Ratnam v The Law Society of Singapore
| Jurisdiction | UK Non-devolved |
| Judgment Date | 02 March 1976 |
| Date | 02 March 1976 |
| Docket Number | Appeal No 10 of 1974 |
| Court | Privy Council |
[1976] SGPC 3
Privy Council
Lord Cross of Chelsea
,
Lord Simon of Glaisdale
and
Lord Edmund-Davies
Appeal No 10 of 1974
Godfrey Le Quesne QC and Stuart McKinnon (Charles Russell & Co) for the appellant
Robin Auld QC and Ian Click (Jaques & Co) for the respondent.
Cox v Army Council [1963] AC 48 (refd)
Harbans Lal v The StateAIR 1967 HP 10 (not folld)
Howard v Bodington (1877) 2 PD 203 (folld)
Liverpool Borough Bank v Turner (1860) 2 De GF & J 502; 45 ER 715 (refd)
Marsh v Marsh [1945] AC 271 (folld)
Mohamed Syedol Ariffin v Yeoh Ooi Gark [1916] 2 AC 575; 1 MC 165 (folld)
Treacy v DPP [1971] AC 537 (folld)
Criminal Procedure Code (Cap 113, 1970Rev Ed)s 171 (1)
Legal Profession Act (Cap 217, 1970Rev Ed)ss 84, 87 (5) (consd);ss 85,86, 87,88, 90,91, 93,94, 98
Penal Code (Cap 103,1970Rev Ed)ss 201, 424 (consd);ss 107,108A
Theft Act 1968 (c 60) (UK)s 21 (1)
Criminal Law–Offences–Offence of causing evidence to disappear–Meaning of “disappear”–Section 201 Penal Code (Cap 103, 1970 Rev Ed)–Legal Profession–Disciplinary procedures–Inquiry Committee failing to give notice to advocate and solicitor before proceeding with inquiry and investigation–Whether provisions of s 87 (5) Legal Profession Act (Cap 217, 1970 Rev Ed) requiring notice imperative or directory–Whether failure to give notice vitiating report of Inquiry Committee–Whether subsequent Disciplinary Committee proceedings also thereby vitiated–Section 87 (5) Legal Profession Act (Cap 217, 1970 Rev Ed)–Legal Profession–Show cause action–Appeal–Advocate and solicitor convicted of instigating dishonest removal of property and admitting to causing evidence to disappear–Advocate and solicitor struck off roll–Whether conviction correct–Whether advocate and solicitor guilty of grossly improper conduct–Whether penalty inflicted excessive–Section 84 Legal Profession Act (Cap 217, 1970 Rev Ed)–Sections 201 and 424 Penal Code (Cap 103, 1970 Rev Ed)
Pursuant to a complaint dated 15 August 1972 made by the Attorney-General against the appellant, who was at all material times an advocate and solicitor of the Supreme Court of Singapore, the Inquiry Committee (“IC”) gave the appropriate notice under s 87 (5) of the Legal Profession Act (Cap 217, 1970 Rev Ed) (“the LPA”) to the appellant of the complaint made against him, before proceeding to inquire into and investigate the complaint. A Disciplinary Committee (“DC”) was appointed “to hear and investigate a complaint” from the Attorney-General.
On 24 October 1972, the appellant pleaded guilty to a charge under s 424 of the Penal Code (Cap 103, 1970 Rev Ed) (“the Penal Code”) for instigating the dishonest removal of property (“the first charge”), and admitted to a charge under s 201 of the Penal Code for causing evidence to disappear (“the second charge”). The appellant was convicted of the first charge and the second charge was taken into consideration pursuant to s 171 (1) of the Criminal Procedure Code (Cap 113, 1970 Rev Ed).
The IC inquired into the matter of the appellant's conviction and admission of 24 October 1972 and the same DC was appointed, this time “to hear and investigate [the appellant's] conviction and sentence”“which sentence took into consideration another charge against” the appellant. The DC concluded, inter alia, that the offence in the first charge implied a defect of character which made him unfit for his profession within s 84 (2) (a) of the LPA, and that he was guilty of grossly improper conduct in the discharge of his professional duty within s 84 (2) (b) of the LPA by reason of the offence in the second charge. The appellant was subsequently struck of the roll.
The appellant appealed to the Privy Council, arguing that the failure by the IC to notify the appellant as required by s 87 (5) of the LPA before its new or renewed inquiry or investigation of his conviction and admission of 24 October 1972 vitiated its report thereon, and that all subsequent DC proceedings were also thereby vitiated.
The appellant further argued that he was not correctly convicted under s 424 of the Penal Code, and that he had committed no offence under s 201 as he had not actually caused the files to “disappear”, in that they were not removed permanently or for so long that they could not be used as evidence in court for proving an offence. Lastly, the appellant contended that the penalty inflicted by the High Court was excessive.
Held, dismissing the appeal:
(1) Section 87 (5) of the LPA should be construed as an imperative provision. The second inquiry by the IC was thus a nullity, but it by no means followed that all the subsequent proceedings before the DC or the High Court were nullities: at [32].
(2) The appellant's conviction under s 424 of the Penal Code was relevant under the circumstances to s 84 (2) (b) of the LPA rather than s 84 (2) (a). The admitted facts before the district judge justified his acceptance of the appellant's plea of guilty: at [40] and [41].
(3) The word “disappear” in s 201 of the Penal Code must be contrasted with the words “secrete or destroy” in s 204. For the purpose of s 201 the degree or length of the secretion of the evidence was immaterial, provided that the evidence in question was for a time caused to escape the vigilance of those who were seeking it as evidence. This accorded with the apparent purpose of the section, and the sense of “disappear” involved was well within the ordinary meaning of the word: at [44].
(4) Moreover, the appellant was not in fact convicted of an offence under s 201 of the Penal Code. The charge under s 201 of the Penal Code, therefore, was never relevant to s 84 (2) (a) of the LPA, but only to s 84 (2) (b). For this purpose the question was whether the appellant was guilty of “grossly improper conduct”. The appellant had admitted that at least part of his purpose in removing the files was to keep them from the police. The High Court was therefore entitled to conclude that the appellant was guilty of grossly improper conduct in the discharge of his professional duty within the meaning of s 84 (2) (b) of the LPA. The conclusion of the High Court that part of that conduct fell also within s 84 (2) (a) was vitiated by an earlier procedural error, but this was immaterial, in view of the fact that it was throughout relevant to and valid as regards s 84 (2) (b): at [45] to [47].
(5) Only a court conversant with the local conditions could judge of the appropriateness of the penalty in circumstances as in the present case: at [48].
(delivering the judgment of the court):
1 The appellant, now aged about 33, was at all material times an advocate and solicitor of the Supreme Court, Singapore. From 1 June 1967 to 29 February 1972 he was employed as a DPP and State Counsel in the Attorney-General's Chambers. From September 1971 until 29 February 1972 he was, in addition, Deputy Registrar of Companies and Assistant Registrar of Business Names. On 1 March 1972 to 15 August 1972 the appellant was in private practice: he was a legal assistant in the firm of Francis T Seow.
2 On 21 April 1972 that firm was instructed to act for a company incorporated and registered in Singapore, known as Gemini Chit-Fund Corp Ltd (“Gemini”). Gemini had branch offices in Malaysia, one being in Kuala Lumpur. On 29 July 1972 the Chairman of Gemini, VKS Narayanan, and the Managing Director, Abdul Gaffar, were arrested in Singapore. On 31 July 1972 Narayanan and Abdul Gaffar were charged in the First Magistrate's Court, Singapore, with abetting Gemini in the commission of the offence of criminal breach of trust in respect of certain funds entrusted to Gemini. On 31 July 1972 the Minister for Finance presented a petition to the High Court in Singapore for the winding up of Gemini, the petition being served on the company on the same day. Between 29 July 1972 and 1 August 1972 the appellant learned successively of the arrest of Narayanan and Abdul Gaffar, the charges preferred against them, and the presentation of the winding-up petition. On 2 and 3 August 1972 the appellant caused certain files of Gemini, Narayanan and Abdul Gaffar to be removed from Gemini's offices to the appellant's office at the offices of the firm of Francis T Seow.
3 On 3 August 1972 the appellant, on the instructions of Abdul Gaffar, wrote and despatched on behalf of the firm of Francis T Seow a letter to KK Kumaran, the general manager of Gemini's branch office in Kuala Lumpur. It was sent by hand for personal delivery. It was in the following terms:
Dear Sir,
We act for Mr Gaffar who has instructed us to dispose of the five cars owned by the company, as well as other moveable properties immediately.
In this connection, we have instructions from our clients to appoint Mr S Francis Retnam as the agent to effect the aforesaid transactions. Please take proper inventory and acknowledgement prior to handing over these properties to Mr Retnam and keep them confidentially in your control. At a later date, when the transactions have been completed, please let me have these documents. You may want to note that Mr Retnam has [sic] given specific instructions as to the disposal of the funds realised from these properties and as such, he has to be allowed custody thereof.
We have been instructed to inform you that Mr Retnam has been authorised by Mr Gaffar to proceed to form a Malaysian based Gemini Chit-Fund Corp Ltd and to discontinue operations as a branch of the Singapore company. These instructions are equally applicable to Gemini Travel Service.
Please co-operate with Mr Retnam and do the needful to effect Mr Gaffar's instructions.
Yours faithfully,
Francis T Seow
4 However, Kumaran ignored the instructions contained in the letter, so that no offence was in fact committed in consequence of the writing and despatch of the letter.
5 On 4...
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