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The Law Society of Singapore v Tay Eng Kwee Edwin [2006] SGDSC 12

Case Number Decision Date Tribunal Coram Counsel Names


: DC/SEC/21/2005 : 06 Sep 2006 : Disciplinary Committee : Arthur Tan, Lok Vi Ming, Ronald Choo, Salina Ishak : Isaac Tito Shane assisted by M Mohan for the Law

Society, The respondent in person

Introduction 1. These proceedings arise from a letter dated 14 October 2004 from Her Honour Justice Judith Prakash to the Law Society regarding the conduct of Mr Edwin Tay Eng Kwee (the Respondent) in relation to High Court Suit No. 1165 of 2003. The Charge 2. The Law Society formulated two charges against the Respondent but eventually proceeded only on one charge. The charge reads as follows: That you, TAY ENG KWEE EDWIN having failed, refused and/or neglected to use your best endeavours to avoid the unnecessary adjournment, expense and/or waste of the courts time in breach of Rule 55 of the Legal Profession (Professional Conduct) Rules are guilty of being in breach of Rule 55(b) of the Legal Profession (Professional Conduct) Rules amounting to improper conduct or practice as an Advocate & Solicitor within the meaning of Section 83(2)(b) of the Legal Profession Act (Cap 161) in that you, on or about the 14th day of October 2004, did cause a vacation of trial dates scheduled between 14th October 2004 and 18th October 2004 in Suit No. 1165 of 2003 without just cause or valid excuse. Brief Facts

3.

Messrs Edwin Tay & Co were the solicitors on record for

Turf City Pte Ltd, the Plaintiffs in Suit No. 1165 of 2003 (the Plaintiffs) which was an action against Foodplex Management Pte Ltd. 4. The Respondent was the solicitor having overall conduct of the matter. His Legal Assistant, Mr Peter Latimer Ezekiel (Mr Ezekiel) had also appeared on the Plaintiffs behalf in certain interlocutory matters. Mr Ezekiel filed an affidavit and testified in these proceedings. He was the only witness to give evidence in these proceedings. 5. The salient portions of Mr Ezekiels affidavit are reproduced below: (4) Sometime in July 2004, I attended a Pre-Trial Conference at the Registry of the High Court where directions were given that the aforesaid matter be fixed for hearing on the 14 th, 15th and 18th if (sic) October 2004. (5) I orally informed Mr Tay of the said directions immediately after the aforesaid Pre-Trial Conference (7) Sometime in late September 2004, before Mr Tay went to Vanuatu to assist in a joint venture and I do recall reminding him of the upcoming hearing dates. He responded, by stating that there was no problem because he would be back in Singapore before 8 October 2004. (9) By 8 October 2004, I became rather anxious as Mr Tay had not returned from Vanuatu. I did, however, successfully manage to contact him via telephone, sometime around 10 October 2004. It was at this juncture that Mr Tay informed me that he would not be able to return to Singapore in time for the upcoming hearing on 14 October 2004 and instructed me to write to the Honourable Court and request that hearing dates be adjourned. (11) A letter was sent to Court on 12 October 2004 requesting the vacation of the hearing dates . (12) However, I was informed that the request had been turned down by the Registry and I was told to make a formal application. I contacted Mr Tay and informed him of the situation. Mr Tay then instructed me to seek the assistance of

fellow solicitors to take out an application for the purpose of vacating the said dates . 6. By a letter dated 12th October 2004, two days before the commencement of trial, Messrs Edwin Tay & Co wrote to the Registrar of the Supreme Court requesting an adjournment of the hearing by one (1) week and hence a vacation of the trial dates. It is helpful to set out the contents of the letter, as they capture reasons for the adjournment request. The said letter reads: We refer to the above matter and the Pre-Trial Conference that was held before the Learned Deputy Registrar Foo Chee Hock on the 1st October 2004. At the aforesaid PTC the Learned Deputy Registrar gave the following directions: (a) Affidavits of Evidence in Chief to be filed and exchanged by the 6th October. (b) Plaintiffs to set the matter for trial by the 12th of October 2004. (c) Trial dates scheduled for the 14th, 15th and 18th of October 2004. The parties have duly filed and exchanged their AEICs by the 6th of October 2004. The Plaintiffs have set the matter down for trial on the 12 th of October 2004 in anticipation of the Trial. The Plaintiffs solicitors humbly and urgently seek the Courts indulgence to seek a short vacation of the Trial dates by 1 week. We humbly seek the understanding of this Honourable Court as Mr Tay Eng Kwee, the solicitor in conduct of this matter for the Plaintiffs has had to delay his return from Taiwan and travel to the Republic of Vanuatu on an urgent basis to render urgent advise (sic) on a Joint Venture. Mr Tay, wishes to state on record for the Honourable Court, that at the time of the abovementioned PTC, he was certain that he would be back from Taiwan to Singapore by the 8 th of October 2004, however due to unforeseen circumstances, he has been compelled to delay his return by one week, so as to fly to the Republic of Vanuatu to render urgent legal services.

Our Mr Tay also wishes to place on record the fact that the success or failure of the abovementioned Joint Venture will have a direct bearing on his own personal insolvency situation, which is a matter of public record in this Honourable Court as can be confirmed in OSB 33/2004G. He is in effect totally reliant on the abovementioned matter to provide him with the funds to be able to make a reasonable proposal for scheme of arrangement to his creditors. We also wish to inform this Honourable Court that our only other solicitor, Mr Ezekiel Peter Latimer, is presently serving his National Service (Reservist) obligations from the 11 th to the 15th October 2004 at Stagmont Road Camp for 56SAB. A copy of the SAF document verifying this is hereto attached for your perusal. In the circumstances, we humbly and profusely apologise to this Court for the inconvenience caused to all parties, but urge this court to use its (sic) discretion in the interests of justice and fairness to grant a short adjournment of this trial so as to allow our solicitors to return to conduct the aforesaid matter. We apologise again and seek the kind understanding of this Honourable Court. 7. Messrs Edwin Tay & Co were informed by the High Court to make a proper application to the Court to vacate the trial dates. 8. On 13th October 2004, the day before the start of the 3-day hearing, the Plaintiffs filed an application for vacation of the trial dates. Mr Ezekiel affirmed the affidavit in support. 9. The affidavit of Mr Ezekiel stated that: (a) The Respondent was away from Singapore, having gone to the Republic of Vanuatu to provide legal advice in relation to a proposed joint venture agreement; (b) The successful completion of that matter would enable the Respondent to resolve certain personal financial matters, as disclosed in the letter exhibited therein; (c) The Respondent had expected to return on Friday, th 8 October 2004 for the trial; (d) Due to factors outside his control and anticipation, the Respondent was unable to return in time for the trial; and

(e)

Mr Ezekiel stated he could not conduct the trial as he

was then on reservist training and that training would end just before midnight on 15th October 2004. 10. Her Honour Justice Judith Prakash heard the said application on the morning of 14th October 2004. As Mr Ezekiel had already started on his reservist training by then, a lawyer from another law firm, Mr Liaw Jin Poh mentioned on behalf of the Plaintiffs solicitors. Mr Ezekiel did attend before the Learned Judge, albeit in army uniform. 11. Her Honour granted the application for vacation and fixed new hearing dates between the 16th and 18thNovember 2004. The Plaintiffs were ordered to pay costs of the application and occasioned by the vacation. It ought to be noted that the Plaintiffs were also represented at the hearing by their General Manager, Mr Ang Tiong Keng. Mr Ang informed Her Honour that the Plaintiffs were only told of the trial dates on 11 October 2004 and that although they wanted to proceed with the trial, this was not possible now in view of the Respondents absence from Singapore. The learned Judge ordered the Respondent to appear before her to show cause why the Respondent should not be ordered to indemnify the Plaintiffs against any costs it had to pay the Defendants by reason of the vacation of the trial dates. 12. It is unclear whether the Respondent ever appeared before Her Honour as ordered. The Committee was not shown any evidence that he did. 13. The Respondent did not appear at the hearing of these proceedings. Ms Angela Chopard (an officer of the Disciplinary Committee Secretariat) gave evidence to the Committee that the Secretariat had tried repeatedly to contact the Respondent and save for one occasion when she was told by the Respondent that he did not intend to file any defence or make any appearance in these proceedings, all of Ms Chopards other phone calls or attempts to reach the Respondent were unsuccessful. In our view, the Respondent had direct and sufficient notice of these proceedings and had elected not to participate in any part. In the circumstances, it was both just and proper to continue with the proceedings in the absence of the Respondent. Findings

14.

We have no difficulty finding that the Respondent was

aware of the dates of the trial and that he was to conduct the trial (see the Affidavit of Mr Ezekiel at paragraph 2; see also transcripts at pages 16 and 17), well before he left Singapore for Taiwan on the 4th week of September 2004 (see page 17 of the Law Society Bundle of Documents). 15. The evidence however supports the position that at the time when the Respondent left Singapore in late September 2004, he was confident that he would be able to return to Singapore by 8 October 2004, or in any event, that he would be able to return to Singapore in time to conduct the trial on the Plaintiffs behalf. The material evidence on this issue includes: a) A Pre-trial Conference was held on 1st October 2004 before the Deputy Registrar (see page 1, Law Societys Bundle of Documents). Directions were given then confirming the trial dates and for the exchange of AEICs. b) The Plaintiffs AEICs were prepared much earlier (see transcripts at page 21). The Plaintiffs AEICs were prepared by the Respondent and must therefore have been prepared by September 2004, at any rate before the Respondent left Singapore in the 4th week of September 2004. c) If there was any reason on the Respondents part to believe that he could not be back in time for the trial then, the Respondent could have instructed Mr Ezekiel to request, at the PTC, for an adjournment of the trial. The fact that the Respondent did not give Mr Ezekiel such instructions coupled with the fact that the Plaintiffs AEICs were ready for exchange at the time he left Singapore lends basis to the Committees view that the Respondent had believed at the end of September 2004 that he would be back in time for the trial. We found no reason to believe that the trip out of Singapore was conceived or planned by the Respondent to be an excuse for the ultimate vacation of the trial dates. 16. Further, Mr Ezekiel had informed Her Honour (at the application for vacation on 14 October 2004) that because he believed that the Respondent would be back in time to conduct the trial, he did not push for the Defence to be struck out on the 8 th of October 2004 when the Defendants still were not ready with their

AEICs for exchange (see page 18 of the Law Societys Bundle of Documents and pages 25 and 26 of the transcripts). Although this piece of evidence appears to contradict the disclosure in the letter from Edwin Tay & Co to the High Court Registry of 12 October 2004 (see page 1 of the Law Societys Bundle of Documents) that the AEICs were exchanged by 6 October 2004, the Committee was satisfied that the letter of 12 October 2004 was crafted with considerable haste by Mr Ezekiel while undergoing reservist training and possibly under less than ideal conditions for perfect recollection of dates. Mr Ezekiel could have been mistaken about the dates at that time of crafting the letter to the High Court Registry. 17. This evidence is material because by the 8th October 2004 (a Friday), parties were no more than 3 working days away from the commencement of trial and a reasonable contention could then have been raised, if necessary, that the Plaintiffs were entitled to have the hearing dates vacated as they were prejudiced by the Defendants delay in exchange of the AEICs. That contention would be fortified by the fact that the partner having conduct was still overseas and the associate assisting was reporting for reservist training on Monday. As we understand it, Mr Ezekiels argument essentially was that on 8th October 2004, there was a real probability that the trial might then have been adjourned if an application was then made by the Plaintiffs to vacate the trial dates. In short, if the Respondent was looking for ways to adjourn the trial, this default by the Defendants presented just the right opportunity. 18. Mr Ezekiel told the learned Judge that because he had truly believed that the Respondent would be back in time to conduct the trial, he did not push for the vacation of the trial dates on 8 October 2004. We find no reason to disbelieve Mr Ezekiel. We are further of the view that up till then at least, the Respondent believed that he could return to Singapore in time to conduct the trial. 19. Mr Ezekiel confirmed that the Respondent was in fact overseas in Vanuatu on or about 10 October 2004. Mr Ezekiel testified that he managed to contact the Respondent on or about 10 October 2004 by dialing an international (Vanuatu) telephone number and was told by the Respondent that the Respondent would be held up in Vanuatu and could not conduct the trial (please see

page

17

of

Transcripts).

Mr

Ezekiels

evidence

provided

confirmation that the Respondent was in fact in Vanuatu and, for the reasons set out in paragraphs 15 to 17 above, the trip was not planned with the intention to avoid or push back the trial dates. We find that in the period starting with the Respondents trip out of Singapore at the end of September 2004 up to 7 October 2004, he expected to be back in time to conduct the trial for the Plaintiffs. 20. We now turn to the Respondents conduct after 8 October 2004. 21. The evidence shows that it was only when Mr Ezekiel was able to reach the respondent by telephone on or about 10 October 2004 or 11 October 2004 that the Respondent disclosed for the first time that he would not be able to return to Singapore in time to conduct the trial. Although the Respondent may well have no reason prior to 8 October 2004 to believe that an adjournment of the trial was necessary, the evidence crucially shows that the Respondent had formed the view by 10 October 2004 at the latest (see transcripts at page 17) that he would not be able to return to Singapore in time for the hearing on 14 October 2004. However, he made no attempts to inform his office or his clients of this change in position. We find that in relation to this point: a) Mr Ezekiel had to call the Respondent on or about 10 October 2004 to find out about the change in the Respondents position and circumstances; b) The Plaintiffs did not even know about the trial dates until 11 October 2004 (see page 20 of the Law Societys Bundle of Documents). It is obvious that not only did the Respondent not inform the Plaintiffs about his inability to be back on time to conduct the trial, he did not even inform the Plaintiffs of the trial dates; c) The Respondents inability to conduct the trial was prejudicial to the Plaintiffs who had wanted the trial to proceed but were unable to because the time was too short for another legal team to take over (see page 21 of the Law Societys Bundle of Documents). d) The Respondents conduct not only caused the postponement of the trial against the Plaintiffs wishes, but it also resulted in the Plaintiffs being ordered to pay to the

Defendants the costs of the application and occasioned by the vacation of the trial dates. e) The Respondent made no attempt whatsoever to appraise either his office or his clients of the change in circumstances which had resulted in his not being able to return to Singapore in time for the hearing. f) The discovery by Mr Ezekiel of the Respondents change of position was somewhat fortuitous and was, in any event, wholly attributable to Mr Ezekiels own initiative and sense of responsibility which led to him being able to contact the Respondent on the eve of Mr Ezekiels reporting for reservist training. 22. The Respondents conduct post-8 October 2004 was particularly shocking. We have no difficulty in finding that the Respondent showed appalling disregard for the Plaintiffs interests or for the just and expeditious hearing of the matter. 23. The Respondents conduct is further compounded by his rejection of every opportunity for him to explain or to render a defence for his actions. In this regard, the Committee notes that he was absent from the Disciplinary Committee hearing and the Inquiry Committee hearing; and gave no explanation and made no representations to both tribunals. Further, on the evidence, he gave no explanation to the Court or to Mr Ezekiel for the reasons of his absence. 24. Without an explanation, the Committee would be forced to speculate on the possible reasons why the Respondent was unable to return to Singapore on time to conduct the trial. This was not something the Committee could do. Conclusion 25. In the absence of any defence or explanation tendered by the Respondent, and in the light of the evidence tendered, the Committee has no difficulty in arriving at the conclusion that the Respondent did not have a good and sufficient reason for preferring his engagement in Vanuatu over the hearing of the trial and the Respondent has no good and sufficient reason for failing to give early notice of his unavailability for the trial. 26. Although the Respondent appeared to have done everything necessary for the conduct of the trial at the end of September

2004/early

October

2004,

he

subsequently

kept

away

from

Singapore; and gave no explanation for the particular difficulties he allegedly faced which required him to remain in Vanuatu with full knowledge that his only associate was unable to attend trial because that associate was required by law to perform his reservist duties over the same period. 27. Because he gave no explanation for his absence from Singapore, the Committee is unable to find any reason or basis to conclude that the vacation of trial dates was necessary. Instead, the Committee draws the irresistible inference that the Respondent refused to explain and spurned the numerous opportunities to explain because he would not have been able to show that the absence was necessary. 28. In our view, all the elements of the charge against the Respondent have been made out in that: a. there has been an unnecessary vacation of the trial dates; b. the vacation of trial dates was caused by the absence of the Respondent; and c. there has been no just cause or valid excuse given for the absence of the Respondent. 29. Accordingly, we convict the Respondent as charged, of a breach of Rule 55 of the Legal Profession (Professional Conduct) Rules amounting to improper conduct as an Advocate and Solicitor. 30. In deciding upon the appropriate sanction to be meted out, the Committee has taken into account the factor that whilst there was inconvenience caused to the Courts, to the litigating parties and to the opposing Counsel and although the conduct of the Respondent was prejudicial to the efficient and orderly disposal of cases for trial, there is no evidence of fraud or dishonesty on the part of the Respondent and no substantial injustice was caused as a result. The trial was adjourned to a later date and there is no evidence to suggest that substantial justice was denied to the Plaintiffs as a result of the adjournment. 31. After hearing the witnesses and receiving the evidence of the Law Society, the Committee concludes that no cause of sufficient gravity for disciplinary action exists under s 83 of the Legal Profession Act (Cap 161), but the Respondent should be

ordered to pay a penalty sufficient and appropriate to the misconduct committed. 32. In this regard, the Committee is appalled by the manner in which the Respondent completely disregarded his duties and responsibilities, both to the Court and to his clients as expressed in his failure to make any attempt whatsoever to appraise the Court, the Plaintiffs or his office of his situation and the reason for his inability to return to Singapore. The Committee also deplores the absolute lack of cooperation from him, particularly to the Court, including taking any steps that may have indicated some element of contrition on his part and hence mitigate the gravity of his misconduct. Although the Committee is aware both of the fact that the Respondent is not currently in practice and the likelihood that any monetary penalty may not be complied with, it is felt that a monetary penalty ought to be imposed in an amount that conveys the misgivings of this Committee in relation to the gravity of the Respondents misconduct. 33. The maximum penalty allowed is S$10,000. The Committee hereby orders the Respondent to pay the penalty in the sum of S$8,000.