Case Summaries

Iskandar bin Rahmat v Law Society of Singapore

SUPREME COURT OF SINGAPORE

8 January 2021

Case summary

CA/CA 9/2020 (CA/SUM 44/2020)

Iskandar bin Rahmat v Law Society of Singapore [2021] SGCA 1

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Decision of the Court of Appeal (delivered by Sundaresh Menon CJ):

Outcome: Court of Appeal dismisses application to strike out Kovan murder accused’s appeal, will hear appeal on trial defence counsel’s conduct in due course

Pertinent and significant points of the judgment

  • The Court of Appeal has jurisdiction to hear an appeal against the decision of a Judge pursuant to s 96 of the Legal Profession Act
  • A Judge hearing an application under Part VII of the LPA is a Judge of the High Court
  • The “disciplinary jurisdiction” of the court describes the body of law being exercised and is part of the civil jurisdiction of the court

Background

1 In 2015, the appellant was tried and convicted on two charges of murder and sentenced to suffer death. His appeal against his conviction and sentence was dismissed. In 2018, he wrote to the Law Society of Singapore (“the Law Society”) to file a complaint against his trial counsel, alleging that they had failed to comply with his instructions in the conduct of his defence. An Inquiry Committee unanimously recommended that the complaint should be dismissed, and the Law Society informed the appellant that it would not take further action.

2 The appellant applied to the judge below (“the Judge”) pursuant to s 96 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) seeking a review of the determination and an order directing the Law Society to apply to the Chief Justice for the appointment of a Disciplinary Tribunal. The Judge dismissed the application and affirmed the Inquiry Committee’s finding that there was no prima facie case of ethical breach or other misconduct that warranted formal investigation by a Disciplinary Tribunal.

3 The appellant filed an appeal against the Judge’s decision. The Law Society applied to strike out the appeal on the ground that there was no right of appeal against the Judge’s order, relying on an earlier decision of the Court of Appeal in Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (“Top Ten Entertainment”).

The court's decision

 

4 The issue before the court was whether it had jurisdiction to hear an appeal against a decision of a judge made pursuant to s 96 of the LPA. The appellant’s allegations against his trial counsel were not before the court at this time and would be dealt with when the substantive appeal was properly before the court (at [17], [18] and [19]).

5 In Top Ten Entertainment, the Court of Appeal held that there was no right of appeal against the decision of a Judge made under ss 95, 96 and 97 of the LPA, which fell under Part VII of the LPA. Its observations on the jurisdictional issue seemed to be in the nature of obiter dicta and the substantive appeal itself only concerned costs, so any question of public interest – being the lack of a formal investigation into a solicitor’s conduct – did not arise. These reasons caused the court to reconsider the observations made on jurisdiction (at [48] and [52]).

6 Based on s 29A(1)(a) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”), in order to invoke the jurisdiction of the Court of Appeal, the decision on appeal must be a decision of the High Court and in the exercise of its original or appellate civil jurisdiction (at [57]).

7 A “Judge” was defined in s 2 of the LPA as “a Judge of the High Court sitting in chambers”. A key element of the decision in Top Ten Entertainment was that this definition was not appropriate for Part VII of the LPA. This aspect of the court’s reasoning was unpersuasive as it was unclear what it was that rendered the definition unsuitable. It was meaningless to speak of a Judge acting other than in the exercise of the jurisdiction of a court, and in some other disciplinary capacity, simply when the Judge was described as “sitting in chambers”. The fact that the Rules of Court were not specifically incorporated into proceedings under ss 95, 96 and 97 of the LPA also suggested that they applied without needing any express provision because those proceedings were proceedings before the High Court. It followed that decisions of a Judge pursuant to s 96 were decisions of a Judge of the High Court (at [59], [60], [64] and [67]).

8 It had been said that a decision pursuant to s 96 was an exercise of the disciplinary jurisdiction of the court and this was a unique jurisdiction distinct from the civil or criminal jurisdiction. The term “disciplinary jurisdiction” was descriptive of the body of law that was dealt with and described an aspect of the court’s jurisdiction that nonetheless fell within the civil jurisdiction pursuant to s 16(2) of the SCJA. While the jurisdiction exercised by the C3J might be a unique disciplinary jurisdiction over advocates and solicitors, this did not mean that all proceedings under Part VII were similarly unique. Under s 96, the Judge was statutorily empowered to review the Council’s determination but not to investigate the solicitor’s conduct or impose penalties herself, and in the context of an appeal against such a decision, the Court of Appeal would only be concerned with the question of whether the Judge’s decision was correct (at [69], [70], [85] and [86]).

9 Aside from the statutory language, it must be borne in mind that applications under ss 95, 96 and 97 concerned the disciplinary control of solicitors. There was a very strong public interest in ensuring that allegations of misconduct were ventilated before the C3J in cases of doubt, especially where the complaint was that a reference that should rightly be made to the C3J was not being made (at [88]).

10 Part VII of the LPA was not a model of clarity and consistency and legislative reform would be welcome to clarify the jurisdiction of the courts and the routes of review and appeal available to the complainant, the solicitor and the Law Society (at [91]).

Andrew Phang Boon Leong JCA's concurring judgement

 

11 Phang JCA concurred with the judgment of the majority. The issue turned on whether a special jurisdiction had been laid down in Part VII of the LPA with respect to disciplinary proceedings concerning lawyers which was not amenable to the civil jurisdiction of the Singapore courts. An either affirmative or negative answer presupposed that Part VII was uniform in jurisdictional scope. There was a third possibility that whilst there might exist in certain provisions of Part VII a special jurisdiction in relation to disciplinary proceedings, to the extent that Part VII contemplated other related proceedings in the civil sphere, there existed a right of appeal to the Court of Appeal with regard to those proceedings only. Whilst it would have been desirable for there to have been uniformity with regard to the jurisdictional nature of proceedings in Part VII, that was not the case. This third possibility was the most logical and principled conclusion that one could arrive at based on all the relevant legal materials (at [97] and [98]).

12 Part VII provided for what was in substance a limited right to judicial review which involved the civil jurisdiction of the Singapore courts. The acts or decisions of the Disciplinary Tribunal were subject to review under s 97, which lay down criteria akin to judicial review, and it followed that s 97 was civil in nature. Turning to s 96, a dissatisfied party could also initiate judicial review of the decisions of the Council and there would be a right of appeal to the Court of Appeal. This raised potential anomalies if there was no appeal to the Court of Appeal for proceedings pursuant to s 96. Section 96 was also the statutory analogue of s 97 and if a decision pursuant to s 97 was appealable to the Court of Appeal, then the same conclusion followed with regard to a decision pursuant to s 96 (at [100], [103] and [104]).

13 The majority adopted a broader approach in holding that the disciplinary jurisdiction was descriptive of the body of law that was dealt with. In doing so, it was referring to two different conceptions of the “disciplinary jurisdiction”. The narrower conception referred to a special disciplinary jurisdiction that was not an exercise of civil jurisdiction. In contrast, the broader conception referred to a statutory review in the context of the disciplinary process which was simultaneously an exercise of civil jurisdiction. A Judge hearing an application under ss 95, 96 and 97 of the LPA was exercising jurisdiction in the latter sense and, hence, was exercising the civil jurisdiction of the court. This approach was consistent with the historical analysis of the relevant local legislation (at [106], [107] and [109]).

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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