lss_dt_reports: 1

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1	87b42ad0f3658b6132e9a9ab8ad488c495dc0fb6	In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor	In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Goh Yng Yng Karen (the Complainant), who was the daughter of the late Mdm Liew Khoon Fong (Mdm Liew) and executrix of Mdm Liew’s will. The complaint arose from two Powers of Attorney (POA) dated 20 November 2017. POA 6414 was related to the sale of 107 Namly Avenue (Namly Property), while POA 6417 was related to the purchase of a condominium unit (Condominium Unit). At the material time, Mdm Liew was 87 years old. On or around 17 November 2017, Mdm Liew’s son (Kelvin), as well as Kelvin’s wife (Jacqueline), visited the Respondent to seek his assistance to prepare two POAs for Mdm Liew who was not present at this meeting. On Kelvin’s instructions, the Respondent prepared the two POAs for Mdm Liew on or around 20 November 2017. The Respondent had prepared the draft POAs without receiving any written, or any other authority, from Mdm Liew authorising Kelvin to give him instructions on her behalf. The Respondent met and spoke to Mdm Liew for the first time on 20 November 2017 at the Namly Property. Kelvin, Jacqueline, their sons, one Goh Eng Sheng Daniel (Daniel) and one Goh Eng Chun David (David) were present. Mdm Liew signed the POAs at this meeting. POA 6414 authorised Kelvin to act on Mdm Liew’s behalf to sell the Namly Property and have the sale proceeds paid to Daniel, then 19 years old, to hold on trust for Mdm Liew for the purchase of the Condominium Unit. POA 6417 authorised Kelvin to purchase the Condominium Unit in Mdm Liew and Daniel’s names, with Kelvin having the authority to add himself as a joint owner. It also authorised Kelvin to borrow monies from banks and other financial institutions on the security of the Condominium Unit if the sale proceeds from the Namly Property sale were insufficient. Kelvin was also authorised to execute documents, such as an option to purchase and sale and purchase agreement on behalf of Mdm Liew. On 22 November 2017, Kelvin granted an Option to Purchase (OTP) to buyers for the purchase of the Namly Property. The OTP was exercised on 7 December 2017, and the Respondent was appointed by Kelvin to act as Mdm Liew’s conveyancing lawyer with respect to the sale of the Namly Property. On 1 December 2017, the OTP for the Condominium Unit was granted to Kelvin and Jacqueline with the OTP being exercised on 8 December 2017 in the names of Kelvin, Jacqueline and Mdm Liew. The Respondent also acted for Kelvin, Jacqueline and Mdm Liew in this transaction. On 13 December 2017, the Complainant discovered that a caveat had been lodged against the Namly Property. On 15 January 2018, the Complainant commenced HC/S 45/2018 (Suit 45) in her capacity as Mdm Liew’s sole donee under a Lasting Power of Attorney to stop the sale of the Namly Property. On 17 September 2020, the High Court determined that Mdm Liew had lacked the mental capacity to understand and execute the POAs on 20 November 2017 and declared the POAs void. The Respondent was not a party to Suit 45 but had given evidence at the trial. Mdm Liew passed away on 10 June 2020. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Davinder Singh SC, and Mr K Anparasan as DT member to investigate the complaint. Seven charges were preferred against the Respondent: First Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the Legal Profession Act 1966 (LPA), in that the Respondent had acted for Mdm Liew in the preparation of the two POAs dated 20 November 2017 with the client as the donor and Kelvin as attorney, without ensuring that Kelvin had the authority to give those instructions on behalf of Mdm Liew, and when the Respondent had no evidence of such authority, failed to obtain confirmation of the said instructions from Mdm Liew regarding the preparation and drafting of the said POAs, in breach of Rule 5(5)(a) and 5(5)(b) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). Second Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to act with reasonable diligence and competence in the provision of services to Mdm Liew, in the preparation of the two POAs dated 20 November 2017 with the client as the donor and Kelvin as attorney, and permitted Mdm Liew to execute the said POAs without first taking sufficient steps to satisfy himself that Mdm Liew understood the nature and effect of the terms that were set out in the POAs, in breach of Rule 5(2)(c) of the PCR. Third Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to act with reasonable diligence and competence in the provision of services to Mdm Liew, by failing to take sufficient steps to safeguard Mdm Liew’s interests by ensuring that he received his instructions, and explained the nature and effect of the two POAs dated 20 November 2017, to Mdm Liew without the presence of the attorney or other family members of the attorney so as to avoid any undue influence being exerted over the client, in breach of Rule 5(2)(c) of the PCR. Fourth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had acted for Mdm Liew, Kelvin and Jacqueline in the purchase of the Condominium Unit, where there was a diversity of interests that existed between the parties, and failed to advance Mdm Liew’s interests unaffected by Kelvin’s and/or Jacqueline’s interests, by removing Mdm Liew’s name from the OTP dated 1 December 2017, in breach of Rules 20(5) and 20(6) of the PCR. Fifth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent failed to inform Mdm Liew of all information known to him that may reasonably affect her interests in respect of the purchase of the Condominium Unit, in particular the removal of her name, the non-inclusion of Daniel’s name, and the inclusion of Jacqueline’s name, in the OTP dated 1 December 2017, in breach of Rule 5(2)(b) of the PCR. Sixth Charge For improper conduct or practice as an advocate and solicitor under section 83(2)(b)(i) of the LPA, in that the Respondent had failed to inform Mdm Liew of all information known to him that may reasonably affect Mdm Liew’s interests in respect of the POAs, in particular the medical report prepared by Dr Ang Yong Guan and correspondence from Templars Law LLC relating to Mdm Liew’s alleged lack of mental capacity as at the time of the execution of the POAs, in breach of Rule 5(2)(b) of the PCR. Seventh Charge For misconduct unbefitting of an advocate and solicitor in the discharge of his professional duties as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(h) of the Act, in that the Respondent, who had acted for Mdm Liew in respect of the matters that were the subject-matter of Suit 45, failed to advance Mdm Liew’s interests unaffected by Kelvin’s interests, by failing to take Mdm Liew’s instructions or her donee’s instructions when he was served with a subpoena by solicitors acting in Suit 45, and instead taking Kelvin’s instructions. Findings and Determination of the DT, Council’s Sanctions The DT found that the First Charge and Second Charge were made out, while the remaining Charges were dismissed. With reference to the First Charge, the DT noted that the disparity between the Respondent’s evidence about the meeting on 20 November 2017 and what was said in the Respondent’s Attendance Note was simply too huge to be credibly accounted for. The DT further observed that it was not just the nature, terms and implications of the POAs which required careful explanation, but also the issues arising from the interaction between the two POAs. The DT stated that as Mdm Liew was 87 years old at the time and had difficulty speaking, the Respondent should not only have carefully explained the relevant matters, but should also have asked if they were in line with her wishes and instructions and how she thought they were in her interests – including asking why she felt that it was in her interest for the POAs to be irrevocable. Also, as Mdm Liew was unable to communicate her understanding verbally or in writing, the Respondent should have called for a pause and asked for her condition to be reviewed by an independent medical expert or declined to act for her. Two specific red flags were raised by the DT – (1) the fact that Mdm Liew nodded when the Respondent read the POAs to her, in light of these particular POAs that he was asked to draft by Kelvin, and the fact that one of them dealt with the disposal of her home, it should not have been accepted by the Respondent as evidence that she understood the terms, nature and consequences in the POA; (2) the fact that she did not ask any questions in light of the issues in the POAs should have raised a red flag. Crucially, the Respondent also did not take steps to meet Mdm Liew privately and without the presence of Kelvin and Daniel, who stood to benefit from the POAs, and their family members to determine whether Mdm Liew was acting under any misrepresentation, misapprehension or improper influence. The Respondent also did not ask Mdm Liew whether the POAs accorded with her wishes under any will. As for the Second Charge, the DT found that the offending conduct was the same, hence it did not add to the Respondent’s culpability. In the Third Charge, the DT found that this aspect of the Respondent’s conduct was insufficient to amount to a breach of Rule 5(2)(c), and his conduct should not be viewed in isolation, and was just one of the matters that has to be taken into account in determining whether the Respondent breached his duties. The Fourth to Seventh Charges were dismissed based on the fact that Law Society had failed to discharge its burden to show that there was in law a solicitor-client relationship between the Respondent and Mdm Liew at the material time in relation to the Condominium Unit. The Respondent was ordered to pay a financial penalty that was sufficient and appropriate to the misconduct committed, and the Law Society’s costs of $5,000. Council accepted the findings and recommendations of the DT and imposed a financial penalty of $2,000 on the Respondent. To access the full report, click here.	https://lawsoc-mc-assets.s3.ap-southeast-1.amazonaws.com/dtr-2023-06-c.pdf	DT/SEC/21/2021 IN THE MATTER OF TEO ENG THYE AN ADVOCATE AND SOLICITOR AND IN THE MATTER OF THE LEGAL PROFESSION ACT (CHAPTER 161) Between THE LAW SOCIETY OF SINGAPORE .---Applicant And TEO ENG THYE .---Respondent Mr Davinder Singh, S.C. (President) Mr K. Anparasan (Advocate & Solicitor) Mr Vikna Rajah and Ms Antje Wong for the Law Society of Singapore Mr Peter Cuthbert Low, Ms Elaine Low and Ms Christine Low for the Respondent REPORT OF THE DISCIPLINARY TRIBUNAL A. INTRODUCTION 1. The Complainant is one Goh Yng Yng Karen. She is the daughter of the late Mdm Liew Khoon Fong (alias Liew Fong) (“Mdm Liew”) and executrix of Mdm Liew’s will. 2. Goh Yong Chiang Kelvin (“Kelvin”) is Mdm Liew’s son. His wife is Goh Sok Ngoh Jacqueline (“Jacqueline”). Goh Eng Sheng Daniel (“Daniel”) is one of their two sons, The Respondent is Mr Teo Eng Thye. He is an Advocate and Solicitor of the Supreme Court of Singapore and was admitted on 19 April 2000. He is, and was at all material times, a director of City Law LLC. The Complainant’s complaints arise from two Powers of Attorney dated 20 November 2017. Both were lodged with the Supreme Court of Singapore as HC/PA 6414/2017 (“POA 6414”) and HC/PA related to the sale of 107 Namly 6417/2017 (“POA Avenue, Singapore 6417”). POA 267676 6414 (the “Namly Property”) and POA 6417 related to the purchase of a condominium unit (the “Condominium Unit”). On 15 January 2018, the Complainant commenced HC/S 45/2018 (“Suit 45”) in her capacity as Mdm Liew’s sole donee under a Lasting Power of Attorney registered on 16 September 2014 (the “2014 LPA”), inter alia, against Kelvin in relation to the sale of Namly Property. On 17 September 2020, the High Court determined that Mdm Liew had lacked the mental capacity to understand and execute the POAs on 20 November 2017 and declared the POAs void. The Respondent was not a party to Suit 45 but gave evidence at the trial of that Suit. THE HEARING AND THE WITNESSES The Disciplinary Tribunal (the “DT”) was constituted on 8 October 2021. The hearing took place on 4 and 5 May 2022. The Applicant called the Complainant as its only witness. The Respondent gave evidence on his own behalf. He did not call any other witness. THE UNDISPUTED FACTS 10. The following matters are not in dispute’. 11. Mdm Liew passed away on 10 June 2020. The Complainant was also the executrix of Mdm 12. Liew’s will. On or around 17 November 2017, Kelvin and Jacqueline visited the Respondent to seek his assistance to prepare two POAs for Mdm Liew, who was not present at this meeting. The Respondent recorded a summary of Kelvin’s instructions in a note dated 17 November 2017. 13. On Kelvin’s instructions, the Respondent prepared the two POAs for Mdm Liew on or around 20 November 2017. The Respondent accepts that Mdm Liew was his client. 14. The Respondent prepared the draft POAs without receiving any written, or any other authority from Mdm Liew authorising Kelvin to give him instructions on her behalf. 15. At 12.28pm on 20 November 2017, the Respondent’s secretary emailed the two draft POAs to Kelvin’s email address [email protected] on the Respondent’s behalf. In that email, he requested that Kelvin “go thru [sic] the drafis and let us have your comments if any.” 16. At around Spm on 20 November 2017, the Respondent visited the Namly Property. There, he met and spoke to Mdm Liew for the first time in connection with the POAs and their execution (the “Meeting”). Kelvin, Jacqueline and their sons, Daniel and Goh Eng Chun David, were present throughout. 17. Mdm Liew listened and nodded while the Respondent took her through the POAs. 1 The DT has in this section and others adopted in many places the language that the parties have used in the pleadings, affidavits of evidence and submissions 18. Very generally speaking, the first POA authorised Kelvin to act on Mdm Liew’s behalf to sell the Namly Property and have the sale proceeds paid to Daniel, then 19 years old, to hold on trust for Mdm Liew for the purchase of the Condominium Unit (the “1** POA”). 19, Broadly, the second POA authorised Kelvin to purchase the Condominium Unit in Mdm Liew and Daniel’s names, with Kelvin having the authority to add himself as a joint owner (the “2™! POA”). It also authorised Kelvin to borrow monies from banks and other financial institutions on the security of the Condominium Unit if the sale proceeds from the Namly Property sale were insufficient. Kelvin was also authorised to execute documents, such as an option to purchase and sale and purchase agreement, on behalf of Mdm Liew. 20. Mdm Liew signed the POAs at the Meeting. She was 87 years old at the time. 21, The Respondent prepared an attendance note of the Meeting (the “Attendance Note”). 22. On 22 November 2017, Kelvin granted an option to “Leow Tang Liea and/or nominees” to purchase the Namly Property (the “Namly OTP”). Leow Tang Lie was, at the material time, a director of Pinnacle Development (Greenmead) Pte Ltd (“Pinnacle”). The Namly OTP was exercised on 7 December 2017. Pursuant to the 1 POA, Kelvin appointed the Respondent as Mdm Liew’s conveyancing lawyer with respect to the sale of the Namly Property. 23, On 1 December 2017, the Option to Purchase the Condominium Unit (the “Condominium OTP”) was granted to Kelvin and Jacqueline. 24. The Condominium OTP was exercised on 8 December 2017 in the names of Kelvin, Jacqueline and Mdm Liew. On the same day, the Respondent furnished the signed acceptance copy of the Condominium OTP to the seller’s solicitors, Sterling Law Corporation (“SterlingLaw”). In that letter, the Respondent said he was acting for Kelvin, Jacqueline and Mdm Liew. Daniel was not named as a purchaser in the Condominium OTP. 25. According to the e-Notice of Transfer, the Condominium Unit was sold to Kelvin and Jacqueline on 8 December 2017. 26. On or about 13 December 2017, the Complainant discovered that a caveat had been lodged against the Namly Property in favour of Pinnacle. Following this discovery, the Complainant instructed her lawyers, Templars Law, to write to Pinnacle’s solicitors, WongPartnership, to persuade Pinnacle to defer the completion of the sale of the Namly Property. 27. On 15 December 2017, Templars Law wrote to WongPartnership to draw attention to the unusual circumstances surrounding the sale of the Namly Property and asked that Pinnacle agree to defer the completion of the sale until Mdm Liew’s mental capacity could be determined by a medical expert. That letter also added that the Complainant was the sole donee under the 2014 LPA, that the Complainant reasonably believed that Mdm Liew’s mental capacity had significantly deteriorated since September 2017, and that Kelvin had moved Mdm Liew to an unknown location’. 28. On 22 December 2017, Templars Law sent the 2014 LPA to WongPartnership. 29. On 30 December 2017, Dr Ang Yong Guan issued a medical report in respect of Mdm Liew’s mental capacity‘. 30. On 5 January 2018, Templars Law wrote to WongPartnership and enclosed Dr Ang’s report. The report stated that the 1 POA was invalid and unenforceable, and 2 page 1044 of the Complainant's AEIC » page 1048 of the Complainant's AEIC “page 1064 of the Complainant's AEIC that Mdm Liew lacked the mental capacity to make the decision to sell the Namly Property. Templars Law asked that the sale be stopped®. By 31. an email and a letter dated 10 January 2018, Templars Law wrote to WongPartnership to ask if they had instructions to accept service of process on behalf of their client®. On 10 January 2018, WongPartnership wrote to the Respondent to ask how “[his] 32. client” intended to resolve the matter. They stated that, if the sale and purchase could not be proceeded with, that “[his] client” would compensate Pinnacle for all losses. WongPartnership enclosed Templars Law’s letters dated 15 December 2017, 22 December 2017, 5 January 2018 (with Dr Ang’s medical report attached) and 10 January 20187. 33. On 15 January 2018, the Complainant commenced Suit 45 in her capacity as Mdm Liew’s donee, pursuant to the 2014 LPA, against Pinnacle and Kelvin to stop the sale of the Namly Property. 34. Onor around 24 January 2018, the Respondent wrote to SterlingLaw. In that letter, the Respondent stated his clients’ intention to withdraw Mdm Liew’s name from the purchase of the Condominium Unit. 35. On 12 February 2018, Templars Law wrote to the Respondent to inform him that: a. the Complainant was the sole donee under the 2014 LPA; b. Dr Ang opined that Mdm Liew had been suffering from dementia since the middle of 2017 and lacked mental capacity to make financial decisions; and S page 1062 of the Complainant's AEIC page 1072 of the Complainant's AEIC 7 page 1074 of the Complainant's AEIC c. the Complainant had commenced Suit 45 against Kelvin for the sale of the Namly Property and to request a statutory declaration setting out the full circumstances under which Mdm Liew came to sign the POAs. 36. On27 February 2018, the Complainant’s application for an interlocutory injunction to restrain the sale of the Namly Property from being completed was refused. The sale was allowed to proceed on the basis that the sale proceeds would be paid into Court. Eventually, the sale was completed and the sale proceeds of S$5.1m were paid into Court. 37, On or around 27 February 2018, the Respondent wrote to SterlingLaw. In that letter, the Respondent referred to a fresh Option to Purchase for the Condominium Unit, to be signed by the seller pursuant to the withdrawal of Mdm Liew’s name as a joint purchaser of that unit. Kelvin and Jacqueline exercised this Option to Purchase, with the exercise date backdated to 8 December 2017 (the “Amended Condominium OTP”). 38. On 3 February 2020, Templars Law issued a subpoena in Suit 45 against the Respondent requiring him to attend the trial and to produce documents that they had asked for in their letter of 21 January 2020. It was served on the Respondent on 4 February 2020°. 39. The Respondent then consulted Drew & Napier, who were Kelvin’s solicitors, in relation to the subpoena. According to the Respondent”, he believed that he was entitled to seek instructions from Kelvin and/or his solicitors because Kelvin was a party to Suit 45. 40. The Respondent informed Templars Law over the phone that he would not be tesponding to the Complainant’s confidentiality’. ® page 1078 of the Complainant's AEIC ° page! 103 of the Complainant's AEIC %° paragraphs 70 of the Respondent's AEIC 31 paragraph 62 of the Respondent's AEIC request because of solicitor-client 41. On 12 February 2020, the Accountant-General was directed to pay out the sale proceeds of the Namly Property to Mdm Liew. 42. The Respondent filed an affidavit of evidence-in-chief and appeared as a witness in Suit 45. THE RESPONDENT’S JURISDICTIONAL OBJECTION 43. In paragraph 3 of the Respondent’s Defence (Amendment No. 1) (the “Defence”), the Respondent pleaded that, insofar and to the extent that any of the matters in the Statement of Case (Amendment No.1) (the “SOC”) and the charges in paragraph 37 of the SOC go beyond or are different from the complaint, they are not within the jurisdiction or remit of the DT. However, the Respondent does not pursue that point in his Closing Submissions. 45. Notwithstanding this, we are unable to agree with this point. As the Applicant has argued, and as made clear from the Complainant’s complaint dated 26 October 2020, the charges against the Respondent “encapsulate the gravamen of the complaint”: LSS v Yeo Khirn Hai Alvin and another matter [2020] 4 SLR 858 at [64]-[65}. THE APPLICANT’S RELIANCE ON THE JUDGMENT IN SUIT 45 AND PROOF OF MDM LIEW’S MENTAL CAPACITY 46. In the SOC, the Applicant pleaded Mdm Liew’s mental capacity (see paragraph 3(b)) and referred to one Dr Ang’s medical report dated 30 December 2017, which the Applicant said, “opined that Mdm Liew started suffering from dementia around the middle of 2017 and was progressively getting worse” (see paragraphs 26-30). The Applicant also pleaded what it said were the High Court’s findings in Suit 45, including those in relation to Mdm Liew’s mental capacity to understand and execute the POAs and the Respondent’s conduct (see paragraphs 35-36). 47. In the Defence, the Respondent denied paragraph 3 of the SOC (see paragraph 43A), disputed the findings in Dr Ang’s report of 30 December 2017 (see paragraph 67), pleaded that that report was insutticient evidence that Mdm Liew did not have mental capacity when she signed the POAs and agreed to the sale of the Namly Property (see paragraphs 68 and 69), and that it had not been enough for Dr Ang to have relied solely on the information that the Complainant had provided to conclude that Mdm Liew lacked the mental capacity to agree to the sale of the Namly Property (see paragraph 69). 48. The Respondent also pleaded that while the SOC reproduced the High Court’s findings in Suit 45 (see paragraphs 76- 88), the findings of the High Court in Suit 45 are opinion evidence (see paragraph 89). 49. The Applicant would have therefore been aware from the Defence that the Respondent had pleaded that the findings in Suit 45 relied on by the Applicant are in the nature of opinion. The Applicant would also have been aware of the Defence’s assertion that there was insufficient evidence that Mdm Liew lacked mental capacity when she signed the POAs and agreed to the sale of the Namly Property. 50. As mentioned above, the Applicant only called the Complainant as a witness. It did not call Dr Ang or any expert on the issue of Mdm Liew’s mental capacity. 51. In her Affidavit of Evidence in Chief (“AEIC”), the Complainant referred to and telied on parts of the Judgment in Suit 45 (see e.g., paragraphs 16, 17, 38, 46, 53, 62, 63, 65, 71, 73, 86, 89, 90, 91, 93, 94). She also referred to and relied on Dr Ang’s reports (see e.g., paragraphs 122-124) and on Dr Ang’s opinion that “Mdm Liew was suffering from dementia which started around the middle of 2017 and was progressively getting worse”. 52. However, while the Complainant is a medical doctor, she was called as a witness of fact and not as an expert witness on Mdm Liew’s mental capacity. As she testified, she was not qualified to comment on Mdm Liew’s mental capacity (TS, 4 May 2022, page 25 lines 3-7). 53. In his closing submissions, the Respondent contended that in view of section 45 of the Evidence Act, Arul Chandran v Chew Chin Aik Victor JP [2000] SGHC 111 at [141], Zrans-World (Aluminium) Ltd v Cornelder China (Singapore) [2003] 2 SLR(R) 501 at [19], the findings of fact in Suit 45 (that were referred to and relied on by the Complainant in her AEIC and at the hearing) are not evidence and not admissible for their truth. 34, The Respondent also submitted that the hearing before the DT was a de novo hearing. The Applicant did not respond to this point. 55. At the end of the hearing, the DT gave the parties liberty to ask for leave to submit reply submissions to the other side’s closing submissions. The Applicant did not ask for leave to respond to these submissions. 56. As per Rule 23 of the Legal Profession (Disciplinary Tribunal) Rules, the Evidence Act applies to proceedings before the DT in the same manner as it applies to civil and criminal proceedings. 57. The position under section 45 of the Evidence Act as set out in Arul Chandran and Trans-World was later reaffirmed by the Court of Appeal in Zainal bin Kuning v Chan Sin Mian Michael [1996] 2 SLR (R) 858 at [69], where it held that a “judgment determining a fact in one trial cannot be used or relied upon in another trial”. 58. This was also addressed by the Singapore Intemational Court (“SICC”) in Beyonics Asia Pacific and others v Goh Chan Peng and another [2020] 4 SLR 215 which, applying Arul Chandran, held at [33] that “evidence of statements made in an earlier case may be adduced in order to seek to discredit evidence given by a witness in a later case, but there is an important distinction between reliance upon statements made in a previous action and conclusions reached by the court in that previous action on the basis of those statements”. 59. The SICC also applied Zainal bin Kuning and held at [35] that “a finding of fact in a previous judgment cannot be relied upon to prove primary facts which have to be proved in a subsequent action, 60. Here, although the Respondent was a witness, he was not a party to Suit 45. Neither was the Applicant. The Applicant has not submitted that any exception to section 45 of the Evidence Act applies. 61. While there had been an agreement in relation to the documents in the bundles of documents, it was qualified. On the first day of the hearing, Mr Peter Low for the Respondent informed the DT that the Respondent agreed to the documents in the bundles of documents, “subject to cross-examination”. In cross-examination, Mr Low challenged the assertion that Mdm Liew lacked mental capacity at the material time and took issue with Dr Ang’s reports and views. 62. On the question of whether the hearing before the DT was a de novo hearing, although the Respondent did not cite any authority, his submission is supported by Re Parti Liyani [2020] SGHC 227 at [48] where the Honourable Chief Justice held that “the Disciplinary Tribunal is obliged to hear the matter de novo”. The Disciplinary Tribunal in that case accordingly treated the hearing before it as a de novo hearing: see The Law Society of Singapore v Tan Yanying and another [2022] SGDT 6 at [20]. 63. In the circumstances, we agree with the Respondent that the Applicant cannot rely on the findings in the Judgment in Suit 45 to prove the existence or truth of matters that the Respondent has not admitted or agreed to in this case. We also find that there was no evidence before us of Mdm Liew’s mental capacity. THE STANDARD OF PROOF 64. It is trite that the charges have to be proved beyond a reasonable doubt: Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR 308 at [6]. G. THE CHARGES THE FIRST CHARGE 65. The First Charge is as follows: That you, Teo Eng as an advocate in section whilst you Thye, are charged 83(2)(b)(i) acted of with Supreme Kelvin with Court the as the attomey, Profession the for Madam of the 2 Powers respectively improper and solicitor of the Supreme preparation the with Legal Liew of Attommey as client 1966 that, Fong) in the dated 20 November 2017 lodged and HC/PA as donor one Goh Conduct) in (alias Liew 6414/2017 in breach of Rule (Professional Fong Act HC/PA the or practice Court of Singapore as set out Profession Khoon conduct and 5(5)(a) Rules 2015 6417/2017 Yong Chiang and 5(5)(b) of the Legal you took instructions from Goh Yong Chiang Kelvin without ensuring that he had the authority to give those evidence instructions of such instructions from on behalf of your authority, your you client client and failed to obtain regarding the when confirmation preparation and you had no of the said drafting of the said Powers of Attorney. THE PARTIES’ CONTENTIONS 66. The Applicant recounts the following: First, the Respondent met Mdm Liew for the first time only at the Meeting. Second, the Meeting was his first and only contact with her. Third, he did not, at the 17 November 2017 meeting with Kelvin, obtain confirmation of Kelvin’s authorisation to act for Mdm Liew in relation to the POAs. 67. It is argued that although it became plain to the Respondent during the Meeting that Mdm Liew was not able to communicate verbally, the Respondent should not have been satisfied with Mdm Liew’s nods and smile as he went through the POAs with her, not least because the Respondent accepted that there was a greater need for him to confirm Kelvin’s instructions with Mdm Liew because Kelvin stood to benefit from the POAs. 68. The Applicant contended the following: First, Mdm Liew’s responses were insufficient to confirm her instructions. Second, the Respondent did not speak to her alone to confirm if Kelvin’s instructions were indeed hers. Third, the Respondent did not ask her to repeat the instructions that she had allegedly given to Kelvin. It argued that the Respondent could have asked Mdm Liew to confirm her instructions by writing them down. 69. The Respondent relied on the dicta in Law Society of Singapore v K Jayakumar Naidu [2012] 4 SLR 1232 (“K Jayakumar Naidu”) to contend that solicitors should not be held to the same “strict protocols appropriate in a business setting” and that “by and large, family members do not take advantage of each other”. 70. He also argued that there was nothing remarkable or suspicious about the circumstances of this case. Tl. The Respondent contended that since Kelvin was Mdm Liew’s son, the Respondent was entitled to assume that Kelvin had the authority to give him instructions on her behalf. He contended that at the 17 November 2017 meeting he informed Kelvin that he needed to personally take Mdm Liew’s instructions and to witness her execution of the POAs. 72. The Respondent said that at the Meeting, he took instructions from Mdm Liew personally, verified Kelvin’s instructions, and also confirmed Mdm Liew’s own instructions. According to him, after explaining the terms of the POAs, he not only asked Mdm Liew if she understood what he had said but also asked her why she wanted to move out and if she wanted to buy a single-storey condominium unit to live in. He contended that he was satisfied that she possessed mental capacity at the time. 73. The Respondent further argued that he witnessed her execution of the POAs, adding that he even observed her taking off her glasses and reading them before signing. 74. The Respondent also argued that he was entitled to rely on Mdm Liew’s nodding as confirmation of her instructions, and for that purpose relied on section 5(1)(d) of the Mental Capacity Act (“MCA”). He said that he had used simple language when explaining the terms of the POAs, that Mdm Liew was able despite her physical limitations to sit upright on her own, and that she even took off her glasses to read the POAs before signing them. He added that if he had stated anything incorrect, Mdm Liew would have corrected him, just as she was able to correctly identify the members of her family and even referred to Kelvin by his nickname. 75. Insofar as section 5(1)(d) of the MCA is concemed, the Applicant’s position was that nodding is insufficient where, as here, Mdm Liew did not ask any questions or make any amendments to the POAs. 76. Both parties relied on a number of authorities, which we have considered. Some of them were cited for more than one of the charges. Il. 77. OUR FINDINGS Section 83(2)(b)(i) of the Legal Profession Act 1966 (the “Act”) concerns, inter alia, a breach of any rule of conduct made by the Professional Conduct Council. 78. Rule 5(5) is the subject of the First Charge. That Rule provides that where a legal practitioner is given instructions purportedly on behalf of his or her client, the legal practitioner must, under Rule 5(5)(a), ensure that the person giving those instructions has the authority to give those instructions on behalf of the client or, under Rule 5(5)(b), if there is no evidence of such authority, obtain the client’s confirmation of those instructions within a reasonable time after receiving those instructions. 79. It is alleged that the Respondent breached both Rule 5(5)(a) and Rule 5(5)(b). 80. Insofar as Rule 5(5)(a) is concerned, it is not in dispute that the Respondent met Mdm Liew for the first (and only) time on 20 November 2017. That means that the Respondent was unable to ensure at that meeting that Kelvin had Mdm Liew’s authority to give instructions to him in relation to the POAs when he met Kelvin and Jacqueline on 17 November 2017 and when his assistant secretary emailed, on his behalf, the drafis <[email protected]> of the POAs to Kelvin at Kelvin’s email address at around 12.28pm on 20 November 2017 requesting that Kelvin “go thru the drafts and let us have your comments if any”. 81. However, that does not mean that Rule 5(5)(a) was breached. Rule 5(5)(b) shows that in cases where it is not possible to obtain evidence of such authority, the solicitor must obtain the client’s confirmation of those instructions within a reasonable time after receiving those instructions. 82. In this case, the Respondent acted reasonably and in compliance with Rule 5(5)(a). It was the Respondent’s uncontested evidence that at the 17 November 2017 meeting, he told Kelvin to bring Mdm Liew to his office to enable him to take her instructions and witness her execution of the POAs, and that when Kelvin asked if there was another way for the Respondent to do that since Mdm Liew was unable to walk and had trouble speaking, he informed Kelvin that he could visit Mdm Liew at the Namly Property. 83. The Meeting was arranged for Monday 20 November 2017, the first working day after 17 November 2017, which was a Friday. In his contemporaneous note of the 17 November 2017 meeting’, the Respondent recorded “To visit client 20/11/17 evening 5-6pm to the house”. 84. According to the Respondent, the Meeting was arranged for him to meet Mdm Liew for the Respondent to take her instructions and witness her execution of the POAS, 85. In the circumstances, we do not agree that there was a breach of Rule 5(5)(a). 2see paragraph 10 of the Respondent's AEIC and TAB-I of TET-I » see paragraphs 10 and 11 of the Respondent's AEIC 86. The next question we will address is whether at the Meeting, the Respondent had obtained Mdm Liew’s confirmation of Kelvin’s instructions. 87. The Court of Appeal’s observations in Chee Mu Lin Muriel v Chee Ka Lin Caroline (Chee Ping Chian Alexander and another, interveners) [2010] 4 SLR 373 at [60] on the duty of solicitors who undertake the task of preparing and/or witnessing the execution of wills are instructive: “In our view, this case demonstrates that solicitors who undertake the task of preparing wills and/or witnessing the execution of wills must take the necessary precautions or steps in order to fulfil their duties to their clients. The precautions are not complicated nor are they time consuming. In any case, as solicitors, they must do what is required, however complicated or difficult the task may be. The central task is to ensure that the terms of the will reflect the wishes of the testator. How this is done depends on the circumstances of each case. In every case, the solicitor should be cautious about taking instructions from any person who is to be named as a beneficiary in the will.” 88. At [61], the Court of Appeal in the same case reiterated the following points that were made in Low Ah Cheow v Ng Hock Guan [2009] 3 SLR (R) 1079: “73. The preparation of a will involves serious professional responsibilities, which solicitors must uncompromisingly observe and discharge. Regrettably, it seems to us that, all too often nowadays, solicitors appear to consider the preparation of a will to be no more than a routine exercise in form filling. This is wrong. Before preparing a will, the solicitor concerned ought to have a thorough discussion with potential complications the testator on all the possible legal issues that might arise in the implementation and of the terms of the will. The solicitor ought to painstakingly and accurately document his discussions with and his instructions from the testator. He should also confirm with the testator, prior to the execution of the will, that the contents of the will as drafted accurately express the latter’s intention.” 89. In Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 477 at [95], the Court of Three Judges held, in relation to a solicitor’s duty when asked to prepare a Power of Attorney to be executed by the client, that: “The respondent was obliged to take reasonable care to advise and ensure that the complainants understood the implications of executing a power of attorney in the prevailing circumstances”. 90. In Zan Phuay Khiang at [97], the Court also observed that where “there was a real possibility that the execution of a power of attorney had not been initiated by the [clients] themselves, but at a third party's behest instead....it was imperative for the [solicitor] to have privately met with the [clients] and ensured that the [clients] were not acting under any misrepresentation or improper influence and could communicate with him freely”. 91. In K Jayakumar Naidu, the Law Society decided not to pursue the charge relating to the respondent’s failure to advise his client on the nature, purport and consequence of the Power of Attorney. In that context, the Court of Three Judges said at [44] and [45]: “44, The gravamen of the first charge relates to the respondent's alleged failure to advise HCS on the nature, purport and consequence of the power of attorney. 45, As the Law Society eventually did not pursue this charge we need not dwell on this save to make the following observation. To require solicitors to hold their clients’ family members to the same strict protocols appropriate in a business setting would place them in an untenable attitude of opposition with their clients’ families and would not be in the interest of the client. Nor would it accord with the common experience that, by and large, family members do not take advantage of each other. The Law Society was therefore correct in eventually submitting that there was nothing remarkable or suspicious about the circumstances in which HBS approached the respondent to prepare the power of attorney. At that stage, he need not have done anything more than confirm that HCS wanted to sell the flat and that he wanted HBS to act on his behalf.” 92. However, the Court also said this at [1]: “A solicitor should also ensure that the client understands sufficiently any risks that may arise. This duty is elevated when a solicitor has reason to suspect that there are special risks or unusual pitfalls involved in the subject transaction. Naturally, the extent of this duty depends on the precise identity, sophistication and circumstances of the client: a vulnerable client, such as one who is mentally and/or physically disadvantaged, uneducated or impecunious, may require comprehensive and comprehensible advice for even the simplest of matters; in contrast, a client who is a seasoned businessman management team may or a corporate entity with an in-house risk be reasonably presumed to have greater situational awareness. In a similar vein, the extent of the duty will also vary with the client’s apparent familiarity owe clients their advance with a proposed a fundamental their client’s interests duty and transaction. All of undivided loyalty not place themselves solicitors to also ethically in a position of conflict.” Goh Yng Yng Karen v Goh Yong Chiang Kelvin [2021] 3 SLR 896" held at [119] that: “It is well established that what amounts to a transaction that calls for an explanation is a “fact-sensitive inquiry” where “much would depend on the strength of inferences to be drawn from the circumstances”: Moh Tai Siang v Moh Tai Tong and another /20/8] SGHC 280 at [80]. I note also the observation in Royal Bank of Scotland ple v Etridge (No 2) [2002] 2 AC 773 at [22] citing with approval the view of Lindley LJ in Allcard v Skinner (1887) 36 Ch D 145 at 185 that a transaction calls for an explanation where accounted Sor on the ground it cannot “be reasonably of Sriendship, relationship, charity or other ordinary motives on which ordinary men act.” % which is being relied on for the law as set out by the Court 93. After considering Muriel Chee and Low Ah Cheow, the High Court opined that in cases involving a solicitor’s duty in connection with a client’s disposal of property to his or her successors, there is no material distinction between a situation involving wills and one which involved the making of an inter vivos gift. 94, In view of these authorities, the question whether there was a breach of Rule 5(5)(b) is a “fact-sensitive inquiry” where “much would depend on the strength of inferences to be drawn from the circumstances”. It is important therefore to consider all the circumstances. In doing that, it must be borne in mind that this case involved family members (see Jayakumar Naidu). This requires a consideration of the circumstances leading to and what happened at the Meeting. 95. The starting point is what the Respondent said happened. 96. According to the Respondent", during the meeting on 17 November 2017, Kelvin informed him that Jacqueline and their family were residing with his mother, Mdm Liew, at the Namly Property. Furthermore, Mdm Liew had instructed him that she wanted to move out of the Namly Property as soon as possible for two principal reasons: First, that as she was wheelchair-bound, it was inconvenient for her to move up and down the stairs in the Namly Property, as well as to and from her bedroom to the toilet. Second, that as she spent most of her time at the Namly Property, Mdm Liew was affected by ongoing construction work in the neighbouring properties which generated noise, dust, and pollution, causing her discomfort and affected her sleep during the day. As such, she suggested that she, Kelvin, and his family move to a single-storey condominium unit where she would be able to move freely and more independently in her wheelchair. Further, Kelvin, his family, and their domestic helper would be on the same floor and thus be able to respond to her needs more easily. 97. According to the Respondent, at the 17 November 2017 meeting, Kelvin had told him that Mdm Liew had instructed him to engage a lawyer to prepare two Powers of Attomey for Kelvin to act on her behalf in the sale of the Namly Property and 8 paragraph 9 of the Respondent's AEIC the purchase of a single-storey condominium unit. She had also instructed that the Powers of Attorney should allow for the following: a. Kelvin to sell and absolutely dispose of the Namly Property; b. Kevin to request for all sale proceeds to be issued to Daniel to be held on trust for Mdm Liew for the purchase of the single-storey condominium unit. (Mdm Liew wanted to give the Namly Property to Daniel, her favourite grandson), and; c. Kevin to purchase the single-storey condominium unit in her and Daniel’s names with the option to include Kelvin as a joint owner. 98. The Respondent also said that at the 17 November 2017 meeting, Kelvin requested that he prepare the Powers of Attorney for the sale of the Namly Property and for the purchase of a single-storey condominium unit. 99. The Respondent said’ that he also asked Kelvin whether Mdm Liew had a history of mental illness or had ever been admitted to the Institute of Mental Health (“IMB”) or any other mental health facilities and Kelvin informed him that Mdm Liew was in perfect mental health and that he could verify the same after meeting her. The Respondent also said that he did not sense anything was amiss, given that he had adult children approaching him on their parents’ behalf before and that Kelvin had identified himself to the Respondent as a medical doctor. He said he had trusted Kelvin when he said that Mdm Liew was in perfect mental health and had never been admitted to IMH or any other mental health facilities. He added that he was satisfied that he would be able to verify Mdm Liew’s mental capacity himself and to take her instructions when he met her on 20 November 2017. 100. According to the Respondent, at the Meeting, the Respondent met Mdm Kelvin, Jacqueline and their two sons were present throughout. 16 paragraphs 13 and 14 of the Respondent's AEIC Liew. 101. The Respondent said"? that Kelvin had begun the Meeting by introducing him to Mdm Liew as the lawyer who he had approached to act for her. The Respondent explained tv Mdin Liew that he was there because Kelvin had told him that Mdm Liew had asked Kelvin to engage a lawyer to prepare legal documents to give Kelvin the power to sell the Namly Property and purchase a single-storey condominium unit, and for the lawyer to act in the sale of the Namly Property and the purchase of the single-storey condominium unit. Mdm Liew nodded her head in affirmation of the Respondent’s explanation. 102. The Respondent also said that upon meeting Mdm Liew, he had introduced himself and asked for her name. As Mdm Liew had difficulty speaking audibly, the Respondent was unable to decipher her response. He then read out Mdm Liew’s name from her NRIC card, which Daniel handed him. Mdm Liew confirmed her identity by nodding and smiling. 103. The Respondent then asked Mdm Liew if she recognised the people around her. She said yes, and introduced him, one by one, to her family members who were present, in the following order: Kelvin, Jacqueline, Daniel and David, and lastly her domestic helper. She was able to softly refer to Kelvin as “Vin”, which the Respondent understood was her affectionate nickname for him. She also correctly identified each individual present in the room. 104. Following the confirmation of Mdm Liew’s identity, he then asked Mdm Liew three times if she was comfortable having the Meeting in the presence of Kelvin, his family members, and the domestic helper. Mdm Liew nodded her head in response each time she was asked, indicating that she was comfortable. 105. The Respondent then proceeded to ascertain if Mdm Liew possessed mental capacity by first asking her if she had a history of mental illness or if she had ever been admitted to IMH or any other mental treatment facilities. In response, Mdm Liew shook her head, indicating that she did not have a history of mental illness » paragraphs 21-37 of the Respondent's AEIC and that she had not ever been admitted to IMH or any other mental treatment facilities. 106. The Respondent tumed to Kelvin and asked the same questions in Mdm Liew’s presence. Kelvin confirmed that Mdm Liew had no history of mental illness, nor had she ever been admitted to IMH or any other mental treatment facilities. The Respondent proceeded to ask Mdm Liew if she understood the purpose of the Meeting. Mdm Liew nodded her head, indicating that she understood the purpose of the Meeting. 107. Throughout their interaction, the Respondent observed that Mdm Liew was fully alert, and was able to understand and respond to his questions although she was unable to walk and had difficulty speaking audibly. As such, the Respondent was satisfied that Mdm Liew possessed mental capacity. 108. The Respondent asked her if the Namly Property was suitable for her to continue residing in. In response, Mdm Liew shook her head, indicating that the Namly Property was not suitable for her to continue residing in. He also asked if the noise from the construction from the neighbouring properties was one of the reasons why the Namly Property was no longer suitable for her to live in. Again, Mdm Liew nodded her head. 109. The Respondent asked if Mdm Liew had difficulty manoeuvring up and down the stairs in the Namly Property, and in response, she nodded her head. 110. He asked Mdm Liew if she wished to move to a single-storey condominium unit to avoid having to manoeuvre up and down stairs and to avoid the noise from the neighbouring properties, and Mdm Liew nodded her head again. 111. The Respondent asked Mdm Liew to confirm that she wished to appoint Kelvin as her attomey to sell the Namly Property and to purchase a single-storey condominium unit. She nodded. He then proceeded to explain the following, inter alia, in respect of the POAs to Mdm Liew: a He explained to Mdm Liew that the sale proceeds of the Namly Property were to be used to purchase a single-storey condominium unit in the joint names of herself and Daniel. He also explained the meaning and consequences of Daniel holding the sale proceeds on trust for Mdm Liew. He further explained that as Daniel was not 21 years of age, his share in the property would be held on trust by Kelvin and that usually for trust matters, a separate trust deed would be drafted. However, as at the time of the execution of the two POAs, the address of the single-storey condominium unit was not yet known, the trust deed could not yet be drafted; Q) The Respondent explained the meaning of joint tenants and tenants-incommon and the implications. To explain the concept of a joint tenancy and the right of survivorship to Mdm Liew, he employed a hypothetical situation in which persons A, B and C were joint tenants of a property. He explained that if A passed away, B and C would be the owners of the entire property. Likewise, if B passed away, A and C would be owners of the entire property, and if C passed away, A and B would be owners of the entire property. He then explained that in a tenancy-in common, each tenant possesses their own share which can be distributed according to their will or by intestacy; G3) He explained that if the sale proceeds of the Namly Property were insufficient to purchase the single-story condominium unit, Kevin’s name would be included as a joint tenant for the purposes of obtaining a bank loan to finance the remaining balance of the purchase price. He then asked Mdm Liew if she wanted Kelvin’s name to be included as a joint tenant in the event a bank loan is required to finance the balance purchase price. Mdm Liew nodded, indicating her assent and that she understood the above. The Respondent then explained to Mdm Liew that the two POAs had the effect of giving the Namly Property to Daniel, and asked Mdm Liew if she intended to give the Namly Property to Daniel. Mdm Liew nodded. He asked Mdm Liew if she intended to give the Namly Property to David. Mdm Liew shook her head, indicating that she did not wish to give the Namly Property to David; and (4) He said that Kelvin’s consent would be required to revoke the two POAs. He informed Mdm Liew that the two POAs were irrevocable without written approval from Kelvin or the Family Justice Courts. He explained that this meant that Mdm Liew could not withdraw, cancel, or amend the two POAs after their execution, and asked if she understood. Mdm Liew nodded, indicating that she understood. 112. The Respondent said he repeated these explanations twice. Mdm Liew nodded her head in response to each explanation, indicating that she understood the terms and the consequences of the two POAs. When the Respondent finished his explanation, he asked Mdm Liew if she understood what he had said. She nodded her head. 113. He asked Mdm Liew once more if she wanted to move out of the Namly Property because it had become inconvenient for her to stay there, and that she wanted to buy a single storey condominium unit to live in instead. Mdm Liew nodded her head again. 114. The Respondent was satisfied that she had mental capacity to sign the two POAs. He then placed the two POAs in front of Mdm Liew, who removed her glasses and took some time to read them before signing them in his presence. The Respondent then affixed his stamp to the two POAs and countersigned against them. 115. He observed that during the Meeting, Mdm Liew appeared relaxed, alert and showed no signs of discomfort or that she was not acting on her own. 116. We are unable to accept the Respondent’s evidence of what happened during the Meeting for the following reasons:117. First, this evidence does not accord with the Respondent’s Attendance Note of the Meeting which he prepared at around 6.15pm when he retumed to his office after the Meeting'®. According to the attendance note: +8 see paragraph 39 of the Respondent's AEIC and TAB 5 of TET-1 a. Mdm b. The Meeting took place between Spm to 5.45pm; c. The Meeting concemed “2x Powers of Attorney at 107 NamlyAve”; d. The Respondent “saw Mdm Liew around Spm and read the POA to her”; e. Liew is recorded as the client; \| “She was aware that her son had told me to come and she had given instruction to her son”. Her response, if any, was not recorded; f. The Respondent “ask{ed] her whether she understand what I was saying and whether she recognise the people around her”. Mdm Liew’s response, if any, was not recorded; g. \| The Respondent “askfed] her whether she was admitted to woodbridge or mental clinic before, she said No”; 118. h. “She said that staying here is inconvenient and want to move out”; i. “She was relaxed ... and no sign of oppression or discomfort”; and j. “end 5.45pm”. The Respondent sought to explain the difference between his evidence and the Attendance Note by saying that the latter did not fully reflect his communications with Mdm Liew. 119. While we accept the Attendance Note was not, and could not have been, meant to be a verbatim note of what was said at the Meeting, the fact is that the Respondent ‘was conscious of the need to have a contemporaneous record of what he considered to be the main and important aspects of the Meeting. Further, the fact that he prepared it immediately after the Meeting meant that his memory of the Meeting was fresh at that time. 120. The disparity between his evidence about the Meeting and what is said in the Attendance Note is simply too huge to be credibly accounted for. 121, According to the Attendance Note, the Respondent “read the POA to her”. There is nothing about him explaining the POAs (let alone more than once) in the manner that he claimed in his evidence. There is also nothing in the Attendance Note about him explaining the nature and effect of the POAs to Mdm Liew. The Applicant submitted that the Respondent accepted that he did not say any of this in his affidavit of evidence-in-chief in Suit 45 (his “45 AEIC”). 122. In his Defence, the Respondent also claimed that he explained the nature and consequences of joint ownership of the Condominium Unit by Mdm Liew, Kelvin and Daniel. This was not in the Attendance Note. The Applicant submitted that the Respondent did not say this in his 45 AEIC. 123. The Respondent also took the position that he explained the meaning and consequences of Daniel holding the sale proceeds of the Namly Property on trust for Mdm Liew and that as Daniel was below 21 years of age, his share in the property would be held on trust by Kelvin. This was not in the Attendance Note. The Applicant submitted that this was different from what the Respondent said in his 45 AEIC where the Respondent said that he explained that the sale proceeds would be held by Daniel on trust for her to purchase the Condominium Unit. 124, As the Applicant pointed out, the Respondent’s own understanding of the legal effect of the 2 POA was inaccurate and that Kelvin could, at his own discretion, add himself as a joint tenant to the purchase of the Condominium Unit. It was also not correct that Kelvin would be added as a joint tenant to the purchase of the Condominium Unit only if there were insufficient funds to finance the purchase the Condominium Unit from the sale proceeds of the Namly Property. 125. According to the Attendance Note, Mdm Liew “was aware that her son had told me to come and she had given instruction to her son”. However, her response, if there was any, was not recorded. This also begged the question whether she understood what the Respondent was talking about when he said that “she had given instructions to her son”. 126, The Attendance Note also said that the Respondent “ask/ed/ her whether she understand what I was saying and whether she recognise the people around her”. This presents a particular difficulty because the POAs had unusual clauses and features that gave rise to various issues that needed very careful explanation, particularly to an 87 year old lay person who could not readily interact because of her speaking difficulties. 127. In fact, it was not just the nature, terms, and implications of the two POAs which required careful explanation but also the issues arising from the interaction between the two POAs. They raised, inter alia, the following issues or concerns: a. The concept of joint tenancy; b. That Mdm Liew would be making an inter-vivos gift to Daniel to the exclusion of others; c. How that intention could still be fulfilled if Kelvin included his name in the purchase of the Condominium Unit; d. The fact that she could not on her own change her mind; e. That Daniel was a minor (the Respondent knew that Daniel was about 19 years old at the time!® and cannot be a trustee); £. What the terms of the trust would be and how would they affect Mdm Liew and her rights; 39 NE dated 25 February 2020, page 79, line 16, Tab 19 of Exhibit KG-I at page 720 g. \| What would happen if after the Namly Property was sold, complications arose in relation to the purchase of the Condominium Unit e.g., because Daniel refused to allow the sale proceeds to be used, and; h. The fact that Kelvin could choose to be one of the purchasers of the Condominium Unit at a consideration of his own choosing, which might create a conflict of interest. 128. Mdm Liew was 87 years old at the time. She had difficulty speaking. The Respondent should not only have carefully explained these matters but should also have asked if they were in line with her wishes and instructions and how she thought they were in her interests, including asking why she felt that it was in her interest for the POAs to be irrevocable by her. In this connection, the Applicant pointed out that it was the Respondent’s evidence in his 45 AEIC that Mdm Liew did not provide reasons for the POAs to be irrevocable and he did not see any necessity to ask her about that. 129, If Mdm Liew was unable to communicate her understanding verbally or in writing, then the Respondent should have called for a pause and asked for her condition to be reviewed by an independent medical expert or declined to act:- a. The fact that Mdm Liew nodded when the Respondent read the POAs to her, in light of these particular POAs that he was asked to draft by Kelvin and the fact that one of them dealt with the disposal of her home, should not have been accepted by the Respondent as evidence that she understood their terms, nature and consequences; and b. The fact that she did not ask any questions in light of the issues and concerns referred to above should have raised a red flag. 130. The Respondent said that because his 45 AEIC was drafted for a different purpose from present proceedings, it did not contain as many details as his AEIC in these proceedings. We are unable to accept that. Although he was not a party to Suit 45, the question whether the Respondent properly explained the POAs to Mdm Liew at the Meeting and whether she executed the two POAs with a full understanding of their terms and effect was an important issue of fact in that case. Therefore, it would have been important for the Respondent to be as comprehensive as possible in his evidence at the High Court Trial about what happened at the Meeting. 131. The Respondent also did not take steps to meet Mdm Liew privately and without the presence of Kelvin and Daniel, who stood to benefit from the POAs, and their family members to determine whether Mdm Liew was not acting under any misrepresentation, misapprehension, or improper influence. The Respondent also did not ask Mdm Liew whether the POAs accorded with her wishes under any will. In this connection, we were shown photos of the Meeting that were taken by Jacqueline which showed that Kelvin stood or sat in front of Mdm Liew, to her right, and that David and Daniel stood directly in front of Mdm Liew”, The proximity was vexing and should have alerted the Respondent to insist on a private meeting with Mdm Liew. 132. If the Respondent’s account of what he did at the Meeting is correct, then the Meeting could not have taken around 45 minutes (around Spm to 5.45pm). 133. We note that the Respondent’s evidence in these proceedings about what he claimed to have explained to Mdm Liew was given after he would have read the High Court’s decision in Goh Yng Yng Karen, where he gave evidence and findings were made about him and his conduct, and which highlighted what he omitted to do at the Meeting. 134. In coming to these findings, we were conscious of the obiter dicta in K Jayakumar Naidu which has been referred to above about family settings. However, even there, the Court recognised that there may be remarkable or suspicious circumstances or situations where family members may seek to take advantage of each other. We are satisfied that for the reasons set out above, including the unusual clauses and features of the POAs, Kelvin and Daniel’s benefits as well as the fact % photos at Tab 21 KG-I at pages 804-806 of the Complainant's AEIC that Mdm Liew could not by herself revoke the POAs, this situation called for special vigilance and care. 135. We are unable to agree with the Respondent’s position on the MCA”!, 136. Section 4 of the MCA states that a person lacks capacity in relation to a matter if at the material time the person is unable to make a decision for himself or herself because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 5(1)(d) of the MCA provides that for the purposes of section 4, a person is unable to make a decision for himself or herself if the person is unable to communicate his or her decision (whether by talking, using sign language or any other means). 137. All that section 5(1)(d) does is to list visual illustrations of when it can be said that a person is unable to make a decision for herself. It does not say, and does not amount to legislative endorsement, that if a person can communicate by sign language or other means, she is able to make a decision for herself. The latter does not flow from the former. 138. We are also unable to accept the Respondent’s reliance on evidence of other events involving Mdm Liew which, according to him, show that Mdm Liew had mental capacity. As he accepted”, he did not know about these other events at the Meeting. 139, In coming to our decision, we have not had any regard to the question of whether Mdm Liew had mental capacity at the material time. Unlike Suit 45, where expert evidence was led, there was no expert evidence on that issue before us. 140. In the circumstances, we find that the Respondent breached Rule 5(5)(b) as alleged in the First Charge. 2 paragraph 121 of the Respondent's Closing Submissions 2 paragraph 107 of the Respondent's Closing Submissions THE SECOND CHARGE 141, The Second Charge is as follows: That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme in section 83(2)(b)(i) of the whilst you acted for Madam Legal Court of Singapore Profession Liew Khoon Act as set out 1966 in that, Fong (alias Liew Fong) in the preparation of the 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme respectively Kelvin with Court the HC/PA 6414/2017 and HC/PA as donor and one Goh in breach of Rule 5(2)(c) of the Legal Profession Rules failed to with reasonable to your client, client as the attorney, (Professional Conduct) diligence competence and that you permitted as your the 2015 in the you provision client to execute act of services the said 6417/2017 Yong Powers Chiang in of Attorney without first taking sufficient steps to satisfy yourself that your client understood the nature and effect of the terms that were set out in the said Powers of Attorney. 142. Under Rule 5(2)(c), a legal practitioner must act with reasonable diligence and competence in the provision of services to the client. THE PARTIES’ POSITIONS 143. According to the Applicant, solicitors breach their duty to advance their clients’ interests with diligence and competence if they fail to advise on the issues peculiar to the matter at hand and to ensure that the client understands any risks that may arise: K Jayakumar Naidu at [1]. 144, The Applicant argued that there was a breach of Rule 5(2)(c) on two grounds: first, that the Respondent failed to ascertain that Mdm Liew had sufficient mental capacity to make a decision with respect to the POAs; and second, that the Respondent failed to render proper advice for Mdm Liew to understand her position and the risks with respect to the nature and effect of the POAs. 145. The Respondent’s position on the first ground was that there was no evidence of mental incapacity and that in any event he relied both on his own independent and in-person assessment that Mdm Liew was mentally competent as well as Kelvin’s confirmation that Mdm Liew was mentally competent. The Respondent’s own assessment of Mdm Liew’s mental capacity was based on the fact that Mdm Liew was able to communicate by nodding her head. 146. With regard to his position on the second ground, the Respondent maintained that he acted consistently with his duties. Il. OUR FINDINGS 147. For the reasons set out under our discussion in relation to the First Charge, we find that the Respondent breached Rule 5(2)(c) as alleged in the Second Charge. 148. However, we should add that because the offending conduct in First Charge and the Second Charge is the same, our finding under the Second Charge does not, in our view, add anything to the Respondent's culpability. THIRD CHARGE 149. That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act (Cap. in breach Rules of Rule 2015, you 5(2)(c) of the Legal failed act with to Profession reasonable 161) 1966 in that, (Professional diligence and Conduct) competence in the provision of services to your client Madam Liew Khoon Fong (alias Liew Fong) by failing to take sufficient steps to safeguard the interests of your client by ensuring that you received your instructions and explained the nature and effect of the 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme Court as HC/PA 6414/2017 and HC/PA 6417/2017 respectively with the client as the donor and one Goh Yong Chiang Kelvin as the attorney, to the client without the presence of the attomey or other family members of the attorney so as to avoid any undue influence being exerted over the client. THE PARTIES’ POSITIONS 150. The Applicant contended that the Respondent should have met Mdm explained the POAs, Liew, and taken her instructions in Kelvin’s and his family’s absence. Kelvin and Daniel were beneficiaries and the Respondent should have been concerned that Mdm Liew could not have been able to communicate her wishes in front of them. It relied on Jayakumar [68] and Tan Puay Khiang [97]. 151. The Respondent argued that he had asked Mdm Liew thrice if the Meeting could proceed in the presence of Kelvin and his family. He said that Kelvin was, after all, Mdm Liew’s son and his family were her family members. He contended that he observed that Mdm Liew appeared relaxed, alert and showed no signs that she was not acting on her own free will. IL OUR FINDINGS 152. Rule 5(2)(c) has been set out above. 153. In our discussion above under the First Charge, we said that all the circumstances had to be considered. The allegation that the Respondent should have received his instructions and explained the POAs without the presence of the attorney or other family members of the attorney cannot be viewed in isolation and was just one of the matters that has to be taken into account in determining whether the Respondent breached his duties. We are not satisfied that a charge based only on this one aspect of his conduct is sufficient to amount to a breach of Rule 5(2)(c). 154, In the circumstances, we dismiss this charge. TH C) GI 155. That you, Teo Eng Thye, are charged with as an advocate and solicitor of the Supreme improper you acted Yong Chiang Kelvin Ardmore Park for Madam and Goh #36-02, Liew Sok Singapore Khoon Ngoh 1966 (Cap. Fong Jacqueline 259962, or practice Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act whilst conduct where (alias 161) in that, Liew Fong), in the purchase there was of 1 a diversity of interests that existed between the parties, you failed to advance Mdm Liew Khoon Fong’s (alias Liew Fong) interests unaffected by the interest of Goh Yong Chiang Kelvin and/or Goh Sok Ngoh Jacqueline, by removing Mdm Liew’s name from the Option property, to which Purchase dated is a breach 1 December of Rule 20(5) 2017 and in respect Rule 20(6) of the said of the Legal Profession (Professional Conduct) Rules 2015. THE PARTIES’ POSTIONS 156. The Applicant argued that the Respondent’s position that he was acting only for Kelvin in the purchase of the Condominium Unit is mistaken because he admitted that he was acting for Kelvin, Jacqueline and Mdm Liew when the Condominium OTP was exercised. This was also seen in his letter of 8 December 2017 to SterlingLaw when the Condominium OTP was exercised”. He therefore was under an obligation to inform Mdm Liew, his client, when her name was removed as a purchaser of the Condominium Unit. 157. It contended that a diversity of interests arose when Kelvin instructed the Respondent to remove Mdm Liew’s name as a purchaser and that that removal was to Mdm Liew’s disadvantage and conversely to the advantage of Kelvin and Jacqueline. Further, as the Respondent would have been aware that Kelvin’s instructions conflicted with the 2™ POA, he should have directly informed Mdm Liew of Kelvin’s instructions, which would result in Mdm Liew losing her most significant asset, the Namly Property”. ® paragraphs 76, 77 and 78 of the Applicant's Closing Submissions » paragraphs 81 and 82 of the Applicant's Closing Submissions 158. The Complainant testified that the Respondent should have informed Mdm Liew, his client, that her name was to be removed under the Amended Condominium Ol? and that as a result, she would no longer own a property under her name. The Respondent should also have ceased to act in the conveyancing transaction or ceased to act for Mdm Liew and obtain her informed consent, in writing, for him to continue to act in the conveyancing transaction». 159, Instead, the Respondent sent the 24 January 2018 letter to seek the vendor’s consent for Mdm Liew’s name to be removed although he was aware that Mdm Liew might be prejudiced”®. 160. The Respondent made the same arguments for the Fourth Charge and the Fifth Charge. 161. He denied there was a conflict of interests in representing Mdm Liew, Kelvin and Jacqueline because Mdm Liew received fair consideration for the sale of the Namly Property. Thus, there was common interest among the three to purchase the Condominium Unit for the family’s residential purposes and Kelvin and Jacqueline became the Respondent's clients as purchasers of the Condominium Unit only after the original plan to purchase that unit under the terms of the 2" POA, read with the 1° POA, was aborted”’, 162. He argued that the Option to Purchase that was exercised on 8 December 2017 was not exercised pursuant to the 2" POA. By that time, he had been told that the “money most likely will not come in”, In any event, the 2" POA was contingent on the sale proceeds of the sale of the Namly Property being used to purchase the Condominium Unit’. He was also of the view that, as Mdm Liew would no longer be a party to the purchase of the Condominium Unit, there would be no prejudice %5 paragraph 109 of the Complainant's AEIC 28 paragraph 89 of the Applicant's Closing Submissions » paragraphs 146 and 154 of the Respondent's Closing Submissions % paragraph 156 of the Respondent's Closing Submissions to her and as such there was no need for him to cease acting for Mdm Liew or the others as there was no conflict of interests”. 163. The Respondent also contended that, since he believed that the POAs were valid and enforceable, he was entitled to take instructions from Kelvin as Mdm Liew’s attomney in the purchase of the Condominium Unit.>° He also pointed out that the proceeds of sale were to be used for the purchase of a single-storey condominium unit and the 2™ POA did not specify any particular address of that unit." 164. The Respondent said that when he wrote the letter dated 24 January 2018 to SterlingLaw, he acted in his capacity as Kelvin’s solicitor in the purchase of the Condominium Unit. This, according to him, was because the Complainant had commenced Suit 45 against Kelvin who had informed him that Mdm Liew would no longer be a party to the purchase of the Condominium Unit which would be purchased in the names of Kelvin and Jacqueline, that that purchase would be financed by his and Jacqueline’s own savings and that he wanted the Respondent to act for Kelvin and Jacqueline in the purchase of the Condominium Unit®?. 165. The Respondent also said that as the 2014 LPA had not been activated at the time, there was no need to inform Mdm Liew of the removal of her name, the non- inclusion of Daniel’s name, and the inclusion of Jacqueline’s name>. Il. OURFINDINGS 166. Rules 20(5) and 20(6) provide that where a legal practitioner acts for 2 or more different parties in a matter or transaction, and a diversity of interests arises between those parties during the course of the retainer for the matter or transaction, he or she must throughout the remainder of the course of the retainer for the matter or transaction continue to be vigilant of any conflict or potential conflict between the ?° paragraph 146 of the Respondent's Closing Submissions ® paragraph 140 of the Respondent's Closing Submissions 3 paragraphs 140 and 142 of the Respondent’s Closing Submissions ® paragraphs 58 and 59 of the Respondent's AEIC ® paragraphs 141 and 142 of the Respondent's Closing Submissions interests of any of the relevant parties and inform each relevant party in the matter or transaction if, in the course of the retainer, the legal practitioner has difficulty in advising on and dealing with the relevant parties’ divergent interests competently, evenly and consistently. 167. The following discussion is on the assumption that there was in law a solicitor-client relationship between the Respondent and Mdm Liew. We will come back to that below. 168. Before 24 January 2018, when the Respondent wrote to SterlingLaw to say that his clients intended to withdraw Mdm Liew’s name from the purchase of the Condominium Unit, he had been aware of the letters from Templars Law to WongPartnership dated 15 December 2017, 22 December 2017, 5 January 2018 and 10 January 2018. 169. The Respondent was also aware of the following: First, the Complainant claimed to be the sole donee under the 2014 LPA, and that she claimed that Kelvin had moved Mdm Liew to an unknown location. Second, Dr Ang had issued a medical report which said that Mdm Liew was suffering from dementia which started around the middle of 2017. Third, the Complainant’s position was that the 1‘ POA was invalid and unenforceable, that Mdm Liew lacked the mental capacity to decide to sell the Namly Property, and that her lawyers had asked that the sale be stopped and had asked WongPartnership if they had instructions to accept service of process on behalf of their client. 170. He therefore found himself in a position where, in acting for Mdm Liew, Kelvin and Jacqueline, he had secured for her an interest in the Condominium Unit and Kelvin was now asking him to divest one of his clients of her interest. Those instructions could not have been given under the POAs meant to facilitate the sale of the Namly Property and the purchase, with Mdm Liew being one of the buyers, of a single-storey condominium unit. The Respondent would also have known that page 1070 of the Complainant's AEIC the fact that Daniel’s name was not added to the Condominium OTP was not consistent with Mdm Liew’s alleged intention to make a gift to him. 171. Further, he had been put on notice of the matters in Templars Law’s letters. He would have known that, should the 1 POA be said to be invalid because of Mdm Liew’s alleged mental condition, that would also call into question the validity of the 2" POA which was signed at the same time. 172. He therefore found himself in a position where if the POAs were valid, and he withdrew Mdm Liew’s name, he would affect her interests. If the POAs were not valid, he could not act on Kelvin’s instructions, which were purportedly given under the POAs, to remove her name. 173. In these circumstances, he was under a duty to check the position with Mdm Liew to ensure that there was no divergence of interests between her on the one hand and Kelvin and his family, on the other. He was under a duty to satisfy himself that she continued, after the POAs, to have the mental capacity to instruct him in the sale of the Namly Property and the purchase of the Condominium Unit, as well as ask Mdm Liew if the purchase in Kelvin, Jacqueline and her names was consistent with her intention to make a gift to Daniel, and whether she agreed with giving up her interest in the Condominium Unit. If the Respondent had not been given access to her or was unable to properly obtain instructions, he should have ceased acting for all his clients. 174, However, this does not mean that the Fourth Charge has been made out. 175. These Rules, and the Fourth Charge, are premised on there being a retainer and a solicitor-client relationship between the Respondent and Mdm Liew at the material time. In fact, the Applicant’s Closing Submissions emphasise the Respondent’s duty to his “client”. % see eg paragraph 88 176. It is not the Applicant’s case that the Rules apply even where there is no retainer but that a solicitor believed that there was one. 177. If, as is the Complainant’s case, the POAs were null and void, and the High Court in Suit 45 has found them to be null and void, then the question which arises is whether there was in law a solicitor-client relationship between the Respondent and Mdm Liew after she signed the POAs which have been found by the High Court to be null and void. 178. The fact that he informed SterlingLaw that he acted for Mdm Liew and that he purported to act for Mdm Liew when the Condominium OTP was accepted and thereafter does not mean that there was that relationship in law or that in law, he had been retained by her. 179. As this issue was not addressed by either the Applicant or the Respondent, at a posthearing conference on 19 July 2022, we raised this for the parties to consider their positions on it since it affected the 4" to 7" Charges. We asked the Applicant’s counsel whether it wished to proceed with these charges. The Applicant’s counsel said that he will consider the matter and take instructions and get back to us. The Respondent’s counsel said that he did not address this point because of an oversight. 180. By a letter dated 26 July 2022, the Applicant’s counsel said that the Applicant would like to proceed on these charges. In that letter, the Applicant’s counsel referred to Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin [2015] 5 SLR 62 and the disciplinary proceedings which followed from that decision, reported as The Law Society of Singapore v Harjeet Singh [2016] SGDT 9. He argued that in light of these cases, the Applicant was of the view that there “could still be a breach” of the relevant Rules referred to in these charges. 181. With respect, we are unable to see how either case is of assistance. In Mahidon, there was a solicitor-client relationship between the appellants and the solicitor before the deed in issue, i.e., the RBI Deed, came to be executed: see [17]. It was in that context that the Court of Appeal considered the scope of the solicitor’s duties and whether he had breached them. Those findings had no impact on the solicitor- client relationship. Unlike the present case, it was not a situation where the solicitor’s authority was based on the very document which the solicitor was found not to have properly advised. 182. As we set out above, the standard of proof is beyond a reasonable doubt. We are not satisfied that the Applicant has discharged that burden to show that even though the POAs have been found to be null and void, there continued thereafter to be a solicitor-client relationship in law between the Respondent and Mdm Liew. 183. For these reasons, we dismiss the Fourth Charge. EIFTH CHARGE 184. That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act 1966 in that, whilst you acted for Madam Liew Khoon Fong (alias Liew Fong) in the purchase of 1 Ardmore Park #36-02, Singapore 259962, you failed to inform the client of all information known to you that may reasonably affect the interests of the client in respect of the purchase of 1 Ardmore Park #36-02, Singapore 259962 in particular of the removal of her name, the non-inclusion of the name of Daniel Goh Eng Sheng and the inclusion of the name of Goh Sok Ngoh Jacqueline from the Option to Purchase dated 1 December 2017 in respect of the said property, which is a breach of Rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015. I. THE PARTIES’ POSITIONS 185. The Applicant argued that the Respondent had failed to inform Mdm Liew that her instructions under the 2 POA were not being followed by Kelvin, the attorney, because the Condominium Unit was purchased with Jacqueline and not Daniel. It also argued that the Respondent had assumed a responsibility to Mdm purchase the Condominium Unit, % paragraphs 89 and 94 of the Applicant's Closing Submissions Liew to 186. The Respondent made the same arguments as he did in relation to the Fourth Charge. I. QUR FINDINGS 187. Rule 5(2)(b) has been set out above. 188. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 189. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. SIXTH CHARGE 190, That you, Teo Eng Thye, are charged with improper conduct or practice as an advocate and solicitor of the Supreme Court of Singapore as set out in section 83(2)(b)(i) of the Legal Profession Act 1966 in that, whilst you acted for Madam Liew Khoon Fong (alias Liew Fong) in the preparation, execution and registration of 2 Powers of Attorney dated 20 November 2017 lodged with the Supreme Court as HC/PA 6414/2017 and HC/PA 6417/2017 respectively with the client as the donor and one Goh Yong Chiang Kelvin as the attorney, you failed to inform the client of all information known to you that may reasonably affect the interests of the client in respect of the said Powers of Attorney in particular of the medical report prepared by Dr Ang Yong Guan dated 30 December 2017 and correspondence from Templars Law LLC dated 12 February 2018 relating to the alleged lack of mental capacity of the client as at the time of execution of the said Powers of Attorney, which is a breach of Rule 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015. THE PARTIES’ POSITIONS 191. The Applicant contended that the Respondent knew from correspondence which was forwarded to him that the Complainant had challenged Mdm Liew’s mental capacity’, It argued that the Respondent was privy to the Dr Ang’s medical report dated 30 December 2017 which said that Mdm significantly deteriorated since the middle of 2017 Liew’s mental capacity had and of the Complainant’s complaint that Kelvin had concealed Mdm Liew from her’®. 192. The Applicant contends that, in spite of the above, the Respondent failed to inform Mdm Liew of this challenge and instead informed Kelvin®. 193. The Applicant further said that the Respondent should have been put on notice of the possibility that Mdm Liew was suffering from dementia which started around the middle of 2017 and did not inform her of that to obtain her instructions. It was wrong for the Respondent to assume that the Complainant’s concerns were entirely without substance and did not even consider that there was a risk that Mdm Liew had not authorised Kelvin to find a lawyer to prepare the POAs and yet proceeded to forward the correspondence to Kelvin®, 194, The Respondent argued that when he received the letter dated 10 January 2018 from WongPartnership, he forwarded it to Kelvin, who was Mdm Liew’s attorney, to ask if there had been a change in Mdm Liew’s mental capacity since the Meeting. Kelvin denied that there was any change". 195. Insofar as Templars Law’s letter dated 12 February 2018 was concemed, the Respondent maintained that as the information sought was protected by solicitor- client privilege and as the Respondent was of the opinion that the 2014 LPA had » paragraph 100 of the Applicant's Closing Submissions % paragraphs 98 and 104 of the Applicant's Closing Submissions %° paragraph 100 of the Applicant's Closing Submissions “ paragraph 108 of the Applicant's Closing Submissions * paragraph 158 of the Respondent’s Closing Submissions not been properly activated, there was no need for him to respond and therefore no need for him to take Mdm Liew’s instructions on that letter. i. OUR FINDINGS 196. Rule 5(2)(b) has been set out above. 197. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 198. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. SEVENTH CHARGE 199. That you, Teo Eng Thye, are charged with in the discharge of your advocate and solicitor advocate and solicitor of the Supreme section 83(2)(h) whilst you had of acted the Legal for Madam misconduct unbefitting professional of an duties as an Court of Singapore as set out in Profession Liew Khoon Act Fong 1966 in (alias Liew that, Fong) in respect of the matters that were the subject-matter of Suit No 45 of 2018, where in Chiang the said Kelvin Suit was a your client was defendant, the you plaintiff and failed to advance one Goh her Yong interests unaffected by the interests of Goh Yong Chiang Kelvin, by failing to take the instructions subpoena by of your client or her donee the acting solicitors for when your you client in instead taking the instructions of Goh Yong Chiang Kelvin. L THE PARTIES’ POSITIONS were served the said with Suit a and 200. The Applicant argued that whether the Respondent complied with the subpoena is irrelevant to this charge“. It said that the Respondent should not have sought instructions in relation to the subpoena from Kelvin because he had no authority to make decisions and act for Mdm Liew with respect to the subpoena. Further, since Kelvin was a defendant in Suit 45, it was improper for the Respondent to take advice from Kelvin’s solicitors. 201. The Complainant said“ that the Respondent had conceded during the hearing before the Inquiry Committee (Transcript dated 25 March 20121 page 56) that he should have taken instructions from Mdm Liew and not from Kelvin, who was represented by Drew & Napier. She also said that the Respondent did not advance Mdm Liew’s interests as he disclosed the subpoena to Kelvin and obtained advice from Kelvin’s lawyers as to the manner in which he should comply with the subpoena, even though Kelvin was a defendant in Suit 45. She said that since the Respondent had received the 2014 LPA by then, he should have known that Kelvin had no authority to make decisions and act for Mdm Liew with respect to the subpoena. 202. The Respondent argued that he believed that he was entitled to take instructions from Kelvin and/or his solicitors because Kelvin was a party to Suit 45, the documents that were requested were protected by solicitor-client privilege and that the POAs were valid and enforceable. Further, because Suit 45 was to determine whether Mdm Liew had mental capacity, he continued to take instructions from Kelvin. IL. OUR FINDINGS 203. Section 83 (2)(h) of the Legal Profession Act 1966 states that due cause may be shown by proof that an advocate and solicitor has been guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession. 2 paragraph 113 of the Applicant's Closing Submissions paragraph 115 of the Applicant’s Closing Submissions “ paragraphs 145 and 146 of the Complainant's AEIC *5 paragraphs 167 and 170 of the Respondent’s Closing Submissions 204. We do not agree that this Charge has been made out. 205. When the Respondent was served with a subpoena, his interests were potentially divergent from those of the Complainant, who was representing Mdm Liew. Suit 45 was an action to nullify the POAs. The Respondent’s conduct was going to be squarely in issue, and he would likely be criticised. In our view, he was fully entitled to speak to whoever he wished, including Kelvin and any law firm which felt able to advise him on his own position and exposure. 206. We disagree with the assertion that the Respondent should have taken instructions from Mdm Liew, who was effectively the plaintiff in Suit 45, through the Complainant who initially acted pursuant to the 2014 LPA and later as executrix of Mdm Liew’s estate, and therefore on the other side of the Suit. 207. There is another reason we do not agree that this charge has been made out. This charge is premised on there being a solicitor-client relationship between the Respondent and Mdm Liew at the time of the alleged failure. 208. For the reasons set out under the Fourth Charge in relation to whether the Applicant has discharged its burden to show that there was in law a solicitor-client relationship, we dismiss this charge. CONCLUSION 209. In conclusion, we find that the First and Second Charges have been made out. We dismiss the remaining Charges. 210. In considering whether cause of sufficient gravity for disciplinary action exists, we have had regard to the fact that it was not the Applicant’s case and was not put to the Respondent that he acted with any deliberation, dishonesty, or for improper motives. It appears from the Respondent’s evidence that he appears to have been influenced about the scope of his obligations by the small fee that he would eam from preparing and attending to the execution of the POAs. That was an unfortunate 24th	2023-06-10T04:00:28+00:00	https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jun-2023/	In the Matter of Teo Eng Thye (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jun-2023/	1049

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