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6 6 1 1049 In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor These proceedings arose out of a complaint made against the Respondent by one Ms Jain Alka @ Alka Salecha (the Complainant). The Complainant and her husband, one Mr Padam Kumar Jawerilal Salecha, were shareholders and directors of Swina International Pte Ltd (Swina) at all material times. Swina engaged the Respondent to negotiate with Swina’s creditor banks in relation to outstanding loans of around S$16 million. The Complainant and her husband also engaged the Respondent also attend to the bankruptcy proceedings taken out against them on account they being guarantors of the loans taken out by Swina. The Chief Justice empanelled a Disciplinary Tribunal (DT) presided by Mr Roderick E Martin SC and Mdm Tan Gee Tuan as DT member. One charge and two alternative charges were preferred against the Respondent: Charges 1st Charge For 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 (LPA) in that the Respondent failed to provide advice to his clients, in relation to the legal proceedings commenced against them, in breach of Rule 5(2)(h) of the Legal Profession (Professional Conduct) Rules 2015 (PCR). 1st Alternative Charge For 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 in that the Respondent failed to act with reasonable diligence and competence in the provision of legal services to his clients by failing to advise his clients in relation to the legal proceedings that had been commenced against them, in breach of Rule 5(2)(c) of the PCR. 2nd Alternative Charge For 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 in that the Respondent failed to use all legal means to advance his clients’ interests to the extent that he may reasonably be expected to do so, by failing to advise his clients in relation to the legal proceedings that had been commenced against them, in breach of Rule 5(2)(j) of the PCR. Findings and Determination of the DT, Council’s Sanctions The DT found that the main charge, i.e. the 1st Charge, was made out on the facts beyond a reasonable doubt. The DT found that the Respondent did not advise his clients on the options available to the client in response to bankruptcy and winding up applications, i.e. the prospect of voluntary arrangements, schemes of arrangements and/or judicial managements. Further, the Respondent failed to advise his clients on the issue of balance sheet solvency. The DT noted that Swina was balance sheet solvent at the material time, and this fact could have been relied on to either persuade creditor banks to grant more time for repayment, or at the very least, to seek an adjournment from the Court. The Respondent did not do that or advise the clients on the same. Because of the Respondent’s omissions, his clients did not consider making a revised repayment proposal to Maybank to avoid the bankruptcy and winding up orders. In addition, the DT found that the Respondent failed to advise his clients on their options moving forward after bankruptcy and winding up orders were made. The DT concluded that no cause of sufficient gravity existed for a referral to the Court of Three Judges, cognisant of the fact that there was no element of dishonesty on the Respondent’s part, and that he was a candid witness. The DT was of the view that a financial penalty was appropriate to address the Respondent’s misconduct. There was no order as to costs as the Complainant’s counsel had taken on the case on a pro bono basis. Council accepted the findings of the DT and imposed a financial penalty of S$10,000 on the Respondent. To access the full report, click here. https://lawgazette.com.sg/wp-content/uploads/2023/01/dtr_jan_2023-compressed.pdf 17th BACKGROUND FACTS. ‘The Complainant in these disciplinary proceedings is one Ms Jain Alka @ Alka Salecha (the “Complainant. The Complainant and her husband, Mr Padam Kumar Jawerlal Salecha, were at all material times the shareholders and directors of Swina International Pte Ltd ('Swina’), ‘Tne Respondent is Mr Sarindar Singh, an Advocate and Solicitorof the Supreme Court of Singapore, of 22 years’ standing (the “Respondent’). At all material times, the Respondent was the sole proprietor of Mis Singh & Co, ‘The Respondent was engaged by Swina to negotiate with Swina’s creditor banks In relation to outstanding loans of around SGD 16 million. The Respondent was also engaged by the Complainant and her husband, being personal guarantors of the loans taken out by Swina, for the same purpose The Respondent wrote to the banks proposing repayment plans, but those proposals were rejected Consequently, on 11 December 2017, Swina was served by Maybank with the winding up papers in HCICWU 247/2017 at its office and on 12 December 2017, the Complainant and her husband were personally served with the bankruptey papers in HC/B 2785/2017 and HC/B 2783/2017 respectively at their residence. The bankruptcy and winding up applications were heard and granted on 11 January 2018 and 12 January 2018 respectively (On 9 May 2019, the Complainant lodged a complaint against the Respondent, alleging that the Respondent had breached his duties under the Legal Profession (Professional Conduct) Rules by- (2) falling o act with honesty, competence and dligence; (b) disclosing information without the Claimant's instructions; and (c) grossly overcharging for the work done" 9. The complaint was referred to an IC, which took the unanimous view that all three heads of complaint disclosed no necessity for a formal investigation by @ Disciplinary Tribunal? 10, Boing dissatisfied with the IC's decision that there was no prima facie case for referral tothe DT, the Complainant took out an application vide HC/OS 41/2024 (COS 41°) for an order to compel the Law Society to rofer her complaint to a DT. The parties to OS 41 were the Complainant, as the applicant, and the Law Society, as the respondent. At the hearing, the learned Justice Ang Cheng Hock (the “Judge") adopted the burden of proof applicable in an IC.? Le. whether there, ‘was a prima facie case for referral. In other words, the learned Judge placed hhimsotf inthe position of the IC and. applying tho burden of proof applicable to the IC, determined whether or not the IC should have referred the complaint to a oT 11, The leamed Judge held as follows: “1, Alter consideration of the affidavits and the submissions, | am of the view that there is a necessity for a formal investigation by @ i 7 appticant's Pte Ltdl ("Swina’) Internationa 2. That being the caso, | find that there is a prima facie basis for investigation to be carried out into Mr Sit ‘AB 248 0250, 2AB 434 » See Notes of Hearing (22 Apri 202%) at paragraph [2], AB 443 to 4 Inhis {sie] regard. | find that the Council of the Law Society had erred ‘in not considering that the evidence disclosed a prime facie case of ‘professional misconduct that is of sufficient gravity as to warrant 2 formal investigation by a disciplinary tribunal 3 Onthe evidence before the Inquiry Committee (IC), did not agree that the other complaints raised by the Applicant in relation to Mr ‘Singh's alleged professional misconduct are either made out on a ‘prima facie basis, or were of sufficient gravity as to warrant a format investigation by a disciplinary tribunal. As such, do not think th Counci of the Law Society erred in determining that the other matters did not require a format investigation by a discipinary tribunal. 7. For the above reasons, { will thus grant OS 41/2021 in part. | hereby direct the Respondent to apply tothe Chiot Justice for the appointment of a disciplinary tribunal in respect of the following charge against Mr Singh ~ breach of his duty of honesty, competence and diligence under Rule 5 of the Legal Profession rofessional Conduct) Rules 2015 by failing to advis Applicant in relation to the legal proceedings that had been commenced against her, her husband and Swina, and hence, that Mr Singh is guity of misconduct unbefiting an advocate and solicitor as an officer of the Supreme Court under s 83(2)(h) of the Lega! Profession Act” [emphasis added in bold and underine} 12. Pausing here, it ought to be stated that the burden of proof in the IC and before the DT is diferent. At the IC, the IC determines whether. on the material supplied to the IC, there exists a prima facie case for referral to a DT. Atthe DT. the burden of proof notches up to a more “onerous” burden, that is, that the Complainant's ‘case hasto be proven beyond a reasonable doubt * 13. Italso ought to be stated that of the grounds relied on by the Complainant in OS 41, only one ground was successful, this being that the Respondent failed to provide advice in relation to the legal proceedings in HC/B 2788/2017, HCIB 2783/2017 and HCICWU 247/2017 (the “Legal Proceedings’). I THE CHARGE 14, Its arising from this one ground that the following charge was preferred against the Respondent in the DT. It had two alteratives Charge “You, Sarindar Singh, an Advocate and Sotto ofthe Supreme Court of Singapore, are charged that you are guilt of misconduct unbefting an advocate and solictor as an officer ofthe Supreme Court or as a ‘member of an honourable profession within the meening of section 83(2)(h) of the Legal Profession Act, to wit, by breaching Rule 5(2)(h) ofthe Legal Profession (Professional Conduct) Rules 2015, n that in the course of your engagement as Jain Alka @ Alka Satocha, Padam Kumar Jawonial Salecha and Swina Intematonal Pte Ltd's lawyer, you had failed to provide advice to your clients, Jain Alka @ Alka Salecha, Padem Kumar Jawerilal Salecha and Swina International Pte Lt, inproceedings relation to the legal that hod eon commenced against them in HC/B 2785/2017, HC/B 2783/2017 and HC/CWU 247/2017 respectively. [emphasis added in bold and undertine] “You, Sarindar Singhan Advocate and Soictor ofthe Supreme Court of Singapore, are charged that you are quity of misconduct unbetitting “Law Socay of Singapare vAhmad Knais tn Abt Ghani [2006] 4 SLR(R) 208 at 6) an advocate and solicitor as an officer of the Supreme Court or as a ‘member of an honourable profession within the moaning of section £89(2}() ofthe Legal Profession Act, to wit, by breaching Rule 5(2Vc} of the Legal Profession (Professional Conduct) Rules 2015, n that in the course of your engagement as Jain Alka @ Alka Safecho, Padom Kumar Jawonlal Salocha and Swina International Pte Ltd's lawyer, vou had failed to act with reasonable diligence and competence ‘in vour provision of legal services to your clients, Jain Alka @ ‘Aika Salecha, Padam Kumar Jawerilal Salecha and Swina International Pte Ltd, by failing to advise your clients in relation {0 the legal proceedings that had been commenced against them in HC/B 2785/2047, HC/B 27832017 and HC/CWU 247/2017 respectively {emphasis added in bold and underline} Second Alternative Charge “You, Sarindar Singh, an Advocate and Solicitor of the Supreme Court of Singaporo, are charged that you are guilty of misconduct unbefiting an advocate and solicitor as an officer of the Supreme Court or as a momber of an honourable profession within the meaning of section {83(2)(h) of the Legal Profession Act, to wit, by breaching Rule 5(2)() of the Lega! Profession (Professional Conduct) Rules 2015, in that i the course of your engagement as Jain Aika @ Alka Salecha, Padam Kumar Jaweriial Salecha and Swina International te Ltd's lawyer, ‘You had failed to use all legal means to advance your clients’ Jain Alka @ Alka Salecha, Padam Kumar Jawerilal Salecha and ‘Swina International Pte Ltd, interests to the extent that you may in-relation to the legal proceedings that had been commenced against them in HC/B 2785/2017, HC/B 2783/2017 and HC/CWU 1247/2017 respectively. [emphasis added in bold and underline] ‘THE PARTIES’ POSITIONS. a. The Complainant's Account 15. The Complainants account is that over the course of several meetings from 12 December 2017 to 11 January 2018, the Respondent told her and her husband ‘not to be concerned with the Legal Proceedings, 2s it would be a matter of formality to adjourn the hearings as negotiations with the respective credtor banks were underway * In this regard, the Respondent assured the Complainant that ne would attend the hearings on their behall to inform the Court that a proposal had been made tothe creditor banks, and that the hearings would be adjourned. The Respondent also stated that it would take about 6 10 9 months forthe Legal Proceedings to be determined due tothe adjournments occasioned by the banks needina time to consider the proposals.” 16. On 11 January 2018, the Respondent informed the Complainant and her husband via WhatsApp that he was “in Court now’, then subsequently callod the ‘Complainant and her husband to inform them that the bankruptcy orders had been made.* The Complainant was confused as this was contrary to what had been discussed in the previous meetings with the Respondent. In response, the Respondent stated that the orders had been made as Swina, the Complainant ‘and her husband had no money to repay the banks The Complainant later earned that the Respondent did not attend the hearing, but Maybank’s solicitors had instead mentioned on his behalf" 17. On 12 January 2018, the Respondent informed the Complainant and hor ‘husband via WhatsApp that the winding up application against Swina had been granted. ** The Complainant was shocked and demanded an explanation as to why the Respondent had not sought an adjournment, but the Respondent was ComplainaAEC nts=:3 |73)[73] (60] ano (26). AEC Complainant' ©Comp s 3 (74) 2 lainant'AEC s Complainant' AEICs3 [8an7](83) a s(89) AE(C 3 (88t' Complain " Complanants AEC an at [92 * Complanants AEC at 93) rot forthcoming with a response."? The Complainant later leamed that the Respondent did not represent Swina at the hearing.” b. The Respondent's Account 18. The Respondent's account is that he repeatedly advised the Complainant and her husband that they needed to revise their proposals tothe creditor banks, and that this was the best advice that he could give in the circumstances. As what they had put forward was inadequate given the amounts that were owing, they needed to devise new repayment plans that were acceptable to the creditor banks." 19. The Respondent had also taken the positon that it would be possible to adjoum the bankruptcy hearings as Maybank had not yet rejected the existing proposal. ‘This position changed on 11 January 2018, the day of the bankruptey hearings, ‘when the Respondent was informed by Maybank’ solicitors before the hearings that his clints' proposals were to be rejected. In the circumstances, he found himseif without any grounds to justify an adjournment and accepted Maybank’s solicitors offer to mention on his behalt"® He accordingly advised the ‘Complainant over the telephone that there were no grounds for any adjournment cor resistance to the bankruptcy orders being made."” IV. FINDINGS OF FACT 20. The Tribunal found that the main charge was made out on the facts beyond a reasonable doubt. In other words, the Respondent had failed to give advice to his clients on the Legal Proceedings that wore commenced against his clients ‘Complanant’s AEIC atat 95) >‘Responders Comptanant’s AEIC 92) AEIC at 1926] an [28 ‘Respondent's AEIC a [18 and (21) °*Responcents AEIC aat [21 "Respondent's AEIC 28 (28) [20 21. The Trbunal's finding is based largely on the admissions of the Respondent in ‘ot having given advice in relation to the Legal Proceedings 22, In this regard, we refer to the following extracts from the Notes of Evidence (NOE") soro NOE 14 Decomber 2021, pago 56 line 23to page $7 line 31 0 Are you suggesting now that you advised Ms Alka, her husband or Swina about the possibiliy of a scheme of arrangement for Swana? A That—that was from day 1 that was told to her to come up with the proposals. And other than-— ‘So when you say scheme of arrangement— Yes do you just mean better repayment proposals? Yes, yes, !—J meant in that and not in the literal sense of a Court-approved scheme of arrangements. Q So, to be clear, you've never advised Ms Alka, her husband or Swina about possible schemes of arrangement pursuant to Section 210 of the Companies Act? A No, not in this case. No, Ididn't Q Thank you. emphasis added in bold] NOE 15 December 2021, page 15 line 27 to page 16 line 27 @ You also did not advice [sic] Ms Alka and her husband ‘on a voluntary arrangement under Section 45 of the Bankruptcy Act and that that was the basis to stave off the bankruptcy proceedings. Do you agree? A 1 did not advise them on that voluntary arrangements because Thank you. A —May— 10 © Bo,you agree with m A Maybank was just not replying and the frst time President: if you want fo add on f0 your answer— Witnoss: Yes. 1 mean: President 4 wi give you loave. soxo>m Winess: Yes, so because Maybank had not responded, the counsel has President: Right Witnass: come up to me and asked the--they are not going to allow this because, Ihave strict instructions to proceed with &. Your proposal are rejected out of hand.” There's no basis left for me {0 do anything olse. Now this suggestion of voluntary: whatever he said earl Prosident: Arrangement What did you say? For—for the A voluntary arrangement under Section 45, Voluntary arrangement 0 you have something furthor to add, Mr Singh? ‘No, nothing. That--that's it ymphasis added in bold) o> o>o> NOE 15 December 2021, page 18 lines 3 to 12 °@ Now, similarly, you didn't advise your clients on @ Scheme of arrangement under Section 210 of the Companies Act, correct? bol did't You did not, right? Mm. Now, I suggest to you that that's what a reasonably competent and diligent lawyer would have done, agree?” Disagree. You also did not advise your client on judicial ‘management, agree? " A Agree. [emphasis added in bold] 23. Asis clear from the extracts, the Respondent simply did not advise his clients on the options availabe to the cont in response to the bankruptcy and winding up applications, ie. the prospect of voluntary arrangements, schemes of arrangement andlor judicial management. 24. Further, the Respondent failed to advise his clientson the issue of balance sheet solvency: NOE 15 December 2021, Page 17 lines to7 "Q So, tobe clear, you disagree with my statement that you did ‘not advise them about the balance sheet solvency. So is ‘your evidence that you did advise them about balance sheet solvency? A No, I did not advise them on the balance sheet insolvency [sic] because they didn't—because my instructions were they didn't have the money. 25. This was notwithstanding the Respondent's acceptance that (a) Swina’s balance sheet recorded an excess of total assets over liabilties and (b) a Cour, at the time when the winding up applications were heard, would consider the issue of balance sheet solvency before granting the applcation."* In respect of the former, the Tribunal noted that Swina’s total assets as at 31 December 2016 were valued at the amount of SGD 18,577.381.41."* which would have been large enough to settle or substantially settle Swina’s debts to the creditor banks, 26. This fact could have been relied on to either persuade the creditor banks (in particular, Maybank) to grant mare time for repayment, of at the very least, to NOE 14 Docemder 202%, page 25 ine 1910 page 27ine 13. Aud Statement of Accounts fo" year ended 31 December 2016, page8 (Ag 1s Bundle "‘of Swra's Documents, page °9), seek an adjournment from the Court. However, this was not done. Nor did the Respondent advise his clients on the same 27. In fact, it would appear that the Respondent never advised nis clients to challenge the bankruptey and winding up proceedings by. for instance, fling a reply affidavit exhibiting documents evidencing of Swina’s financial position andior legal submissions, The Respondent made no mention of this in his Affidavit of Evidence-in-Chief or during the hearing, and did not produce any documents evidencing that such advice had been given. In this regard, given the absence of credible (or more accurately. any) contemporaneous records taken by the Respondent, we found it appropriate to draw an adverse inference against the Respondent 28. Perhaps mote shockingly, the Respondent did not even advise his clients on Maybank’s position in respect of his clients’ repayment proposal, and the Implications. of this position on the bankruptcy proceedings, until affer the bankruptey orders had been granted by the Court: smber 2021, page 15 lines 7 to 4 '@ So when did you actually inform Ms Alka and her husband about what Maybank solicitors told you? A Alter ve boen informed ofthis, on that very same morning| ‘informed her @ Was it before or after Attor my cone A Q =the bankruptcy orders were made? A ‘tor my conversation with the. Q That's not my question, Mr Singh, A Okay. After the order was made. [emphasis added in bold] Law Societyof Srgaporev Tan Phy Khiang (20073 SLR(R) 477 at 82), 29. This is despite the fact that the Respondent had. by his own admission, told tho ‘Complainant that it would be a “matter of formality" to adjourn the hearings on the basis that negotiations with the creditor banks were underway." and that ‘would take about 6 to 9 months before the applications would be determined by the Court as a result of the creditor banks needing time to consider the proposals.®? 30. AS a result, the Complainant, her husband and Swina were deprived of the ‘opportunity to consider whether a revised repayment proposal could be pul forward to Maybank to avoid the bankruptcy and winding up orders being made. 31. Finally, after the bankruptcy and winding up orders had been made, the Respondent failed to advise his clients on their options moving forward: NOE 15 De mber 2024 46 to24 Now, after the orders were made, you also did not advise your clients on the possibility of appeals or setting aside the bankruptcy or winding up orders, agree? A Setting aside, you are agai 2 —_Sotting aside or appealing the bankruptcy or winding-up orders, A The bankruptcy order, no, | did not advise them on it. [emphasis added in bold] 32. Throughout the disciplinary proceedings, the Respondent took the position that he had advised his clients by telling them to come up with improved repayment proposals that would be acceptable to the banks In our view, this was not at all sufficient. 2 NOE 15 December2027, page 10 ines 25 to 29 NOE 15 December 2027. poge 1 ines 1210 17 P Respenents AEIC st (26) NOE 1 December 2021, page S8 Ine 261 page $8 ine 18, 33. As the High Court held in Law Socioty of Singapore v K Jayakumar Naidu {2012} 4SUR 1282 “Solicitors have a duty fo loyally advance their chints’ interests with digence and competence. Among its muttioie facets, this duty (0 be advised fal i faith of ‘issues peculiar to the matter at hand, .. ll solicitors also owe their clients a fundamental duty of undivided loyalty to ethically advance their cont’ interests and not place themselves ina position of conflict Advice to clients has to be prompt and commensurate with their needs, and not perfunctory,A grave failure to adequately discharge these duties of care and loyalty, whether resutting rom ignorance or a ack of conscientiousness, may expose a solicitor fo disciplinary action {and invito sanctions by the court, It is all the more troubling if in the course of an engagement the solicitor repeatediy abaicates from these responsibilities to his client." emphasis added in bold and underline) 34. In teling his cients to do nothing more than to come up with better repayment proposals, the Respondent's advice was plainly perfunctory. Tho very least the Respondent would have been expected to do was to, upon learning of Maybank’s rejection of his clents’ offer at the door of the Court, update his clients and seek ‘an adjournment ffom the Court on the basis that he had just been informed that his clients’ offer was rejected. Seyond belief, he instead went as far as to accept ‘Maybank’s solicitors’ offer to mention on his bhatt 35, The Respondent's otner answer to the charge was that his clients had no money and therefore he would be misteading the court if he did anything in relation to the Legal Proceedings. We do not accent this excuse because. as an Advocate and Solicitor, he should have atleast raised the available options to his clients (ie. challenging the applications, a voluntary arrangement, a scheme of arrangement andior jucicial management), even though it may have been dificult NOE 15 December 2023, 09017 ines 14 to 22 and page 17 ine 28:0 page 1B ine 2 17th 2023-01-10T04:00:00+00:00 https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2023/ In the Matter of Sarindar Singh (Respondent), Advocate & Solicitor_https://lawgazette.com.sg/notices/disciplinary-tribunal-reports/dtr-jan-2023/ 0c1312bea41be63c83d5708823498b6111b7122c

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