Nathan Edmund v Law Society of Singapore

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

[1] This was an application by one Edmund Nathan (“the Applicant”) to be restored to the roll of advocates and solicitors of the Supreme Court of Singapore (“the Roll”) after having been struck off 14 years ago, in 1998. The applicant was 64 years of age at the time of the application, and since 2008 had been working as a paralegal at the firm of M/s Tan Rajah and Cheah (“TRC”). This was his second attempt at reinstatement, having previously withdrawn an application made in Originating Summons No 851 of 2010.

[2] After hearing submissions of the respective parties, we allowed the application. We now give the reasons for our decision.

[3] On 30 May 1997, the Applicant was convicted together with one Allosius Bernard Fernandez (“Fernandez”) of attempted cheating under s 420, read with s 34 and s 511 of the Penal Code (Cap 224, 1985 Rev Ed). The facts leading to the conviction are as follows. In mid-1991, the Applicant was retained by Fernandez to effect the purchase of an apartment for S$135,000. He also acted for the vendors of the apartment. With the aim of obtaining a higher housing loan for Fernandez and his wife, Margaret Angela Fernandez, the Applicant drafted an agreement which set out the ‘sale price’ as S$190,000. He then drafted a second document which clarified that this ‘sale price’ of S$190,000 was only for the purposes of obtaining the housing loan, and that the correct sum to be paid upon completion of the purchase of the apartment was S$135,000. Following this, the Applicant referred Fernandez to one Joseph Han, a branch manager at United Overseas Bank Ltd (“UOB” or “the bank” as may be appropriate), who duly filled in the bank’s requisite forms stating that the purchase price was S$190,000. A loan of S$110,000 was subsequently approved by the bank, and a letter of offer was made to Fernandez and his wife. UOB also instructed the Applicant to act for them in relation to the loan. Thus, the Applicant represented all three parties to the transaction, namely, the buyers, the sellers and the bank.

[4] Fernandez was unable to complete the purchase of the property due to his failure to obtain the approval of the Central Provident Fund for the release of money from his account towards the purchase. The sale was eventually aborted. The loan of S$110,000 was never disbursed by UOB. The Applicant’s misdeeds only came to light during proceedings brought by Fernandez to enforce the sale and purchase agreement against the vendors, when the presiding High Court judge noticed that there was an issue of illegality and the matter was referred to the police. On 30 May 1997, the Applicant was jointly tried with Fernandez and convicted of attempted cheating. The Applicant was sentenced to one day’s imprisonment and fined S$10,000. On 12 August 1997, his appeal to the High Court was dismissed.

[5] In the meantime, on 15 September 1994, the Registrar of the Supreme Court filed a complaint to the Law Society in relation to the same matter. Following that, an Inquiry Committee of the Law Society investigated into the complaint pursuant to s 86 of the Legal Profession Act (Cap 161, 1994 Rev Ed) (“the 1994 Act”). It reported to the Council of the Law Society that the applicant’s conduct was improper and recommended a fine of S$3,000. This recommendation was adopted by the Council on or about 8 May 1995.

[6] However, pursuant to the Applicant’s conviction for attempted cheating (see [4] above), and notwithstanding the Inquiry Committee’s report (see [5] above) the Law Society applied, pursuant to s 94A(1) of the 1994 Act, to the High Court requiring the Applicant to show cause why he should not be dealt with under s 83 of the same Act. The application came before a Court of Three Judges of the Supreme Court on 29 May 1998, which held that as the Applicant was “a person of dishonest character”, and as a punishment of suspension would be “wholly inadequate”, he was to be struck off the Roll with effect from 14 July 1998.

[7] After being struck off, the Applicant relied upon his wife, a teacher, for financial support. Apart from this, he lived on his savings and occupied himself by providing tuition to his daughter, nieces and nephews. He was unsuccessful in his attempts to look for other work until 2008.

[8] In 2008, a decade after he was struck off, the Applicant approached Mr Chelva Retnam Rajah SC (“Mr Rajah SC”) of TRC to ask if he could work as a paralegal at the firm. TRC offered him employment as a paralegal at a monthly salary of S$5,000. In line with s 78(1)(a) of the Legal Profession Act (Cap 161, 2001 Rev Ed), an application for permission was filed on 25 March 2008, and on 29 April 2008 it was granted. In his affidavit affirmed on 20 March 2008, the Applicant averred that the firm’s offer of employment would allow him to renew his direct involvement with the practice of law, as well as offer him a source of income for the first time since being struck off. The Applicant commenced work at TRC in May 2008 and remained employed by the firm up to the time of the hearing of his application for replacement onto the Roll (“replacement application”) before this court. His work as a paralegal included “research assignments, assisting in the drafting of interlocutory applications, drafting affidavits, and reviewing various documents and transcripts for contentious work”.

[9] Section 102 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) governs the replacement onto the Roll of solicitors who have been struck off. It provides that:

[10] In considering a replacement application pursuant to s 102 of the Act, the court will look at 3 crucial factors, as elucidated by the Court of Appeal in Kalpanath Singh s/o Ram Raj Singh v Law Society of Singapore [2009] 4 SLR(R) 1018 (“Kalpanath Singh”). First, the court will assess the adequacy of the period of time which has lapsed between disbarment and the replacement application; second, the court will consider whether the applicant has been fully and completely rehabilitated; third, and most importantly, the court must be satisfied that the public interest and reputation of the legal profession will be protected.

[11] In line with these considerations, the grounds of the Applicant’s case can be simply stated. First, he argued that it had been 14 years since the date of his disbarment and that this, by any standard, was a sufficiently long period for rehabilitation on account of his misconduct. Secondly, he pointed to his conduct since disbarment as an indication that he had been fully rehabilitated, particularly as the gravity of his misconduct was on the lower end of the scale to begin with. Finally, he contended that his reinstatement would not pose any risk to the public interest or the reputation of the profession.

[12] Neither the Law Society nor the Attorney-General opposed the application. Indeed, the Law Society furnished the court with an additional reason in support of allowing the application at this time, as it took the view that if redemption was to be meaningful reinstatement onto the roll must not be so late that the applicant would not have enough time to resume practice in the profession, bearing in mind the applicant’s age and health. We will revert to this point later at [26].

[13] Nevertheless, the Law Society, conscious of the need to protect the interest of the public as well as the image of the profession, felt that it was necessary to propose the imposition of the following set of 5 conditions – the Applicant:

[14] The applicant did not contest the imposition of these conditions.

[15] It has been firmly established in case-law that “a significantly longer period than five years should have passed before [an applicant] should consider such [a replacement] application” (see Knight Glenn Jeyasingam v Law Society of Singapore [2007] 3 SLR(R) 704 (“Glenn Knight”) at [11]). The court must be satisfied that the applicant has been kept off the Roll for a long enough period for him to appreciate the full consequences of his misconduct. On the facts of this case, we were satisfied that this threshold factor had been clearly met. It could not be denied that 14 years was a significant duration. Nevertheless, it must be reiterated that “...the fact that a lengthy period of time has elapsed between the striking off and the reinstatement application does not give rise to an automatic right to be reinstated...” (Kalpanath Singh at [18]). Where a solicitor has been struck off instead of suspended, the mere passage of time cannot be the sole condition to reinstatement. Moreover, it was emphasised in Kalpanath Singh at [18], following Gnaguru s/o Thamboo Mylvaganam v Law Society of Singapore [2008] 3 SLR(R) 1 (“Gnaguru”), that reinstatement is the exception and not the rule. As such, although the court did not consider that the application here was premature, there remained a need for the Applicant to satisfy the court that he had been completely rehabilitated.

[16] The courts have always been unequivocal in stating that reinstatement to the Roll is contingent upon nothing less than full rehabilitation. In Narindar Singh Kang v Law Society of Singapore [2007] 4 SLR(R) 641 this court stated at [39]:

[17] One of the major factors that evidenced the rehabilitation of the applicant was the fact that he had taken positive steps to rebuild his legal practice by working as a paralegal in TRC. We were of the view that this demonstrated a genuine conviction on the part of the Applicant to be restored to the profession, which was also reinforced by the testimonials submitted in support of his application. We noted that the Applicant had undertaken significant tasks in his role as a paralegal, including assisting Mr Tan Chin Seng in a major arbitration hearing, “a contentious corporate hearing where considerable legal research was involved”, and “an Estate matter that had hitherto been unresolved for more than 30 years prior to [TRC] being involved”. As the court observed in Nirmal Singh s/o Fauja Singh v Law Society of Singapore [2011] 1 SLR(R) 645 (“Nirmal Singh No 2”) at [16] “...one of the best ways to gauge whether a person who had previously done wrong has reformed is to see how he has conducted himself post-striking out, particularly in employment where he was entrusted with responsibilities ... [and] ... testimonials of such employers ... carry weight...” Thus Mr Tan’s testimonial was of special importance given that he had worked in close quarters with the Applicant under the stresses of contentious legal practice. The following passage from Mr Tan’s testimonial was particularly germane:

[18] This view was echoed by more senior members of the firm, including Mr Sant Singh SC, who noted that the Applicant’s “employers and colleagues have unanimously found him to be a trustworthy gentleman whom they can rely on to deal with tasks assigned to him”, and Mr Rajah SC, who observed that the Applicant “is sorry for and very much regrets what he did that led to his being struck off.” We were also conscious that the Applicant would have joined the firm carrying the heavy baggage of a tainted reputation. Inevitably, he would have to overcome some measure of internal self-doubt and external prejudice. In this light, the Applicant’s evident success at winning over the trust and favour of his employers spoke forcefully of his rehabilitation. It was also telling that the Applicant had mustered enough courage to join the firm as a paralegal only after a decade of exile, during which he would have had much time to reflect over his misconduct. This showed determination and a will to get back into society with dignity. We also thought it most unlikely that someone who had waited ten years before renewing his involvement with the profession, although in a much lesser capacity, would lightly lapse into the same misconduct which warranted his initial expulsion. We were certain that he had learned his lesson.

[19] We pause here to note that the Applicant had also sought to bolster his application with a letter of appreciation from the Man Fut Tong Nursing Home, which expressed gratitude to the Applicant for visiting their residents on weekends during 2008 and 2009. However, we were unable to give too much weight to this testimonial as it was written in June 2009 and was also rather perfunctory. Of course, it did show that for a period he was earnestly doing some social work and to that extent it was a commendable effort.

[20] In assessing the rehabilitation of any applicant, the court must also be cognisant of the severity of the misconduct which led to the applicant being struck off the Roll. It stands to reason that the more serious the misconduct, the more difficult it will be to convince the Court that the applicant has been fully rehabilitated. As Chan Sek Keong CJ observed succinctly in Glenn Knight at [43]:

[21] In this regard, the Applicant pointed to the mitigating factors noted by Yong Pung How CJ when dismissing his appeal against conviction for the criminal charge in 1997 (see Nathan Edmund v Public Prosecutor [1997] 2 SLR(R) 926 at [58]):

[22] These same factors were also considered by the Court of Three Judges in its decision to strike off the Applicant from the Roll (see Law Society of Singapore v Edmund Nathan[1998] 3 SLR 414 at [33]):

[23] It was noted that the Applicant’s attempted cheating was thought to have been a particularly severe transgression due to his seniority as a practitioner. That implies that the transgression per se could not be that serious. Further, in relation to the charge on which the Applicant was convicted he was sentenced to one day’s jail and a fine of $10,000, a sentence identical to that imposed on Mr Glenn Jeyasingam Knight whose reinstatement application was successful. Viewed in this context, the criminality of the Applicant should not be overstated. Of course, this court must still carefully ascertain whether such a senior lawyer like the Applicant, whose habits as a practitioner would have long been set, could still be reformed. In this regard we noted the fact that the Applicant had an unblemished record until the incident which led to his disbarment. He was also willing, despite his seniority, to take on work in a different and humbler capacity as a paralegal. We also accepted that the Applicant’s misconduct was not motivated by the prospect of direct personal gain. Instead, he was attempting – albeit in a foolish and dishonest fashion – to assist his client. He had paid dearly for his lapse and in respect of which he had gained nothing. Having considered the nature of the misconduct and his journey from disbarment to the application for reinstatement, we were satisfied that the Applicant was fully and completely rehabilitated and had appreciated the need to maintain absolute integrity in all his dealings, both in his personal capacity and as an advocate and solicitor acting for a client.

[24] I now turn to the critical issue of protecting the public interest and reputation of the profession. It has already been observed by this court, in Kalpanath Singh at [20], that some element of this issue is inextricably linked to the rehabilitation of the individual applicant. However, the court is concerned with more than just the rehabilitation of the individual in allowing someone, who had breached the trust reposed in him as an officer of the court, to act once again in a fiduciary capacity. The court must also be certain that the applicant’s reinstatement will not detract from public confidence in the legal profession. The guidance of the court in Re Nirmal Singh s/o Fauja Singh [2001] 2 SLR(R) 494 at [20] remains imperative:

[25] Nevertheless, while the court must jealously guard the honour of the profession, it should not be to such an extent as to deny meritorious applicants an opportunity at redemption. It is always a question of balance which the court would have to consider and determine in every replacement application. Taking too reactionary an approach would be undesirable for the reputation of the legal profession. It is important that the court, as the custodian over the profession, is sufficiently enlightened to encompass within its radius of consideration not just the differentia in individual circumstances which resists categorical decision-making, but also the collective interest in affording a second-chance to those who are genuine in their contrition. This balanced approach was enunciated in Kalpanath Singh (see [22]-[23]) and has since been affirmed in subsequent decisions. For instance, in Nirmal Singh No 2 at [23], the court offered the following exposition:

[26] In the premises, we were minded to accord greater weight to the element of redemption given the length of the applicant’s disbarment and the mitigating factors which were considered in his conviction and striking-off. At this juncture we need to allude to the point made by the Law Society (see [12] above) that the Applicant was at an age such that if he were not to be reinstated now he might not have many years left to remain in active practice upon reinstatement and as a result the value of redemption might be substantially negated. While we could see the sense of this point, we do not view it as being a point which should be given overriding consideration and we did not think that the Law Society had that in mind either. Every applicant for reinstatement must satisfy the three crucial factors mentioned in [10] above before the court will consider him for reinstatement. If the court is not so satisfied as to any of the aforesaid factors, then this reason (ie insufficient years remaining to practise) would not be a consideration to advance his reinstatement. It would be plainly anomalous if time remaining can constitute a determinative factor for reinstatement when time elapsed does not (see [15] above). The personal interest cannot take priority over the public interest or the interest of the profession.

[27] In considering the merits of the application, the matter which caused us some concern was the litany of regulatory offences which the applicant had amassed between 1998 and 2009. These included 8 traffic offences, 8 parking offences, 2 Electronic Road Pricing offences and one offence involving Customs and Excise. In relation to the last offence, the Applicant explained that he had forgotten that he had a pack of cigarettes with him and so failed to pay the necessary duties upon entry to Singapore. This was not disputed by either the Law Society or the Attorney-General. Furthermore, all the offences were either compounded or resulted only in warnings. Nevertheless, we had to carefully consider whether these offences, although trivial in isolation, could in their totality reflect a lack of respect for the law on the part of the Applicant. This would undermine the application on both the fronts of personal rehabilitation and public interest.

[28] The court takes a very serious view of such infractions, and is entitled to expect those who seek reinstatement to stay on the right side of the law. Lawyers are held to higher standards than laymen in terms of compliance with the directives of the law, and these standards are higher still in relation to those who have fallen short once before and are now seeking to re-enter the profession. This is exemplified by the decision in Kalpanath Singh, wherein the court was initially minded to allow the applicant’s request to be reinstated to the Roll but changed its mind after a request for further information revealed that the applicant faced summonses from various bodies after he was disbarred. In Kalpanath Singh the applicant had chalked up a multiplicity of offences regulated by the Traffic Police, the Urban Redevelopment Authority, the National Environment Agency, the Inland Revenue Authority of Singapore and the Central Provident Fund Board. He also committed more serious offences such as employing a foreign worker in breach of work permit conditions, which attracted a fine of $7,680. What was perhaps most glaring, however, was that the applicant had a matter pending with the Accounting and Corporate Regulatory Authority of Singapore at the time of his application for reinstatement. If convicted, he would have faced a maximum penalty of $5,000 per charge. In light of these offences, the Law Society withdrew its support for the reinstatement application, on the grounds that it would dent public confidence in the profession. The following passage at [44] of the judgment is particularly important and warrants quoting in full:

[29] It is evident from this passage that the commission of regulatory offences not only diminishes the credibility of the applicant’s rehabilitation but also raises the spectre of public perception being turned against the probity of the applicant.

[30] Before we say anything more on these regulatory offences committed by the Applicant in 2009 and earlier, we ought to mention that the Applicant had about two years earlier applied for reinstatement. However, the Applicant withdrew that application on the day the application was fixed for hearing by this court. Given the contiguity of his regulatory offences at the time, his application for reinstatement would have been considerably weakened. The present application was thus the Applicant’s second replacement application. We noted that he had not, during the interim two-year period, fallen foul with the law. The bulk of the previous regulatory breaches committed by the Applicant were run-of-the-mill traffic or parking related offences. While such breaches do not indicate dishonesty or character defect, we were concerned whether he was a person who would observe the law in both spirit and form. He had proven that he could and would and had also shown that he had learned his lesson.

[31] In the result, we granted the application for reinstatement subject to the conditions proposed by the Law Society. We did observe that these conditions appeared to be boiler-plate caveats which were somewhat incongruous with the Law Society’s own position as to affording the applicant a genuine opportunity at redemption given his advanced age. Nevertheless, this was not a contested issue and the court saw no occasion to disturb the conditions.