Law Society of Singapore v Jasmine Gowrimani d/o Daniel

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

[1] This application to show cause arose from a complaint to the Law Society of Singapore (“the Law Society”) against the respondent, an advocate and solicitor of some 16 years’ standing (“the Respondent”), by one Mdm Sumathi d/o S Ramachandran (“the Complainant”). According to the Complainant, a teacher at a Singapore primary school (“the School”), the Respondent had threatened and abused her verbally during a private meeting at the School (“the Meeting”). The Meeting had been specifically convened to resolve certain issues relating to the Respondent’s younger sister, a pupil at the School.

[2] After a two-day hearing in September, the Disciplinary Tribunal rendered its report on 30 November 2009 (“the Report”). In it, the Disciplinary Tribunal stated that the Respondent’s conduct, although not occurring in her professional capacity, nonetheless constituted cause of sufficient gravity pursuant to s 93(1)(c) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) so as to warrant a reference to this court. The Disciplinary Tribunal further stated in its Report (at [38]) that it did not possess the discretion to refrain from referring matters to the court of three Judges, once all the elements of a disciplinary charge had been made out.

[3] We were not concerned with the substantive merits of the Law Society’s case against the Respondent. Instead, on a preliminary issue, we agreed with the views of both the Law Society and the Respondent that the Disciplinary Tribunal had misdirected itself in fettering its own discretion to deal with the Respondent’s misconduct. Indeed, for the reasons set out below, this application was misconceived and, in fact, referred inappropriately by the Disciplinary Tribunal to this court. Before we proceed to consider these reasons, however, a brief summary of the procedural history of the case would be in order.

[4] On 4 September 2008, the Complainant lodged a complaint with the Law Society in respect of the Respondent’s alleged misconduct at the Meeting. Subsequently, the Law Society preferred the following charge (“the Charge”) against the Respondent:

[5] On 18 May 2009, the Disciplinary Tribunal was appointed to hear and investigate the complaint against the Respondent. After a two-day hearing on 22 and 23 September 2009, the Disciplinary Tribunal submitted the Report on 30 November 2009.

[6] Apart from making certain findings of fact that this court is presently not concerned with, the Disciplinary Tribunal also pronounced on the issue of its own discretion to refer – or not to refer – cases to the court of three Judges. The Disciplinary Tribunal stated (at [38] of the Report) as follows:

[7] Put simply, it appears that the Disciplinary Tribunal decided that, based on the arguments advanced by Goh Yihan (“Goh”) in his article (as cited by the Disciplinary Tribunal in the Report (see the preceding paragraph)), “Show Cause Proceedings Before the Court of Three Judges: Some Procedural Questions” (2008) 20 SAcLJ 801 (“the Article”) (at paras 37–47), it had no choice but to refer the matter of the Respondent’s misconduct to the court of three Judges once the elements of the Charge had been made out. From the Disciplinary Tribunal’s perspective, pursuant to ss 93(1)(c) and 94(1) of the Act, once “due cause” had been made out – in this case under s 83(2)(h) of the Act – it would have no discretion not to transmit the Respondent’s case upwards.

[8] The rationale for Goh’s view is set out primarily at paras 40–41, 45 and 47 of the Article, as follows:

[9] Goh’s view, which the Disciplinary Tribunal accepted, is that a finding of “due cause” under s 83 would necessarily imply (indeed, entail) a “cause of sufficient gravity for disciplinary action” under ss 93 and 94. In other words, Goh has equated the two expressions (see the Article at paras 40–41, excerpted at [8] above). Accordingly, as the Disciplinary Tribunal had, in the present proceedings, found that the elements of the Charge against the Respondent had been made out pursuant to s 83(2)(h) of the Act, it had no choice but to refer the Respondent’s matter onwards to this court. This was despite the Disciplinary Tribunal’s own conclusion that “the [Respondent’s] conduct … was not of such gravity or seriousness as to necessitate referring it to the Court of Three Judges” (see the Report at [38]).

[10] With respect, the approach adopted by both Goh and the Disciplinary Tribunal should not be adopted.

[11] Broadly speaking, the issue we are concerned with here is whether the Disciplinary Tribunal has a discretion to refer cases to the court of three Judges, having found that the conduct of the advocate and solicitor concerned falls within one or more of the limbs in s 83(2) (in other words, the elements of the charge against the advocate and solicitor have been made out). In our view, it is clear that this issue turns, to a large extent, on whether there is a distinction between the phrase “cause of sufficient gravity for disciplinary action exists under [s 83]” in ss 93 and 94 of the Act on the one hand and the phrase “due cause” in s 83 of the Act on the other. It would also turn on whether a finding that the conduct of the advocate and solicitor concerned falls within one or more of the limbs in s 83(2) automatically amounts to a finding of “due cause” under s 83, as well as the roles played by the court of three Judges and the Disciplinary Tribunal, respectively.

[12] Given the very nature of the issue itself and the fact that it would, to a large extent, turn on the question of distinction between the two phrases referred to in the preceding paragraph, it would be appropriate, at this juncture, to set out the material provisions in order to obtain an understanding of the context in which each phrase occurs.

[13] The material parts of ss 93 and 94 read as follows:

[14] The material parts of s 83 read as follows:

[15] We commence with the two phrases mentioned at [11] and the logical and commonsensical presumption that different words have different meanings. Indeed, even the same word may have a different meaning, especially in a different context. We are here faced with two completely different phrases, viz, “cause of sufficient gravity exists under [s 83]” and “due cause”, respectively. They occur in a piece of legislation – indeed, the same piece of legislation. We can, therefore, start with the presumption that they were intended to have different meanings. This leads us to the next point – centring on the relevant legislative history.

[16] Prior to the Legal Profession (Amendment) Act 1970 (Act 16 of 1970) (“the 1970 Amendment Act”), there was only one phrase utilised in the Act, viz, “due cause”. Indeed, this particular phrase was, in fact, the precise phrase used at the relevant points in s 93 (the then s 96) and, indeed, throughout all the relevant provisions reproduced above (at [13] and [14]). In particular, s 93(1) (which was then numbered as s 96(1)), in its original language prior to the 1970 Amendment Act, read as follows:

[17] However, s 31 of the 1970 Amendment Act amended the provision set out in the preceding paragraph, which thereafter read as follows:

[18] Indeed, the words – or, more accurately, the change in the words and the terminology - speak for themselves. In particular, the phrase “cause of sufficient gravity” replaced the phrase “due cause” in the then s 96(1) of the Act (which is the present s 93(1) of the Act, reproduced above at [13]). In this connection, it should be borne in mind, of course, that the phrase “cause of sufficient gravity” relates to disciplinary action under the then s 87 of the Act (the present s 83 of the Act, the material parts of which have been reproduced above at [14]). This last-mentioned point is important inasmuch as both ss 87(1)(b) and 88(1) of the Act also utilise the phrase “cause of sufficient gravity”, albeit in relation to the absence of the need for a “formal investigation” by a Disciplinary Tribunal (see both ss 87(1)(b) and 88(1) where the phrase “no cause of sufficient gravity exists for a formal investigation” is employed).

[19] Put simply, and returning to the issue at hand, the legislative history demonstrates – in no uncertain terms - that the phrase “cause of sufficient gravity” was not only intended to replace the phrase “due cause” in the context of proceedings before a Disciplinary Tribunal but was also intended to carry a quite different meaning from the phrase “due cause”. This is, in fact, an appropriate juncture at which to turn to the next (related) question: What, then, was the legislative purpose underlying this particular amendment (and the consequent substitution of phrases)?

[20] There does not appear to be any express delineation of the legislative purpose for the changes effected. In the Explanatory Statement to the Legal Profession (Amendment) Bill (Bill 6 of 1970) (which was ultimately enacted as the 1970 Amendment Act), it was stated as follows:

[21] More specifically, the Explanatory Statement also elaborated on cl 31 of this Bill (which was ultimately enacted as s 31 of the 1970 Amendment Act, which amended the then s 96(1) of the Act (the present s 93(1)) (see [17] above)), as follows:

[22] Hence, the focus of s 31 of the 1970 Amendment Act was, as just noted in the preceding paragraph, on enlarging the power of the (then) Disciplinary Committee inasmuch as it could reprimand an advocate and solicitor (but not order the payment of a penalty), despite finding that no cause of sufficient gravity for disciplinary action existed.

[23] The more interesting consequential amendments in the context of the present proceedings lie in the fact that the phrase “sufficient cause” in s 96(1)(b) (the present s 93(1)(b)) was replaced by the phrase “cause of sufficient gravity”. Further, the phrase “due cause” in s 96(1)(a) and (c) (the present s 93(1)(a) and (c), respectively) was replaced by the phrase “cause of sufficient gravity” (see [17] above). However, there appears to be no explanation in either the Explanatory Statement to the Bill concerned or in the relevant Parliament Debates (see generally Singapore Parliamentary Debates, Official Report (30 March 1970) vol 29 at cols 1271–1273 (Mr E W Barker, Minister for Law and National Development)) as to why these consequential amendments were made. The only clear fact is the change of the phrases themselves. Henceforth, the Disciplinary Committee (now Disciplinary Tribunal) would be concerned with whether or not there has been “cause of sufficient gravity” for disciplinary action against the advocate and solicitor concerned pursuant to s 83 – as opposed to “due cause” (which constituted the previous position (prior to the 1970 Amendment Act)).

[24] It would, in the circumstances, therefore be useful to commence our analysis from first principles. And one such principle is that the Supreme Court in general and the court of three Judges in particular (see s 98(7) of the Act) bear the ultimate responsibility for deciding on the most serious cases of misconduct by advocates and solicitors. Indeed, this is embodied in s 83(1) of the Act. Although that provision has already been reproduced above (at [14]), it is worth reproducing again: “All advocates and solicitors shall be subject to the control of the Supreme Court …” (reference may also be made to s 82A(2) of the Act, which relates to the equivalent provision in the context of disciplinary proceedings against legal service officers and non-practising solicitors). The starting point, therefore, is that the Supreme Court (in the form of the court of three Judges) is the ultimate tribunal having control over all advocates and solicitors. However, it should be appreciated that it does not follow from this fact per se that the court of three Judges must necessarily hear all cases where the Disciplinary Tribunal finds that the advocate and solicitor’s conduct falls within one or more of the limbs of s 83(2) of the Act (cf para 41 of the Article, excerpted at [8] above). In our view, it is only the most serious cases that must be heard by the court of three Judges. That the Supreme Court (in the form of the court of three Judges) is the ultimate (and only) tribunal for deciding on the most serious cases is borne out by the fact that it is also accorded (in s 83(1) of the Act (reproduced above at [14])) the power to administer the most serious sanctions against an errant advocate and solicitor. This power includes administering the most severe sanction of striking such an advocate and solicitor off the roll of advocates and solicitors of the Supreme Court. It is also important to note that there is no further appeal from such a decision (see s 98(7) of the Act).

[25] At this juncture, it should be further noted that it is for the court of three Judges to decide and it must decide on whether or not “due cause” has been proved in the first instance; in other words, the mere reference of a case to the court of three Judges is not a fait accompli in so far as the liability of the advocate and solicitor is concerned. This is an important point, to which we shall return below.

[26] The upshot of what has just been discussed in the preceding section is that the Disciplinary Tribunal does not possess powers to decide upon the most serious cases, let alone administer the most serious sanctions. As we have seen, this is the task of the court of three Judges. Put simply, it is not the ultimate disciplinary tribunal. What, then, is the function of the Disciplinary Tribunal pursuant to s 93 (reproduced above at [13])? This is, in fact, one of the most crucial questions to be answered in the context of the present proceedings.

[27] The function (or rather, functions) of the Disciplinary Tribunal may be gleaned from the relevant provisions of the Act itself.

[28] One main function of the Disciplinary Tribunal is to serve as a “filter” of sorts, thereby ensuring that only the most serious complaints are referred to the court of three Judges. This is, in fact, clear from the provisions of s 93 itself (reproduced above at [13]). It is of the first importance to reiterate that the Disciplinary Tribunal does not decide on the most serious cases. If it decides that a particular complaint is sufficiently serious and that there is a prima facie case against the advocate and solicitor concerned after hearing the relevant evidence, the Disciplinary Tribunal must refer the case for decision by the court of three Judges. On the other hand, it is both logical as well as commonsensical that the court of three Judges not be “clogged up” with hearing cases of a trivial (and, a fortiori, frivolous) nature. Indeed, the same approach with a view to avoiding unnecessary logjams was, in fact, adopted at a lower level via s 17 of the Legal Profession (Amendment) Act 2001 (Act 35 of 2001) which amended s 85 “to enable the Chairman of the Inquiry Panel to constitute one or more Review Committees (comprising an advocate and solicitor and a legal officer) to review complaints or information against advocates and solicitors and to dismiss any complaint if the Review Committee is of the unanimous opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance” [emphasis added] (see the Explanatory Statement to the Legal Profession (Amendment) Bill (Bill 39 of 2001)). Indeed, the following observations by the Minister for Law, Prof S Jayakumar, during the second reading of this Bill, bear quotation (see Singapore Parliamentary Debates, Official Report (5 October 2001) vol 83 at cols 2195–2196):

There is, in our view, no reason in principle why similar reasoning ought not to apply to the situation in the present proceedings (which relates to the “sifting” function of the Disciplinary Tribunal instead).

(3) Conceptual and practical difficulties arising under the statutory language in the then s 96 prior to the 1970 Amendment Act

[29] As we have seen, the relevant provision prior to the 1970 Amendment Act was the former s 96(1) (reproduced above at [16]). The Disciplinary Committee (now known as the Disciplinary Tribunal) was tasked then with determining that “due cause” did not exist for disciplinary action pursuant to what is now s 83 or that while no “sufficient cause” existed for such disciplinary action the advocate and solicitor concerned should be ordered to pay a penalty or that “due cause” for disciplinary action pursuant to what is now s 83 did exist. In this last-mentioned of the three possible determinations that could have been arrived at by the Disciplinary Committee, the Disciplinary Committee would then refer the case to the court of three Judges for its decision.

[30] However, the previous terminology (of “due cause”) in the then s 96 of the Act (the present s 93 (which, of course, contains quite different terminology)) could – conceptually, if not practically – raise unnecessary question marks vis-à-vis the role and function of the Disciplinary Committee. If the determination of the Disciplinary Committee (now known as the Disciplinary Tribunal) was, indeed, a finding of “due cause” (pursuant to the terminology under the then s 96(1)(c) of the Act (reproduced above at [16])), then the Disciplinary Committee would have usurped the function of the court of three Judges as only the latter could make a decision as to whether or not there was “due cause” pursuant to the then s 87 of the Act (the present s 83 of the Act) and, on arriving at such a decision, administer the appropriate sanction under the then s 87(1) of the Act (the present s 83(1)).

[31] Put simply, a determination or finding of “due cause” as such was not – and is not – within the purview of the Disciplinary Tribunal. This is why, in our view, the amendment effected by the 1970 Amendment Act (see above at [17]) was necessary. It will be recalled that the 1970 Amendment Act substituted the phrase “due cause” wherever it appeared in the then s 96 of the Act (the present s 93 (as amended)) with the phrase “cause of sufficient gravity”. In other words, the phrase “cause of sufficient gravity” was intended, in our view, to represent a determination by the Disciplinary Committee (now known as the Disciplinary Tribunal) that there was a prima facie case on the relevant evidence that “due cause” might be present and that, in the circumstances, the case ought to be referred to the court of three Judges. In other words, a finding that “cause of sufficient gravity” exists was not a determination or finding of “due cause” as such; rather, the Disciplinary Tribunal (as the Disciplinary Committee is now known) would be performing a “filtering” or “sifting” function in order to ensure that less serious (and, a fortiori, trivial or frivolous) cases are not referred to the court of three Judges. Indeed, such cases would fall, instead, within the ambit of s 93(1)(a) or (b) (reproduced above at [13]).

[32] The first provision referred to at the end of the preceding paragraph, viz, s 93(1)(a), relates to a situation in which the Disciplinary Tribunal has determined there is no (potential or prima facie) merit in the sense described above, and should therefore proceed no further. A clear example of such a case would be one where the conduct of the advocate and solicitor does not fall within any of the limbs in s 83(2) to begin with. Indeed, we would think that this would, practically speaking, be the main (if not the only) situation because, if the conduct of the advocate and solicitor falls within one or more of the limbs in s 83(2), we should think that there should be some sanction administered to that advocate and solicitor. This is, as we shall see in the following paragraph, precisely what s 93(1)(b) envisages.

[33] Following from the analysis in the preceding paragraph, the second provision, viz, s 93(1)(b), relates to a situation in which the Disciplinary Tribunal, whilst of the view that there is no (potential or prima facie) merit in the sense described above (ie, that “due cause” might be found by a court of three Judges), is nevertheless of the view that some (lesser) sanction should be administered against the advocate and solicitor concerned. One clear situation in which the Disciplinary Tribunal can administer such a (lesser) sanction relates to a situation where the conduct of the advocate and solicitor concerned is found to come within one or more of the limbs in s 83(2) (in our view, such conduct is more likely than not to fall within s 83(2)(h) (given its nature as a “catch-all provision” (see Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 at [40] and Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR(R) 308 at [79])), as is, indeed, the case here) but falls short of a prima facie case of “due cause” that ought to be referred to a court of three Judges for decision. Whether or not the Disciplinary Tribunal can administer a similar sanction in relation to a situation which does not come within one or more of the limbs in s 83(2) was not an issue before us and we therefore do not make any pronouncement on it, although it would appear that the Council of the Law Society has the power to administer a sanction in such a situation pursuant to the power conferred upon it under s 88 of the Act where “no cause of sufficient gravity exists for a formal investigation” by a Disciplinary Tribunal (see Tan Yock Lin, The Law of Advocates and Solicitors in Singapore and West Malaysia (Butterworths Asia, 2nd Ed, 1998) at pp 778–779 (citing Hilborne v Law Society of Singapore [1977–1978] SLR(R) 342)).

[34] As we have already seen, however, there is yet a third situation (under s 93(1)(c)) in which the Disciplinary Tribunal determines that there is (potential or prima facie) merit in the complaint and that the case should therefore be referred to the court of three Judges.

[35] A point already mentioned (above at [31]) is of such fundamental importance to these proceedings that it bears repeating: It is of the first importance to note that a finding by the Disciplinary Tribunal that the conduct of the advocate and solicitor concerned falls within one or more of the limbs in s 83(2) does not, ipso facto, entail a finding of “due cause”. Put simply, a determination that the advocate and solicitor’s conduct falls within one or more of the limbs in s 83(2) is a necessary – but not sufficient – condition for a finding of “due cause”. This interpretation is consistent with the use of the word “may” in s 83(2) itself. Whether or not there is, in fact, “due cause” (meriting a sanction pursuant to s 83(1)) will (as already mentioned above) be determined by the court of three Judges, having regard to all the facts and surrounding circumstances in the application before it – of which a threshold finding that the conduct of the advocate and solicitor concerned falls within one or more of the limbs in s 83(2) is necessary. Indeed, as we have also noted, the court of three Judges might even find – contrary to the finding of the Disciplinary Tribunal – that the facts of the application before it do not even fall within one or more of the limbs in s 83(2) to begin with (in which case no action whatsoever will be taken against the advocate and solicitor concerned). If, however, the court of three Judges determines that “due cause” has been shown, it can then administer the appropriate sanction (pursuant to s 83(1) of the Act (reproduced above at [14])).

[36] As already noted above (at [28]), the construction we have placed on ss 93 and 83 is also consistent with logic and commonsense inasmuch as the court of three Judges is not faced with a logjam of unnecessary cases of a trivial (and, a fortiori, frivolous) nature. Further, this construction is, as we have sought to demonstrate, wholly consistent with the legislative history as well as purpose of the provisions (in particular, that relating to the introduction of the phrase “cause of sufficient gravity” into the present s 93 by way of the 1970 Amendment Act). At this juncture, we note that whilst the Article is, in the main, a reasoned and learned one from one of Singapore’s most promising young legal scholars, the particular proposition was based on a wrong premise inasmuch as the Article, in effect, equated (and conflated) “cause of sufficient gravity” with “due cause” (see also the Article at para 40, reproduced above at [8]).

[37] As we have explained above, the phrase “cause of sufficient gravity” was deliberately as well as specifically introduced in order to clarify that the task of the Disciplinary Tribunal was to act as a “filter” in order to determine whether or not there was a case of “sufficient gravity” that could, on a finding by the court of three Judges, be ascertained (based not only on the case falling within one or more of the limbs of s 83(2) but also on the gravity and seriousness of the conduct based on the evidence) to constitute “due cause” that merited the requisite sanction from a range of sanctions prescribed under s 83(1). If so, then the Disciplinary Tribunal would refer the case accordingly to a court of three Judges pursuant to s 93(1)(c) of the Act. The aforementioned equation (and conflation) in the Article occurred because the learned author equated the establishment of “due cause” with the establishment of the ingredients in one or more of the limbs under s 83(2) of the Act. That this is so is clear from para 45 of the Article reproduced above (at [8]). However, this is, with respect, erroneous because, as we have already explained, a finding that the advocate and solicitor’s conduct falls within one or more of the limbs of s 83(2) of the Act is, at most, a threshold requirement to the ultimate determination that “due cause” has been established. In any event, a determination by the Disciplinary Tribunal that the advocate and solicitor’s conduct falls within one or more of the limbs of s 83(2) of the Act is by no means conclusive as the final decision lies with the court of three Judges. Indeed, the court of three Judges not only makes the final decision as to whether or not the advocate and solicitor’s conduct falls within one or more of the limbs of s 83(2), but also whether that conduct constitutes “due cause” for the purposes of the administering of a sanction pursuant to s 83(1) of the Act.

[38] As we have also explained, if the Disciplinary Tribunal finds – at the other extreme – that the conduct of the advocate and solicitor concerned does not even fall within any of the limbs in s 83(2) to begin with, then it would not take any further action whatsoever (see s 93(1)(a) of the Act as well as above at [32]).

[39] In the final situation (which seems to us to be an “intermediate” one), the Disciplinary Tribunal may find that the conduct of the advocate and solicitor concerned does fall within one or more of the limbs of s 83(2) (which is more likely than not, as pointed out above at [33], to fall within s 83(2)(h)) but feels that the conduct itself, whilst technically within the ambit of one or more of these limbs, is nevertheless not one of “sufficient gravity” to merit a reference to the court of three Judges. In other words, the Disciplinary Tribunal is of the view that there is – on the facts and circumstances before it – no prima facie case that would result in a finding of “due cause” by the court of three Judges, bearing in mind (as explained above) a finding of “due cause” is not, ipso facto, demonstrated merely by a finding that the conduct of the advocate and solicitor concerned falls within one or more of the limbs of s 83(2). In this (final) situation, the Disciplinary Tribunal can administer a much less serious sanction pursuant to s 93(1)(b) of the Act (see also above at [33]).

[40] The conclusion which we have arrived at – to the effect that the Disciplinary Tribunal does possess the discretion to refrain from referring matters to the court of three Judges even if all the ingredients of a disciplinary charge had been made out – is not only consistent with the language as well as legislative history and purpose of the relevant provisions but is also consistent with practical considerations as well. We have already noted the practical benefits which result from the “sifting” function exercised in this manner by the Disciplinary Tribunal. We also note – parenthetically – that a contrary approach (which would result in automatic reference of cases to the court of three Judges) would act as a disincentive to the advocate and solicitor concerned to admit his or her guilt before the Disciplinary Tribunal (even for relatively trivial charges). This would, in turn, result in a greater number of full hearings before Disciplinary Tribunals, thereby increasing the average time taken to dispose of complaints. Such a result would necessarily run counter to the legislative spirit of the Act itself, which (at s 93(3) of the Act) specifically tasks a Disciplinary Tribunal to “carry out its work expeditiously”. It turns out that the prevalent practice of Disciplinary Tribunals – which adopts, in fact, the approach which we have endorsed – was correct all along.