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| 43 | 42 | 1 | 1661 | In the Matter of Rai Vijay Kumar (Respondent), Advocate & Solicitor | In the Matter of Rai Vijay Kumar (Respondent), Advocate & Solicitor The present proceedings against the Respondent arose from statements made by the Respondent about the Honourable Justice Belinda Ang Saw Ean (the Judge) and/or members of the Appellate Division of the High Court. The Respondent acted for the plaintiff, one Ms Noor Azlin bte Abdul Rahman (Ms Noor) in a claim against Changi General Hospital Pte Ltd and other defendants, which was heard before the Judge. After Ms Noor’s passing, her brother was added as a party to continue the action in his capacity as executor of her estate (the Estate). The Respondent had conduct of the matter for the Estate. The Estate commenced an appeal (the Appeal), which was allocated to be heard by the Appellate Division of the High Court. Whilst arguing the Appeal, the Respondent made statements that undermined public confidence in the administration of justice and in the Singapore judicial system (the Statements). The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Kenneth Tan SC and Mr Paul Wong as DT member. The Law Society proffered against the Respondent one charge and one alternative charge as follows: Charge (the Charge) For breach of rule 13(2) of the Legal Profession (Professional Conduct) Rules 2015, in that the Respondent made statements against the Judge and/or members of the Appellate Division of the High Court that were disrespectful towards the Honourable Court, amounting to improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the Legal Profession Act 1966 (LPA). Alternative Charge (the Alternative Charge) For making of statements against the Judge and/or members of the Appellate Division of the High Court which were disrespectful towards the Honourable Court, amounting to misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under section 83(2)(h) of the LPA. Findings by the DT, Council’s Sanction The DT noted that the objective meaning of the Statements, in the context in which they were made, were disrespectful to the Court, as they alleged a bias or alleged bias on the part of the Judge and/or the Appellate Division. The DT found that the Respondent had levelled allegations of bias against the Judge and members of the Appellate Division and suggested a lack of actual impartiality or an inability to remain impartial without any proper basis for doing so, and the Charge therefore had been proved beyond reasonable doubt. The DT found that, although strictly not necessary, they still find the Respondent guilty of the Alternative Charge. The DT determined pursuant to section 93(1)(b) of the LPA that whilst no cause of sufficient gravity existed for disciplinary action under section 83 of the LPA, the Respondent should be ordered to pay a penalty of S$2,000. The DT had determined pursuant to section 93(2) of the Act and ordered the Respondent pay the Law Society costs of $6,500 (inclusive of disbursements). Pursuant to section 94(3)(i) of the Act, the Council of the Law Society adopted the DT’s findings and ordered the Respondent to pay a penalty of $2,000. To access the full report click here. | https://lawgazette.com.sg/wp-content/uploads/2024/11/Nov_24_Rai_Vijay_Kumar_full_DT_report.pdf | 28th TABLE OF CONTENTS I. INtrOdUCTION...............000..cabtnecnribesacesuessuinissnasutereneseaiassinnaasvasenseniaas sxeomneasonaenanssspeaensceousnesaTeaaNeN 3 Hi. The Charges .............:c0:+.scessaresaauauniusnusiavusssoansnswasusiensawvestaskasesnasnneasexasiveonaeneadeepnnieceeesenaseasanens 3 lll. Circumstances leading to the proCee@dingS ............cceecccecsessecessesenesseeseessescneesseseeesseaeaees 6 IV. Procedural History sississsssissecssssecsesvsssnswvevenessnesnnsneveveenssveavsconsnvvasssaescasneaooncennenyyssesscnecesenseeeees 11 V. —- The Law Society's Case wsssccsssssexsassnesasvaexnaconsnnsmeaesnssvnansananoxessvovenneasonstvasnaonsonnavejerssrossssseorece 14 VI. The Law Society's Case on the Alternative Charge ...........cccssssesseseseesescnseessseeceeeenens 27 VIL. The Respondent's Case sicavsosssusassvsonnsrennxenonnsnnsenensnonrseonmenroncecereensouneaeeeneenerauternarenenennens 28 VIL. Our FIndingS......cccecccsecsscssscessecesscsescsesesossesecsusaeeacsaeseeaeaceaeseseeaseeseueaesasauseateeeaeeasaeenenenes 40 Ey SMCS 1M rererercerers. cases see secneeorasseeeeseseoserenes QBRRSHRESUERRERRORERRON Immerse EI NERERSE eee EE 49 Introduction These proceedings professional concern misconduct one charge brought by the (and Law an alternative Society charge) of Singapore of (“Law Society”) against the Respondent, Rai Vijay Kumar (the “Respondent’). The Respondent is an advocate and solicitor of more than 32 years’ standing, having been admitted to the rolls on 14 March 1990. At all material times, the Respondent was the managing director of Arbiters inc Law Corporation. The Charges The Law Society proffered one charge of improper conduct or practice as an advocate and solicitor under section 83(2)(b) of the Legal Profession Act 1966 (“LPA”) and an alternative charge of misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession under section 83(2)(h) of the LPA as follows: CHARGE That you, VIJAY KUMAR RAI, an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with Arbiters Inc Law Corporation located at 10 Marina Boulevard, #39-01 Marina Bay Financial Centre Tower 2, Singapore 018983, are charged that on or about 26 March 2021 and 19 April 2021, you had, in breach of rule 13(2) of the Legal Professional (Professional Conduct) Rules 2015, made the following statements against the Honourable Justice Belinda Ang Saw Ean and/or members of the Appellate Division of the High Court: (a) "IT WOULD BE INAPPROPRIATE FOR THE APPELLATE DIVISION TO HEAR THE MATTER AS THE TRIAL JUDGE IS ALREADY SITTING IN THE APPELLATE DIVISION AS ITS PRESIDENT AND THE MEMBERS OF THE APPELLATE DIVISION MAY BE CONSTRAINED AGAINST OVERTURNING OR OVERRULING HER DECISION(S)"; (b) “The timing of the Trial Judge's appointment as president of the Appellate Division on 18 December 2020, just before the release of her Grounds of Decision, is unfortunate as it is likely to be misperceived by the public as an attempt to constrain the Applicant's appeal"; (c) "Further, the Applicants believe that it is not inconceivable that the Appellate Division will feel constrained against overturning and/or overruling the decision(s) made by the President of the Appellate Division herself. It would seem that the Appellate Division is hearing an appeal against its very own decision’; (d) "The Trial Judge specifically acknowledged at [185] of the AOD Judgment that this Honourable Court was greatly assisted by Professor Goh Boon Cher. The Trial Judge then went on to extrapolate that both Professor Goh and Dr. Lynette Teo Li San were independent witnesses who had properly discharged their duties as expert witnesses to the satisfaction of the Court, which cannot be correct as their testimonies were the very basis for the Trial Judge to have wrongly made the finding that the nodule had not been malignant, which was subsequently overturned by this Honourable Court. In light of the President of the Appellate Division of the High Court making such findings, there is a real possibility that the Appellate Division may feel constrained in overturning these findings. It should be for the Court of Appeal and not the Trial Judge to determine the true extent to which the Court of Appeal was assisted by the Respondent's witness and their conduct in the matter"; and "While the Respondent states that it believes the Appellate Division will be able to hear the matter impartially, it has cited no grounds for such belief. It is precisely because justice must be done and seen to be done. The Applicants repeat paragraphs [34] to [37] of the Applicants’ Written Submissions"; and that in relation to the facts alleged, which were acts that were disrespectful towards the Honourable Court, such breach amounts to improper conduct or practice as an advocate and solicitor within the meaning of section 83(2)(b) of the Legal Profession Act 1966 (2020 Rev Ed). ALTERNATIVE CHARGE That you, VIJAY KUMAR RAI, an Advocate and Solicitor of the Supreme Court of Singapore, whilst practicing with Arbiters Inc Law Corporation located at 10 Marina Boulevard, #39-01 Marina Bay Financial Centre Tower 2, Singapore 018983, are charged that on or about 26 March 2021 and 19 April 2021, you made the following statements against the Honourable Justice Belinda Ang Saw Ean and/or members of the Appellate Division of the High Court: (a) "IT WOULD BE INAPPROPRIATE FOR THE APPELLATE DIVISION TO HEAR THE MATTER AS THE TRIAL JUDGE IS ALREADY SITTING IN THE APPELLATE DIVISION AS ITS PRESIDENT AND THE MEMBERS OF THE APPELLATE DIVISION MAY BE CONSTRAINED AGAINST OVERTURNING OR OVERRULING HER DECISION(S)"; (b) “The timing of the Trial Judge's appointment as president of the Appellate Division on 18 December 2020, just before the release of her Grounds of Decision, is unfortunate as it is likely to be misperceived by the public as an attempt to constrain the Applicant's appeal"; (c) "Further, the Applicants believe that it is not inconceivable that the Appellate Division will feel constrained against overturning and/or overruling the decision(s) made by the President of the Appellate Division herself. It would seem that the Appellate Division is hearing an appeal against its very own decision"; “The Trial Judge specifically acknowledged at [185] of the AOD Judgment that this Honourable Court was greatly assisted by Professor Goh Boon Cher. The Trial Judge then went on to extrapolate that both Professor Goh and Dr. Lynette Teo Li San were independent witnesses who had properly discharged their duties as expert witnesses to the satisfaction of the Court, which cannot be correct as their testimonies were the very basis for the Trial Judge to have wrongly made the finding that the nodule had not been malignant, which was subsequently overturned by this Honourable Court. In light of the President of the Appellate Division of the High Court making such findings, there is a real possibility that the Appellate Division may feel constrained in overturning these findings. It should be for the Court of Appeal and not the Trial Judge to determine the true extent to which the Court of Appeal was assisted by the Respondent's witness and their conduct in the matter"; and (e) "While the Respondent states that it believes the Appellate Division will be able to hear the matter impartially, it has cited no grounds for such belief. It is precisely because justice must be done and seen to be done. The Applicants repeat paragraphs [34] to [37] of the Applicants’ Written Submissions": and that in relation to the facts alleged, which were acts that were disrespectful towards the Honourable Court, you are thereby guilty of such misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act 1966 (2020 Rev Ed). The statements referred to at paragraphs (a) to (e) of both charges shall be collectively referred to as the “Statements”. Circumstances leading to the proceedings The Complainant is the Honourable Justice of the Court of Appeal Andrew Phang Boon Leong (the “Complainant’). The Respondent acted for the plaintiff, one Ms Noor Azlin bte Abdul Rahman (“Ms Noor’) in HC/S 59/2015 (“HC/S 59”) in a claim for negligence against Changi General Hospital Pte Ltd (“CGH”) and other defendants. HC/S 59 was heard before the Honourable Justice Belinda Ang Saw Ean (the “Judge’”). The Judge dismissed Ms Noor’s claim in HC/S 59 and Ms Noor commenced an appeal in CA/CA 47/2018 thereafter (“CA/CA 47”). The Court of Appeal allowed CA/CA 47 in part and remitted the case back to the Judge to assess the loss and damage caused to Ms Noor. After Ms Noor passed away, her brother was added as a party to continue the action in his capacity as executor of her estate (the “Estate’). On or about 2 January 2021, the Judge was appointed as a judge and President of the Appellate Division of the High Court (“Appellate Division’). On or about 19 January 2021, the Judge awarded the Estate a total amount of $326,620.61 as damages in HC/S 59 (the “AOD Judgment”). The AOD Judgment was a decision of the Judge sitting in the General Division of the High Court (“General Division’). The Estate commenced an appeal, which was allocated by default to be heard by the Appellate Division (the “Appeal’). 10. The Estate filed CA/OS 9/2021 (“CA/OS 9”) seeking a transfer of the Appeal to the Court of Appeal. 11. The Complainant sat as the Court of Appeal in CA/OS 9, in which the Respondent acted as counsel for the Estate. In arguing for the Appeal to be transferred from the Appellate Division to the Court of Appeal under O 56A rule 12(3)(g) of the Rules of Court (2014 Rev Ed), the Respondent made the following submissions in the Estate’s Written Submissions: “B. 1T WOULD BE INAPPROPRIATE FOR THE APPELLATE DIVISION TO HEAR THE MATTER AS THE [JUDGE] IS ALREADY SITTING IN THE APPELLATE DIVISION AS ITS PRESIDENT AND THE MEMBERS OF THE APPELLATE DIVISION MAY BE CONSTRAINED AGAINST OVERTURNING OR OVERRULING HER DECISION(S) 34. The timing of the [Judge’s] appointment as president of the Appellate Division on 18 December 2020, just before the release of her Grounds of Decision, is unfortunate as it is likely to be misperceived by the public as an attempt to constrain the [Estate’s] appeal. 36. Further, the [Estate] believe[s] that it is not inconceivable that the Appellate Division will feel constrained against overturning and/or overruling the decision(s) made by the President of the Appellate Division herself. It would seem that the Appellate Division is hearing an appeal against its very own decision. 37. The [Judge] specifically acknowledged at [185] of the AOD Judgment that [the Court of Appeal] was greatly assisted by Professor Goh Boon Cher. The [Judge] then went on to extrapolate that both Professor Goh and Dr. Lynette Teo Li San were independent witnesses who had properly discharged their duties as expert witnesses to the satisfaction of the Court, which cannot be correct as their testimonies were the very basis for the [Judge] to have wrongly made the finding that the nodule had not been malignant, which was subsequently overturned by [the Court of Appeal]. /In light of the President of the Appellate Division of the High Court making such findings, there is a real possibility that the Appellate Division may feel constrained in overturning these findings. |t should be for the Court of Appeal and not the [Judge] to determine the true extent to which the Court of Appeal was assisted by the Respondent's witness and their conduct in the matter.” [emphasis added] 12. In response, CGH raised its concern and disagreement with the Respondent’s Statements in its Written Submissions as follows: “23. We note with concern the [Respondent's] submissions... particularly where they refer to {the Judge’s] appointment as President of the Appellate Division and state that “it is not inconceivable that the Appellate Division will feel constrained against overturning and/or overruling the decision(s) made by the President of the Appellate Division”. The [Respondent is] essentially suggesting that the other judges of the Appellate Division would be unable to hear an appeal arising from a decision of [the Judge] in a fair and unbiased manner simply by virtue of the fact that they are in the same Appellate Division as [the Judge], who is the presiding President. We disagree in the strongest terms. [CGH] believes that the Appellate Division will be able to hear the matter impartially. To give credence to the [Respondent’s] arguments on this point would conceivably undermine public confidence in the administration of justice and in the Singapore judicial system.” [emphasis added] 13. Despite being told that these submissions would conceivably undermine public confidence in the administration of justice and in the Singapore judicial system, the Respondent maintained these submissions in the Estate’s Reply Submissions: “15. While [CGH] states that it believes the Appellate Division will be able to hear the matter impartially, it has cited no grounds for such belief. \t is precisely because justice must be done and seen to be done. The [Estate] repeat[s] paragraphs [34] to [37] of the [Estate’s] Written Submissions.” [emphasis added] 14. In Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] SGCA 59, the Grounds of Decision for CA OS/9 (the “Judgment’), the Court of Appeal made the following observations regarding the Respondent’s conduct and the allegations raised by the Respondent against the Judge and other members of the Appellate Division: “415 It is deeply troubling that such allegations are being levelled against the Judge and the other members of the [Appellate Division], especially when no basis — whether reasoned or otherwise — has been provided for them. 116 ... Despite being alerted to the problematic nature of his arguments, Mr Rai remained unrepentant... 117 The spurious and unwarranted nature of the allegations levelled by Mr Rai needs no further elaboration. | would only observe that the Judge had heard the AOD Hearing and delivered her decision in her capacity as a judge sitting in the Gen Div, not as President of the [Appellate Division]. There is absolutely no indication (and certainly none has been provided by Mr Rai) that any judge sitting in the [Appellate Division] will be influenced by this fact when hearing the Appeal. A decision by a judge of the Appellate Division sitting in the Gen Div or the old High Court, is not the same as a decision of the [Appellate Division] itself. In my view, Mr Rai’s intemperate submission is wholly without basis. 118 Whilst it is undoubtedly the duty of every counsel to put forward all available arguments in the best interests of his or her client, it is equally important for counsel to recognise his or her overarching duty as an officer of the court (see, eg, the decisions of the High Court in Public Trustee and another v By Products Traders Pte Ltd and others [2005] 3 SLR(R) 449 at [26] and [35]; Mia Mukles v Public Prosecutor [2017] SGHC 252 (“Mia Mukles’) at [6]; and the decision of this court in /mran bin Mohd Arip v Public Prosecutor and other appeals [2021] 1 SLR 744 (“/mran’) at [81]). The balancing of these twin duties requires counsel to make submissions in a responsible manner (see Mia Mukles at [6] and Imran at [81]). More specifically, as was pointed out by CGH in its written submissions, allegations of bias against sitting judges in Singapore have the potential to undermine public confidence in the administration of justice and are never to be taken lightly. The irresponsible as well as intemperate manner in which Mr Rai has made these baseless allegations is entirely at odds with his duty as an advocate and solicitor of the Supreme Court of Singapore.” 15. Following the release of the Judgment, the Respondent wrote to the Supreme Court Registry on 11 June 2021 to request that the Court of Appeal consider clarifying and/or revising [111]-[118] of the Judgment. 16. The Respondent explained that his arguments were “in respect of likely public misperception”, and that he was not making any allegations against the Judge or members of the Appellate Division. The Respondent also stated that it was CGH who “imputed” assumptions that he had levelled allegations of bias against members of the judiciary, and that “the issues of bias and lack of impartiality were raised by [CGH]’. 10 17. On 15 June 2021, the Supreme Court Registry informed the Respondent that the Court of Appeal had directed that no change would be made to the Judgment. 18. On 18 June 2021, touching the Complainant referred to the Law Society information upon the Respondent’s conduct pursuant to section 85(3)(a) of the LPA. 19. On 28 February 2022, the Honourable Chief Justice appointed this Disciplinary Tribunal to hear and investigate the matter. IV. Procedural History 20. In these proceedings, the Law Society was represented by Mr Chia Voon Jiet and Mr Pesdy Tan and the Respondent represented himself. At the hearing on 22 June 2022, the Respondent was assisted by Ms Jasleen Kaur. 21. By way of a Secretariat, letter dated 7 March 2022 the following directions were from the Disciplinary given under the Legal Tribunal Profession (Disciplinary Tribunal) Rules (“Rules”): a. Pursuant to rule 8 of the Rules, the Respondent is to furnish the Secretary with five copies of his defence and one copy of the same to the other party 11 by 18 March 2022. b. Pursuant to rule 9 of the Rules, each party is to furnish the Secretary with five copies of the list of documents and one copy of the same to the other party by 1 April 2022. c. Pursuant to rule 10 of the Rules, each party is to furnish the Secretary with five copies each of the affidavit of evidence-in-chief of his/her witnesses, bundle of documents and bundle of authorities and one copy of the same to the other party by 4 May 2022. 22. The Respondent's Defence was submitted on 18 March 2022. The List of Documents for both the Law Society and the Respondent were submitted on 1 April 2022. 23. Subsequently, a Pre-Hearing Conference (“PHC”) was convened on 14 April 2022 at 11.00am. The PHC was conducted via Zoom conference facilities and attended by counsel for the Law Society and the Respondent in person. At the PHC, the following directions were issued: a. Parties are to file and serve their affidavits Agreed Bundle of Documents by 27 April 2022; 12 of evidence-in-chief and b. Parties are to confirm by 1.00pm on 27 April 2022 if a further PHC is needed on 5 May 2022; c. Submissions and Bundles of Authorities are to be filed and served by 8 June 2022: and d. The hearing is fixed from 22-24 June 2022 beginning at 10.00am on 22 June 2022. 24. On 27 April 2022, the Law Society's counsel submitted the Agreed Bundle of Documents. Counsel also informed that: a. The Law Society will not be calling any witness. b. The Parties had agreed to the authenticity and admissibility of the documents in the Agreed Bundle of Documents but not the truth of their contents. c. |The Law Society’s counsel was of the view that a further PHC was not required. d. The Law Society’s counsel had conferred with the Respondent who had confirmed his agreement to the above. While not specifically stated in the Law Society’s counsel's letter, it had also been discussed and agreed by counsel and the Disciplinary Tribunal at the 13 PHC on 14 April 2022 that the hearing could proceed without the need for calling of any witnesses, the evidence being by way of an Agreed Bundle of Documents for which authenticity and admissibility was agreed. The Law Society's counsel, however, asked to be allowed to confirm this after seeking instructions from the Law Society. By his letter on 27 April 2022, he confirmed the Law Society’s agreement that no witnesses would be called. Accordingly, no affidavits of evidence-in-chief were required to be submitted by the Parties. 25. On 4 May 2022, the Disciplinary Tribunal informed the Parties that the further PHC on 5 May 2022 was vacated. 26. On 8 June 2022, both Parties submitted their respective written submissions and bundles of authorities. 27. The hearing for the matter commenced on 22 June 2022 and completed on the same date. The further hearing dates on 23 and 24 June 2022 were vacated since they were not required. The Law Society’s Case 28. The Law Society’s position was that the Statements contain allegations of bias against the Judge and members of the Appellate Division by suggesting a lack 14 of actual impartiality or an inability to remain impartial. 29. As to the statement APPELLATE — “B. DIVISION TO IT WOULD BE HEAR MATTER THE INAPPROPRIATE AS THE FOR THE [JUDGE] IS ALREADY SITTING IN THE APPELLATE DIVISION AS ITS PRESIDENT AND THE MEMBERS OF THE APPELLATE AGAINST OVERTURNING DIVISION MAY BE CONSTRAINED OR OVERRULING HER DECISION(S)’, the Law Society contended: a. The Respondent was stating that, as the Judge is currently the President of the Appellate “may be Division, the other members constrained decision. against For this reason, “inappropriate” statement for overturning the Respondent of the Appellate or overruling” the Division Judge’s submitted that it would to the the Appellate Division hear is clearly an allegation that the members Appeal. be This of the Appellate Division would not be impartial in hearing the Appeal and would be biased against the Estate. By stating that the Appellate Division “may be constrained against overturning or overruling” the Judge’s decision, the Respondent is casting doubt on the ability of the judges of the Appellate Division to act impartially and fairly. The Respondent is speculating that the judges of the Appellate Division would (whether consciously 15 or subconsciously) hesitate to overrule the Judge’s decision in the AOD Judgment simply because the Judge is also the President of the Appellate Division. The inference to be drawn is that these judges would be deferential towards accepting the Judge’s findings in the AOD Judgment, irrespective of the merits of the Appeal. It follows that the Respondent is also alleging that the Estate will not obtain a fair hearing if the Appeal is heard by the Appellate Division. This was why the Respondent submitted that it would be “inappropriate” for the Appellate Division to hear the Appeal. This statement also carries with it the grave insinuation that within the judiciary, junior judicial officers would be predisposed to affirming decisions made by more senior colleagues, even when sitting in a superior court and hearing an appeal. It implies that judicial officers, in this case the judges of the Appellate Division, lack the judicial independence, open-mindedness and moral courage to decide an appeal fairly based solely on its merits, without fear or favour, simply because the appeal was against the decision of a senior member of the judiciary. It casts aspersions on the entire Singapore judiciary, not just the members of the Appellate Division. In the Defence, the Respondent himself describes the meaning of his submission as follows: “The [Estate] expressed its reservation that the Judge was the President of the Appellate Division, outranking the other members of the Appellate 16 Division and that it was unlikely for any person overrule the decision of its superior.” in any profession to [emphasis added] The above makes it clear that the Respondent intended to convey the misplaced being concern “outrank[ed]” that the other members by the Judge, would of the Appellate be Division, unlikely to overrule the decision of the Judge, in the same way a subordinate would hesitate or refuse to disagree with his boss. This is an extremely troubling statement. It assumes person that judges are susceptible to outside influences like “any in any profession”. However, this is a false equivalence and a poor analogy as it not only ignores the solemn oath each judge takes to discharge their duties “without fear or favour, affection or ill-will’, but also fundamentally misunderstands the distinction between a decision made by a judge sitting as the General Division, and the appointment of that same judge as the President of the Appellate Division. The two are unrelated and it is improper to even suggest that the timing of the appointment of a judge as President of the Appellate Division is somehow connected to an earlier decision made by the same judge. As to the statement — “The timing of the [Judge’s] appointment as president of the Appellate Division... is unfortunate as it is likely to be misperceived by the public as an attempt to constrain the contended: 17 [Estate’s] appeal”, the Law Society The Respondent is stating that the appointment of the Judge as President of the Appellate Division may be perceived as something done to “constrain” the Appeal, due to the “timing” of the appointment which was characterised as “unfortunate”. The statement does not clarify or explain how the appointment of the Judge as President of the Appellate Division may be perceived as affecting or otherwise interfering with the Appeal, given that these are two clearly separate and distinct events that have nothing to do with the other. Read in context, the statement clearly suggests that there may be a perception that the Judge was appointed as President of the Appellate Division 17 days before the AOD Judgment so that the Judge can somehow exert some measure of influence or control over the outcome of the Appeal. At best, it suggests that the other judges of the Appellate Division may be (consciously or subconsciously) biased towards upholding the AOD Judgment because it was decided by a judge who was recently appointed President of the Appellate Division. At worst, it can be read to mean that the timing of the appointment of the Judge and the AOD Judgment was contrived or staged in such a way as to deliberately deny the Estate a fair hearing in the Appeal. Calling into question the propriety of the timing of the appointment of the Judge as President of the Appellate Division, and alleging that it may be perceived as “an attempt to constrain” the Appeal, also implicates the Chief Justice, given that such appointments are made by the Chief Justice. The Respondent, however, relies on this statement to argue that he did 18 not raise allegations of bias against members of the Appellate Division and that he was only “concerned with any misperception the public may have of the Appellate Division hearing the matter’, and that “these arguments were made solely in the context of any misperception by the public’. The unconvincing Law as Society the prior contended statement by that such explanation the Respondent that is “the Appellate Division may be constrained against overturning or overruling her decision(s)” did not contain any such qualification. It also contended that it is difficult to see how the public will likely form the perception that the Appellate Division will not act with impartiality, wnen being appealed against was a decision of the General the decision Division, i.e., a subordinate court to the Appellate Division. There was also no reason for the public to think that the Judge’s appointment as President would be a consideration taken into account by the Appellate Division in determining the merits of the Appeal. objective evidence to Indeed, the Respondent has not adduced any substantiate his assertion that the public may “misperceive” the Judge’s appointment as an “attempt to constrain’ the Estate’s Appeal. His position that “it was entirely possible that the public may come to the same misperception’, since the Estate had expressed its reservations about the Judge’s appointment and the Appellate Division's impartiality, is speculative at best. There is nothing to suggest that the Estate’s reservations would be shared by other members of the public. On the contrary, a fair-minded undoubtedly accept that reasonable a judge 19 member would carry of the out public would judicial duties conscientiously, impartially, and decide the cases before them solely based on their merits and nothing else. After all, judges aim to do justice in every case before the courts “without fear or favour, affection or ill-will’. There is therefore no basis for the Respondent to impute the Estate’s purported concerns as potential concerns that the public may have. c. The allegations that: (i) the Appellate Division impartial; and (ii) there is possible misperception inability, are not mutually exclusive. is unable to remain by the public of this The fact that the Respondent is alluding to the risk of misperception by the public does not preclude the Respondent from also making allegations of bias against the Appellate Division. 31. As to the statement — “the [Estate] believe[s] that it is not inconceivable that the Appellate Division will feel constrained... It would seem that the Appellate Division is hearing an appeal against its very own decision’, the Law Society contended: a. By this statement, the Respondent doubled down on his allegation by reiterating that it was “not inconceivable” that the Appellate Division “will feel constrained”. Clearly, the Respondent is not merely referring to the risk of misperception by the public but alluding to a real risk and possibility that the judges of the Appellate Division will hesitate or find it difficult to overturn the 20 Judge’s decision or findings. b. |The Respondent also added that “it would seem that the Appellate Division is hearing an appeal against its very own decision.” The Respondent made this statement knowing full well that the AOD Judgment was a decision of the General Division. The Respondent also must have known that although the Judge was appointed President of the Appellate Division, the AOD Judgment is not a decision of the Appellate Division. Consequently, this statement can only be understood to mean that the other judges of the Appellate Division will treat any decision of the Judge (including the AOD Judgment) as a decision of the Appellate Division (i.e., its own decision), thereby becoming judges in their own cause due to her appointment. Not only is this statement legally and factually wrong, it also insinuates that the judges of the Appellate Division may be unable or unwilling to look beyond the identity of the Judge (being the President of the Appellate Division) and decide the Appeal solely on its merits due to an alleged interest in upholding the decision of a senior judge on the bench. 32. As to the statement — “In light of the President of the Appellate Division of the High Court making such findings, there is a real possibility that the Appellate .Division may feel constrained in overturning these findings’, the Law Society contended: a. By this statement, the Respondent reiterated that as certain findings had 21 been made by the Judge, members “constrained in overturning [the] findings’. Again, appointment of the Judge as the President of the Appellate which supposedly influences of the Appellate Division may fee! this stems from the Division, the ability of the other members of the Appellate Division to act impartially as the Judge is their “superior”. 33. As to the statement— “While [CGH] states that it believes the Appellate Division will be able to hear the matter impartially, it has cited no grounds for such belief’, the Law Society contended: a. This reply by the Respondent allegations puts beyond doubt that he was levelling of bias against the Judge and members of the Appellate Division by suggesting a lack of actual impartiality or an inability to remain impartial when hearing the Appeal. Although CGH rightly highlighted the problematic nature of the Respondent’s submissions and stated that “the Appellate Division Respondent will be continued able to hear the [Appeal] to persist in his allegations impartially’, the by re-affirming his previous submissions. b. Ifthe Respondent did not intend to level allegations of bias and/or suggest an inability of the Appellate Division to hear the matter impartially, this would have been the best opportunity for the Respondent to clarify and state unequivocally that he was not levelling allegations of bias and that this was not his intention. The Respondent did not do so. Instead, the 22 Respondent doubled down and countered that CGH “cited no grounds for [its] belief’ that the Appellate Division will be able to hear the Appeal impartially. At this juncture, there can be no doubt that the Respondent was squarely dismissing and casting doubt on CGH’s position that the Appellate Division would remain impartial. c. In addition, it also does not lie in the Respondent’s mouth to assert, in the Defence, that CGH had “unilaterally imputed the assumption that the [Statements] meant that the Appellate Division would not be able to hear the matter impartially’, and that he “did not have an opportunity to clarify by an oral hearing or otherwise, that he was not making any allegation[s]’ of bias. CGH could not have “unilaterally” imputed any assumption as to the meaning of the Statements since these allegations of bias and inability to remain impartial were first raised by the Respondent. CGH was simply responding to the Respondent's submissions based on its interpretation of the same. Even if CGH had mischaracterised or misunderstood the nature of the Respondent’s submissions, it was open to the Respondent to clarify his position in the Estate’s Reply Submissions. The Respondent did not do so. Instead, he persisted in maintaining his allegations of bias. 34. The Law Society contended that the Respondent's subjective state of mind in making the Statements is irrelevant in determining whether there has been a breach of the duty to be respectful to the Court (see The Law Society of Singapore 23 v Carolyn Tan Beng Hui and Au Thye Chuen [2020] SGDT at [47]), but conceded that his state of mind 10 (“Carolyn Tan’) is relevant for the purposes of determining whether there is cause of sufficient gravity (see The Law Society of Singapore v Eugene Singarajah Thuraisingam [2018] SGDT 8 at [46]) (“Eugene Thuraisingam’). As no oral evidence was adduced in this case, the Tribunal can draw its factual conclusions on the basis of the contemporaneous documents provided: see, e.g., The Law Society of Singapore v Manjit Singh s/o Kirpal Singh and another [2014] SGDT 2 at [64]. The Law Society contended that the Tribunal should review the evidence from an objective viewpoint to ascertain the meaning of the Statements, as well as the Respondent's subjective state of mind in making the Statements: see The Law Society of Singapore v Wong Sin Yee [2017] SGDT 12 at [44]. 35. The Law Society’s position is that the Respondent's explanation that he had “no choice but to raise these arguments as he was dutybound to act in his client’s best interests” and that his “failure to raise this argument may have resulted in an action by the [Estate] and/or a complaint to The Law Society for being derelict in his duty” should be rejected: a. |The Respondent's duty to put forward all available arguments in the best interests of his client is subject to his overarching and overriding duty to the Court and the balancing of these duties requires counsel to make submissions Insurance in a responsible Pte Ltd [2022] manner SGHC(A) 24 — see Png Hock Leng v AXA 10 [23]. Far from making at submissions in a responsible manner expected of an officer of the Court, the Respondent launched against the members spurious and of the Appellate baseless Division. allegations of bias It is therefore not a defence to claim that he was “dutybound” to raise these arguments. b. It is also untenable for the Respondent to claim that he had “no choice” but to raise these arguments. As an officer of the Court, it was incumbent on him to first attempt to advise the Estate against making such arguments and thereafter, if the Estate persisted in their view that these arguments should be included, to consider whether it would have been appropriate to discharge himself -— see Loh Der Ming Andrew v Koh Tien Hua [2022] SGHC 84 at [87] to [88]. 36. The Law Society emphasised that allegations of judicial bias are extremely serious in that they have the potential to undermine public confidence in the judiciary and its administration of justice: a. Asanofficer of the Court, it was incumbent on the Respondent to conduct himself in a manner that was consistent with the standing, dignity, and authority of the Court. The Respondent did not provide any evidential basis that any judge sitting in the Appellate Division will be influenced by the fact that the AOD Judgment was issued by the Judge. The suggestion that the Appellate Division may feel “constrained” and that it would be “hearing an appeal against its very own decision” are bare assertions. 25 b. There was also no basis for the Respondent to draw a connection between (a) the timing of the Judge’s appointment as President of the Appellate Division, and (b) the hearing of the Appeal, to suggest that it was a calculated and deliberate move to “constrain” the Estate’s Appeal as the Appellate Division will then be predisposed to affirming a decision of the Judge who is also the President of the Appellate Division. Similarly, there was absolutely nothing to suggest any deliberate contrivance to have the Judge be appointed the President of the Appellate Division so as to influence the Appellate Division and “constrain” the Appeal. 37. The Law Society contends that by levelling allegations of bias against the Judge and members of the Appellate Division and suggesting a lack of actual impartiality or an inability to remain impartial without any proper basis for doing so, the Respondent acted in breach of his duty to be respectful to the Court under rule 13(2) of the PCR., which requires that “(a) legal practitioner must always be respectful of a court or tribunal.” 38. The Law Society referred to the explanation by the Court in Law Society of Singapore v Govindan Balan Nair [2020] 5 SLR 988 at [27] in respect of the impact of a breach of the PCR: “Coming to the two charges, the primary charge premised on s 83(2)(b)(i) of the LPA was engaged once there was a breach of the LPPR; the alternative charge was framed on the more general provision of s 83(2)(h). 26 As | was of the view that the respondent had breached LPPR r 22(3), | found the primary charge made out.” [emphasis added] Vi. The Law Society’s Case on the Alternative Charge 39. As to the alternative charge, the Law Society contended that the standard of “unbefitting conduct” is less strict, and a solicitor only needs to be shown to have been guilty of such conduct as would render him unfit to remain as a member of an honourable profession: Law Society of Singapore v Wong Sin Yee [2018] 5 SLR 1261 at [24]: “As a practical guide, it may be asked whether reasonable people, on hearing what the solicitor had done, would have said without hesitation that as a solicitor he should not have done it (Law Society of Singapore v Ng Chee Sing [2000] 1 SLR(R) 466 at [41], citing Wong Kok Chin v Singapore Society of Accountants [1989] 2 SLR(R) 633 at [17]). It is sufficient if his conduct brings him discredit as a lawyer or brings discredit to the legal profession as a whole.” [emphasis added] 40. The Law Society contended that in applying these principles, there is no doubt that reasonable people, on hearing what the Respondent had done, would have said without hesitation that he should not have levelled unsubstantiated allegations of bias against the members of the Appellate Division, especially when doing so would undermine public confidence in the judiciary. 41. The Respondent’s conduct in hurling baseless allegations against sitting judges of the Appellate Division is, by any measure, wholly inconsistent with 27 his duty as an advocate and solicitor to uphold the standing, dignity, and authority of the Court. Vil. The Respondent’s Case 42. The Respondent contested the Charge and the Alternative Charge principally on the following grounds: a. His actions as particularised in the charges do not reflect that which he had sought to convey. If his actions had been considered in their proper context, they would improper conduct not be disrespectful or practice to the as an advocate Honourable and Court or solicitor within the meaning of section 83(2)(b) of the Legal Profession Act 1966. b. His actions as particularised in the charges do not reflect that which he had sought to convey. If his actions had been considered in their proper context, they would not be considered to be disrespectful to the Honourable Court or misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Legal Profession Act 1966. 28 43. The Respondent presented his perspective of the background to the matter in the Respondent’s Submissions, which we present in summary: a. He was engaged in early 2012 paralegal at Allen Messrs subsequently commenced & by Ms Noor who had Gledhill for years. many worked as a Ms Noor legal proceedings against CGH for medical negligence from 2007 to 2012 for failing to follow-up and/or advise her in respect of an opacity in her lung which was later discovered to be malignant cancer, ultimately leading to her death. Messrs Allen & Gledhill was unable to act for Ms Noor due to a conflict of interests and referred her to the Respondent who was requested to render her legal assistance instead. b. Ms Noor commenced of its doctors CGH proceedings in HC/S 59 against CGH and three on 20 January had conducted 2015. The Respondent contends that itself in a reprehensible manner throughout the proceedings, which conduct included but was not limited to, putting Ms Noor to strict proof on all issues, making desultory offers to settle the matter, causing witnesses to undue make delay dubious to proceedings, readings in a bid engaging expert to advance CGH's position that the negligence had no causal link to Ms Noor's missed diagnosis of cancer, and not divulging the names of its senior doctors who had reviewed Ms Noor’s X-Rays and erroneously concluded that the nodule in her lung did not warrant follow-up. 29 HC/S 59 was presided over by the Judge who found that CGH breached its duty of care but did not cause Ms Noor's cancer. had Ms Noor's claim was therefore dismissed. On appeal, the Court of Appeal overturned the decision of the High Court and remitted the matter to the Judge for the assessment of damages with leave to parties to refine or revise their evidence adduced at trial, only in respect of the findings by the Court of Appeal. Upon the finding of the Court of Appeal that CGH was liable, Ms Noor commenced an application for interim payment in HC/SUM 1204/2019 on 8 March 2019. The matter was originally fixed before an Assistant Registrar (the “AR”) on 25 March 2019. After the AR had heard the arguments made on behalf of Ms Noor, the AR declined to make any order and adjourned the matter to be heard by the Judge at a later date. Ms Noor was aggrieved by the fact that the AR had refrained from making a decision and wrote in to the Supreme Court to complain as to the conduct of the matter. The AR was then directed to resume the hearing of the matter which was then refixed for a special half day hearing before the AR on 1 April 2019. However, before the hearing resumed on 1 April 2019, Ms Noor succumbed to lung cancer. As a result of Ms Noor’s passing, the matter was adjourned for the Estate to be added as a party to proceedings. 30 The Estate was added as a party to the proceedings on 5 July 2019. After the Estate was added to the proceedings, the AR awarded Noor $200,000 by way of an interim payment in HC/SUM The Estate was dissatisfied with the award and Ms 1204/2019. instructed the Respondent to appeal. However, the appeal in HC/RA 301/2019 was dismissed by the Judge on 3 February 2020. Following the Judge’s dismissal of the appeal in HC/RA 301/2019, the Estate instructed the Respondent to appeal to the Court of Appeal by CA/OS 11/2020. Leave was denied by the Court of Appeal on 5 May 2020. At the Assessment of Damages Hearing in HC/S 59, the Judge awarded the Estate $304,000.00 in general damages and $22,620.61 in special damages (less the $200,000.00 in interim damages), with party and party costs fixed at $105,000.00 and disbursements to be taxed if not agreed. Dissatisfied with the award of damages, the Estate instructed the Respondent to appeal against the Judge's award. On 2 January 2021, amendments were made to the Supreme Court of Judicature Act 1969 by the Supreme Court of Judicature (Amendment) Act 2019 (Act 40 of 2019). The amendments included, inter alia, the creation of the Appellate Division. The Estate's appeal would therefore be fixed before the Appellate Division in AD/CA 22/2021. 31 The Respondent conveyed to the Estate the fact that the appeal would no longer lie to the Court of Appeal as before and would instead be heard by the Appellate Division, and that the Judge had been appointed the President of the Appellate Division but would not be hearing the appeal. The Respondent said that the Estate expressed its reservations for several reasons. Firstly, the Estate was concerned that the timing of the Judge’s appointment as the President of the Appellate Division might lead to a perception by the public that there would be a conflict of interests. Secondly, the Estate expressed its concern as to whether the Appellate Division would feel constrained in overturning the Judge’s specific finding that Dr Goh Boon Cher and Dr Lynette Teo, the expert witnesses of CGH, had properly discharged their duties to the satisfaction of the Court of Appeal. The Estate took the position that far from assisting the Court, the opinions of CGH’s expert witnesses only led to confusion and had unnecessarily delayed the proceedings. The Estate therefore took the view that the Appellate Division was not the appropriate forum due to the perception of a possible conflict of interests. The Respondent said that he advised the Estate that the appeal before the Appellate Division would be a fresh hearing, where the Justices of the Appellate Division would consider the evidence afresh and would not simply be bound by the decision of the Court below. However, the Estate was not persuaded and even took the position that it was human 32 nature not Respondent to go said against the that therefore he decisions of one's superiors. The advised the Estate an that application could be made to have the matter transferred to the Court of Appeal under s29D(2)(c)(ii) of the Supreme Court of Judicature Act, read with O 56A, rule 12 of the Rules of Court (2014 Rev Ed). The Estate therefore instructed the Respondent to do so and made it clear that one of its reasons for doing so was because the Appellate Division might be constrained in overturning the decision. The Respondent said that, on the express instructions of the Estate, the Respondent filed the application transferred to the Court of Appeal for leave to have the matter on the grounds that the Court of Appeal was the more appropriate forum and prepared the Affidavit and Written Submissions on the Estate's behalf. The issues raised in the appeal, summarised as succinctly by the Court of Appeal, were as follows: i. That the appeal related to a matter of public importance and/or would raise a point of law of public importance, namely, when section 10(3)(a) of the Civil Law Act would apply; ii. That the appeal related to a matter of public importance and/or would raise a point of law of public importance, namely, when punitive and/or 33 aggravated damages would be awarded for a defendant's unreasonable conduct of proceedings; iii. That the appeal raised novel significance as there were issues and its results would be of no precedents quantifying damages for cancer patients; and iv. There were other relevant matters which would make it more appropriate for the Court of Appeal to hear the appeal. The Respondent said he was constrained by the requirements of the Supreme Court Practice Directions, of 20 which Submissions to a maximum pages. Due application, he had to first set out the procedural limited the Written to the nature of the background, before addressing each individual issue raised in the appeal. The Respondent said that the imposed page limit of 20 pages made it impossible for him to properly expound on the Estate's points. Every point raised had to be kept to its bare minimum. The Respondent excluding said that due to these constraints, the reservations raised by the Estate as this would allowed him to improve and expound relevant issues. However, he contemplated have on the arguments on the other given the Estate's express instructions to present these arguments, the Respondent said that he considered that he would be at risk of breaching 34 his duty as a solicitor for failing to comply with the express instructions of his client. Further, he said that, had the appeal been dismissed without him having raised the reservations of the Estate, the Respondent would have found himself at risk of being sued for negligence. The Respondent said that it is for this reason that the Notwithstanding the Respondent he was said Respondent inclusion of the careful to make included the arguments. Estate's reservations, the it clear that this was the Estate's view and not his own. Upon the publication of the Judgment in CA/OS 9 on 9 June 2021, the Respondent said he realised that the Complainant had misconstrued his arguments, and promptly wrote a letter to the Supreme Court on 11 June 2021, explaining that there had been a misunderstanding in respect of the Written Submissions tendered by the Respondent. In respect of [112] of the Judgment, the Respondent emphasised that this was a mere header which was meant to summarise the argument. The header was in itself lengthy and it was not feasible Respondent to explain that these were the Estate's arguments for the rather than his own. In respect of [113] of the Judgment, the Respondent stated that the timing of the Judge's appointment as the President of the Appellate Division was unfortunate as "as it [was] likely to be misperceived by the public as 35 an attempt to constrain the [Estate's] appeal". The Respondent said the word "likely" was misinterpretation used because of the Judge’s it had been appointment the Estate's own as the President of the Appellate Division. In fact, the Respondent was careful to use the word "misperceived" rather than "perceived", to indicate that this was clearly an inaccurate view. The fact that a layperson, without understanding and/or knowledge of the law, such as the Estate, could make mistake, would such a suggest that the reasonable observer could very well arrive at the same misguided view. Whilst the Respondent accepted that he could have stated more clearly that these were the Estate's views, the fact that the Estate, who was himself a layperson, could make such a mistake, made it not inconceivable that other members of "the public would reach the same misperception’. Thus, by highlighting these issues on behalf of the Estate, the Respondent was essentially submitting that the Court of Appeal should hear the matter to avoid such perceptions, which is in line with the maxim unfounded "justice must not only be done, but seen to be done”. The risk of such misperception had been real especially since the Estate itself had had the same misperception. The Respondent said he could not have explained the Estate's position in more detail due to the 20-page limit imposed by the Supreme Court Practice Directions. Due to this constraint, the Respondent 36 had been compelled to keep the argument to its bare minimum, which ultimately led to the misunderstanding. With regard to the Estate’s Reply Submissions, he said that it was CGH who had imputed the assumption that the Respondent had suggested that "the other judges of the Appellate Division would be unable to hear an appeal arising from a decision of Ang J in a fair and unbiased manner", when this had not been raised by the Respondent. He said that CGH had essentially raised the allegations Respondent had not even of bias suggested and them. impartiality The when the Respondent's sole concern was the public misperception of a potential conflict of interests, which had been raised by the Estate. Given that CGH had made such a general and sweeping statement alleging that the Estate had raised bias and impartiality, citing no grounds for its belief, this was pointed out by the Respondent in the Estate’s Reply Submissions. The Respondent said he was not imputing any bias or impartiality on the part of any judge. He said that the penultimate sentence at [15] of the Estate's Reply Submissions, which read "It is precisely because justice must be done and seen to be done", made referring to how it clear that the Respondent was merely the public could misperceive the Appellate Division hearing the matter. The premise for the Estate's hypothetical scenario of a Review 37 submissions was Committee, no different from a Inquiry Committee, or Disciplinary Tribunal, made up entirely of subordinate lawyers of a respondent's own firm, or a Commissioner for Oaths or Notary Public commissioning or notarising a document prepared by a lawyer from the same firm, which would not have been permitted due to a potential conflict of interests. This was precisely the type of perceived conflict of interests raised unreasonable by the conduct Estate. of the Despite litigation Appellate Division, the Estate maintained being could be advised that CGH's dealt with by the its concern that the Court of Appeal, which had previously reversed the Judge's holding on the liability of CGH, would be the more appropriate forum for the hearing of the appeal. The Respondent said he was cognisant of his duty as an officer of the Court. He said that, whilst the reservations were raised by the Estate, he did not suggest any allegations of bias and/or impartiality against the Judge, or the other judges of the Appellate Division. Instead, the reservations by the Estate were mischaracterised by CGH as allegations of bias and/or impartiality and the Respondent had no opportunity by way of an oral hearing to explain that he was not, in fact, making any. allegation(s) against the Judge and/or the other judges of the Appellate Division. Whilst the Respondent did not share the Estate's concerns, the Respondent contended that he had to give deference to the decision in 38 Chee Siok Chin and another v Attorney-General [2006] 4 SLR(R) 92 ("Chee Siok Chin"), where Justice Woo Bih Li (as his Honour then was) held: "9 Nevertheless, it was true that the press had from time to time mentioned the incident between Mr Ravi and me. While | did not necessarily accept that the public was of the impression that | was or would be prejudiced against Mr Ravi, | had to take into account the concerns of the Applicants. As the maxim goes, justice must not only be done, it must also be seen to be done. In my view, this maxim applies whether the fear of prejudices against the litigant or his counsel. 10 In the interest of justice, | indicated to Mr Ravi that | would accede to the application to recuse myself if the Applicants were maintaining their instructions. After taking further instructions, Mr Ravi informed me they were still maintaining their position and | recused myself.” [emphasis added] As an officer of the Court, the Respondent said he had to heed the dicta by the Court in Chee Siok Chin and place the concerns of the Estate before the Court for the Court's consideration. Had the Respondent unilaterally decided to disregard the concerns of the Estate, this could have resulted in adverse consequences to the Respondent. Although the application in CA/OS 9 had neither been for the recusal of the Appellate Division nor based on grounds of suspicions or likelihood of bias, the considerations by the Court in Chee Siok Chin, namely, the concerns of the Applicants therein, which the Court had to take into account, were still nonetheless relevant and applicable to CA/OS 9 as they pertained to the appropriateness of the forum for the hearing. 39 w. The fact that the Respondent had elected to err on the side of caution ought not to be held against him. Vill. Our Findings 44. It is not disputed that the Statements were made by the Respondent, and that the Statements referred to the Judge and the judges of the Appellate Division (collectively referred to as the “Court’). 45. The Charges against the Respondent turn, first, on whether the Statements he had made were disrespectful to the Court. The Respondent contended principally that he had not been disrespectful to the Court as he had, on the instructions of his client, the Estate, presented the Estate’s perceptions and concerns as to the impartiality of the Court. In our view, the Statements have to be construed objectively, in the context in which they were said, to determine if the Statements or any of them were disrespectful to the Court. 46. The Respondent in oral arguments accepted that we should ascertain objectively the meaning of the Statements, but contended that we must also take into consideration his subjective intention as the person who made the Statements. 1 NOE 22 June 2022 p 54 lines 3-17. 40 47. In our view, the subjective intention of the Respondent, Statements, is not relevant in determining whether disrespectful to Court. We the the agree with when the Law he made Statements Society that, the were if the Statements are objectively disrespectful to the Court, the maker's subjective intention will not excuse him, though in appropriate circumstances, it may be a mitigating factor and may be relevant in determining whether there is cause of sufficient gravity to refer the Respondent to the Court of Three Judges: see Carolyn Tan at [47] and Eugene Thuraisingam at [46]. 48. In our mind, there is no doubt that, objectively construed in the context in which they were made, the Statements were disrespectful to the Court. The Statements alleged that there was bias or alleged bias on the part of the Judge and/or the Appellate Division. a. The statement “IT WOULD BE INAPPROPRIATE FOR THE APPELLATE DIVISION TO HEAR THE MATTER AS THE [JUDGE] IS ALREADY SITTING IN THE APPELLATE DIVISION AS ITS PRESIDENT AND THE MEMBERS OF THE APPELLATE DIVISION MAY BE CONSTRAINED AGAINST OVERTURNING OVERRULING OR HER DECISION(S)’ clearly suggests that the judges of the Appellate Division would not be able to discharge their duties impartially and fairly. It also insinuates that 41 within the judiciary, more junior judges would not dare overturn decisions of their more senior colleagues and Division would not be able to decide that members cases of the Appellate independently with open minds. The statement “The timing of the [Judge’s] appointment as president of the Appellate Division... is unfortunate as it is likely to be misperceived by the public as an attempt to constrain the [Estate’s] appeal” suggests that there is likely to be a perception that the Judge was appointed as President of the Appellate Division weeks before the AOD Judgment so that the Judge could somehow exert some measure of influence or control over the outcome of the appeal against the AOD Judgment. While the statement referred to this as a possible misperception by the public, there was no evidence or basis provided for this assertion of misperception. Moreover, reading the statement as a whole, the misperception was not the main sting intended in this statement. Rather, the point was to query the timing of the appointment of the Judge and to suggest that somehow, her appointment as President of the Appellate Division, coming so soon before the AOD Judgment, was an effort to stymie any challenge to the AOD Judgment. The statement “the [Estate] believe[s] that it is not inconceivable that the 42 Appellate Division will feel constrained... It would seem that the Appellate Division is hearing an appeal against its very own decision” suggests that the judges of the Appellate Division would not be able to discharge their duties impartially and fairly merely because the AOD Judgment had been issued by the President of the Appellate Division (sitting as a judge of the General Division). In fact, it goes further to suggest that the judges of the Appellate Division would treat a judgment issued by the President of the Appellate Division as their own Appellate Division would which naturally implies that the judges uphold a judgment issued of the by their senior colleague. The statement “In light of the President of the Appellate Division of the High Court making such findings, there Appellate Division may feel constrained suggests that judges the of the is a real possibility that the in overturning Appellate independent or impartial and that they would Division these findings” would not be not dare go against the judgment of the President of the Appellate Division. The statement “While [CGH] states that it believes the Appellate Division will be able to hear the matter impartially, it has cited no grounds for such belief’ came mentioned in response at to CGH’s sub-paragraphs 43 (a) submissions to (d) above that the statements suggested that the Appellate Division would not be able to hear the Appeal in a fair and unbiased manner simply because the AOD Judgment had been issued by the and President of the Appellate Division that CGH disagreed strongly with the statements. It is clear from the Respondent's reply that the Respondent stood by the earlier statements and, by not denying the very serious meaning ascribed by CGH to the earlier statements, confirmed that the Respondent indeed meant what had been said in the earlier statements. 49. The Respondent, in the Respondent's Submissions, had explained that he had made the Statements on the instructions of his client, the Estate, to convey the Estate’s perceptions and concerns. We note that no affidavit by the Respondent was received in evidence, and the Respondent was accordingly not cross examined on any of the explanations he gave in the Respondent’s Submissions. 50. It is, however, not disputed that the Estate, on 12 March 2021, in support of its application to transfer the appeal to the Court of Appeal, did affirm an affidavit which, at the sub heading preceding paragraph 37 of the affidavit, and at paragraphs 37 to 41 of the affidavit, made assertions that were the same or substantially similar to the Statements. It is also not disputed that the Respondent, upon publication of the Judgment in CA/OS 9, wrote to the Court 44 of Appeal to try to explain that his submissions, which contained the Statements, had put forward his client's perceptions, instead of his own. 51. The Respondent accordingly contends that by making the Statements, he had not subjectively intended to be disrespectful of the Court: he was only conveying the perceptions and concerns of his client, the Estate, and not his own. 52. The Respondent further contends he should not be faulted for making the Statements in these circumstances as (at paragraph 12 of his Defence) he had “no choice but to raise these arguments as he was dutybound to act in his client’s best interests.” If he had not raised them, it “may have resulted in an action by (his client) and/or a complaint to the Law Society for being derelict in his duty.” 53. We do not accept the Respondent’s contentions. 54. First, as stated in [47] above, in the light of our determination that the Statements, objectively construed in the context they were made, are disrespectful of the Court, the Respondent's subjective intentions are irrelevant. 59. Secondly, we reject the Respondent’s contention that he should not be faulted for making the Statements as he had made them on his client’s instructions. 45 While he had a duty to put forward the available arguments in the best interest of his client, most importantly, he also had an overarching and overriding duty as an officer of the Court, and the discharge of these dual duties required him to make submissions in a responsible manner — see Png Hock Leng v AXA Insurance Pte Ltd [2022] SGHC(A) 10 at [23]. What the Respondent did in this case was not responsible at all. He could not take cover under the cloak of saying the words were his client’s words rather than his own and that he was duty bound to put forth his client's belief, as if he was the client’s unthinking mouthpiece. His duty to the Court was paramount, even if the client gave instructions to the contrary. He was duty bound to advise the client against making the Statements, if, as is the case, there was no objective basis for the allegations of bias or lack of impartiality on the part of the Court. No fair-minded and informed observer would have regarded the allegations in the Statements of lack of impartiality or bias on the part of the Court as having any basis. If the client remained adamant in his position, and refused his advice, the Respondent should have considered carefully, given his paramount duty to the Court, whether it would be best to discharge himself - see Loh Der Ming Andrew v Koh Tien Hua [2022] SGHC 84 at [87] to [88]. 56. The Respondent had relied on Chee Siok Chin for the proposition that the Court of Appeal was required to be apprised of the Estate’s concerns in an application of that nature which was before the Court of Appeal. With respect, we disagree. 46 Chee Siok Chin was a case unique on its facts, and is clearly distinguishable. It was not in dispute that the Judge there had had an acrimonious exchange with counsel in a previous case which had been repeatedly reported in the press over the years. The Judge had further made a complaint of misconduct against counsel arising from that previous case. In the light of those specific circumstances, although the Judge did not accept that the public was under the impression that he would be prejudiced against counsel, he agreed to recuse himself as the litigant was of the view that she would be prejudiced by the previous antecedent between the Judge and counsel. Unlike Chee Siok Chin, in the present case, there is no basis whatsoever for the Estate’s concerns as to the impartiality of the Court. The Respondent’s duty to make submissions in a responsible manner prohibited the Respondent from making allegations of bias or alleged bias which had no basis. 57. We therefore find that the Law Society has proved beyond reasonable doubt that the Respondent had, by the Statements, made statements that were disrespectful to the Court, alleging actual bias or apparent bias on the part of the Judge and the judges of the Appellate Division. 38. By levelling allegations of bias against the Judge and members of the Appellate Division and suggesting a lack of actual impartiality or an inability to remain impartial without any proper basis for doing so, the Respondent acted in breach 47 of his duty to be respectful to the Court under rule 13(2) of the PCR. 39. We find that such a breach of the PCR amounts to “improper conduct or practice as an advocate and solicitor’ under the second limb of section 83(2)(b) of the LPA. 60. We therefore find the Charge against the Respondent has been proved beyond reasonable doubt. 61. Given our finding on the Charge, Alternative Charge. However, it is strictly not necessary to consider the for completeness, we will also deal with the Alternative Charge. 62. The standard of “unbefitting conduct” is less strict, and a solicitor only needs to be shown to have been guilty of such conduct as would render him unfit to remain as a member of an honourable profession — Law Society of Singapore v Wong Sin Yee [2018] 5 SLR 1261 at [24]. 63. In our opinion, Respondent a reasonable should not have person levelled would say without unsubstantiated hesitation that the allegations of bias against the members of the Appellate Division, especially when doing so would undermine public confidence in the judiciary. 64. The Respondent's conduct in making such allegations against sitting judges of the Appellate Division is, by any measure, wholly inconsistent with his duty as 48 an advocate and solicitor to uphold the standing, dignity, and authority of the Court. 65. We therefore find that the Respondent is also guilty of misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the LPA. IX. Conclusion 66. The final question to be addressed is whether there is “cause of sufficient gravity for disciplinary action” pursuant to section 93(1)(c) of the LPA. 67. In Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390, the Court of Three Judges at [28] gave the guidance that only the most serious cases of misconduct are to be referred to the Court of Three Judges, holding at [35] that the determination that conduct falls within section 83(2) of the LPA is a necessary but insufficient condition for “due cause” to be found under section 83 of the LPA for a lawyer to be referred to the Court of Three Judges. 68. While it is misconduct to question, without basis, the impartiality of the Court, a sampling of previous cases illustrates that not all such cases of misconduct are necessarily sufficiently serious to be referred to the Court of Three Judges. 49 64. Law Society of Singapore v Rajah Thampoe T [1971-1973] SLR(R) 624 (“Re Rajah’), is a clear case of sufficiently serious misconduct for referral to the Court of Three Judges. The lawyer had made many improper and offensive statements to the Court, and to opposing counsel, in two proceedings in the Magistrates’ Courts. His statements to the Court included - see [5] of Re Rajah — “This is a police court and therefore there is no proper trial’, “This court showed interest prejudice in these cases’, “My instructions are that there is no fair trial. They say that they fear, rightly, that they cannot get justice. This court is prejudiced. This court is an organ of power.” In his evidence before the Tribunal (and also when he addressed the Court of Three Judges — see [18] of Re Rajah), the lawyer had said he was justified in making his statements. The Tribunal had accordingly found — see [10] of Re Rajah — that the lawyer had endorsed his client’s belief that they could not get justice from the Court. 69. The Law Society of Singapore v Gopalan Nair (aka Pallichadath Gopalan Nair) [2010] SGDT 11 (“Gopalan Nair’) is another clear example of misconduct which merited referral to the Court of Three Judges. The lawyer was found guilty of two charges which related to insulting High Court Judges in his blog. In respect of one charge, the lawyer had in his blog identified a High Court Judge as prostituting herself in the proceedings by being nothing more than an employee of Mr Lee Kuan Yew and his son in carrying out their orders. The other charge related to the lawyer 50 posting on his blog, several months later, a similarly worded offensive statement in respect of another High Court Judge. The lawyer absented himself from the disciplinary hearing. 70. In contrast, in other cases, although the lawyers had questioned the impartiality of the Court, without basis, their misconduct had not been found to be sufficiently serious to be referred to the Court of Three Judges. 71. In The Law Society of Singapore v Chia Ti Lik alias Xie Zhili [2011] SGDT 4, there were several charges against a lawyer for making statements insinuating that the Court had not been fair in handling his case due to political reasons, and that the Court and the Attorney-General’s combination to disadvantage a Chambers had intentionally acted in litigant. The Tribunal found at [58], [79] and [116] that the lawyer had made statements “calculated to cast doubt on the integrity of the judiciary and the judicial processes” charges. and found him guilty of the relevant However, the Tribunal did not find that there was cause of sufficient gravity, noting at [121] that the misconduct there “[did] not rise to the level of that in [Gopalan Nair}’. 72. In The Law Society of Singapore v Ravi s/o Madasamy [2020] SGDT 8, one of the charges of which the lawyer was found guilty was publishing a statement online attacking the impartiality and a1 integrity of State Prosecutors. Another charge of which he was found guilty was publishing a statement online alleging that a judge of the State Courts was biased against defence psychiatrists. The Tribunal regarded the lawyer’s subjective intention in making the statement as a relevant factor in deciding if there was cause of sufficient gravity. Although it accepted that his statements were directed to the executive and not the judiciary, it found that he intended to cast aspersions of bias against the State Prosecutors and the judge of the State Courts. The Tribunal distinguished Gopalan Nair as a case of “egregious and unrepentant conduct’, although it accepted that conduct less egregious than in Gopalan Nair could be regarded as showing cause of sufficient gravity. The Tribunal, however, determined that there was no cause of sufficient gravity in the case before it. 73. In Carolyn Tan, the Tribunal found the lawyer’s misconduct in filing an affidavit accusing a Judicial Commissioner of “a closed mind”, and having “expressed outspoken, extreme and unbalanced views’, and “only support of his conclusion as opposed to being fair minded seeking points in as to the correct decision” — see Carolyn Tan at [35] — had been made in “some haste ... (as) (i)t was filed in support of an application made in great haste” — see Carolyn Tan at [43] and [46]. The Tribunal determined there was no cause of sufficient gravity. 74, As we mentioned earlier at [47], although the Respondent's subjective intention 52 when he made breached the Statements his duty of being unbefitting manner, is irrelevant in determining whether he had respectful to the Court his subjective intention may or had behaved in an be relevant in determining whether there is cause of sufficient gravity. 75. The Respondent comply with had made his client’s the Statements instructions because to raise he thought he had to his client's perceptions that if he had known and concerns. 76. The Respondent in oral argument accepted that his making of the Statements, even on his client’s instructions, was inappropriate and improper, he would not have made them. He accepted that if we came to the conclusion, after hearing his explanation, that he had behaved improperly, he would not repeat such conduct.? 77. We have made clear in this decision our view that the Respondent was wrong in making the Statements on the instructions of his client. 78. We note that the Statements were made in proceedings and were not published to the public. ? NOE 22 June 2022 p 63 lines 22-32, p 64 lines 1-130, p 71 lines 7-14. 53 documents filed in court 28th April | 2024-11-11T04:00:28+00:00 | https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-nov-2024/ | In the Matter of Rai Vijay Kumar (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-nov-2024/ | b77dcb27a593754fb816a662040282aca51060e2 |
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