Court for extralegal reasons. In point of fact, his argument goes, he did not possess any criminal intent at the time he allegedly misappropriated the items concerned. Put simply, he did not know what he was doing and, hence, could not have been guilty of any dishonesty.

[21] On the other hand, counsel for the Law Society, Mr Khoo, in his oral submissions before this court, pointed out, inter alia, that the Respondent had clearly pleaded guilty to the charge of burglary which itself necessarily incorporated the element of dishonesty (see also above at [15]). He had admitted to dishonesty at least twice, once before the Hong Kong District Court and then before the Hong Kong Tribunal. In the circumstances, any argument to the effect that there had been no dishonesty on the part of the Respondent could not now be made as it would have entailed the rejection of the Respondent’s plea of guilt in the first place. Mr Khoo submitted that the only issue before this court was the appropriate sentence to order and that, in any event, the relevant evidence clearly demonstrated that the Respondent had a dishonest intent at the time he misappropriated the items concerned.

[22] Having considered the submissions proffered by both parties, the key issue centres, in our view, on this main question: Can the Hong Kong conviction be considered by this court and, if so, what weight should be placed upon it?

[23] Turning first to the threshold question: can this court have regard to the Hong Kong conviction? The answer to this question seems to us to be clear (and both parties accepted it) – that we can indeed consider the Hong Kong conviction. It is a relevant – indeed, crucial – fact in the context of the present proceedings. As a matter of fact, if the conviction had been meted out in Singapore, the Respondent would not even have been able to argue against his conviction as it would have been conclusive pursuant to s 83(6) of the Act. We pause to observe that it was precisely because the present proceedings involved a criminal conviction in a foreign jurisdiction that the Law Society brought the charge against the Respondent pursuant to s 83(2)(h) of the Act (instead of s 83(2)(a) of the Act). We also note that whilst s 83(2)(h) is, indeed, a “catch all” provision (see, for example, the decision of this court in Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 at [40]), it also encompasses the more serious forms of misconduct (including dishonest conduct) and can also furnish the legal basis for striking the advocate and solicitor off the roll (see, for example, the decision of this court in Law Society of Singapore v Khushvinder Singh Chopra [1998] 3 SLR(R) 490).

[24] The further issue (also alluded to above) is what weight we should accord to that conviction in the context of the present proceedings – an issue to which our attention now turns.

[25] It is clear that when the Respondent pleaded guilty before the Hong Kong court in the criminal proceedings, he knew precisely what that plea of guilt meant and entailed. After all, he was himself a lawyer of considerable experience and was also represented by counsel (in fact, a Senior Counsel who is described, in the Respondent’s own affidavit, as “a leading criminal silk in Hong Kong” (see also above at [7])). In the circumstances, he had more than adequate legal resources available to him in order to enable him to arrive at an informed decision as to whether or not to plead guilty to the charge concerned. He also fully understood the charge that was preferred against him, which charge clearly – by its very nature – involved an element or ingredient of dishonesty (this was confirmed during proceedings before the Tribunal in the context of the present proceedings). He also knew – and, in fact admitted - that there was no assurance that the decision would, if he had claimed trial, not have gone against him and that he would then have faced the prospect of a three year jail term (see also above at [9]). Indeed, we would have thought that if the Respondent had, at the material time, been convinced of his innocence, he should have claimed trial and contested the charge at that particular point in time. In his affidavit, the Respondent admitted that his counsel for the criminal proceedings had taken pains to make his position clear because, “before the hearing, the Prosecution had queried if a plea of guilt was appropriate given the medical evidence tendered”. This is, indeed, also clear from the opening statement by counsel himself. With respect, however, this is neither here nor there.

[26] However, the Respondent now argues that he had pleaded guilty for the extralegal reasons set out briefly above (at [9]) and that he had never possessed a dishonest intent at any time. If so, as Mr Khoo correctly pointed out, the Respondent’s plea of guilt ought to have been rejected by the judge. We also agree with Mr Khoo that what the Respondent is now attempting, in quite distinct and separate proceedings, is to effect what is (in substance) a collateral attack on the Hong Kong conviction. The Respondent vehemently denies this but we must look, in the final analysis, at the substance and not merely the form of any argument placed before us. As importantly, we must also examine the relevant arguments made for both their logic as well as their coherence. Having adopted this approach, we are of the view that – on any reasonable as well as logical view – the Respondent is, in substance, mounting a collateral attack on the Hong Kong conviction. Put simply, either the Hong Kong conviction was premised on an appropriate legal basis or it was not. If the Respondent is correct in arguing that he pleaded guilty to the charge even though he did not possess the necessary criminal intent, his plea of guilt ought to have been vitiated. We pause to observe, parenthetically, that he did not appeal against his conviction. Be that as it may, he attempted the same argument in the context of the Hong Kong disciplinary proceedings before the Hong Kong Tribunal. However (and this is the difference from the present proceedings), because counsel for the Law Society of Hong Kong argued (as did Mr Khoo in the present proceedings) that the Respondent was attempting a collateral attack on the Hong Kong conviction, the Respondent refrained from continuing to pursue that argument (a fuller account of the proceedings before the Hong Kong Tribunal can be found below at [40]–[42]). Unfortunately, the Respondent did not similarly desist in the context of the present proceedings.

[27] As Mr Khoo pointed out – correctly, in our view - the Law Society, in amending the charge against the Respondent, was not conceding that the Respondent was not dishonest (that this was indeed the Law Society’s position was demonstrated in no uncertain terms by a letter written by Mr Khoo, on behalf of the Law Society, to the Respondent’s solicitors (dated 16 September 2009) and, indeed, by the correspondence between the Respondent’s solicitors and Mr Khoo generally (including the letter just mentioned)). However, as the relevant conviction was one meted out in a foreign jurisdiction (here, Hong Kong), there could not (as we have just noted) have been a conclusive presumption of the element of dishonesty as such (pursuant to s 83(6) of the Act). It was therefore – at least theoretically - open to the Respondent to argue that he had not been guilty of dishonesty but this would have entailed (as we have been at pains to point out) a collateral attack on the Hong Kong conviction.

[28] Whilst it is true that the Tribunal found that the Respondent was not dishonest, this is a finding that was, with respect, based on erroneous grounds. With respect, we are of the view that the Tribunal should not have embarked on an independent inquiry as to whether or not the Respondent was dishonest. The focus ought to have been the Hong Kong conviction in general and how it was arrived at in particular. Whilst the Tribunal did refer to the Hong Kong conviction, it did not focus on it as such, preferring, instead, to consider the psychiatric evidence independently. In any event, we agree with Mr Khoo that the main reason why the Tribunal held that no dishonesty had been proved vis-à-vis the Respondent was itself premised on an erroneous ground, viz, that the Law Society had not adduced any psychiatric evidence to rebut the psychiatric evidence tendered on behalf of the Respondent. Whilst we leave open the reason proffered by Mr Khoo, viz, that there was no point in the Law Society adducing psychiatric evidence as any evidence would have been too far removed in point of time from the Respondent’s mental state at the material juncture and would therefore have been simply unhelpful, we are of the view that the omission by the Law Society to adduce its own psychiatric evidence was not relevant in any event. We pause at this juncture to note that although the Respondent did adduce psychiatric evidence, this was – in and of itself - neither here nor there. It is, in fact, significant to note that, in any event, such evidence merely repeated (in substance) the psychiatric evidence tendered in the Hong Kong criminal proceedings. Such evidence was only relevant in order to demonstrate (as we have already noted) that the Hong Kong conviction was (in substance) erroneous. But that merely brings us back full circle, so to speak, to the weight (if any) that ought to be placed on the Hong Kong conviction in the first instance. Hence, the fact that the Law Society did not adduce psychiatric evidence did not, with respect, justify the Tribunal’s finding to the effect that no dishonesty had been proved vis-à-vis the Respondent.

[29] It is of the first importance to note, at the outset, that the Hong Kong legal system was – like its Singapore counterpart – inherited from Britain. As former colonies, the common law system was introduced into both these countries and they share – to a large extent – the same legal heritage. More particularly, although Hong Kong is now part of the People’s Republic of China, it continues to administer a (separate and quite distinct) common law system. Looked at in this light, it appears to us that – absent exceptional circumstances - the greatest weight ought to be placed upon the Hong Kong conviction. Indeed, this would be an appropriate juncture to consider the Hong Kong conviction in its context. In particular, – and as we shall see - the judge’s reasons in arriving at the sentence imposed on the Respondent not only speaks volumes but also serves to simultaneously undermine the very foundation of the Respondent’s argument before this court, viz, that he (the Respondent) did not possess dishonest intent because his mind was, at the time he allegedly misappropriated the items in question, a complete blank. It was, in effect, an argument centring on a state of “automatism” in which the Respondent was not aware at all of his actions. Even a moment’s reflection will reveal that this is an argument that is based on an extreme mental state which, whilst not necessarily unconnected to depression, goes much further inasmuch as it attributes to (here) the Respondent a (temporary) “robotic existence” from the time he took the items concerned until he arrived back at his room. If the Respondent’s story is to be believed, he then “snapped out” of this “robotic state”, panicked and (as a consequence) placed the items under his bed (where they were subsequently discovered) as well as took the SIM card out of the mobile phone and placed it in his coat pocket (which account was supported by the psychiatrists concerned). We pause to observe that it is not sufficient – in order for the Respondent to succeed in his argument – that the Respondent was conscious of the fact that he was misappropriating the items concerned although he could not help himself. His argument – we reiterate – was premised on a total absence of consciousness of all of his actions and their respective consequences. This is an important point which, as we shall see, was before the judge during the criminal proceedings in the Hong Kong District Court and (more importantly) which he took into account in both accepting the Respondent’s plea of guilt and in sentencing him. Let us elaborate.

[30] In arriving at his decision in the criminal proceedings in the Hong Kong District Court, it is clear, in our view, that District Judge Patrick Li (“DJ Li”) did, in fact, take into account the psychiatric evidence tendered on behalf of the Respondent. This is evident from the Reasons for Sentence (“the RS”) delivered by the learned judge. In particular, DJ Li noted, first, as follows (see the RS at [5]):

[31] The learned judge then proceeded to consider the evidence of the psychiatrists (viz, Dr Ng and Dr Lo) who were called to give evidence in mitigation on behalf of the Respondent (which clearly stated (in both their respective medical reports as well as on cross-examination by counsel for the Prosecution) the Respondent’s position to the effect that he had absolutely no recollection of picking up the items). His summary of this evidence was both succinct, accurate and (as we shall see) significant (see the RS at [6]–[7]):

[32] It is significant to note, at this juncture, that DJ Li was fully cognizant of the evidence of the psychiatrists – not least to the effect that the Respondent was not, as a result of the Respondent’s medical condition, “fully aware of what he was doing” and (in the opinion of Dr Lo at least) of “the consequence of his conduct” (see the extract of the RS reproduced in the preceding paragraph (emphasis added)). He was also fully cognizant of the evidence resulting from the cross-examination of both psychiatrists by counsel for the Prosecution – especially with regard to this particular issue.

[33] In point of fact, therefore, the learned judge had before him all the relevant psychiatric evidence and, if he was of the view that the Respondent had in fact been acting in a “robotic” state or (to put it another way) in a state of “automatism” (thus negativing, ex hypothesi, any element of dishonest intent whatsoever), DJ Li would not have accepted the Respondent’s plea of guilt. As it turned out, the learned judge was of the view that the Respondent’s mental state had an effect – but only with regard to mitigation of the sentence that was to be meted out. Whilst acknowledging the Respondent’s argument that “[he] could not recall how he took the items” (see the RS at [8] (emphasis added)), it was clear that DJ Li did not accept this argument from “robotism” or “automatism”. Whilst noting that he was “loath to differ from the expert psychiatrists who spent years in the field” (see the RS at [11]), it was clear that, whilst cognizant of the full scope of the psychiatric evidence presented on behalf of the Respondent, the learned judge was not convinced with respect to the entire diagnosis proffered by both doctors in favour of the Respondent. As DJ Li observed (see the RS at [12]):

The following exchange between the learned judge and Dr Ng is also, in our view, instructive and is consistent with the learned judge’s findings:

[34] It is clear that the learned judge was of the view that the Respondent was suffering from a Major Depressive Episode of only a moderate degree of severity which did not, therefore, go so far as to render him a “robot” or an “automaton”. In other words, DJ Li was of the view that the Respondent did know what he was doing. Put simply, the ingredients of the offence of burglary (including that of dishonest intent) had, in the learned judge’s view, been established, although he did take into account the Respondent’s medical condition in determining what sentence to mete out to the Respondent. Indeed, DJ Li observed thus (see the RS at [15]):

[35] Returning to the issue of sentence, it is clear that DJ Li was extremely merciful and compassionate in meting out the sentence he did because of the Respondent’s medical condition. In the learned judge’s view (see the RS at [13]–[14]):

[36] And, after having made the observations reproduced above (at [34]), DJ Li delivered the following sentence (see the RS at [16]):

[37] In the circumstances, it is clear, in our view, that significant weight ought to be placed upon the Hong Kong conviction. We pause to observe that the additional psychiatric evidence adduced on behalf of the Respondent in respect of the present proceedings is, with respect, unhelpful inasmuch as the psychiatrist concerned (albeit the Respondent’s personal psychiatrist) focuses, in the main, on the reports by the Hong Kong psychiatrists (see above at [31]). And the subsequent reports by the Hong Kong psychiatrists which were obtained, presumably by way of updates, merely restate what was in the respective psychiatrists’ original reports.

[38] Having regard to the Hong Kong conviction, we arrive at the conclusion that the Respondent was, in fact, guilty of dishonesty although, as pointed out by DJ Li, there were powerful mitigating factors that stemmed from the Respondent’s medical condition.

[39] Having considered all the circumstances (including the fact that the Respondent was in fact guilty of dishonesty), we find the Respondent guilty of the Amended charge. And, as we shall see below, the element of dishonesty would be of particular significance in the context of the sanction that should be imposed on the Respondent.

[40] It is appropriate to observe, by way of a coda, that the Respondent (who represented himself in the proceedings before the Hong Kong Tribunal) adopted (as also alluded to above) a similar approach before the Hong Kong Tribunal in so far as he sought to argue that his conduct had not been dishonest and only changed his mind later; as the Hong Kong Tribunal observed in its Statement of Findings (“the SOF”) (at [4]–[5]):

[41] Indeed, during the disciplinary proceedings in Hong Kong, the Respondent sought to interpret DJ Li’s Reasons for Sentence in a manner that was wholly contrary to that adopted by this court – arguing, in essence, that the learned judge had, by accepting the evidence of the psychiatrists during the criminal proceedings, also accepted that the Respondent was a complete “robot” or “automaton” in so far as the alleged misappropriation of the items was concerned. Counsel for the Applicant (the Law Society of Hong Kong) adopted – not surprisingly – a completely contrary view, which was very similar to that adopted by this court and which pointed out (correctly, in our view) that the Respondent was, in effect, mounting a collateral attack on the Hong Kong conviction). It suffices for the purposes of the present proceedings to state that the stance adopted by the Respondent was wholly without merit as it was not only a “creative interpretation” of the learned judge’s Reasons for Sentence but would also have rendered DJ Li’s Reasons for Sentence (as set out and explained above at [30]–[34]) both illogical as well as incoherent. Indeed, the Hong Kong Tribunal itself was confused by the approach that the Respondent had initially adopted as the latter appeared to be arguing – at one and the same time – that he had voluntarily pleaded guilty to a criminal charge involving dishonesty and yet was not dishonest for the purpose of the disciplinary proceedings. However, as the Hong Kong Tribunal noted (see the preceding paragraph), the Respondent ultimately admitted that he was dishonest after the Chairman of the Hong Kong Tribunal had asked him the following question (which he (the Respondent) then answered in the affirmative):

[42] In the event, the Hong Kong Tribunal held, as follows (see the SOF at [9]–[14]):

[43] Whilst we sympathise with the plight of the Respondent in relation to his medical condition, this was (as noted above) only relevant in the context of the mitigation of the sentences meted out against him in the various proceedings. As we have already explained above, however, not only was the Hong Kong conviction completely in order, the sentence meted out was more than reasonable in the circumstances and clearly demonstrated that the learned judge had more than taken into account the Respondent’s mental state at that particular point in time. Legal principles were also accompanied (where applicable) by no small measure of mercy in appropriate circumstances. Indeed, we are of the view that both the Hong Kong District Court (in the context of the criminal proceedings against the Respondent) and the Hong Kong Tribunal (in the context of the disciplinary proceedings against the Respondent) were more than merciful and compassionate. As already noted above, the Respondent was only given a suspended sentence in the context of the criminal proceedings (see above at [7]) and was only suspended from practice (and not struck off the roll of advocate and solicitors in Hong Kong) in the context of the disciplinary proceedings (see the preceding paragraph). It is therefore unfortunate that the Respondent sought to mount a root and branch attack on the source of the various disciplinary proceedings brought against him both here as well as in Hong Kong, viz, the Hong Kong conviction.

[44] We turn now to the appropriate sanction to be imposed on the Respondent. In this regard, the relevant precedents are clear. Where the advocate and solicitor concerned has been guilty of dishonesty, the court will almost invariably, no matter how strong the mitigating factors advanced by the advocate and solicitor, order that he or she be struck off the roll (see, for example, the decisions of this court in Law Society of Singapore v Amdad Hussein Lawrence [2000] 3 SLR(R) 23 (“Amdad Hussein Lawrence”); Law Society of Singapore v Ong Lilian [2005] SGHC 187 (“Ong Lilian”); and Law Society of Singapore v Ezekiel Caleb Charles James [2004] 2 SLR(R) 256 (“Ezekiel Caleb Charles James”)).

[45] Work pressure or stress should never be an excuse for a lawyer to act dishonestly. Reference may be made to another decision of this court in Law Society of Singapore v Wee Wei Fen [1999] 3 SLR(R) 559 (“Wee Wei Fen”), which involved blatant acts of dishonesty. Although there was some indication that the advocate and solicitor concerned was suffering from depression, her primary ailment really centred (unlike the present case) on work stress, to which the court in that case responded as follows (at [40]):

Reference may also be made, in this regard, to Amdad Hussein Lawrence (at [15]–[16]); Ong Lilian (at [12]); and Ezekiel Caleb Charles James (at [14]).

[46] Admittedly, what the Respondent was suffering from here went beyond mere work stress and the dishonest act was a single episode, unlike the conduct of the advocate and solicitor in Wee Wei Fen where there was a series of deliberate acts of deceit committed over a period of more than a few months. However, that does not excuse the fact that the Respondent’s conduct was dishonest. The precedents have clearly established that even a single act of dishonesty may result in the advocate and solicitor being struck off the roll. In Ong Lilian, the solicitor was struck of the roll because she had been convicted of one count of theft in a dwelling place under s 380 of the Penal Code. The court observed (at [11]):

[47] Similarly, in Amdad Hussein Lawrence, the respondent, an advocate and solicitor of 15 years’ standing, pleaded guilty to and was convicted of a single count of theft in a dwelling place under s 380 of the Penal Code. He stole $478.50 worth of items, including a VCD player, VCDs, food items and a toy from a supermarket. He was sentenced to two months imprisonment. During the disciplinary proceedings, the Court held that the fact that the Respondent was suffering from stress and was under medication at the time of the offence had negligible weight as the offence involved proven dishonesty. The Court ordered the Respondent to be struck of the roll and observed thus (at [17]):

[48] Admittedly, each case ought to be decided on its own facts. For example, in the present proceedings, the fact situation appears to be somewhat different inasmuch as the Respondent’s mental function appears to have been relatively more impaired than that of the advocate and solicitor in Amdad Hussein Lawrence although, to the extent that we have found that the Respondent was aware of what he was doing, there is (to that extent) some similarity with the facts of that same case. However, in sentencing the Respondent, the more severe mental condition of the Respondent carries little weight since the offence for which the Respondent was convicted involved dishonesty (in contrast to, for example, the conduct of the advocate and solicitor in the decision of this court in Chiong Chin May Selena (where the advocate and solicitor concerned was not struck off the roll but was, instead, suspended from practice for one year)). However, as we shall see below (at [52]–[53]), the relatively more severe mental condition the Respondent was suffering from may have a possible bearing with regard to the future.

[49] The aim here is not to punish the Respondent for his conduct. This task has been performed by the criminal proceedings in Hong Kong. Rather, we have the task of determining whether the Respondent has been guilty of such conduct that makes him unfit to be a member of the legal profession. In sentencing solicitors in such circumstances as the present, a court must keep in mind the need to preserve the good name of the profession and the protection of the public. At this juncture, it will be appropriate to repeat the observations of this Court in Re Knight Glenn Jeyasingam [1994] 3 SLR(R) 366 (at [18]):

[50] The legal profession cannot be seen to be tolerant of any act of dishonesty on the part of an advocate and solicitor, even if the dishonesty has been of a technical nature (such as in the present case). We also bear in mind the following observations of this court in Law Society of Singapore v Ravindra Samuel [1999] 1 SLR(R) 266 (at [12]–[13]), which were in fact applied in both Amdad Hussein Lawrence and Ong Lilian:

[52] However, in view of the special mitigating circumstances with respect to the Hong Kong conviction (centring on the Respondent’s mental depression at the material time), we are of the view that it is quite likely that such conduct on the part of the Respondent will not be repeated (we note, in this regard, the numerous testimonials on behalf of the Respondent, expressing shock and disbelief at what, in their view, was very uncharacteristic conduct on the part of the Respondent). In the circumstances, the Respondent could possibly apply for reinstatement to the roll within a relatively short period of time (in accordance with the principles laid down by this court, in particular, in Knight Glenn Jeyasingam v Law Society of Singapore [2007] 3 SLR(R) 704 (“Knight Glenn Jeyasingam”); Narindar Singh Kang v Law Society of Singapore [2007] 4 SLR(R) 641; Gnaguru s/o Thamboo Mylvaganam v Law Society of Singapore [2008] 3 SLR(R) 1; and Kalpanath Singh s/o Ram Raj Singh v Law Society of Singapore [2009] 4 SLR(R) 1018). However, as Chan Sek Keong CJ, delivering the grounds of decision of this court in Knight Glenn Jeyasingam observed (at [11]–[12]):

For the reasons aforesaid, this appears to be an exceptional case where the element of dishonesty manifested by the Respondent was in a one-off case at a time when he was under some psychological stress. We also note that the fact that the Respondent had voluntarily ceased practice may also be taken into account in appropriate circumstances (see Knight Glenn Jeyasingam (at [14]–[17])). In the circumstances, it seems to us that the normal waiting period before a solicitor who is struck off for dishonest conduct may apply for reinstatement as enunciated in Knight Glenn Jeyasingam, ie, a period significantly longer than five years, may not be appropriate in the context of the present case.

[53] Further, whether the Respondent is successful in such an application will obviously depend on all the circumstances of the case at that particular point in time (including the fact as to whether he has recovered from his medical condition and is able to practise law again and, if so, whether appropriate constraints on the extent of his practice ought also to be imposed).