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44 43 1 1661 In the Matter of Mohammed Lutfi bin Hussin (Respondent), Advocate & Solicitor In the Matter of Mohammed Lutfi bin Hussin (Respondent), Advocate & Solicitor The present disciplinary proceedings against the Respondent arose from information referred by the Attorney-General on the Respondent’s conduct in relation to the false attestation of having witnessed the signing of mortgage documents by a client when he had not personally done so. The Respondent had never met the client, and left his secretary to witness the signing of the mortgage documents. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Kuah Boon Theng SC and Sanjiv Rajan as DT member. The following charges were preferred at the onset of the proceedings: First Charge and First Alternative Charge Falsely representing that he had witnessed the signature of his client as it appeared on the mortgage instrument by signing as witness to his signature, and thereafter signing the Certificate of Correctness certifying the correctness of the matters set out in the mortgage instrument, when he had in fact not personally witnessed his client sign the mortgage instrument Thereby being guilty of improper conduct in the discharge of his professional duty within the meaning of section 83(2)(b) of the Legal Profession Act (the Act) Thereby being guilty of misconduct unbefitting an advocate or solicitor (sic) of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Act Second Charge and Second Alternative Charge Recklessly or negligently certifying that the client had accepted proprietorship and was of full age and legal capacity by signing the Certificate of Correctness certifying the correctness of the matters set out in the transfer instrument in his capacity as his client’s solicitor, when he had in fact never personally confirmed that the client had accepted proprietorship and was of full age and legal capacity, had left the preparation of the transfer instrument to his staff, and did not check the contents of the transfer instrument before signing the Certificate of Correctness. Thereby being guilty of improper conduct in the discharge of his professional duty within the meaning of section 83(2)(b) of the Act Thereby being guilty of misconduct unbefitting an advocate or solicitor (sic) of the Supreme Court or as a member of an honourable profession within the meaning of section 83(2)(h) of the Act Findings and Determination of the DT The DT found that on the facts, the First Charge and Second Alternative Charge were made out beyond a reasonable doubt. The DT was of the view that the Second Charge was not made out as the Respondent’s conduct, while improper, was not grossly improper. The DT noted that if the Alternative Second Charge was being considered on its own, it may have been persuaded that cause of sufficient gravity may not be established, and the matter could be referred back to the Society to consider the appropriate sanction. However, as the DT found that cause of sufficient gravity existed on the 1st Charge, and both charges related to a single conveyancing transaction for which the Respondent was the solicitor in charge, the DT was of the view that the conviction on both the First Charge and the Alternative Second Charge should be considered holistically in terms of what sanction would be appropriate to impose. Therefore, the DT found that in relation to both the First Charge and Second Alternative Charge, cause of sufficient gravity for disciplinary action existed under section 83 of the Act. The Court of Three Judges ordered the Respondent to be suspended for a period of three years, and for the Respondent to bear the costs of the Society, to be taxed if not agreed. To access the full report click here. https://lawgazette.com.sg/wp-content/uploads/2024/11/Nov_24_Muhammed_Lutfi_full_DT_report.pdf 16th Introduction On 14 July 2020, the Attorney-General (the “Complainant”) wrote to the Law Society of Singapore to lay a complaint against the Respondent Mr Mohammed Lutfi bin Hussin (the “Respondent”), pursuant to s 85(3)(b) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) (the “Complaint”)!. The Respondent is an Advocate and Solicitor of 26 years’ standing, having been admitted to the Bar in 1995, At the material time, he was the sole director of the law firm Lutfi Law Corporation. Lutfi Law Corporation ceased operations on or around 1 May 2017 and the Respondent is currently working at A. Rohim Noor Lila LLP. The Complaint alleges that the Respondent falsely attested to witnessing the signing of conveyancing documents by a client he had never met nor personally attended to, having left his conveyancing secretary to attend to the client. For this, the Respondent had already been convicted in the State Courts of Singapore on 10 June 2020 on two charges under s 59(6) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“LTA”), namely, DCN-900055-2019 and DCN-900018-2020 (“the State Court Charges”). The Respondent pleaded guilty to both the State Court Charges and was sentenced to a global fine of $5,600. In pleading guilty, the Respondent accepted the Statement of Facts dated 25 May ' CBOD Tab | 2 CBOD Tab 10 & Tab 11 2020 prepared by Deputy Public Prosecutors Benedict Chan and Joseph Gwee (“Prosecution’s Statement of Facts”)°. Il. Background facts Sometime in 2014, a property agent by the name of Kok Chiew Leong introduced Mohammad Naseeruddin bin Allamdin (“Naseeruddin”) secretary with Lutfi Law Corporation by the name Hussain, Angela also known as Veronica to a conveyancing of Fauziah binte Mohd (“Angela”). Naseeruddin was introduced as a prospective buyer of 35 Saraca Terrace, Singapore 805486 (the “Property”). He subsequently engaged the Respondent to act for him in the conveyancing transaction for the Property’. The conveyancing documents for the purchase of the Property included the following: a. The Mortgage Instrument, in a form prescribed under s 51 of the LTA. On the Mortgage Instrument, Naseeruddin was named as the mortgagor, and Malayan Banking Berhad (“Maybank”) was the mortgagee. 3 CBOD Tab 12 4 Statement of Agreed Facts at para 4 b. The Transfer Instrument, in a form prescribed under s 51 of the LTA. One Yeo Ming Joo and one Lim You En were named as the transferors, and Naseeruddin was named the transferee’. The Mortgage Naseeruddin Instrument and on 22 April 2014 the Transfer and were Instrument were executed by supposed to be signed before the Respondent. However, throughout the entire conveyancing transaction for the Property, the Respondent had never met Naseeruddin. Only Angela met with Naseeruddin in relation to the purchase of the Property® and for the execution of the Mortgage Instrument and the Transfer Instrument. Both the Mortgage Instrument and the Transfer Instrument were eventually registered on 7 May 2014. To facilitate the purchase of the Property, Maybank had disbursed a loan of §$2,320,000 to Naseeruddin. Naseeruddin subsequently defaulted on the monthly mortgage payments. It was then discovered that Naseeruddin had perpetrated a fraud on Maybank by submitting forged income documents when he applied to secure the loan of $$2,320,000. This became the subject of an investigation conducted by the Commercial Affairs Department (““CAD”)’, Sometime in March 2015, the CAD was alerted to 6 police reports lodged by representatives of various banks between November > Statement of Agreed Facts at para 5 ® Statement of Agreed Facts at para 6 ? Statement of Agreed Facts at para 7 & 8 2014 and February 2015, including Maybank’, The CAD investigation in turn uncovered the circumstances leading to the Respondent’s signing of the Mortgage Instrument and the Transfer Instrument for the Property, in particular, the fact that the Respondent had not been present when Naseeruddin signed the Mortgage Instrument and the Transfer Instrument on 22 April 2014. Both documents had been prepared by Angela, who also made the arrangements for Naseeruddin to sign the documents. In signing as a witness to Naseeruddin’s signature on the Mortgage Instrument, the Respondent had represented on the Mortgage Instrument that he personally witnessed Naseeruddin’s signature’, when he had not done so. The Respondent also signed the Certificate of Correctness on the Mortgage Instrument, certifying that it was correct for the purposes of the LTA. As for the Transfer Instrument, Angela had placed it on the Respondent’s desk for his signature!°, In signing the Certificate of Correctness to the Transfer Instrument in his capacity as Naseeruddin’s solicitor, the Respondent had represented that to the best of his ability and in so far as he had any reasonable means of ascertaining, Naseeruddin had accepted proprietorship and was of full age and legal capacity. On 2 December 2019, the CAD charged the Respondent with one charge under s 59(6) of the LTA for falsely certifying to the correctness of the Mortgage Instrument by falsely stating that he had witnessed Naseeruddin’s signature on the Mortgage additional Instrument. charge under On 23 March 2020, the Respondent s 59(6) of the LTA for falsely § CBOD p 67 para2 & 16 ° Statement of Agreed Facts at para 10 !© Statement of Agreed Facts at para 12 received certifying an to the correctness of the Transfer Instrument by implying that Naseeruddin had accepted proprietorship and was of full age and legal capacity. The Respondent pleaded guilty to both the State Court Charges’! in the State Courts of Singapore on 5 June 2020. He was convicted on the two charges on 10 June 2020 and sentenced to a fine of S$2,800 for each charge, for a global fine of $5,600”. Il. The Charges 10. Following the Complaint that the Respondent’s confidence in the legal profession, the Law actions compromised public Society preferred the following charges against the Respondent: 18" CHARGE That you, Mohammed Lutfi bin Hussin, are guilty of grossly improper conduct in the discharge of your professional duty as amounts to improper conduct within the meaning of Section 83(2)(b) of the Legal Professional Act (Cap 161) represented that in that you, on or around you had witnessed the 22 April 2014, signature of had falsely Mohammad Naseeruddin bin Allamdin (“Naseeruddin”) as it appeared on the mortgage instrument (no.: ID/954935K) (“Mortgage Instrument”) by signing as witness to his signature and thereafter signing the Certificate of Correctness certifying the correctness of the matters set out in the Mortgage Instrument, when you had in fact not personally Mortgage Instrument. '' CBOD p 8 para 20 '2 CBOD p 8 para 2! witnessed Naseeruddin sign the ALTERNATIVE 1°' CHARGE That you, Mohammed Lutfi bin Hussin, are guilty of misconduct unbefitting an advocate or solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(h) of the Legal Professional Act (Cap 161) in that you, on or around 22 April 2014, had falsely represented that you had witnessed the signature of Mohammad Naseeruddin bin Allamdin (“Naseeruddin”) as it appeared on the mortgage instrument (no.: ID/954935K) (“Mortgage Instrument”) by signing as witness to his signature and thereafter signing the Certificate of Correctness certifying the correctness of the matters set out in the Mortgage Instrument, when you had in fact not personally witnessed Naseeruddin sign the Mortgage Instrument. [Note: A minor error appears in the Alternative 1‘ Charge, in that “advocate or solicitor of the Supreme Court” should in fact be “advocate and solicitor of the Supreme Court” 2" CHARGE That you, Mohammed Lutfi bin Hussin, are guilty of grossly improper conduct in the discharge of your professional duty as amounts to improper conduct within the meaning of Section 83(2)(b) of the Legal Professional Act (Cap 161) in that you, on or around 22 April 2014, had recklessly or negligently certified that Mohammad Naseeruddin bin Allamdin (“Naseeruddin”) had accepted proprietorship and was of full age and legal capacity by signing the Certificate of Correctness certifying the correctness of the matters set out in the transfer instrument (no.: ID/943410Q) (“Transfer Instrument”) in your capacity as Naseeruddin’s solicitor, when you had in fact never personally confirmed that Naseeruddin had accepted proprietorship and was of full age and legal capacity, had left the preparation of the Transfer Instrument to your staff, and did not check the contents of the Transfer Instrument before signing the Certificate of Correctness. ALTERNATIVE 2™ CHARGE That you, Mohammed Lutfi bin Hussin, are guilty of misconduct unbefitting an advocate or solicitor of the Supreme Court or as a member of an honourable profession within the meaning of Section 83(2)(b) of the Legal Professional Act (Cap 161) in that you, on or around 22 April 2014, had recklessly or negligently certified that Mohammad Naseeruddin bin Allamdin (“Naseeruddin”) had accepted proprietorship and was of full age and legal capacity by signing the Certificate of Correctness certifying the correctness of the matters set out in the transfer instrument (no:.: ID/943410Q) (“Transfer Instrument”) in your capacity as Naseeruddin’s solicitor, when you had in fact never personally confirmed that Naseeruddin had accepted proprietorship and was of full age and legal capacity, had left the preparation of the Transfer Instrument to your staff, and did not check the contents of the Transfer Instrument before signing the Certificate of Correctness. [Note: A minor error appears in the Alternative 2"! Charge, in that “advocate or solicitor of the Supreme Court” should in fact be “advocate and solicitor of the Supreme Court” IV. Proceedings of the Disciplinary Tribunal (“DT”) 11. In these proceedings, the Law Society is represented by Mr Mahesh Rai and Mr Jonathan Yong from Drew & Napier LLC. The Respondent is represented by Mr George Pereira and Mr Timothy Chan from Pereira & Tan LLC. The 1° Charge and Alternative 1°' Charge 12. The hearing before the DT commenced on 14 June 2021 and continued on 16 June 2021 for oral submissions. Prior to the hearing, the DT had been informed that the Respondent intended to plead guilty to the Alternative 1 Charge. Before the DT, counsel for the Law Society maintained that the 1‘t Charge was made out. The facts relating to both the 1‘ Charge and the Alternative 1 Charge are the same, and as part of the Statement of Agreed Facts, the Respondent had acknowledged that he did falsely represent that he witnessed Naseeruddin’s signature and proceeded to certify the correctness of the Mortgage Instrument when in fact he had never met Naseeruddin. The Respondent’s contention is that his conduct does not amount to grossly improper conduct in the discharge of his professional duty within the meaning of s 83(2)(b) of the LPA. He also argued that since the Complainant had specifically referred to s 83(2)(h) and not s 83(2)(b) of the LPA, the Law Society had gone beyond the scope of the Complaint when it framed the 1*' Charge under s 83(2)(b). 13. Accordingly, the issues relating to the 1 Charge are essentially matters of legal submission, and are as follows: a. Whether the 1% Charge falls outside the scope of the Complaint against the Respondent by the Complainant; b. | Whether the Respondent’s conduct amounted to that of grossly improper conduct in the discharge of his professional duty under s 83(2)(b) of the LPA; and c. Ifthe Respondent’s conduct does amount to grossly improper conduct under s 83(2)(b) of the LPA, whether in exercising its power under s 93 of the LPA, the DT considers that there is cause of sufficient gravity for disciplinary action under s 83 of the LPA. The 2"4 Charge and Alternative 2" Charge 14, With respect to the 2"? Charge and the Alternative 2"! Charge, the Respondent denies the charges, contending that it is unclear what the Complainant is raising with regards to the Transfer Instrument!?. The Law Society framed the 2"¢ Charge and Alternative 2"! Charge on the basis of recklessness or negligence on the part of the Respondent when he certified that Naseeruddin accepted proprietorship and was of full age and legal capacity without personally verifying or checking with Naseeruddin. Counsel for the Law Society has confirmed that the Law Society is not asserting that there was any dishonesty on the Respondent’s part in relation to the 2"4 Charge and the Alternative 2" Charge. ‘3 Respondent’s Skeletal Submissions at para 26 10 15. In the Statement of Agreed Facts, the Respondent admitted that before signing the Certificate of Correctness in the Transfer Instrument, he did not meet with Naseeruddin personally and did not personally check with Naseeruddin whether he was of full age and had legal capacity!*, However, the Respondent denies that in this instance, his reliance on his conveyancing secretary Angela to conduct the necessary checks on his behalf constituted recklessness and negligence on his part!>. His assertion is that Angela was an experienced conveyancing secretary, there were no red flags, and there was never any real doubt that Naseeruddin accepted proprietorship and was of full age and legal capacity. Hence, the Respondent contends that there was no actual need for him to meet with or speak to Naseeruddin before he signed the Certificate of Correctness in the Transfer Instrument. Respondent’s Evidence 16, The Respondent took the stand in his own defence. As the facts relating to the 1* Charge and the Alternative 1 Charge were not disputed, the Respondent’s testimony was focused on the 2! Charge and the Alternative 2"! Charge, i.e., the circumstances leading to him signing the Transfer Instrument. 17. The Respondent’s evidence can be summarised as follows: '4 Statement of Agreed Facts at para 14 (amended by the parties on 14 June 2021) '5 Respondent’s Skeletal Submissions at para 29 11 He acknowledged that he pleaded guilty to the second of the State Court Charges, and in so doing, had admitted that he “did falsely certify to the correctness of a dealing, fo wit, a Transfer in respect of the property at 35 Saraca Terrace, Singapore 805486, in implying that the person acquiring title, one Mohammad Naseeruddin bin Allamdin, accepts proprietorship and is of full age and legal capacity” and had thereby committed an offence under s 59(6) of the LTA. In pleading guilty to the second of the State Court Charges, the Respondent had agreed to the Prosecution’s Statement of Facts. This included the statements found in para 13 of the Prosecution’s Statement of Facts which stated that the Respondent did not meet Naseeruddin at any point!®, did not contact Naseeruddin to enquire whether he accepted the transfer of the property’’, and would sign the conveyancing documents that were left on his desk without examining its contents!* as he assumed that the said documents would have been prepared correctly. Paragraph 13 of the Prosecution’s Statement of Facts also included the statement that “It was only when [the Respondent] was questioned by CAD officers did he become aware that his law firm acted on behalf of Naseeruddin in relation to the Property”. '© NE 14 June 2021 at p 82 line 12-14 '7NE 14 June 2021 atp 82 line 15-17 '8 NE 14 June 2021 atp 82 line 18-30 12 In para 36 of his Affidavit of Evidence-in-Chief, the Respondent explained that he pleaded guilty and agreed to the Prosecution’s Statement of Facts because he had “had enough and decided to plead guilty to get the matter over with as quickly as possible even though there were matters stated in the [Prosecution’s Statement of Facts] ... that were clearly incorrect.” The Respondent nevertheless acknowledged that at no point in his mitigation plea did he seek to object to or request any correction to para 13 of the Prosecution’s Statement of Facts!?, During re-examination, the Respondent was asked to explain why he went ahead to plead guilty without objecting to the Prosecution’s Statement of Facts, and he said that “sometimes client PG out of expediency ... and I suppose that’s what happened here.””° The Respondent took the view that there was no need for him to meet with Naseeruddin to see whether he was of full age and legal capacity, because there was a copy of Naseeruddin’s NRIC in the file to show that he was more than 21 years of age.”! However, when he was asked if he could recall looking at the file before he signed the Certificate of Correctness for the Transfer Instrument, he said that he could not remember.** As for legal capacity, he explained that it was not only his pair of eyes looking at the transaction, and the “bank has .. got their own lawyers” and they “will go through the same checklist, because for [Naseeruddin] to take a... loan, ... he would need to be of age and of legal capacity as well. So there was no NE 20 NE 21 NE 22 NE 14 June 2021 at p 84 line 19 to p 85 line 1 14 June 2021 atp 101 line 1-3 14 June 2021 at p 87 line 1-5 14 June 2021 atp 105 line 14-19 13 objection from the bank.”*? He also stated that it would have been ludicrous for him to ask the client to produce a medical certificate to demonstrate that he was mentally sound,” and he also did not agree that there was a need for him to meet up personally with Naseeruddin to ascertain for himsel£?>. As for whether Naseeruddin accepted proprietorship, the Respondent pointed to the fact that when he signed the Transfer Instrument, it was already “very far into the transaction” and Naseeruddin would have already paid the option monies, signed the loan documents with Maybank and paid the stamp duty, and therefore he assumed that Naseeruddin must have accepted proprietorship”®. In fact, the Respondent had no doubt that Naseeruddin wanted to take proprietorship of the Property, otherwise he would not have turned up at the office to sign the documents to complete the matter?’. When asked if he accepted that it would have been a reasonable step to check with Naseeruddin by calling him on the phone, the Respondent disagreed, explaining that in the circumstances of this case, Naseeruddin’s documents were in the file to let him know that he was of age, capacity and he accepted proprietorship of the Property”®. 23 NE 24NE 25 NE 26 NE 27 NE 28 NE 14 June 2021 at p 87 line 5-10 14 June 2021 at p 97 line 1-4 14 June 2021 at p 97 line 12-15 14 June 2021 at p 85 line 11-23 14 June 2021 at p 85 line 26-29 14 June 2021 at p 87 line 22-26 14 When it was suggested to him that rather than rely on the documents placed on his desk, it would have been prudent for the Respondent to actually make enquiries with Naseeruddin personally, the Respondent explained that at the time, he was the only lawyer in the firm and he would also have to be in Court for his other matters, so if “the file shows the documents and the steps gone so far”, it would be reasonable for him to conclude that Naseeruddin “was of age, capacity and took proprietorship of ... he wanted to buy the property”””. In the Respondent’s Affidavit of Evidence-in-Chief, he had stated at para 45 that “When documents are placed by Angela on my table for ... signature, the files are also there. I go through the files and ask her any questions that I have.” The Respondent agreed that this was intended to describe his general practice*°, As for this particular conveyancing transaction, it was pointed out to the Respondent that there was no way of knowing what files were actually placed before him on his desk because no such evidence had been adduced.*! Eventually, during re-examination, the Respondent was able to produce the conveyancing file relating to the Property, through his counsel**, He then pointed to inter alia a photocopy of Naseeruddin’s NRIC (albeit not a clear copy) that was in the file’?. 29 NE 14 June 2021 at p 87 line 27 to p 88 line 5. See also NE 14 June 2021 at p 96 line 27-28 3°NE 14 June 2021 at p 88 line 32 to p 89 line 7 3'NE 14 June 2021 at p 90 line 28 to p 91 line 13 32, NE 14 June 2021 at p 101 line 4-6 33 NE 14 June 2021 atp 101 line 7 15 is The Respondent acknowledged that he had left it to Angela to fill up the Transfer Instrument and he did not check the document himself. When it was suggested to him that a solicitor would be in dereliction of duty if he has a duty to check his staff's work and does not do so, the Respondent disagreed because the staff did not do anything wrong and there were no problems that were surfaced to his attention*4, [The above is not intended to be a comprehensive statement of the Respondent’s evidence or testimony before the DT]. Submissions made by the parties in relation to the 1‘' Charge 18. In relation to the 1' Charge, Mr Rai highlighted the Respondent’s admission that he falsely represented that he had witnessed Naseerudin’s signature on the Mortgage Instrument by signing as a witness and thereafter also signing the Certificate of Correctness in the Mortgage Instrument. Accordingly, Mr Rai submits that the 1* Charge is made out and the Respondent’s conduct can be said to amount to grossly improper conduct within the meaning of s 83(2)(b) of the LPA. On the facts of the case, it was submitted that the Respondent had acted dishonestly and there is cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA. 34 NE 14 June 2021 at p 98 line 15-32 16 19. In Anwar Patrick Adrian v Ng Chong & Hue LLC*°, the Court of Appeal held that “an accurate certificate of correctness for registration is of paramount importance because the Registrar of Titles and the public place enormous faith on it — especially when it emanates from an advocate and solicitor’**. 20. The Court of Three Judges went on to state in Law Society of Singapore v Chia Choon Yang*’ that a solicitor’s act of false attestation would necessarily involve dishonesty, as he would be asserting a fact relating to a state of affairs which he knows to be untrue**, Chia Choon Yang was a case in which the respondent solicitor acting as a notary public attested that he had witnessed a party sign on a power of attorney when in fact the party had already placed his signature on the power of attorney when it was brought before him for notarisation, and the attestation was therefore false. The Court of Three Judges noted that a solicitor’s misconduct involving dishonesty is treated with utmost severity, even where the dishonesty might be described as being “technical” in nature*’. Relying on Chia Choon Yang, the Law Society submits that the Respondent’s conduct in falsely attesting to Naseeruddin’s signature must similarly be said to amount to gross misconduct under s 83(2)(b) of the LPA. In Chia Choon Yang, the Court of Three Judges found the respondent lawyer guilty of grossly improper conduct and was satisfied that the charge under s 83(2)(b) of the LPA had been made out. 35 [2014] 3 SLR 761, CBOA Tab 9 36 At [57] 37 [2018] 5 SLR 1068 (“Chia Choon Yang”), CBOA Tab 13 38 At [15] 3° At [18] 17 21. Mr Rai also referred the DT to Law Society of Singapore v Sum Chong Mun”, a case involving a respondent lawyer who falsely attested to a signature on a Lasting Power of Attorney. Again, the Court of Three Judges was satisfied that the respondent lawyer was guilty of grossly improper conduct and that the charge under s 83(2)(b) of the LPA had been made out*!. 22. Mr Rai also made the point that under Para 50 of the Practice Directions and Rulings 2013 which were in force at the material time in 2014, the Law Society had advised its members that false attestation of documents may amount to grossly improper conduct in the discharge of a solicitor’s duty, and that this direction remains in force today on the same terms”, 23, In seeking to persuade the DT that there is cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA, the Law Society is not submitting that the DT is bound to arrive at such a finding if it finds that the Respondent acted dishonestly. Rather, Mr Rai submits that based on the precedents, solicitors’ misconduct that involves dishonesty is always treated with utmost gravity, and on the facts of this case, there are sufficient grounds for the DT to conclude that the Respondent’s dishonest conduct is cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA. 40 [2017] 4 SLR 707 (“Sum Chong Mun’), CBOA Tab 16 4! At [5] and [50] “2 NE 14 June 2021 at p 17 line to p 20 line 4 18 24. We now turn to the Respondent’s submissions on the 1** Charge. Mr Pereira began by submitting that the 1%* Charge goes beyond the scope of the original complaint made by the Complainant. When the Complainant submitted the complaint letter dated 14 July 2020, the Complainant concluded the letter by stating that it appeared that the Respondent has been guilty of misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession under s 83(2)(h) of the LPA. No reference was made to s 83(2)(b) of the LPA. 25, We note that in response, Mr Rai submitted that there is no merit to the Respondent’s claim, and the way in which the 1 Charge was framed captures the gravamen or Complainant’s substance of the Complaint against reference to s 83(2)(h) of the LPA the Respondent. The cannot be interpreted as a directive or instruction to the Law Society, one that the Law Society is obliged to follow without being able to exercise any discretion of its own. 26. As noted earlier, the Respondent pleaded guilty to the Alternative 1‘ Charge. This means that the Respondent not only acknowledges that there was wrongdoing on his part, he also accepts that the wrongdoing amounted to misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession (i.e. s 83(2)(h) of the LPA). 19 27, Citing Law Society of Singapore v Constance Margreat Paglar” and Law Society of Singapore v Jasmine Gowrimani d/o Daniel’, Mr Pereira has argued that only the most serious cases should be heard by the Court of Three Judges, and the Respondent’s conduct was not so serious as to warrant such a referral, As Mr Pereira submits, this is because if one looks at the particulars on the Mortgage Instrument, “[p]ractically everything on it is correct 46 and the only thing that was inaccurate was Naseeruddin’s the fact that the Respondent signature when Naseeruddin had signed as did not actually a witness sign before to the Respondent*’, Mr Pereira pointed out that the conveyancing transaction itself was genuine. Although Naseeruddin did perpetrate a fraud on Maybank, this was not something the Respondent knew about or had any part in. Even if the Respondent had personally witnessed Naseeruddin’s signature, it would not have prevented the fraud on Maybank. Hence, Mr Pereira submitted that the Respondent “did not cause any harm to anyone”, and that Naseeruddin was the only party that the Respondent acted for in the transaction and he did not act in a way that was adverse to the interests of his client*®, 28. On the 1° Charge, Mr Pereira submitted that the Respondent’s signing of the Certificate of Correctness on the Mortgage Instrument “is in order”, and under s 59 of the LTA, the signing of the Certificate of Correctness “implies representations that to the best of the signatory’s knowledge and belief and in so far as he has 43 [2021] SGHC 27 CSBOA Tab 4 4412010] 3 SLR 390 Respondent’s 2"4 Supplementary Bundle of Authorities 45 Respondent’s 46 Respondent’s 47 Respondent’s 48 Respondent’s Skeletal Submissions Skeletal Submissions Skeletal Submissions Skeletal Submissions at para 11 & 12 at para 18 at para 19 at para 20 20 reasonable means of ascertaining, the Mortgage was made in good faith and that the matters contained in it are substantially correct”. In the present case, Mr Pereira submits that the matters stated on the Mortgage were “definitely substantially correct” 4”, 29. Mr Pereira also sought to distinguish Chia Choon Yang and Sum Chong Mun, submitting that the facts in those cases were “far removed” from the present case, because in those two cases, someone else had purportedly signed as the signatory and ended up being given wide ranging powers, and as a result the respondent solicitors had caused actual harm or potential harm*®, Mr Pereira also referred the DT to Kanthosamy Rajendran’s case, a case involving the “same offences as the Respondent but Kanthosamy’s case was worse because the purchaser for whom Kanthosamy was acting for claimed that he never bought the property”. The Inquiry Committee in Kanthosamy Rajendran’s case had decided to recommend a penalty rather than refer the matter to a disciplinary tribunal*'. 30. Notwithstanding the above submissions, Mr Pereira acknowledged that the Alternative 1S' Charge that the Respondent has pleaded guilty to does involve an element of dishonesty. Mr Pereira nevertheless seeks to persuade the DT that not all cases of dishonesty result in a striking off or suspension, and there “can be a case, 9952 albeit rare, where a censure or fine would be sufficient”’*. Accordingly, Mr Pereira * Respondent’s Skeletal Submissions at para 21 5° Respondent’s Skeletal Submissions at para 22 5! Respondent’s Skeletal Submissions at para 23 >? Respondent’s Skeletal Submissions at para 25 21 submits that with respect to the Respondent, there is no cause of sufficient gravity for disciplinary action under s 93(1)(c) of the LPA. Submissions made by the parties in relation to the 2"! Charge 31, With respect to the 2"! Charge and the Alternative 2°4 Charge, the parties disagree on whether the Respondent can be said to be guilty of any wrongdoing at all. aa The Law Society’s case is that by signing the Certificate of Correctness to the Transfer Instrument, based on s 59(2)(c)(i) of the LTA, the Respondent shall be taken to imply representations that to the best of his ability and in so far as he had any reasonable means of ascertaining, Naseeruddin had accepted proprietorship and was of full age and legal capacity. In this case, the Respondent did not in fact use reasonable means to ascertain those facts or act to the best of his ability. He had simply relied on what his conveyancing secretary prepared without checking the Transfer Instrument himself and/or taking any steps to personally verify with Naseeruddin. Consequently, the Law Society submits that the Respondent’s certification was provided recklessly or negligently. 33. The Respondent’s position is clear from the evidence he gave in these proceedings. Although he admits that he did not meet with or call Naseeruddin about the Property, he maintains that he was entitled to rely on Angela, his experienced conveyancing secretary, and there were no red flags that warranted additional action on his part. 22 34. A key part of the parties’ submissions related to the significance of the Respondent’s decision to plead guilty to the second of the State Court Charges. Mr Rai pointed out that by pleading guilty to the second of the State Court Charges, the Respondent had already admitted that he “falsely certif[ied] to the correctness” of the Transfer and committed an offence under s 59(6) of the LTA. Accordingly, the Respondent’s conviction is final and conclusive against him in these proceedings under s 83(2) of the LPA*?. However, Mr Pereira contended that all that the Respondent can be taken to have admitted to is that he did not during the criminal proceedings in the State Courts dispute the Prosecution’s Statement of Facts, but this does not preclude the Respondent from now demonstrating to the DT how the facts in the Prosecution’s Statement of Facts are not entirely accurate. 35. The Respondent points out that Naseeruddin was in fact of full age and legal capacity and there was never really any doubt that he accepted proprietorship of the Property. It was therefore submitted that notwithstanding the fact that the Respondent pleaded guilty to the second of the State Court Charges, and in so doing accepted the Prosecution’s Statement of Facts, in the end the, certification that he provided in the Transfer Instrument was correct and he was entitled to rely on his staff Angela not only to prepare the Transfer Instrument but to carry out all the necessary checks. 33 Law Society’s Skeletal Submissions dated 9 July 2021 at para 19 54 Respondent’s Further Submissions at para 2 23 V. DT’s Findings The 1* Charge 36. On the preliminary issue of whether the Law Society’s decision to frame the 1* Charge under s 83(2)(b) of the LPA went beyond the scope of the Complaint, we find that the substance of the 1*' Charge falls squarely within the matters raised in the Complaint. We do not agree that the Complainant’s reference to s 83(2)(h) of the LPA was intended to or can be said to have the effect of removing the Law Society’s discretion to proceed on the basis of s 83(2)(b) of the LPA, if the Law Society considered it appropriate to do so. Accordingly, we find that the Respondent’s objection to the 1’' Charge on this ground lacks merit and cannot be sustained. 37. We next find that the Respondent’s false representation of having witnessed Naseeruddin’s signature by signing as a witness to his signature and by signing the Certificate of Correctness in the Mortgage Instrument, was sufficiently serious to constitute grossly improper conduct in the discharge of his professional duties within the meaning of s 83(2)(b) of the LPA. There can be no doubt that an act of certification is an important aspect of a solicitor’s duty under s 59 of the LTA. We do not agree with Mr Pereira that the Mortgage Instrument can be said to be “definitely substantially correct”, because the fact remains that the Respondent knowingly made a false representation of having personally witnessed Naseeruddin’s signature. To the extent that this false representation was being 24 downplayed Pereira’s in the Respondent’s acknowledgement that submissions, this does not comport with Mr the false representation on the Mortgage Instrument involved dishonesty. Nor is it consistent with the Respondent’s decision to plead guilty to the Alternative 1*t Charge and his admission that what he did with regards to the Mortgage Instrument constitutes misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession. 38. Having found that the 18' Charge has been made out, the DT has to consider whether in exercising its power under s 93 of the LPA, there is cause of sufficient gravity for disciplinary action under s 83 of the LPA. 39. That the false attestation on the Mortgage Instrument involves dishonesty is not in dispute between the parties. As officers of the Court and members of an honourable profession, solicitors are expected to uphold high standards of probity and integrity. It is difficult to see how the Respondent’s decision to assert a fact that he knows to be false (while performing a statutory duty under s 59(2) of the LTA) can be regarded as anything other than a case in which cause of sufficient gravity for disciplinary action has been established. In our view, such a conclusion is well supported by the decisions of the Court of 3 Judges in Chia Choon Yang and Sum Chong Mun. We find ourselves unable to agree with Mr Pereira that Chia Choon Yang and Sum Chong Mun can be considered “far removed” from the present case. The Court of 3 Judges in those cases had underscored the importance of the solemn. duty of attestation that a solicitor undertakes, leaving no doubt that falsely attesting to having personally witnessed a party signing a document would involve an 25 element of dishonesty and is an act that the court will view severely. We do not agree that the threshold for cause of sufficient gravity was met in Chia Choon Yang simply because “someone else had purportedly signed as the signatory and ended up being given wide ranging powers” >>. In fact, there was no definite finding made by the Court of 3 Judges in Chia Choon Yang that the signatory to the power of attorney in that case did not actually sign the power of attorney. Rather, the finding was that it was clear it was not signed in the respondent’s presence. Whether or not there is actual or presumed harm, an act of false attestation should still be regarded as sufficiently serious to constitute cause of sufficient gravity within the meaning of s 93(1)(c) of the LPA. This outcome should not change even if the false attestation was only a “technical” breach because it turned out that the correct person did sign the document. While the actual degree of harm will be a factor in sentencing, that is ultimately a matter for the Court of 3 Judges to decide. As for Kanthosamy Rajendran’s case, the DT does not consider itself bound by the decision reached by the IC in that case, nor do we necessarily agree with the decision. The 2™ Charge/ Alternative 2"! Charge 40. As for the 2" Charge/Altemative 2"! Charge, we are unable to accept the Respondent’s contention that he was under no duty to personally verify with Naseeruddin that he was of full age and legal capacity and accepted proprietorship of the Property before signing the Certificate of Correctness in the Transfer Instrument. It bears noting again that the Respondent was performing an act of 55 Respondent’s Skeletal Submissions at para 22 26 statutory certification pursuant to s 59 of the LTA. It was not only important that the information on the Transfer Instrument ultimately be correct. A solicitor providing the certificate of correctness on a Transfer Instrument must represent “to the best of the signatory’s knowledge and belief and in so far as he has any reasonable means of ascertaining” that the matters set forth in the Transfer Instrument are substantially correct and the person acquiring title accepts proprietorship and is of full age and legal capacity. This, the Respondent clearly failed to do. By the Respondent’s own admission, he had simply relied on his staff. He even relied on Maybank and its legal officers because Naseeruddin had been granted a loan. However, any steps the Respondent himself may have taken (if at all) clearly fell short of the expectation that he was to use “any reasonable means” he had to personally verify for Respondent’s argument information before himself what that he was signing the needed to be verified. entitled to rely on others Certificate of Correctness To accept the to verify that would render the solicitor’s duty under s 59 of the LTA meaningless. 41. There is of course, the fact that the Respondent pleaded guilty to the second of the State Court Charges, a charge based on the assertion that the Respondent “did falsely certify to the correctness of a dealing, fo wit, a Transfer”. He had also accepted the Prosecution’s Statement of Facts, including the admission that he not only did not contact Naseeruddin, but he would also sign the conveyancing documents left on his desk without examining its contents, and was only aware that his law firm acted for Naseeruddin in relation to the Property when he was subsequently questioned by CAD officers, 27 42. Section 45A of the Evidence Act (Cap 97, 1997 Rev Ed) states that “the fact that a person has been convicted ... of an offence by or before any court in Singapore shall be admissible in evidence for the purpose of proving ... that he committed ... that offence ... and where he was convicted, whether he was so convicted upon a plea of guilty or otherwise”. 43. Rule 23(2) of the Legal Profession (Disciplinary Tribunal) Rules states that the DT “may, in its discretion, accept as conclusive a finding of fact of a court of competent Jurisdiction in Singapore to which proceedings the respondent was a party”. 44. In pleading guilty to the State Court Charges, the Respondent accepted his wrongdoing and guilt. He also accepted the facts stated in the Prosecution’s Statement of Facts. Indeed, s 227(2)(b) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) makes it clear that before a court records a plea of guilty, it must record the accused’s advocate’s confirmation that the accused understands the nature and consequences of his plea and intends to admit to the offence without qualification. 45. The Respondent has sought to explain that he only pleaded guilty to the second of the State Court Charges and did not raise any objection to the Prosecution’s Statement of Facts because he had had enough and wanted to bring the matter to an end as quickly as possible. Accordingly, he does not actually agree that he falsely certified the Transfer/Transfer Instrument; neither could it be said that what he 28 certified was false, since Naseeruddin was in fact of full age and legal capacity and was prepared to accept proprietorship. 46. We find that an offence under s 59(6) of the LTA is made out so long as a solicitor claims to have performed the duties of certification, when he/she did not do so. It does not become an offence only if it can be proven that the facts stated on the Transfer Instrument were in fact false. The duties of certification require the solicitor to personally verify that the person acquiring title accepts proprietorship and is of full age and legal capacity, or the person divesting title is entitled to divest the interest under the instrument and is of full age and legal capacity. Accordingly, a solicitor who fails to personally discharge this duty under s 59(2) of the LTA and simply assumes that this is so because others have checked for him, does so at his own peril and can be held responsible for failing to discharge his duty. In other words, the certification is false so long as there was in fact no meaningful certification, and this is so even if the facts stated on the Transfer Instrument turned out to be true. 47, In the present case, the Respondent had already admitted without qualification to para 13 of the Prosecution’s Statement of Facts that he “would sign conveyancing documents that were left on his desk without examining its contents, as he assumed that the said documents would have been prepared correctly”. Having accepted those facts in a court of law, we do not agree with the Respondent’s contention that this should not be regarded as an admission and that he is not precluded from now arguing that the Prosecution’s Statement of Facts are not entirely accurate. We note 29 that a similar position had been unsuccessfully advanced by the respondent in Law Society of Singapore v Choy Chee Yean’’. The Court of 3 Judges in Choy Chee Yean noted that the respondent had already expressly admitted the elements of the criminal offence at the time of his guilty plea and had acknowledged that the offence involved dishonesty. As a lawyer, “he knew precisely what the plea of guilt meant and entailed’>’. The same can be said of the Respondent in the present case. 48. We therefore find that the facts in the 2"! Charge/Alternative 2" Charge have been established. In this regard, we note that the Law Society is not claiming that the offence was committed by the Respondent dishonestly; rather, the Respondent signed the Certificate of Correctness in the Transfer Instrument recklessly or negligently because he did not conduct any checks of his own. The question is this: can the Respondent’s actions be said to constitute grossly improper conduct in the discharge of his professional duty (s 83(2)(b) of the LPA), or is the Respondent guilty of misconduct unbefitting an advocate and solicitor of the Supreme Court or as a member of an honourable profession (s 83(2)(h) of the LPA)? 49, In the recent decision of Loh Der Ming Andrew v Koh Tien Hua’®, the Court of Appeal stated the following: “A solicitor’s conduct is grossly improper if it is dishonourable to the solicitor concerned as a man and in his profession (Law Society of Singapore v Ezekiel Peter 56 [2010] 3 SLR 360 (“Choy Chee Yean’), RSBOA Tab 2 7 At [25] 58 [2021] SGCA 81 30 Latimer [2019] 4 SLR 1427...). In contrast, the test for misconduct unbefitting an advocate and solicitor is broader, and considers 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..”°? In the round, we thought that Koh had acted appropriately in his conduct before the court. By consenting to have the particulars struck out, he had saved judicial time and resources. However, where Koh erred was in failing to advise his client properly and failing to inform his client of the position he would be taking before the court. This was improper, but in the circumstances, it was not grossly so, and it certainly was not fraudulent,” 50. In the present case, we find that the Respondent’s failure to perform his duty under s 59(2) of the LTA in relation to the Transfer Instrument was improper conduct on his part, but it was not grossly so. The Law Society did not allege that there was any dishonesty on the Respondent’s part, and we accept that the Respondent had simply lacked diligence in performing his duty, choosing instead to assume that if there was any irregularity, his staff Angela would have spotted it. We are satisfied that reasonable people, upon knowing that the law requires the certification to be performed by the solicitor of the party to the instrument, would have said without hesitation that the Respondent should not have simply relied on his staff but was expected to personally take steps to contact his client Naseeruddin and check © At [47] © At [49] 31 through the contents of the instrument. We therefore conclude that the 2"! Charge was not made out in that the Respondent’s conduct, while improper, did not rise to the level that it was grossly improperly. However, we find that the Alternative 2™ Charge has been proven against the Respondent. 51. Finally, we considered if the Respondent’s conviction on the Alternative 2" Charge would give rise to cause of sufficient gravity to warrant disciplinary action under s 83 of the LPA. Between the 1‘ Charge and the Alternative 2"! Charge, the former must be regarded as being more serious in nature and extent, in terms of the impropriety of the conduct. If the Alternative 2"! Charge was being considered on its own, we might have been persuaded that cause of sufficient gravity may not be established, and the matter could be referred back to the Law Society to consider if a fine, censure or warning should be imposed. However, bearing in mind that we have already decided that cause of sufficient gravity has been established on the 1“ Charge, and the fact that the subject matter of both charges relates to a single conveyancing transaction for which the Respondent was the solicitor in charge, we are of the view that the conviction on both the 1 Charge and the Alternative 2" Charge should rightly be considered holistically in terms of what sanction would be appropriate to impose. Accordingly, in relation to both the 1 Charge and the Alternative 2.4 Charge, we are satisfied that there is a prima facie case on the relevant evidence that due cause is present, and in the circumstances, we find that both ought to be referred to the Court of 3 Judges. VII. Conclusion 16th 2024-11-11T04:00:28+00:00 https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-nov-2024/ In the Matter of Mohammed Lutfi bin Hussin (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-nov-2024/ b8858bf9e1a4ee46fd595cb1469abd7ba700b32f

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