Mohd Sadique bin Ibrahim Marican and another v Law Society of Singapore

Philip Pillai JC:

[1] This is an application for leave, pursuant to O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), to seek a quashing order. The applicants seek to quash (a) certain disciplinary proceedings and (b) a report issued by the Disciplinary Tribunal dated 2 February 2010 containing their findings and determination.

[2] The only issue raised before me is a jurisdictional issue – whether the court has power to grant leave to apply for a quashing order in light of s 91A of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) which restricts judicial review of “any act done or decision made by the Disciplinary Tribunal” (see [8] below).

[3] It is the Law Society’s submission that s 91A of the LPA, which was introduced via the 2008 round of statutory amendments, has restricted the right of a solicitor to apply to the court for a quashing order with the consequence that the only legal recourse against the Disciplinary Tribunal’s acts or decisions is to a court of 3 Judges of the Supreme Court provided for under s 98 of the LPA or a single Judge under s 97 of the LPA, as the case may be. It further submits that the words “any act done or decision made by the Disciplinary Tribunal” in s 91A encompasses the Disciplinary Tribunal’s “findings and determination” under s 93 of the LPA (see [8] below).

[4] The applicants’ submission is that the meaning and scope of the phrase “any act done or decision made by the Disciplinary Tribunal” in s 91A of the LPA is confined only to acts and decisions of the Disciplinary Tribunal in the course of its proceedings, ie the rulings and conduct of the proceedings and the evidence adduced during the Disciplinary Tribunal’s investigations. The applicants argue that s 91A does not apply to situations after the Disciplinary Tribunal has issued its findings and determination.

[5] The crux of the matter turns on the meaning to be ascribed to the words “any act done or decision made” in s 91A of the LPA. Does it have the same meaning as “findings and determination” in s 93 of the same statute? Even if the two phrases are not interchangeable, does the phrase “any act done or decision made” nevertheless encompass “findings and determination”?

[6] Prior to the 2008 amendments, under s 93 of the LPA (Cap 161, 2001 Rev Ed), the Disciplinary Committee served two functions. First, it investigated complaints and matters referred to it and made findings in relation to the facts of the case. Second, it determined whether any cause of sufficient gravity for disciplinary action under s 83 existed and, even where no such cause of sufficient gravity existed, whether the advocate and solicitor ought to be reprimanded or ordered to pay a penalty appropriate to the misconduct committed. Within the context of the pre-2008 wording of s 93, the Disciplinary Committee’s findings were clearly quite separate from their determinations. The Disciplinary Tribunal (which is the modern successor to the Disciplinary Committee) functions the same way. Unfortunately, references in judicial decisions as well as in Parliament have often conveniently, but unhelpfully for the purposes of this application, loosely described the outcomes of the Disciplinary Tribunal process as “decisions” of the Disciplinary Tribunal instead of conforming to the statutory formulation, ie “findings” and “determination”.

[7] Bearing the above in mind, it was nonetheless a well-established principle, prior to the 2008 amendments to the LPA, that the findings and determination of the Disciplinary Committee could be subject to judicial review notwithstanding that the applicant might have to show cause before a court of 3 Judges (see Re Singh Kalpanath [1992] 1 SLR(R) 595 at [26] – [27]; Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR(R) 934 at [1] and [2007] 4 SLR(R) 377 at [15]; Re Shankar Alan s/o Anant Kulkarni [2007] 1 SLR(R) 85 (“Re Shankar”)). Prior to the 2008 amendments to the LPA, the process of judicial review was a distinctly separate and independent process from that of showing cause. The difference between judicial review and show cause proceedings was canvassed in Re Singh Kalpanath at [27], where Chan Sek Keong J observed:

Similarly, in Re Shankar at [34], Sundaresh Menon JC stressed that he “[did] not think it [was] correct to view the court of three judges as an alternative remedy to the seeking of judicial review”.

[8] The 2008 amendments to the LPA, however, introduced a number of significant changes, including s 91A. Also, as already mentioned above, the Disciplinary Committee was renamed the Disciplinary Tribunal. The introduction of s 91A was concurrently accompanied by amendments to ss 97 and 98 of the LPA. For convenience, the changes to ss 91A, 93, 97 and 98 of the LPA are tabulated below:

[9] The Explanatory Statement in the Legal Profession (Amendment) Bill No 16 of 2008 is the starting point for determining the purpose of s 91A:

Section 91A is clearly intended to place restrictions on applications for judicial review. However, how has s 91A affected access to judicial review?

[10] As amended, s 97 of the LPA has enlarged the powers of the single Judge by expressly providing for “review” where the Disciplinary Tribunal has made a determination that there is no need for a show cause proceeding before the court of 3 Judges. The powers of the court of 3 Judges were also expanded under the amended s 98 of the LPA so as to include, in addition to the powers it previously had to hear show cause proceedings, the power to determine “any question as to the correctness, legality or propriety of the determination of the Disciplinary Tribunal, or as to the regularity of any proceedings of the Disciplinary Tribunal”. The words “correctness, legality or propriety” and “regularity” are directly referable to the three grounds of judicial review – illegality, irrationality and (procedural) impropriety (see Council of Civil Services Unions v Minister for the Civil Service [1985] AC 374 at 410 per Lord Diplock). An examination of the amended s 98 of the LPA reveals that the court of 3 Judges now has, in addition to its power to adjudicate on the merits of the case, the power of judicial review over the Disciplinary Tribunal. In other words, the court of 3 Judges now presides over the show cause proceedings and also proceedings relating to judicial review. Where the Disciplinary Tribunal has not determined that show cause proceedings are necessary, the single Judge will now also have the power of judicial review after the findings and determination of the Disciplinary Tribunal are made, pursuant to s 97 of the LPA.

[11] Seen in the light of the operation of ss 97 and 98, it would appear that the purpose of s 91A is to restrict judicial review by consolidating the judicial review process with the hearings on merit into one process, instead of maintaining them as distinctly separate processes. What this means is that judicial review remains available but only through the single Judge process under s 97 (in the event there are no show cause proceedings) or the court of 3 Judges under s 98 (in the event there are show cause proceedings). Given the provisions in ss 97 and 98 and how they relate to s 91A, in my view, Parliament could not have intended to preserve both an entirely redundant round of judicial review of the findings and determination of the Disciplinary Tribunal (as per what the applicants are submitting), and, additionally, judicial review a second time under the now enlarged single Judge process under s 97 or the court of 3 Judges process under s 98, as the case may be. I have not found anything in the parliamentary speeches to convince me otherwise.

[12] It bears repeating that post-2008, pursuant to s 91A, judicial review of “any act done or decision made by the Disciplinary Tribunal” is no longer available except as provided for in ss 82A, 97 and 98 of the LPA. However, ss 82A, 97 and 98 never once refer to the “act” of the Disciplinary Tribunal. Instead, the words “determination” and “finding” appear in those provisions. The legislative draftman’s insertion of the statutory formulation of “any act done or decision made” in s 91A infelicitously led to the uncertainty raised in this application, as the functions and processes of the Disciplinary Tribunal to which it refers are described in ss 93, 97 and 98 not as “act done” or “decision” but as, inter alia, “findings” and “determination[s]”.

[13] Nonetheless, the sole reference (within ss 82A, 97 and 98) to a “decision” of the Disciplinary Tribunal at s 97 is, in my view, revealing and buttresses my findings at [11] above. The heading of s 97 is “Application for review of Disciplinary Tribunal’s decision” (see [8] above). Yet, the wording of the provision proper does not once mention the word “decision”. Instead it deals with applications to the Judge for review where “a Disciplinary Tribunal has made a determination under section 93(1)(a) or (b)”. This supports the interpretation that the phrase “any act done or decision made by the Disciplinary Tribunal” in s 91A ought to be construed widely to encompass the Disciplinary Tribunal’s “findings and determination” under s 93 of the LPA such that judicial review of all acts and decisions of the Disciplinary Tribunal are restricted to the extent that they can now only be invoked by way of applications under ss 97 and 98 of the LPA.

[14] The applicants submit that the ministerial answers to questions raised in Parliament support their proposed narrower construction of s 91A. During the second reading of the Legal Profession (Amendment) Bill in Parliament (see Singapore Parliamentary Debates, Official Report (26 August 2008) vol 84 at col 3187 – 3259), the Member of Parliament (“MP”) for Tampines asked:

The Minister for Law had earlier during the Second Reading outlined the purpose of the amendments:

The Minister for Law later replied to the MP for Tampines’s question as follows:

[15] The applicant cites the italicised portions of the Minister for Law’s reply as supporting his submission that judicial review post findings and determination have been preserved in addition to ss 97 or 98 of the LPA. However, I would observe that the court’s task is to construe the statutory language of s 91A purposively. As mentioned above, a purposive construction of s 91A of the LPA in light of its interaction with ss 97 and 98, and the Explanatory Statement leads to the conclusion that judicial review of all the acts and decisions (including findings and determinations) of the Disciplinary Tribunal have been restricted to the extent that they can only be invoked by way of applications under ss 97 or 98 of the LPA (see [11] and [13]). I need go no further.

[16] I would add that in any event, a close reading of both the MP for Tampines’s question and the Minister for Law’s answer in their full context does not support the applicants’ proposed construction of s 91A of the LPA. The sequence of the question and the answer in its context can be distilled and restated as follows:

Nothing in the full context of the question put to the Minister for Law and indeed the Minister’s answer in its context is at variance with my earlier purposive construction of s 91A. In fact, it confirms my reading that with the 2008 amendments, the LPA now defers judicial review until after the findings and the determination of the Disciplinary Tribunal are made. Where no show cause proceedings are necessary, s 97 applies and judicial review is heard by a single Judge. Where show cause proceedings are ordered, s 98 applies and judicial review is consolidated with the show cause proceedings and heard by the court of 3 Judges.