Singapore Law Gazette December 2015

8/16/2019 Singapore Law Gazette December 2015

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President’sMessage

Singapore Law Gazette December 2015

the stakeholders. The support of the Ministry of Law has

been crucial. They have provided the fuel that we neededto drive the Scheme forward. I have consistently referred to

it as a uniquely Singaporean “Public-Private Partnership”,

that one day may even be a template for other jurisdictions

to emulate. This partnership creates an environment

of goodwill, co-operation and collaboration with all the

stakeholders in the criminal justice system. But the heart

and soul of CLAS has always been, and will always be, our

volunteers and the individual and collective support of our

members. The game changer was government nancial

support for enhanced CLAS and the inauguration of the

CLAS Fellowship scheme. They served as the catalyst for

developing systemic support for our pro bono schemes.

We still enjoyed the support of our individual volunteer

base, many of whom, disproportionately, come from the

smaller rms and sole proprietorships. However, we saw

a breakthrough in institutional support, when our ve

largest domestic law rms stepped up to underwrite and

sponsor the CLAS Fellows in 2015, and have continued

their support into 2016. Senior members of the criminal

bar served as mentors to our CLAS Fellows. Many of

our medium sized rms committed to accepting a xed

number of CLAS cases, and some exceeded the “pledged”

number. All in all, it was a tremendous sustained “whole

Continued from page 1

Council 2015 (Seated, L to R): Mr Adrian Tan, Mr Lok Vi Ming, SC, Mr Gregory Vijayendran, Mr Thio Shen Yi, SC, Ms Kuah Boon Theng, Mr Lim Seng

Siew, Mr Steven Lam (Standing, L to R): Mr Anand Nalachandran, Mr Sunil Sudheesan, Mr Paul Tan, Ms Sunita Sonya Parhar, Ms Katie Chung, Ms

Wendy Lin, Ms Simran Kaur Toor, Mr Grismond Tien

Not in picture: Mr Kelvin Wong, Ms Lisa Sam, Mr Chiam Tao Koon, Ms Usha Chandradas, Mr Yeo Chuan Tat, Mr Arvindran s/o Manoosegaran

of profession” effort to be the best corporate citizens

possible. My Council and I thank them for their role in thedevelopment of a signicant, sustainable and impactful

pro bono culture amongst lawyers.

Lucius Seneca, the Roman statesman and philosopher

once said “He who receives a benet with gratitude,

repays the rst instalment of it”. In giving thanks, I have

only scratched the tip of the iceberg. There are too many

individual members to mention in a single message,

and so many of them have been truly inspirational. As a

profession, we are privileged, but it can fairly be said, that

as a profession, we pulled our weight in giving back to the

community. Let’s be proud of that.

So as we end 2015, may I wish all our members, and our

Secretariat, a blessed holiday season and new year, and

may 2016 be a year where we continue to make a positive

and decisive impact to the communities in which we live

and operate.

u Thio Shen Yi, Senior Counsel

President

The Law Society of Singapore




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Diary 4 November 2015Seminar on Anti-Money Laundering

Organised by the Anti-Money Laundering Committee2.30pm-4.45pm55 Market Street

5 November 2015DeepaRaya Festive Luncheon

12.30pm-2.30pmState Courts Bar Room

6 November 2015Day of Conveyancing Highlights 2015

Organised by the Conveyancing Practice Committee9.00am-5.00pmNTUC Business Centre

12 November 2015Small Law Firms and State Courts & Family Justice Courts Committees Luncheon

Jointly organised by the Small Law Firms and State Courts & Family Justice Courts Committees12.30pm-2.30pmState Courts Bar Room

13 November 2015Seminar on Mental Capacity Law - Domestic Law & Cross-Border Issues

Organised by the Probate Practice and Succession Planning Committee10.00am-12.15pm55 Market Street

13 November 2015Law Society Annual Dinner & Dance

Organised by the Social and Welfare Committee7.30pmMarina Mandarin Singapore

21 November 2015Annual Bowling Tournament - Piala Pala 2015

Organised by the Sports Committee10.00amWest Bowl, West Coast Recreation Centre

Upcoming Events11 January 2016Opening of the Legal Year

29 January 2016Thank You Dinner for Volunteers

7 and 8 April 2016Litigation Conference Workshop 2016

Diary and Upcoming Events




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► Tan Su-YinChief Executive Officer

The Law Society of Singapore

From the Desk of the CEO

As the year draws to a close, I would like to thank all ourvolunteers who have contributed their time, efforts andresources to the Law Society to make our work possible.The Secretariat and I are grateful for the work of ourmembers on Council, our Committees, pro bono lawyersand all who have contributed to the work of the Law Societyin various capacities this year. I continue to be awed bythe dedication of all our volunteer lawyers to the work ofthe Society, many of whom are running a busy practice inchallenging times.

The Secretariat looks forward to supporting Council, allCommittees and volunteers in the coming year.

In addition to our volunteer lawyers, I would also like tothank my dedicated team at the Secretariat for their strongsupport and hard work over the past year. The work of theLaw Society has evolved signicantly over the years, andthe Secretariat has had to be extremely agile and open tochange, in tandem with the changes in roles and work ofthe Society. It may seem cliché, but the adage “Changeis the Only Constant” has been a reality for many at theSecretariat this year, and this will be the environment thatwe operate in and face head-on in the years to come.

Despite the increased workload with refreshed portfoliosand new roles thrust upon many Directors and staff thisyear, in addition to existing work, our team has remainedupbeat in the face of new challenges. The Secretariatrecently held our teambuilding in Sentosa, and the variousdepartments had an excellent time bonding over good food,

erce competition and boisterous games.

The increased size of our membership over the years hasresulted in an increased workload for all departments acrossthe board, from Compliance to Membership Services andContinuing Professional Development (“CPD”), to namea few. We will double up our efforts next year to continuemaking your Law Society membership of value, with best-in-class yet affordable CPD courses and conferences, as wellas networking and sporting events of interest to members.

In addition, our team at the Pro Bono Services Ofcecontinues to push ahead to facilitate the increased workloadand number of volunteer lawyers in our various schemes suchas the Enhanced Criminal Legal Aid Scheme, CommunityLegal Clinics and our Law Awareness and Project Law Helpoutreach efforts. In doing so, the Law Society hopes to offera wider range of opportunities for members to give back tothe community in various capacities for the greater socialgood in Singapore.

I wish you and your family a blessed Christmas and asuccessful 2016 ahead!

CEO's Message






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Annual Dinner & Dance 2015

The Annual Law Society Dinner & Dance 2015 washeld on Friday, 13 November 2015 at Marina Mandarin.This year’s Dinner also celebrated Singapore’s GoldenJubilee as well as the 30th Anniversary of our CriminalLegal Aid Scheme (“CLAS’).

Approximately 500 guests attended the dinner, includingthe Attorney-General, Judicial Commissioners of theSupreme Court as well as other distinguished guests.

The master of ceremonies for the night was local

comedian Rishi Budhrani who entertained guests withhis unique brand of comedy.

At the Dinner, the C C Tan Award and Pro Bono Ambassador Award were presented. The C C Tan Award2015 was conferred on Mrs Arfat Selvam and the ProBono Ambassador Award 2015 was conferred on MrThrumurgan s/o Ramapiram.

Other award recipients for 2015 included the following:

Volunteer of the Year Award

• Large-sized law practice: Harry Elias Partnership LLP• Medium-sized law practice: Hilborne Law LLC • Small-sized law practice: G S Lim & Partners

• Sole practitioner law practice: Johan Ismail & Co

Contributor of the Year Award

Rodyk & Davidson LLP

Plaque of Appreciation

Mr Bala Chandran s/o A Kandiah, Mr Chew Yee TeckEric, Ms Lynn Tok Kwee Hoon and Mr Aziz TayabaliSamiwalla

Friend of the Law Society

Mr Kenneth Yap, Accounting and Corporate Regulatory Authority, and Mr Wang Teck Leng, Inland Revenue Authority of Singapore

There were also fund-raising activities such as a silentballot, the auction of limited edition Singa lawyers withpersonal notes from Senior Minister of State Ms IndraneeRajah as well as sales of charity tables to raise funds for

the “Enhanced CLAS” scheme which was launched inearly 2015.

The Law Society would like to thank the following lawfirms who purchased Silver tables:

1. Baker & McKenzie. Wong & Leow

2. TSMP Law Corporation

3. Harry Elias Partnership LLP

4. Cavenagh Law LLP


Standing (L to R): Mr Gregory Vijayendran, Mr Vincent Hoong, Judicial

Commissioner Mr Edmund Leow

Seated (L to R): Mrs Edmund Leow, Attorney-General Mr V K Rajah, Mr

Thio Shen Yi, SC, Judicial Commissioner Ms Foo Tuat Yien, Mrs Arfat

Selvam

Guests hamming it up for the camera




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This citation was read by Vice-President Mr Gregory

Vijayendran.

It is my privilege and honour to read the citation for the C CTan Award 2015.

For senior members of the Bar who have had the privilegeof knowing the rst President of the Law Society Mr TanChye Cheng, or C C Tan as he was fondly known, theywould say that throughout his long professional career, heembodied the nest and noble virtues of the legal profession – honesty, fair play, gentlemanliness and personal integrity.

The Council of the Law Society inaugurated the C C Tan Award in 2003 in his memory. The Council presents this

award annually to a member of the Bar who best exempliesthese qualities.

This year’s recipient is a lady. So for gentlemanliness, anunusual epithet for a lady lawyer, read impeccable courtesyand manners.

Our C C Tan Awardee this year was admitted as an Advocate & Solicitor of the Supreme Court of Singapore in1969. She has practised for 46 years now and is presentlythe Managing Partner of Duane Morris & Selvam LLP andSelvam LLC.

To many of us in the legal fraternity who know her, she wasand remains a top corporate lawyer. A legal eagle with fourdecades of experience in corporate nance, she has beenin the forefront of the development of the nancial servicesmarket in Singapore.

But that is not all our award recipient is known for. She hasmade an indelible impact in community service. She playsleadership roles with voluntary welfare organisations suchas:

1. Breast Cancer Foundation;

2. Hope Village; and

3. Muhammadiyah Welfare Home

Closer to home, she has Chaired the Law Society’s ProBono, Learning and Support Services ManagementCommittee, since 1 January 2008. I have been privileged toserve under her humble and self-giving leadership for closeto two years now.

On the spirit of volunteerism, she has been quoted assaying: “As a volunteer, it is your call on what, how andwhen you want to contribute. When volunteers see howtheir seemingly little efforts put a smile on the faces, or light

Citation for C C Tan Award 2015“… this ladypersonifies one ofthe finest role modelsfor younger lawyers(and I include myselfamongst them)

to aspire to. Sheepitomizes, on merit,the values celebratedby the C C TanAward.”

Vice-President Mr Gregory Vijayendran, reading the citation




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up the lives of the recipients, it is priceless.” But as thoseof us giving pro bono services know, the benet is neveruni-directional. As our lady in the limelight wisely observed:

“Almost always, it makes better people out of us”.

Our C C Tan Award Winner has indeed gone the extra mileon volunteerism. So that must make her one of the bestpersons in our midst. Her sterling track record in Law Societyvoluntary contributions include serving as Chairperson ofLaw Society’s Corporate Practice Committee from 1995 to1999 and of the Practice Structure Committee from 2000 to2002 before being elected as President of the Law Societyin 2003.

In an interview with the Singapore Law Gazette on

volunteering with the Law Society, she said this and I quote:

Serving on a Law Society committee or Council isa sacrice. It takes personal and professional timeaway from family and ofce. Volunteering to servealso requires much hard work and patience.

As a member of the Council or a committee, youmust be prepared to act as counsellor and adviserto the profession. You must hear concerns, howeversmall, and tackle everyday practice concerns.

Often when you serve, you are called upon tomake recommendations, give feedback and decide

on the long-term future of the profession. You putaside professional or personal self-interests toserve public and professional needs. Personalintegrity is a must.

Those words reveal the soul of our recipient.

The timing of this lady lawyer’s award this evening is

particularly interesting. The last thematic issue of theSingapore Law Gazette (our October 2015 edition) wason 20 Years of CEDAW in Singapore. In our Law SocietyPresident’s speech on “Half the Sky” (an interestingread), he cited a statistic that women form 43 per cent ofthe practising lawyers in Singapore. Our awardee’s rmactively supports the Duane Morris Women’s Initiativethat recognises the unique attributes women bring to thepractice of law. How tting that her own unique attributes tothe practice of law is being recognised tonight.

But tonight is not about redressing a gender imbalanceeven though our winner is only one of two lady awardees

since the inauguration of this award. Instead, ladies andgentlemen, this lady personies one of the nest role modelsfor younger lawyers (and I include myself amongst them) toaspire to. She epitomizes, on merit, the values celebratedby the C C Tan Award.

For her personal integrity, honesty and impeccable courtesyand manners, the Council of the Law Society is pleased topresent the 2015 C C Tan Award to Mrs Arfat Selvam.

Today marks a special and unique day for Mrs Arfat Selvamto receive this award. It is her birthday. Mrs Selvam, onbehalf of everyone present tonight, Happy Birthday and

many happy returns. Thank you for choosing to celebrateyour birthday with your colleagues at the Bar.

It is my privilege to welcome Mrs Arfat Selvam on stageto receive this Award. I would also like to invite thePresident of the Law Society to present this award to her on

Mrs Arfat Selvam receiving the C C Tan Award from President Mr Thio Shen Yi, SC




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our behalf. Let’s welcome the 2015 C C Tan Award winner,Mrs Arfat Selvam.

The Honorable Attorney-General V K Rajah, Judges andJudicial Commissioners, President of the Law Society MrThio Shen Yi, distinguished guests, friends and colleagues.Thank you Mr President and members of your Councilfor this Award. The C C Tan Award was inaugurated in2003 during my term as President of the Law Society. Werecognised the legacy that Mr C C Tan had left behindfor the legal profession. He was the embodiment of highstandards of professionalism – of honesty, fair play and

personal integrity. Little did I realise at that time that I mightsome day be the recipient of the Award. I am honoured andhumbled, and am most touched to be given this Award.

As I reect on my long and very satisfying legal career, Icannot but acknowledge the many people who have helpedme along on this journey – those who have opened doorsand those who provided guidance for me to stay steadyon the course. Without their encouragement and support,especially in my early years, I could not have sailed throughthe stormy seas that challenge every practitioner who wantsto do his or her best for the client.

Foremost among them are three luminaries who I wouldespecially like to pay tribute to tonight.

First – someone who I had known since childhood, and whoinspired me to become a lawyer – Professor Ahmad Ibrahim.He was a reserved person, but with tremendous depthof intellect. Professor Ahmad was part of the Singaporedelegation together with our late Prime Minister Lee KuanYew to the Malaysia talks in London which discussedSingapore’s independence from the British. He was one ofthe architects of the Constitution of Singapore. In 1963, hewas appointed as Singapore’s rst Attorney-General.

C C Tan AwardAcceptance Speech by Mrs Arfat Selvam

Channelling his legal expertise in Muslim law, Professor Ahmad produced the landmark Administration of MuslimLaw Act in 1968. In his later years, he went to Malaysia

where he established the International Islamic UniversityMalaysia.

Professor Ahmad gave me much encouragement to be alawyer. When I nished my “O” levels, he gave me GlanvilleWilliam’s book, Learning the Law . He put me on the path ofthe law. As an undergraduate, I was under his tutorage inIslamic law and read his prolic writings on the subject. Hehad the noble virtue of hard work that every lawyer shouldaspire to acquire. I learned a lot from Professor Ahmad.

At the end of my rst year as a law undergraduate at theUniversity of Singapore, I had a vacation job which opened

a new world for me. I spent my vacation, and all otheruniversity vacations in those four years at law school withMalayan Law Journal (“MLJ”). I was enamoured by thepersonality of the founder of MLJ – Dr Bashir Mallal. He hadfounded MLJ in 1932. It reported judgments of the Courtsin Singapore, Malaysia and Brunei. I helped proof read judgments and write headnotes when I was there.

Dr Mallal was an exceptionally hardworking person with agreat sense of humour. He wore a bow tie and smoked thecigar. He always had a ready smile. Distinguished guestssuch as Judges from Singapore and Malaysia would visit

“I have always tried to instill in all thewould–be lawyers who had passedthrough the firm as trainees that integrityis the most important single element inbeing a good lawyer. “




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him at his ofce at 10 Malacca Street. Lunch was brought tothe ofce in a tifn carrier everyday. I was privileged to meetand eat with them during such lunches.

It was a special privilege for me to be under the mentorship ofDr Mallal. He was a man of great character who enriched myexperience of life immensely. I continued to go to his ofce asa young lawyer – he had many lawyers using his ofce library – until he passed away in 1972. Dr Mallal left a rich legacy oflaw reports and other writings like the Mallal’s Digest .

When I graduated, I had the good fortune of being a pupil ofan excellent master – Mr Graham Starforth Hill. Mr Hill wasthen senior partner of Rodyk & Davidson, the law rm inwhich I went on to spend the next 22 years of my life.

Mr Hill was greatly respected as a practice leader. He

acted for the late Mr Lee Kuan Yew whenever he had adefamation action. He excelled in tax matters and built astrong corporate client base for Rodyk.

Mr Hill became President of the Law Society in 1969 – theyear when I was admitted to practice. He went on to serveas President until 1972. He said in an interview conductedwhen Rodyk was publishing its book to celebrate its 150 th

anniversary:

I have always tried to instill in all the would–belawyers who had passed through the rm astrainees that integrity is the most important single

element in being a good lawyer. It always has been,and always will be. One can always look up the lawin a book, but only oneself will know what is meantby honesty and integrity.

Mr Hill’s qualities of hard work and integrity had a greatinuence on me during my early years as a young lawyerat Rodyk.

I have been fortunate to have people who believe in hardwork and integrity guide me in my formative years.

I believe that the experiences in the rst few years ofa lawyer’s career sets the stage for his or her onwarddevelopment. Today, we have a young profession – morethan half of our members are below 40 years old. Thoseof us who are senior lawyers have the duty to nurture theyoung ones, so that they will develop the virtues of hardwork, fair play, honesty and personal integrity – virtueswhich would stand our young lawyers in good stead andenhance the reputation of our legal profession.

Being a woman lawyer, I would like to say this on behalf ofall our lawyers who are women. When I entered practicein 1969, it was not easy for ladies to be employed by theestablished legal rms. As Singapore progressed in thelast 50 years, all that has changed. This includes the legal

profession. The statistics show that 43 per cent of about5,000 lawyers in practice in Singapore today are women – anot insignicant number. The statistics are even better in

the legal service. I have been reliably informed that 48 percent of the legal ofcers are women. Five Judges of theHigh Court Bench are women.

Singapore could not have progressed so well over the last 50years without the participation of women in the work-force.However I am concerned with the observation made by ourPresident in his message published in the current issue ofthe Law Gazette. According to him, more “mid-category”women are not renewing their practising certicates.

In reecting on this observation, I looked at my own situationand contemplated on what allowed me to be in practice

continuously – now for more than 45 years. I could do sobecause I married an extremely supportive husband. Myhusband, G Pannir Selvam did not expect me to performthe traditional roles of wife and mother of my two children.We have been married for 45 years. Throughout this time,he has been my go-to person for my work problems – beit in dealing with a difcult client or solving a legal issue.He has the knack of analysing the complex legal issue toits core principles and presenting it simply. Being extremelywell read, he would magically come up with the appropriateauthority to support a legal proposition. To me, he is anintellectual powerhouse and I respect his decisions.

Selvam has been a strong supporter of my legal career. Inthe same year when he became a Supreme Court Judgein 1991, I shared with him my plans to set up a boutiquecorporate law rm. He fully supported my decision. Hequoted to me Chairman Mao Tse-Tung’s famous words:“Struggle is Happiness”.

To that he added the words of the French philosopher, Voltaire:

Hard work saves us from three great evils:Boredom, Vice and Poverty.

I am pleased to say that those words continue to inspire me.

To those of you tonight who are husbands, my messageto you is “give full support to your wives”. Give herencouragement in whatever she needs to advance herself.The adage “Behind every successful man stands a woman”is true in the reverse too. A woman needs her man to standby her for her self-realisation.

In closing, I would like to congratulate you, Mr Presidentand your members who were elected recently to Council.You and your Council members have a challenging yearahead. My best wishes go to all of you as you unselshlygive your time for the good of our Law Society membersand the larger legal community.



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1. Mr Chelva Rajah, SC, congratulating

Mrs Arfat Selvam

2. Pro Bono Ambassador of the Year,Mr Thrumurgan s/o Ramapiram,

receiving his award from President,

Mr Thio Shen Yi, SC

3. Vice-President, Mr Kelvin Wong

leading the toast to the President of

the Republic of Singapore

4. President, Mr Thio Shen Yi, SC

5. Council members with award

winners and guests

1

32

5

4




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Top: President, Mr Thio Shen Yi, SC

and Treasurer, Ms Kuah Boon Theng,

with the Singa Lions that are being sold

to raise funds for the Pro Bono Services

Ofce




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Feature

application made under subsection (1) —(a) if the High Court or Board, as the casemay be, is satised that —

(i) the transaction is not in goodfaith after taking into account

only the following factors:

(A) the sale price for the

lots and the common

property in the strata

title plan;(B) the method of

distributing the

proceeds of sale; and

(C) the relationship

of the purchaser to

any of the subsidiary

proprietors; or (ii) the sale and purchaseagreement would require anysubsidiary proprietor who has notagreed in writing to the sale to bea party to any arrangement forthe development of the lots andthe common property in the stratatitle plan; or

(b) if the collective sale committee doesnot consent to any order made by the HighCourt under subsection (7A) (emphasisadded).

As it turns out, the test of “good faith” under the LTSA(specically, in relation to the limb on the “method ofdistributing the proceeds of sale”) was one of the key issuesconsidered in some detail by the Singapore Court of Appealin Lim Li Meng Dominic and others v Ching Pui Sim Sally

and another and another matter (“Lim Li Meng Dominic v

Ching Pui Sim Sally”).8 In order to better understand theCourt of Appeal’s decision and application with respect tothe test of “good faith” under the LTSA, it would be usefulto set out briey, the background to this case, as well asthe key personalities behind the sale committee as they

did not always act ad idem throughout the course of theproceedings.

Brief Background

Gilstead Court (“GC”) is a condominium developmentcomprising 48 units of residential properties. In 2008, aseven-member Collective Sale Committee (“CSC”) wasappointed to carry out a collective sale of the development.The members of the CSC were as follows (with the rst threenamed ofce-holders forming the Executive Committee, or“Exco”):9

1. Sally Ching, the Chairperson (“Ms Ching”);

2. Warren Khoo, the Secretary (“Mr Khoo”);

3. Choo Liang Haw, the Treasurer (“Mr Choo”);

4. Chan Ju-Lian;

5. Loke Wan Tche;

6. Lok Kok Poh; and

7. Charles Ng Pooh Cheok.

The Collective Sale Agreement (“CSA”) which was draftedand circulated to all SPs contained a number of controversial

clauses (termed as “Objectionable Clauses” by the HighCourt). These were summarised by the Court of Appeal asfollows:10

(a) Clause 7 consisted of several sub-clauseswhich, when read together, essentiallyrequired each SP to pay an initialcontribution of $2,000 per unit… towardsthe cost and expenses of the collectivesale, which would be refunded to him withinterest (of 12% per annum) should thecollective sale be successful (see cll 7.1 and7.3); however, … if any SP did not pay the

initial contribution amount, he would havetwice this amount withheld from his share ofthe net sale proceeds, which would then beshared equally among the contributing SPs(see cl 7.5).

(b) Clause 11 had two key sub-clauses:

(i) Clause 11.2 operated in certaincircumstances to charge to anSP who did not sign the CSA theentirety or an appropriate part of thecosts and expenses of any approval

proceedings before the Strata TitlesBoard (“STB”) and/or the High Court;and

(ii) Clause 11.3 authorised the CSC toseek legal advice and then obtainapproval from the SPs to sue forlosses sustained from the delay inthe receipt of the sale proceeds asa result of approval proceedings thathad to be instituted before the STBand/or the High Court …




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(c) Clause 12 penalised any SP who gave,received or solicited any considerationfor certain acts relating to the collective

sale process by, inter alia, deducting asum equivalent to twice the amount ofconsideration from that SP’s share of the netsale proceeds.

With respect, the origin of the Objectionable Clauses waswell-intentioned.11 According to the principal draftsman12 of

the CSA, these clauses were “nothing more than attemptsat promoting the principle of equality” and “attempts atcurbing [the] selsh instincts of individuals”13 (presumablyreferring to any non-signatory SPs). Notwithstandingthe high hopes of the draftsman and the CSC in seekingto obtain unanimous consent for the sale, eight SPs of

ve units in the development did not sign the CSA. Inthis regard, there were indications that the non-signatorySPs would be prepared to sign the CSA if the CSC gavewritten conrmation that it would not seek to enforce theObjectionable Clauses against them. However, such writtenconrmation was not given by the CSC.

On 4 July 2013, the Exco proceeded with the applicationto the STB pursuant to s 84A(2A) of the LTSA, and thenon-signatory SPs led their objections. When efforts tomediate the dispute failed, the STB duly issued the stoporder pursuant to s 84A(6A)(b) of the LTSA.

On 7 October 2013, four members of the CSC (namely,Choo Liang Haw, Loke Wan Tche, Lok Kok Poh and CharlesNg Pooh Cheok) led Originating Summons (“OS”) No. 941of 2013 before the High Court, seeking, inter alia, to obtaindeclarations that the Objectionable Clauses of the CSA didnot apply to the non-signatory SPs if they signed the CSA,and that if they sign the CSA, the collective sale shouldproceed on the basis of unanimous consent.

On the other hand, on 16 October 2013, Mr Khoo (in thenames of Ms Ching, Mr Choo and himself, ie the Exco) ledOS No. 982 of 201314 applying, inter alia, for the High Court’sapproval of the collective sale, and to obtain a declarationthat the non-signatory SPs be bound by all the terms of theCSA as if they were parties thereto.

Finding of the High Court on the Bona Fides of theransaction

At the High Court, Quentin Loh J held that although theObjectionable Clauses caused an “unjustiably unequaldistribution of the sales proceeds”,15 this was not to theextent of impugning the bona des of the transaction.16

Considering the state of the property market then, the High

Court considered that it would be fair to allow the sale togo through on the conditions imposed by the High Courtpursuant to s 84A(5A)(c) of the LTSA.17 The High Court

therefore issued an order for the sale of the development,subject to the following:18

(a) Clause 7.5 [of the CSA] and related clausespertaining to the consequences that [applyto] SPs who failed to pay contributions,pursuant to cl 7.1 are struck out;

(b) SPs who have paid contributions pursuant tocl 7.1 will be reimbursed pursuant to eithercl 7.3 or cl 7.4 but only with reasonableinterest which … [the Court is xing] at 4%per annum;

(c) Clause 11 is similarly struck out; and

(d) Costs and expenses for the collective sale,other than costs of the proceedings beforethe STB and [the Court], shall be paid by allSPs proportionately to their share according totheir unit share value and area as set out inSchedule 4 to the CSA. Any dispute or doubtas to the costs and expenses for the collectivesale as set out [in the judgment] shall beheard and decided by [the Court] throughsubsequent applications under OS 982.

Approach Adopted by the Court of Appeal

Three19 of the eight SPs who did not sign the CSA appealedagainst the decision of the High Court. On appeal, the Courtof Appeal arrived at a different nding from the High Courton the issue of good faith. The Court of Appeal found thatthe Objectionable Clauses contained in the CSA had a realand potentially substantive impact on how much of thesales proceeds would be distributed to any individual SP,with the overall effect of benetting the majority signatorySPs, and operating to the prejudice of the minority non-

signatory SPs.20

The Court of Appeal therefore found the inclusion of theObjectionable Clauses and the respondents’ determinedeffort to enforce and give effect to them to be contrary to

the requirement that the transaction be carried out in goodfaith, taking into account the method of distribution of thesale proceeds.21 The sale order (that was issued by the HighCourt) was consequently set aside by the Court of Appeal.

In reaching this conclusion, the Court of Appeal set outseveral important principles22 in relation to the determination




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of good faith in the context of collective sales, which willbe instructive to future sale committees and draftsmen ofcollective sale agreements:

1. The sale committee’s duty to be even-handed23

The statutory requirement of good faith (which, in the contextof Lim Li Meng Dominic v Ching Pui Sim Sally , is foundunder s 84A(9) of the LTSA) requires a sales committeeto hold an even hand between consenting and objectingowners.24 The purpose of the statutory provision is tosafeguard the interests of the minority and ensure that theyare treated no less favorably than the majority.25 That being

said, a sale committee is not necessarily in breach of itsduty of even-handedness because any individual SP ndsthat the distribution is unfair only in his or her (subjective)perspective.26

The Court of Appeal also afrmed that the position of thesale committee is in some ways akin to a trustee who has tohold an even hand between the interests of different classesof beneciaries,27 and in this regard:28

… any decision taken with the sole purpose in

mind of advantaging only some without regard

to the interests of the others will always becharacterized as unfair (emphasis added).

If the method of distribution is objectively unfair anddesigned to prejudice the interests of a particular class ofSPs, the Court will not hesitate to nd that the statutory dutyof good faith has not been discharged.29

The thrust of these principles, it is submitted, is that it wouldbe difcult to treat any SP differently from the other SPs,other than on a transparent and objectively fair basis. Asan example, this author suggests that a consenting SP may

be required to pay a higher initial contribution to the costs andexpenses of the collective sale (than the other consentingSPs), and this may be justied on the basis of the higher

oor area of his strata lot, if the same rate is applied to allconsenting SPs. On the other hand, it would not be in goodfaith to treat consenting SPs differently from non-consentingSPs, for example, by giving consenting SPs a larger shareof the sales proceeds simply on the basis that they fall withinsuch class of SPs (ie they have provided their consent to thesale). Whilst practitioners may be looking for further detailedguidance on the permissible types of clauses to be includedin collective sale agreements, it is not possible to classifyexhaustively and immutably all acceptable or unacceptablebases for differential treatment – what would constitute anacceptable basis for differential treatment would depend on

the specic facts and circumstances, bearing in mind theprinciples as enunciated by the Courts.30

2. Relevance of the collective sale agreement in

assessing the bona des of the transaction

The Court of Appeal took a broader interpretation of theterm “transaction” in s 84A(9)(a)(i) of the LTSA to includethe whole sale process, including how the consent for thecollective sale was secured.31

In doing so, the Court of Appeal rejected the respondents’submission that the CSA was not a relevant consideration

and should not be considered by the Court. If the methodof distribution is found in the collective sale agreement, theCourt will look at the collective sale agreement in order toassess the good faith of the sale in accordance with theprovisions of the LTSA.32

3. Interpretation of the phrase “method of distributing

the proceeds of sale” in the LTSA

At the appellate level, the respondents had argued thats 84A(9)(a)(i)(B) of the LTSA, which refers to the phrase“method of distributing the proceeds of sale”, was notengaged as the method of distributing the sales proceeds

was “a xed formula for the apportionment of the saleprocess”, and the Objectionable Clauses were thereforeextraneous to this method of distribution.

This argument was rejected by the Court of Appeal, whichheld that when a Court takes into account the method ofdistributing the sale proceeds for the purpose of assessingthe good faith of the transaction, it is concerned “with thesubstance of the transaction and not merely its form”.33 The

purpose of s 84A(9)(a) is to safeguard the interests of theminority, and the Court will not defeat that purpose by givingthe provision a “narrow and pedantic”34 interpretation.










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The majority of the Court (Lord Mance and Lord Carnwathdissenting) also thought there was no participation. Hence,the landlords were both held not liable for the tenant’s

nuisance.

Reasoning

Lord Neuberger PSC, whose rendition of the law hadthe endorsement of his brethren, thought the position asstated by Lord Millett in Southwark London BC v Mills11 wascorrect:12

… “it is not enough for [the landlords] to be awareof the nuisance and take no steps to prevent it”.In order to be liable for authorising13 a nuisance,

the landlords “must either participate directly in thecommission of the nuisance or … have authorisedit by letting the property”.

His lordship quoted approvingly the words of PennyquickVC in Smith v Scott 14 that in order to nd authorisation,there must be “virtual certainty” or a “very high degree ofprobability” that the letting will result in a nuisance. LordCarnwarth preferred to apply the test of “necessary orhighly probable” consequence and expressly rejectedas “insufciently rigorous” the yardsticks of “likely” and“foreseeable”.

The UKSC was unanimous in its decision that, in the presentcase, the landlords could not be said to have authorised thenuisance as the proposed uses would not necessarily resultin nuisance.

As regards participation, the Court was divided. LordNeuberger, Lord Clarke and Lord Sumption were of theview that the conduct of the landlords did not amount toparticipation while the dissenting Judges, Lord Mance andLord Carnwath, thought it did. The appellants relied on anumber of factors to establish participation, including:15

1. the landlord’s inaction or failure to prevent or reduce the

noise;

2. the landlord’s action in erecting a wall to keep down the

noise as an indication of the landlord authorising the

nuisance; and

3. the landlord’s taking an active role, when noise abatement

notices were issued under the Environmental Protection

Act, in negotiating with the authority.

As regards factor (1), Lord Neuberger thought it was clearfrom Malzy v Eicholz 16 that even if the landlord has the

power to prevent the nuisance, his inaction or failure doesnot, on its own, amount to authorisation or participation.

The contention in (2), his lordship thought, was a strange(his lordship used the term “ironic”) one to make – that thelandlord’s attempt to reduce the nuisance supports theargument that he was participating in it.

Factor (3), his lordship acknowledged, had greater force.But Lord Neuberger thought it was natural for a landlordto be involved in such proceedings in order to ensure thathis reversionary interest is not adversely affected. Hislordship thought the various factors whether taken alone orcumulatively did not point to direct or active participation inthe nuisance by the landlord.

In contrast, Lord Mance and Lord Carnwath were certainthat there was participation by the landlords. To quote LordCarnwath, “the involvement of [the landlords] has gonefar beyond the ordinary role of a landlord protecting andenforcing his interests under a lease. It has involved activeencouragement of the tenants’ use and direct participation inthe measures and negotiations to enable it to be continued”.

Analysis and Comment

Ex facie, the UK Supreme Court has provided neat andostensibly straightforward concepts and principles ofliability. A landlord is liable for his tenant’s nuisance if heeither authorised the nuisance or participated in the tenant’sactivity. The landlord’s knowledge of the nuisance coupledwith his inaction (in not abating the nuisance) are insufcientto found liability.

For authorisation, there must be inevitability or a highprobability of nuisance being a consequence; it is notsufcient that the nuisance was a likely or foreseeableconsequence. To be liable for participation, there must be,on the part of the landlord, “active”, “direct”17 or “close”18 participation or “involvement”19 in the activity of the tenant.

Upon closer scrutiny, the writer nds the framework ofprinciples emanating from Lawrence regrettably inadequateand lacking the precision and sophistication needed fordealing with the challenges. We will consider the matterunder the issues/headings of authorisation, participationand inaction.

Authorisation

The usual meanings of the term “to authorise” are “to giveauthority” (which is of course circuitous), “to approve” and“to give permission”. It should be noted that, in Lawrence,




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the lawlords were concerned with whether the landlord canbe said to have authorised the nuisance and not just theactivity.

The problem is that usually, at the time of entering intothe tenancy, the landlord does not contemplate (still lessapprove of) the tenant engaging in activities which may leadto complaints of nuisance. On the contrary, the landlord doesnot wish his tenant to engage in such activity. Hence, thelandlord typically has, among the covenants in the tenancyagreement an undertaking by the tenant not to create orcause any nuisance. This covenant is bolstered by a clauseentitling the landlord to terminate the tenancy for a breachof any covenant. It would therefore be very rare to ndinstances where the landlord has given authority, approval orpermission for the commission of a nuisance.

But the UKSC attaches a somewhat different meaning to“authorise”. According to the Court, when a landlord lets outpremises in circumstances where nuisance is a consequencewhich is inevitable, nearly certain or highly probable, he issaid to have authorised the nuisance.

A comparison with American Restatement of the Law of

Torts,20 which Lord Carnwath referred to in his judgment, isinstructive as it reveals the complexity which the exerciseof determining the landlord’s liability could or should entail. According to s 837:

A lessor … is subject to liability … if … (a) at thetime of the lease the lessor consents to the activityor knows or has reason to know that it will be carriedon, and (b) he then knows or should know that itwill necessarily involve or is already causing thenuisance.

The provision is more studied in its analysis of the componentsor elements of the scheme of liability. It looks at the landlord’sculpability and state of mind as regards the activity and thenas regards the nuisance. For the activity, the culpabilitylies in the landlord’s consent (rather than authorisation) or

knowledge (“knows or has reason to know”). As regardsthe nuisance, the landlord is faulted if he knows or “shouldknow” that the activity will “necessarily involve” or is “alreadycausing” nuisance. (In short, landlord knows of activity andknows it causes or amounts to nuisance.)

The Lawrence schematic does not address the landlord’sstate of mind. It looks, instead, objectively (it would appear)at the likelihood of resulting nuisance, pegging the thresholdat the very high level, using terms such as “inevitability”,“virtual/near certainty”, “necessary consequence” and “highprobability”.

A more nuanced and calibrated approach, addressingthe landlord’s state of mind as regards the activity and asregards the likelihood of nuisance respectively, is desirable

for providing the sophistication necessary to discern casesin which liability should be imposed and those in which itshould not. It would, of course, be necessary to considercarefully the appropriate threshold of knowledge that shouldbe required.

It may be wondered if the s 837 requirements are moredifcult to satisfy than the Lawrence “authorisation”requirements. The answer is both yes and no. It is moredifcult as there is a dual requirement – knowledge of activityand knowledge that the activity would cause nuisance. It iseasier in that the threshold of knowledge is low – it includes“has reason to know” and “should know” respectively.

Participation

As regards liability on the basis of participation, s 834 of theRestatement says:

… [o]ne is subject to liability for a nuisancecaused by an activity, not only when he carrieson the activity but also when he participates to asubstantial extent in carrying it on.

The difference is that the section explains that participation

must be to a “substantial extent” whilst the law lords inLawrence chose to speak of “direct”, “active” and “close”participation.

What is signicant is that, so far as participation is concerned,both approaches do not discuss the landlord’s state of mind.The reason seems to be that where the landlord is himselfthe actor or one of the actors, he is liable for causing anuisance even if he does not have the requisite knowledge;nuisance is, after all, a “strict liability” tort.

As we consider the actual decision in Lawrence, we cometo a very difcult question – was there participation by the

landlords or not? Are the majority or the minority correct?This is a very controversial matter, and the fact that this is a3-2 decision warns us as much.21

The majority viewed the landlords’ conduct as no more thanprotecting their interests. The involvement in respondingto abatement notices is driven by the landlord’s legitimateconcern to establish or affect the establishment of whatactivities are permitted and what are not permitted on land(of which he has the reversionary interest). Put another way,such proceedings aim at drawing the line between nuisanceand reasonable interference which has to be tolerated.




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The landlord supports the activity and, understandably, isconcerned to see that the line is fairly and reasonably (fromhis perspective, that is) drawn. From this angle, it should

not be said that this involvement amounts to a participationin the nuisance.

But the minority view is equally compelling. In siding with thetenant when there have been complaints of a nuisance, itdoes appear that there is a high degree of participation and,

perhaps even, authoriasation.22 [And the minority Judgeswere very certain that the landlords had crossed the line.Lord Carnwath’s words bear repeating here:

… the involvement of Terence and James Waltershas gone far beyond the ordinary role of a landlordprotecting and enforcing his interests under a

lease. It has involved active encouragement ofthe tenant’s use and direct participation in themeasures and negotiations to enable it to becontinued (emphasis added).

On balance, the writer is inclined to agree with the minority

that, on the facts, the landlords should be liable.23 Butenunciating or articulating the precise reason or justicationfor such a view is far from easy. Perhaps the answer lies inthe negligence framework which we now consider.

Inaction as Negligence?

Lord Neuberger thought the law relating to a landlord’sliability for his tenant’s nuisance was “tolerably clear” andthat, apart from authorisation and participation, the landlordbore no liability. There was no liability on account of thelandlord’s awareness of the nuisance and his failure toabate and, to this end he cited with approval Southwark

London BC v Mills,24 Smith v Scott 25 and Maltzy v Eichholz 26.

It may puzzle the reader why the landlord could not be heldliable under the tort of negligence. In this regard, Smith v

Scott is particularly instructive as Pennyquick VC explainedwhy, notwithstanding developments in the tort of negligence,

it should still be the law that the landlord should not be liablefor his inaction. It may be recalled that in Dorset Yacht v

Home Ofce,27 Lord Reid famously remarked that: “…the time has come when we can and should say that [theDonoghue principle] ought to apply unless there is some justication or valid explanation for its exclusion”. In thelines that followed, Lord Reid gave examples for exclusionand these included where “there is a long chapter of the lawdetermining in what circumstances owners of land can andin what circumstances they may not use their proprietaryrights so as to injure their neighbours”. In view of what LordReid had said, Pennyquick VC was of the view28 that “the

law cannot … now be reshaped by a reference to the dutyof care”. To do so, he warned, would have “far reachingimplications” for business and for society.

To the suggestion that the law has developed sinceMalzy , Lord Neuberger responded that the Court was notreferred to any “social, economic, technological or moraldevelopments” in the past century to justify a change in law.Of course the Court, if it were so minded, could have madeits own observations as to the relevant developments.

ime for ort of Negligent Failure to Abate?

It will be noted that the legal framework of a landlord’s liability

for his tenant’s nuisance has to deal with two scenarios or

time frames: (i) liability of landlord in granting the tenancy;and (ii) liability of the landlord in permitting the tenancy tocontinue after learning of an alleged nuisance. The law

appears to focus on (i) and brush aside (ii) by saying thatas long as the landlord did not authorise or participate, he is

not liable even after he knows of the complaint.

There is a feeling of illogicality and unreality here. Letting outwith high probability of nuisance amounts to authorisation

and makes the landlord liable; yet continuing to let out afterhaving actual knowledge of an alleged nuisance attracts no

liability.

The issue is not a simple one and leads to a more basic andfundamental question: what is the proper and acceptableresponse of a landlord when he learns that the neighbour

has complained of a nuisance by the tenant? Is he requiredto investigate the matter? And, if having investigated,

what (else) should he do? Can he, without impunity, leavematters as they are or must he take steps to abate the

alleged nuisance?

Is the reply, which Lawrence appears to afford, that so longas he does not participate in the activity, his inaction does

not damn or implicate him the correct one? Or is it time torene the law by applying the tort of negligence?

Let us consider the factual matrix. The premises are the

landlord’s and so is the tenant. As mentioned above, thetenancy agreement usually contains a covenant by the

tenant not to cause nuisance to others and gives the right toterminate the tenancy if there is a breach of this covenant.

When informed by the neighbour, the landlord has actualknowledge of the activity and the allegation of nuisance. Against such factual dynamics, can it be that the landlord

absolutely has no obligation, responsibility or liability to takesteps to abate the nuisance?




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In support of the position of no liability for inaction, it maybe argued that the activity and its attendant liability belongto the tenant and that provides sufcient recourse to the

complainant. It may further be argued that so far as thelandlord is concerned, there is an omission rather thanan act. It may also be thought that in the scale of harm,interference of enjoyment of land does not rank high whencompared to injury to person or damage to property.

As a retort, it may be argued that while the rst recoursemay be against the tenant, it is desirable to provide analternative and additional recourse. As for seriousness ofharm, nuisance can cause substantial disturbance anddistress and some legal protection is necessary.

Further, since the landlord has, by virtue of the tenancy

agreement, a right against and a power over the tenant,does not that right and power carry some responsibility?29

Should not a landlord who has rented out his premiseshave a duty to act responsibly and reasonably vis-à-vis hisneighbours? The position of the landlord having no liabilityat all does not accord with expectations and realities ofsocietal interaction.

Of course what is appropriate and reasonable as a landlord’sresponse would depend on the circumstances. Nuisanceis the unreasonable interference with the neighbour’senjoyment of his land. When a complaint is made, there isa range of possibilities (adopting three for simplicity sake)

that there was:

1. clearly a nuisance;

2. borderline nuisance; and

3. clearly no nuisance.

Taking a commonsensical approach, if the tenant’s activityis obviously a nuisance, one would expect the landlord totake steps to abate the nuisance or procure his tenant todo so. In extreme cases, as where the tenant refuses toco-operate, one might even expect the landlord to terminate

the tenancy.

Conversely, where the activity clearly does not amount toa nuisance, then the landlord would be justied in aligningwith the tenant and not take any abatement measures;perhaps he might even assure the tenant that his activity iswithin the bounds of reasonable use of land.

Where the complaint borders on nuisance, what theacceptable response is more debatable. An instinctiveanswer is that the landlord can “sit on the fence”, so tospeak. But it is possible, depending on the further facts of

the case, that it may be reasonable for the landlord to takesome steps in abatement or, conversely, to side with thetenant.

The appropriate response is determined by consideringwhat is reasonable to impose on the landlord and what isfair and necessary for the protection of the complainant’sinterests. This involves a balancing act, which, after all, iswhat the law of nuisance seeks to do.

One reason for the Courts’ reluctance to impose liability onthe landlord is the fear of “far reaching implications”. This fearis overstated as the tort of negligence is a well-developedand robust framework and is fully able to discern when alandlord should be liable and when he should not. For onething, the duty of care analysis has all its renements of

foreseeability, proximity and policy30 which enable a Court,if it is so inclined, to nd that there is no duty. For another,in terms of standard of care or scope of duty, the frameworkis sophisticated and can calibrate the appropriate responseaccording to the factual matrix.

So if we apply the negligence framework, the landlord isliable if he owes the neighbour a duty of care and, in hisconduct or response, fails to take reasonable steps towardsabating the nuisance. If the landlord does not owe a duty orif he does what is reasonable in the circumstances, he is notliable for his tenant’s nuisance.

Other Legal Angles

Apart from the legal concepts discussed above, there aretwo other approaches or ideas relevant to the analysis ofthe landlord’s liability. The rst is joint liability – where two (ormore) persons cause the same damage, they may be liable

as joint tortfeasors. According to Markesinis & Deakin,31 these situations include cases of “express authorisation orinstigation” and principal and agent.

The other is “secondary civil liability”, which according to the

same learned authors,32 means liability as an “accessory” tothe commission of a civil wrong, much like in criminal law. A landlord may be said to be an accessory to the tenant’stort if he procured the commission of the tort or assisted inits commission.

Perhaps future Courts may consider these concepts as theyseek to reshape the framework of the landlord’s liability.

Concluding Toughts

At rst glance, the Lawrence decision appears to providethe clarication much needed in this area of law.






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This article examines the importance of client counselling where legal practitionersintend to represent or are already representing multiple clients with conicting or

potentially conicting interests. The new r 20 of the Legal Profession (ProfessionalConduct) Rules 2015 and the guidelines issued in two recent Court of Appealdecisions have provided critical guidance to legal practitioners in this area.

Counselling Multiple Clients with ConflictingInterests

IntroductionClient counselling, which is essentially the giving of options

by a legal practitioner to a client to make an informed choice,1 is often an underrated legal skill in managing professionalconicts of interest. As compared to other legal skills such asadvocacy, negotiation or mediation where extensive formalinstruction is provided through academic or vocational legaleducation, client counselling skills are usually assimilatedthrough experience in the crucible of legal practice. Asrecent developments in the ethical mineeld of representingmultiple clients with conicting interests have shown, clientcounselling skills in fact form the bedrock of the lawyer-

client relationship. In this realm, the lack of such skills orthe misapplication of them is likely to result in breaches ofprofessional rules on conicts of interest.

The new r 20 of the Legal Profession (Professional Conduct)

Rules 20152 (“PCR 2015”), which now regulates multipleclient conicts, has reinstated the primacy of client counsellingin managing such conicts. Closely tracking the guidelinesissued in two recent Court of Appeal decisions, Mahidon

Nichiar bte Mohd Ali v Dawood Sultan Kamaldin3 (“Mahidon”)

and Kuek Siang Wei v Kuek Siew Chew 4 (“Kuek Siang Wei ”),r 20 sets out detailed matters which a legal practitioner or lawpractice is required to counsel their clients on. This article

analyses the scope of r 20 and discusses practical issuesthat may arise in applying this rule.

Rule 20 of the PCR 2015: An Overview

Rule 20 addresses a conict or potential conict betweenthe interests of two or more clients. Because of the lengthof this rule, it is useful to break it down into its constituentcomponents as follows:

1. The principles guiding the interpretation of the rule:r 20(1).

2. The conditions which apply to a legal practitioner or alaw practice that intends to act for multiple clients withdivergent or potentially divergent interests in two scenarios:

a. Before accepting instructions (r 20(2)-(4)); and

b. While acting for them in a matter or transaction(r 20(5)-(6)).

3. Where a legal practitioner or a law practice may continueto act for one of the multiple parties in the matter ortransaction even though the duty to cease to act istriggered: r 20(7).

It is beyond the scope of this article to discuss theseparate ethical obligation under r 20(8) which deals witha conict of interest arising from a legal practitioner or lawpractice having prepared a document on behalf of two ormore parties concerning their rights and obligations, andsubsequently representing any party in a dispute arisingfrom the document.5

Principles Governing the Interpretation of Rule 20

Under the new PCR 2015, each ethical rule or each Divisionof ethical rules is prefaced by one or more principles whichguide the interpretation of the rule or Division. In addition,

an overarching set of eight principles is set out in r 4, whichguide the interpretation of PCR 2015 as a whole. In thecontext of conicts of interest, legal practitioners shouldtake note of the general principle enunciated in r 4(b) asfollows:

A legal practitioner’s duty to the legal practitioner’sclient is subject only to the legal practitioner’s dutyto the court, and must at all times be fullled in a

manner that upholds the standing and integrity

of the Singapore legal system and the legal

profession in Singapore (emphasis added).




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Under r 20(1), the specic principles that guide theinterpretation of r 20 provide that a legal practitioner or lawpractice “owes duties of loyalty and condentiality to each

client” and “must act prudently to avoid any compromise ofthe lawyer-client relationship between [the legal practitioneror the law practice] and the client by reason of a conict, orpotential conict, between the interests of 2 or more clients”.

The inter-related concepts of loyalty, condentiality andconict of interests may be described briey as follows:

1. A legal practitioner’s duty of loyalty to his or herclient stems from the well-known aphorism that noman can serve two masters.6 This duty “is derivedfrom the duciary nature of the solicitor-clientrelationship, which requires a solicitor to place his

client’s interests above those of his own as well asthose of third parties”.7 Moreover, “the obligations of aduciary go beyond the avoidance of actual conictsof interest, and extend to proscribe perceived orostensible conicts as well”.8 The duty of loyalty,while “onerous”,9 is “an essential cornerstone of thesolicitor-client relationship as it ensures that a clientmay condently expect to receive impartial and frankadvice and in turn repose complete trust in a solicitorto safeguard his interests”.10

2. A legal practitioner’s duty of condentiality istraditionally a fundamental aspect of the lawyer-

client relationship.11 It is a “duciary duty”12 and acomponent of a legal practitioner’s duty to act in thebest interests of his client.13

3. Conicts of interest arise when a legal practitionercompromises his or her duties of loyalty andcondentiality.14 In multiple representations, where alegal practitioner “is asked to act for two clients withconicting interests at the same time, the duciaryobligation of loyalty owed to each will clash”.15 Often, the legal practitioner is also placed in an“intractable catch–22 conundrum”.16 in view of the“tension between the conicting requirements of

condentiality and disclosure owed concurrently tothe multiple clients”.17

The Singapore Courts have endorsed the position statedby the Privy Council that “[t]here is no general rule of law tothe effect that a solicitor should never act for both parties ina transaction where their interests may conict”.18 A strongpolicy reason is that “a public interest element in allowingmultiple representations in certain matters” may exist,for example, if it “assists in lowering transactional legalcosts in standard matters”.19 However, a legal practitionerwho represents multiple clients is not to be treated more

leniently as “the standard of skill and care expected of asolicitor acting for multiple parties vis-à-vis each client mustbe at least equivalent to that of the solicitor acting for a single

party”.20

Conditions Allowing Multiple Representations

I Before Accepting Instructions

Under rr 20(2) and 20(3) of the PCR 2015, a legal practitioneror law practice who intends to act for multiple parties to amatter or transaction must counsel prospective clients onve key matters if “a diversity of interests exists, or may

reasonably be expected to exist, between those parties”(emphasis added).

The rule contemplates that a legal practitioner or law practicemay wish to act for parties who have different (but not yetconicting) interests or interests which may reasonably beexpected to diverge in the future. In both cases, there appearsto be no actual conict of interests, but only a potential one.

Diversity of interests exists

When does a diversity of interests exist? For instance, inMahidon, the solicitors had prepared a deed of renunciationfor several beneciaries to renounce their interests in theirfather’s estate but did not meet or communicate directlywith these beneciaries. The solicitors took instructions only

from the sole administrator of the estate who would gainsubstantially from the disposition. They did not verify the soleadministrator’s instructions as they did not discern any signof disagreement amongst the parties at the time of executingthe deed. The Court of Appeal eventually set aside the deedon the basis that the beneciaries concerned, who only hadmodest education, had executed the deed of renunciationwithout understanding its nature and effect.

The “dening feature” of Mahidon was that the partiesconcerned had potentially conicting interests as the soleadministrator’s gain was the beneciaries’ loss.21 This feature,quite apart from the complexity of the transaction and the

relatively unsophisticated beneciaries, imposed on thesolicitors a “heightened duty to explain the position carefully”to the beneciaries since they were acting concurrently for allthe parties.22

If r 20(2) is applied to Mahidon, it seems fairly clear that theparties already had a diversity of interests when the deed ofrenunciation was prepared. Mahidon also illustrates that rr20(2) and 20(3) are concerned with the divergent interests

of the multiple clients, and not whether there was “apalpable conict or discord between the parties at aninterpersonal level”.23




Feature

Diversity of interests may reasonably be expected to exist

This is a more difcult scenario as the multiple parties are

likely to have identical interests at the outset, but the legalpractitioner has to reasonably anticipate that they woulddiverge in the future. For example, a legal practitioner whois approached by a group of potential clients to representthem in contesting the distribution of an estate may initiallybe of the view that their interests are identical. However,after ascertaining each beneciary’s interest (pecuniaryand non-pecuniary) in the estate, the legal practitioner mayreasonably anticipate that their interests will diverge in thefuture if it is necessary to reach a compromise with theopposing group that will result in some of the clients gaininga benet, and other clients suffering a corresponding loss.

This hypothetical scenario was adapted from the facts ofKuek Siang Wei , where all the members of the deceased’srst family had executed a deed of consent, which authorisedthe administrators of the deceased’s estate to negotiatewith the deceased’s second family in order to amicablyresolve the distribution of the deceased’s estate. Ultimately,a settlement was reached on the manner of distributing thedeceased’s estate, but certain members of the deceased’srst family had not been given material information bytheir solicitor and therefore lost signicant amounts in thedistribution. Accordingly, the Court of Appeal decided to setaside the deed of consent.

The next section will examine the ve key matters thata legal practitioner or law practice is required to counselprospective clients on.

A. Direct communication

Rule 20(3)(a) of the PCR 2015 requires a legal practitioneror law practice to “communicate directly” with each party tothe matter or transaction (referred to in r 20 as “a relevantparty”) to counsel on four areas of concern:

1. Rule 20(3)(a)(i): Explain to that relevant party:

a. how the interests of all or any of the relevant partiesdiverge or may diverge

b. how the legal practitioner or law practice maybe prevented from disclosing to a relevant partyinformation obtained from another relevant party,despite the relevance of the information to the matteror transaction; and

c. how the legal practitioner or law practice may beprevented from giving to a relevant party any advicethat is prejudicial to another relevant party.

2. Rule 20(3)(a)(ii): Inform that relevant party that the

legal practitioner or law practice must cease to act in thematter or transaction if, in the course of the retainer, the

legal practitioner or law practice has difculty in advisingon and dealing with the relevant parties’ divergentinterests competently, evenly and consistently.

3. Rule 20(3)(a)(iii): Receive and deal with any querieswhich that relevant party may have on the matter ortransaction, or on the risks of all or any of the relevantparties being jointly represented in the matter ortransaction by the legal practitioner or law practice.

4. Rule 20(3)(a)(iv): Ascertain precisely the intentions ofthat relevant party.

The words “explain”, “inform”, “receive and deal with” and“ascertain” in r 20(3)(a) indicate that a legal practitioneror law practice is expected to directly counsel prospectiveclients on specic issues which would place them in the bestposition to make an informed choice on whether they shouldbe represented by a single legal practitioner or law practice.Indeed, in highlighting the importance of the matters nowfound in r 20(3)(a)(ii), the Court of Appeal in Mahidon

stated that it “alerts the parties at the outset to the fact thattheir expected savings in costs and time by opting for jointrepresentation is at some risk of being erased in the courseof such representation, and, so, should encourage them to

think more carefully about whether separate representationmight be more benecial instead”.24

The emphasis on direct communication in r 20(3)(a) echoesthe Court of Appeal’s observation in Mahidon that “it is ofthe rst importance, and at the bare minimum, that thesolicitor communicates with the diversely interested clientsdirectly” (emphasis in original).25 The various matters whichthe Court of Appeal noted that a legal practitioner ought todirectly communicate with multiple clients on mirrors thosefound in r 20(3)(a).

B. Ostensibly or potentially disadvantageous transaction

Under r 20(3)(b) of the PCR 2015, the requirement of directcommunication with clients also applies to a situation where“a transaction … is ostensibly or potentially disadvantageousto a particular relevant party”. A legal practitioner or lawpractice must directly counsel prospective clients with threeaims in mind:

1. Rule 20(3)(b)(i): Explain the relevant party’s positionbefore the transaction, and how the relevant party’sposition will or may be altered to that party’s detrimentby the transaction.




Feature

2. Rule 20(3)(b)(ii): Verify whether any instructionspurportedly given on behalf of the relevant party do infact reect that party’s intentions.

3. Rule 20(3)(b)(iii): Remove any doubt as to whetherthe relevant party may have been misled by, or may beacting under the undue inuence of, another person.

Rule 20(3)(b) corresponds with the observations made inMahidon on a solicitor’s duties in multiple representationswhere one or more clients is ostensibly or potentially

disadvantaged.26 This rule entails a high ethical standardbecause it will not sufce for a legal practitioner or lawpractice to “act solely on the instructions of one of [themultiple clients] whose interests are advanced by those

instructions”, “even if the instructing party has beenauthorised to give instructions on behalf of the potentially

disadvantaged party.27 Thus, ensuring that the instructingparty has the authority to give instructions on behalf

of the potentially disadvantaged party28 is a necessarybut not sufcient condition in the context of multiplerepresentations. The legal practitioner or law practice mustgo further to ensure that “there is nothing untoward aboutthe transaction” and that the explanation to the potentiallydisadvantaged party is performed “assiduously”, and not

mechanically.29

Also, the requirement in r 20(3)(b) to “remove any doubt”30 is

a stringent one. This requirement seeks to guard against the“invidious concern” that a potentially disadvantaged client“may have been either misled or unduly inuenced by the

instructing party”.31 In justifying this requirement, the Courtof Appeal in Mahidon held that the ostensibly disadvantagedclient in the context of multiple representations was asvulnerable as a client who is referred by a third party toa solicitor, for which direct communication had also beenmandated for the purposes of obtaining or conrming

instructions.32

However, unless a legal practitioner is intimately involvedin the affairs of the multiple parties involved in the matter

or transaction, detecting deception or undue inuence of apotentially disadvantaged party by the instructing client mayneed some investigatory resources, particularly in casesinvolving complex personalities or parties who may not allbe living in Singapore. The suggestion made in Mahidon that

the potentially disadvantaged party should be counselled inthe absence of the instructing client to prevent an “inhibitinginuence” may go some way to addressing this issue33,although it may raise another issue of whether the legalpractitioner is then obliged to disclose to the instructingclient condential information shared by the potentiallydisadvantaged party.34 To avoid any misunderstanding, it

may be advisable to highlight to the instructing client at theoutset the possibility of holding separate meetings for eachclient, in addition to the matters set out in r 20(3)(a).

C. Independent legal advice

The requirement under r 20(3)(c) to advise each relevantparty to obtain independent legal advice tracks the well-established position in Singapore case law which wasendorsed in Mahidon and Kuek Siang Wei . One issue maybe whether the denition of “independent advice” in thecontext of prohibited borrowing transactions under r 23(4) ofthe PCR 2015 would be relevant to interpreting the scope of“independent legal advice” under r 20(3)(c). In any case, thegeneral principle set out in r 4(b) – to “[uphold] the standingand integrity of the Singapore legal system and the legal

profession in Singapore” – should be borne in mind wheninterpreting r 20(3)(c).

D. Failure to obtain independent legal advice

Rule 20(3)(d) requires a legal practitioner or law practiceto document in writing a particular relevant party’s failureto obtain independent legal advice. This rule accords withthe Court of Appeal’s observations in Mahidon that a legalpractitioner should record the clients’ failure to obtainindependent legal advice in writing or even ask the clients“to conrm their refusal to seek independent legal advice by

signing a form which reects clearly that decision”.35

E. Informed consent

The nal requirement before a legal practitioner or lawpractice can accept instructions from prospective clients isfor informed consent in writing from each relevant party to

be obtained: r 20(3)(e). This requirement is in line with theCourt of Appeal’s preference for a written acknowledgementof informed consent, as it would avoid disputes and signal toclients the importance of the informed consent being given.36

Continuing obligations

Client counselling does not end with the acceptance ofinstructions from prospective clients. Rule 20(4)(a) imposeson a legal practitioner or law practice a continuing obligationto be vigilant of any conict or potential conict of interestthroughout the course of the retainer, as well to inform eachrelevant party of any such conict or potential conict.

Further, r 20(4)(b) requires the legal practitioner or lawpractice to cease to act if there is difculty in advising onand dealing with the relevant parties’ divergent interestscompetently, evenly and consistently. As the Court of Appeal observed in Mahidon, “the onus of identifying the




Feature

potential conict is on the solicitor and not the client”(emphasis in original), given that lay clients cannot beexpected to raise concerns when they may not be aware of

the material facts.37

In interpreting the scope of r 20(4)(b), it is suggestedthat a legal practitioner or law practice should be guidedby whether the duties of loyalty and condentiality (asoutlined above) would be contravened. In this regard, theCourt of Appeal in Kuek Siang Wei commented that a legalpractitioner must cease to act for all the parties “where it

will simply be impossible for the solicitor to discharge hisobligations towards all the beneciaries without his beingput in a situation where he is forced to prefer the interestsof one beneciary over the interests of one or more of the

other beneciaries”.38

II While Acting for Multiple Clients in a Matter orransaction

Under rr 20(5) and 20(6) of the PCR 2015, where a legalpractitioner or law practice acts for multiple parties to amatter or transaction and “a diversity of interests arises

between those parties during the course of retainer for thematter or transaction”, the legal practitioner or law practicemust observe the same continuing obligations as those setout in r 20(4). Hence, the same concerns raised above on r20(4) would equally apply here.

Conditions Allowing Continued Representationof a Relevant Party

Rule 20(7) of the PCR 2015 allows a legal practitioner orlaw practice to continue to act for a relevant party in the

matter or transaction even though the legal practitioner orlaw practitioner is required to cease to act under either r20(4)(b) or r 20(6)(b) provided that:

1. the legal practitioner or law practice ceases toact for all other relevant parties whose interests

diverge from the interests of that relevant party; and

2. all of those other relevant parties give their informedconsent in writing for the legal practitioner or law practiceto continue to act in the matter or transaction.

Legal practitioners should also be mindful of the cautionin Kuek Siang Wei that in such a scenario, the legalpractitioner “must take steps expeditiously to ensure thatthe other parties are not labouring under the assumptionthat he continues to act on their behalf”, which may then

give rise to an implied retainer.39

Further Aspects of Client Counselling under

Rule 20 of the PCR 2015

Two further aspects of client counselling under r 20 ofthe PCR 2015 should be mentioned here, in view of theobservations made by the Court of Appeal in Mahidon.40

First, r 5(2)(k) of the PCR 2015 requires a legal practitioner

to “keep proper contemporaneous records of all instructionsreceived from, and all advice rendered to, the client”. Thisnew obligation codies the ethical practice recommendedby the Singapore Courts in a number of cases. Incounselling multiple clients under r 20 of the PCR 2015,keeping contemporaneous attendance notes is, therefore,not merely a prudent practice, but a mandatory obligation.

Second, a legal practitioner or law practice which failsto discharge the ethical obligations under r 20 of thePCR 2015 may well be exposed to concurrent breachesof duties to the client under r 5(2) of the PCR 2015. Forexample, depending on the circumstances of each case,the following provisions under r 5(2) may be applicable:

1. Rule 5(2)(b): when advising the client, to inform (exceptin limited situations) the client of all information knownto the legal practitioner that may reasonably affect theinterests of the client in the matter.

2. Rule 5(2)(e): to keep the client reasonably informed ofthe progress of the client’s matter.

3. Rule 5(2)(h): to provide timely advice to the client.




Feature

Conclusion

The series of Singapore Court decisions in the past decade,

including Mahidon and Kuek Siang Wei , that providedguidance on managing conicts of interest in multiplerepresentations has culminated in the enactment of r 20 ofthe PCR 2015. The requirement of direct client counsellingon specic areas of concern in multiple representationshas placed the responsibility on legal practitioners toensure that clients fully understand and provide writtenconsent to the implications of engaging a single solicitorto represent them. Legal practitioners who conscientiouslycomply with the requirements of r 20 will be better protectedfrom the vagaries of serving multiple masters. However,one issue that r 20 does not address is the relevance andrequirements of Chinese walls which may be implemented

by a law practice to safeguard each party’s condentialinformation where necessary. Nevertheless, as noted inMahidon, no ethical framework can exhaustively addressall issues arising from the “myriad of scenarios”41 of multiplerepresentations and legal practitioners must ultimatelyexercise “diligence, common sense and basic judgment”42

in addressing multiple client conicts.

* The views expressed in this article are the personal views of theauthor and do not represent the views of RHTLaw Taylor Wessing LLP.

Notes

1 Avrom Sherr, Client Care for Lawyers: an Analysis and Guide (2nd edition, London:

Sweet & Maxwell, 1999), p 104.

2 Which came into operation on 18 November 2015 vide S706/2015, revoking the

Legal Profession (Professional Conduct) Rules (“PCR”).

3 [2015] 5 SLR 62.

4 [2015] 5 SLR 357.

5 Formerly r 29 of the PCR.

6 P.D. Finn, Fiduciary Obligations (Sydney: Te Law Book Company Limited, 1976), p

252, para 580.

7 Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR(R) 477 at [62].

8 Ibid .

9 Ibid .

10 Ibid .

11 G E Dal Pont, Law of Confidentiality (Australia: Lexis Nexis Butterworths, 2015), p

167, para 9.18.

12 Lie Hendri Rusli v Wong Tan & Molly Lim (a firm) [2004] 4 SLR(R) 594 at [50].

13 See r 6(1) of the PCR 2015.

14 Supra (note 12 above) at [46].

15 Charles Hollander Q.C. & Simon Salzedo Q.C., Conflicts of Interest (4th edition,

London: Sweet & Maxwell, 2011), p 2, para 1-002.

16 Law Society of Singapore v Uthayasurian Sidambaram [2009] 4 SLR(R) 674 at [35].


18 Ibid, at [48], quoting from Clarke Boyce v Mouat [1994] 1 AC 428 at 435.


20 Ibid , at [48].


22 Ibid , at [69].

23 Ibid , at [2].

24 Ibid , at [143].

25 Ibid , at [143].

26 Ibid , at [144] and [148].

27 Ibid , at [145].

28 See r 5(5) of the PCR 2015.

29 Supra (note 3 above) at [144] and [148].

30 Ibid , at [157(c)].

31 Ibid , at [147].

32 Previously under r 11A(2)(f) of the PCR. See now r 39(2)(g) of the PCR 2015, which

retains this requirement.


34 See generally David A. Binder et al , Lawyers as Counsellors: A Client-Centered Approach,

(3rd edition, United States of America: Tomson Reuters, 2012) at 500.


36 Ibid , at [150].

37 Ibid , at [153].

38 Supra (note 4 above) at [98(c)].

39 Ibid , at [96] and [98(c)].

40 Supra (note 3 above) at [154]-[156].

41 Ibid , at [158].

42 Ibid, at [158].

u Alvin Chen* General Counsel, Legal and

ComplianceRHTLaw Taylor Wessing LLPE-mail:

[email protected]

mailto:[email protected]





Columns

Becoming the Next Perry Mason aka

Te CLAS Criminal Law raining Programme

Recall the time when you rst considered becoming a lawyer.

Was it while watching Perry Mason give an impassioned

plea in front of 12 stone-faced jurors? Perhaps Harvey

Specter in an impeccable suit (of course) striding across

the Courtroom with all eyes on him?

For 31 Thursdays earlier this year, lawyers with an interest

in practising criminal law and learning how to become the

next Perry Mason have gathered in the State Courts’ Bar

Room to listen to senior criminal practitioners speak on

various topics in criminal law.

Organised by the Criminal Legal Aid Scheme (“CLAS”)

Committee of the Law Society, the participants have found

these sessions to be tremendously useful, especially so for

younger lawyers who are making a foray into criminal law

by taking up CLAS cases.

Abraham Vergis, CLAS Committee Chairman, encourages

younger practitioners to attend, saying, “This initiative is

a very important aspect of CLAS work. It will help CLAS

volunteers who do not have enough experience in criminal

law to come to terms with the nuts and bolts”.

Over eight months, the Criminal Law Training Programme

covered a huge host of topics extending to all areas of

criminal practice. General areas that the speakers have

taught include criminal procedure; how to handle certain

types of cases, eg sexual offences, drug offences; dealing

with the police and prosecutors; how to conduct a trial;

evidence; impeachment; appeals, etc.

What makes this programme stand out from what has

already been taught in Part B or from the occasional CPD

course is its comprehensive spread of topics and the wealth

of experience that the trainers get to share with attendees.

If you are not a frequent visitor to Court 17, this is another

chance to get to know these senior lawyers by name and to

hear their war stories.

CLAS Fellow, Ng Shi Yang, says, “We get to see how theory

is brought to life with their recollections of ‘war stories’, and

it has been extremely helpful in practice.”

Justin Tan from Trident Law Corporation agrees, saying that

this entire programme has been useful and hopes that it will

be held again next year. (It will.)

Some of the volunteer trainers from the CLAS Criminal Law Training Programme with CLAS staff at an appreciation event held for them on 23 October 2015

Pro Bono Publico




Columns

The senior lawyers themselves also benet from giving

these talks. “This serves a number of purposes, one of

them being to generate thoughtful discussions in respect

of various issues in criminal jurisprudence amongst all

lawyers,” said Suresh Damodara, who taught a module on

re-opening cases.

The criminal bar is not a large one, and the experiences

which these senior practitioners share has been most

welcomed. It is also in these sessions that the camaraderie

and fellowship of the criminal bar can be experienced.

Jeremey Pereira from KhattarWong says, “This is very

useful for those who do not practise criminal law on a daily

basis. It has been informative, and the informal and casual

setting makes it easy to ask questions.”

These talks are not just for newly qualied lawyers. Those

with more experience in practice also benet. “It is useful

because it updates us and the attendees on the latest

developments in aspects of crime. It keeps the trainers up

to date and the attendees are always well-prepared,” said

Peter Fernando, who taught a module on challenging your

client’s statements.

Most of all, we are excited that the criminal bar is expanding.

Amolat Singh, who taught a module on direct examination

of defence witnesses, says, “It is good that the profession istaking ownership of training young lawyers. These are not

just academic nuts and bolts. Seniors teach practical tips

and bring it [criminal law] alive.”

The programme was made available free of charge to the

CLAS Fellows and was very heavily subsidised for active

CLAS volunteers with most of the lessons being completely

free of charge and just a handful of the more advanced

lessons being charged at a nominal rate of $30. Even for

non-CLAS volunteers, with a pricing of $60 per lesson or a

package rate of $1,600 for all 31 lessons, this programme

was probably one of the most affordable ways to meet

one’s entire annual CPD requirement as well as acquire ahuge wealth of criminal legal knowledge and network with

senior gures in the criminal bar. The only more affordable

way available would be to sign up as a CLAS volunteer,

accept your rst assignment as either Assistant Counsel

or Lead/Sole Counsel and then take advantage of the

subsidised rates.

Ramesh Tiwary, who taught case planning and trial

preparation, encourages younger lawyers: “Crime work is

a calling. Please do it if you have a passion”.

Not sure how or where to start? Join us on 14 January

next year when the Criminal Law Training Programme

commences again! Registration opens from December

2015 and will be available on the Law Society’s website at

www.lawsociety.org.sg.

The CLAS Committee would like to record its thanks to all

the trainers who volunteered to conduct lessons for the

CLAS Criminal Law Training Programme. They are, in no

particular order, as follows:

Abraham Vergis

Dr Christopher Cheok

Josephus Tan

Peter Ong

Shashi Nathan

Eugene Thuraisingam

Sunil Sudheesan

Derek Kang

Amarjit Singh

Anand Nalachandran

Steven Lam

Amarick Gill

Peter Fernando

R Thrumurgan @ Thiru

Amolat Singh

Luke Lee

N Sreenivasan, SC

Naresh Mahtani

Iain Potter

Wendell Wong

Ramesh Tiwary

Mervyn Cheong

DJ Siva Shanmugam

Assoc. Prof. Goh Yihan

Suresh Damodara

u Cheryl Ng

Associate

Amarick Gill LLC

Pro Bono Publico

http://www.lawsociety.org.sg/

http://www.lawsociety.org.sg/




Columns

Interview with Chairman ofConveyancing Practice Committee2015, Mr Lee Liat Yeang

1. Has Conveyancing become a sunset industry?

Is there scope for this area of practice for young

lawyers?

This has become a common saying among lawyerssince the legal fees started sliding after the removal ofthe scale fees many years back. But I would suggestthat we have reached a balance point now, and feelevels are stable. To the young lawyers, I would say thatthere is “hay to be made”. Real Estate has been, and willalways remain an important pillar of our economy. It isthe fundamental asset class of most companies, propertyfunds and high net-worth individuals. There is demand forcompetent lawyers to advise on real estate transactionaldeals, whether via asset transfers or share sales. Thereare interesting issues of taxation and policy regulationsfor lawyers to master and to advise clients adequately

when the clients embark on their real estate deals.

2. Has the fact that Banks no longer control the fees

helped the conveyancers to earn better fees for their

work?

I would say that that enabled the lawyers to market betterdirectly to the clients so that the clients can decide forthemselves the price they are prepared to pay for thequality of legal services required.

3. Would it help conveyancers earn better fees if the

Law Society were to introduce a quality mark to

embed best practices?

I think that good quality is expected of all lawyers.

4. The UK Law Society has issued a Conveyancing

Protocol. Would introducing such a protocol be

useful for our conveyancers?

We can always look at what others have done anddecide whether we want to follow suit or do somethingakin to that. But continuing legal education is even more

important, so that real estate lawyers keep abreast ofchanges not just in law but in policies and regulations thatimpact real estate practice in signicant ways.

5. Would it help conveyancers if a one-stop shopservice is introduced providing estate agency

services, conveyancing and nancial advice?

I am not attracted to this idea. In any event, I believe thatlawyers should have the independence to advise clientsfully and effectively, free from any inuence from thirdparties.

6. Should the concept of licensed conveyancers (non

lawyers) be introduced in Singapore?

I think the decision boils down to our choices of quality

and accountability. I am not in favour because I sincerelybelieve that there is still a need for legal advice (whetheractually required or for anticipatory reasons) to be givenby lawyers, even in more “straight-forward” cases. Forinstance, lawyers are well placed to advise on risks oftransaction.

7. The subject of Real Estate Practice is one of the

compulsory subjects under the preparatory course

leading to Part B of the Singapore Bar Examinations.

How would you describe the importance of having

knowledge in real estate practice across different

practice areas of law?

For a start, some basic knowledge is good for all lawyerssince they will want or need to buy and invest in real estateat some point of time. But the reality is that real estatehas been and will always be an important pillar of ourmarket economy. Corporate lawyers are bound to dealwith contracts or structures involving real estate. Litigationlawyers will also know that real estate disputes are notuncommon. The basic knowledge of real estate practicewill go some way in helping the respective area of practice.

Spotlight on Committees





Columns

The Young Lawyer


Amicus Agony

As the representative body for young lawyers in Singapore, the Young LawyersCommittee (“YLC”) focuses on issues relevant to those new to legal practice. Staytuned to this monthly column for useful tips and advice, features and updates onYLC’s social and professional events.

Dear Amicus Agony,

I am a rst-year associate at a small law practice. The

Directors in my law practice have secretaries and supportstaff. The Director of my team had a legal secretary who

left late last year. A corporate services secretary from

the team left the rm shortly after. The Director has not

hired a replacement legal secretary or corporate services

secretary. He has assigned all the secretarial work, including

administrative work, to me.

I am unable to cope with the excessive administrative work

that I am expected to do every day, which cumulatively

takes up a lot of my time, and it takes away time from my

research/drafting tasks. This also leads to a backlog on

work, and I nd myself unable to take on new work thatI have been assigned. Second, as the supervising lawyer,

my Director is entirely unaware of the progress of various

les, which he had substantially left in the control of the

corporate secretary. When certain administrative tasks such

as preparing photocopies, ling, printing and electronic

lings are incomplete for a day, he writes scathing e-mails

to me. If the legal work is left pending for a few hours he

starts chasing me to complete that rst. How do I escape

this Catch-22 situation?

Three-in-One Associate

Dear Three-in-One Associate,

As a lawyer in a law practice, small or big, you are a fee-

earner. In your capacity as an advocate and solicitor, you

have a duty to your clients to provide legal services by making

sure that you use your time properly when performing your

tasks. Your clients are not paying legal fees (and your time

spent) to photocopy documents. It is inappropriate to be

billing clients for administrative tasks when the fees being

paid are for you to spend time solving the substantive legal

issues/problems. That is not to say that le management

is an unimportant task; however, it can be delegated to alegal secretary who will be trained, and, therefore, better

equipped to handle these tasks whilst you spend your time

addressing the client’s problems and questions. Our legal

secretaries, paralegals and other support staff play a vital

role in allowing lawyers to full their duties efciently.

Try speaking with your Director, and understand the basis for

which he has not hired replacement staff to take on the roles

left by the previous staff members. Let your Director know

that you do not have capacity to complete the administrative

tasks and that such duties encroach on the time you should

be spending on your legal work. Explain to him the reasonswhy you are unable to manage the administrative work and

how hiring a support staff would greatly improve efciency

in the long-run. Explain that there is a time lag in responding

to clients’ queries due to one person (ie you) having been

left with both the administrative and legal work and how this

hampers the quality of work being produced by your team.

It may also help to offer some solutions which may appeal to

your Director, such as hiring part-time support staff to deal

with the administrative work, or hiring staff that have prior

work experience in a law rm setting.

Amicus Agony

Dear Amicus Agony,

I work in a mid-sized practice, where in the team, I am the

newest Associate. There are two Senior Associates and

another Junior Associate (who is one year senior to me) and

the Partner. Whenever I attend client meetings and Court






Lifestyle

The Future LawPractice

Innovation, technology, improving work processes and

systems and productivity are buzzwords in Singapore.

How has this affected law practice?

Despite e-mails being the modus operandi by which we

carry out business these days, it is still common practice to

send correspondence by fax and post to opposing counsel.Despite the slew of case management systems that are

now widely available, we are still maintaining physical les

in the ofce and doing manual ling. With Skype being so

efcient and economical, we are still having face to face

meetings. It seems like technology has not really had any

effect on the legal profession.

It would save so much time, not to mention trees, if we

go paperless. When I recently proposed to my colleagues

that we scan all documents into our practice management

system and keep only soft copies, they were alarmed.

“What happens if we are in Court and cannot quicklylocate a document? What happens if the system crashes?”

Being a young team, I was surprised that they were so

conservative.

This is also an example of how resistant we are to change.

Change creates fear and uncertainty. It upsets the widely

accepted norm. Yet, the legal profession is full of changes

ever so often. We have a choice whether to accept these

changes or not. There is really only one choice if you wish

to remain relevant and respected in the profession.

The delivery of legal services needs to be modernisedand made innovative beyond the Court electronic litigation

system. Why hasn’t it happened when the national call has

been to do so? Why are we still sticking to old and archaic

ways of doing things? Yes, the current methods are tried

and tested. But there is a need to modernise the way we

work as lawyers. Are we waiting for the authorities to step

in and advocate it? Why wait for others to make changes

for us? The Law Society can act as a catalyst of change.

Or each one of us simply should.

Alter Ego

Imagine, a virtual law rm where we work from homeor anywhere else or even on the go. There is no need

for a physical ofce and we save on rent. Communicate

with everyone via e-mail only. No more hard copy letters

and faxes. Maintain client les in the computer only.

No more physical les, no need for storage space. Use

video conference and Skype as a substitute for face to

face meetings. Attend all administrative and interlocutory

hearings in Court using video conferencing facilities.

Law practice will be so different, productive and even

exciting. So what is stopping us? I would say – ourselves.

We are not open to or accepting of change. We resist andcomplain and even feign ignorance. The State Courts Bar

Room is a good place to hear all manner of reactions to

change. Some of us do not even know the full details of

the change before we start complaining. Changes are

uncomfortable as we have to deal with the unknown. If

we do not resist it and are more open to it, it will be a

less scary prospect. I used to embrace change. Now,

with age, it depends on the type of change and how I feel

about it. If I view it as a positive change, I will accept it

wholeheartedly. If it is a negative change, it takes me a

long time to accept it.

One thing, however, never changes – we are the creators

of change, each one of us. Let us be the change, not only

in our law practices but in each and every aspect of our

lives. 2015 is over. How do we want 2016 to be?

u Rajan Chettiar

Rajan Chettiar LLCE-mail: [email protected]






Lifestyle

Food

In the heritage and cultural gem that is the Amoy-Boon TatStreet area, there is a relatively young restaurant whichseeks to be a gem of its own.

Part of the Unlisted Collection (think Ember and MajesticRestaurant), Sorrel opened earlier this year, and seatsabout 40 persons in its cozy warm-grey shophouse unit.The dining room spans the entire length of the shophouse,with a semi-open kitchen area at the end, following the likesof restaurants like Bo Innovation and Quest in Hong Kong.

It was a relatively quiet Saturday night in Boon Tat Street,possibly due to the long weekend, when we pushed throughthe doors of Sorrel.

The menu offers only sets, with two-, three- or ve-coursesduring lunch, and ve- or seven-courses for dinner, makingit easy for diners to make the weighty decision of what toeat. We had the ve-course meal that evening, arranged bythe restaurant for this review.

We were served a snack of miso crackers and shallotmayo while we examined the menu. The shallot mayo wasnice and rich, bursting with the taste of fresh shallots, and

complementing the saltiness of the miso. Fluffy and brioche-like milk bread was also served with brown butter.

To whet the appetite, a small coconut sphere was placedbefore us, to be mixed with calamansi and aloe vera. Filledwith the taste of tangy sweetness, we looked forward totaking on the ve courses.

The rst of the ve was the warm squid cont with potatoesand shredded kohlrabi, garnished with dill which added arefreshing touch. Although not a fan of squid, it must be saidthat this was very nicely done, in just the right texture.

The second appetizer was the baby corn with mentaiko andbasil oil. Fully expecting the usual slightly sweet taste of corn,we were surprised by the pleasantly unusual, very slightly

tangy avour of the dish, which was topped off with basil oil.

Foie gras was next and this was served with blackberries.While foie gras is quite commonly served with a fruit compote,what was uncommon was that this was garnished with nuts,which worked well with the fruit to lighten the heaviness ofthe liver and give the dish an interesting crunchy texture.

The main course was the roast chicken with king oystermushrooms and chestnuts. The smoky chestnuts addedan interesting twist in injecting a slightly sweet note tothe savoury main. The tiny aw in this dish was that themushrooms were just a tad salty, although this was not a

view shared by the table.

With that, it was time for the main event – the sweet stuff.The palate cleanser pre-dessert was chamomile jelly withpear and lemon granite. This was followed by the dessertof almond cake with butter, raspberries and amaretto icecream which was made up of bits of cake, served with amixture of ground almonds and butter, and with raspberries.The tangy raspberries paired wonderfully with the rest ofthe rather sweet dessert, and this, together with the ratherunique amaretto ice cream, was a satisfying round up of theve courses.

This was, however, not the end of the meal as petit fours ofbasil madeleines were served with coffee. Madeleines donot ordinarily move me; after all, they are merely scallopedquenelles of butter cake. But basil madeleines are certainlynot common, and these ones are worth a written line ortwo. The madeleines were very well done; crunchy on top,warm and soft everywhere else. The distinctive feature is,of course, the basil, which was completely unexpected, butbeing a versatile herb, lent a nice nish to the petit fours,and in fact, to the entire meal.

This was a meal with unexpected tastes and twists; and itis the small things, like the humble madeleine, which added

to the overall enjoyment of the meal. The combination ofavours in each dish was interesting and was just of theright balance with no one ingredient overpowering anyaspect of the dish. We will be back.

Rating: 7/10

Sorrel

21 Boon Tat Street, Singapore, Tel: 6221 1911

u Audrey Chiang

Rodyk & Davidson LLP

Rumex Acetosa –

SO R R E L




Lifestyle

Food

Squid Cont Basil Madeline

The Sorrel team




Lifestyle

Book Shelf

Published by the Singapore Academy of Law, the bookSingapore Law – 50 Years in the Making is co-edited byan academic and a practitioner, Mr Paul Tan and AssociateProfessor Goh Yihan. Quite ttingly, it has sufcient grist forthe mill whether your interest in the historical development

of Singapore law is purely academic or for more appliedpurposes.

Past as Prologue

The story told in this nearly 900 page volume is the storyof the development of Singapore law, and the Singaporelegal system’s ongoing quest to develop an autochthonous jurisprudence.

The general editors and their authors tell the story, in largepart, through hard data and the numbers. If, as Shakespeare

Singapore Law – 50 Years in the Making

Goh Yihan and Paul Tan (General Editors)

suggests, past is prologue, the book’s historical renderingof the development of Singapore law in empirical terms isan important predictor of the increasingly outward lookingdirection of our Courts.

The book maps out, in graph form, the frequency with whichour Courts have cited from foreign jurisdictions, local casesand academic writings. In doing so, the general editors and

the respective chapter authors have trawled through allreported cases between 1965 and 2013 in various eldsof law ranging from administrative and constitutional law tointernational arbitration.

For the practitioner trying to keep up with the law reports,one particular set of charts in the book conrms a long heldsuspicion: that there is a generally upward trend in thenumber of pages per judgment across most practice areas.The serious point, of course, is to illustrate the growth (quiteliterally) of Singapore law.

Were the book to stop at the data, posterity might be

sufciently indebted to the general editors and their authorsfor an exhaustive survey of key empirical trends in thecase law.

But the book’s “value add” is its attempt to make sense of theraw data by overlaying it against the historical narrative ofmilestones in Singapore’s legal history. It is this conuenceof law, data and history that makes Singapore Law – 50

Years in the Making unique.

Two chapters in the book stand out, and will be the focus ofthis review.

Living Legal History

The rst substantive chapter of the book is a rsthandaccount by former Chief Justice (“CJ”) Chan Sek Keongof the back story behind the passing of the Application of

English Law Act (“AELA”)1 of 1993. “Absorbing” is not a wordone regularly associates with the passage of legislation, butin the context, it would be an appropriate adjective.

The titular inection point of the book is “50 years” ofSingapore’s legal history, taking reference from the yearof Singapore’s political independence. However, the actual




Lifestyle

Book Shelf

legal landmark identied in the book is the AELA. The AELAwas described by the then Minister for Law, Professor SJayakumar as “one of the most signicant law reform

measures since [Singapore’s] independence”.2

In summary, the AELA was the piece of legislation which cutthe proverbial apron strings between Singapore and Englishlaw, laying the foundation for Singapore Courts to developan autonomous body of law.3 As former CJ Chan notes, the AELA “could have been called, with equal accuracy, theDisapplication of English Law Act”.4

Quite apart from the legal signicance of the AELA, formerCJ Chan’s chapter is a fascinating read because it charts a“personal odyssey”5 which began with an academic articleformer CJ Chan published on the problematic s 5 of the CivilLaw Act even before he was called to the bar, in 1961.

It would be another three decades and several workingcommittees before former CJ Chan managed to convincethe Government to introduce the AELA. A particularlyinteresting account in former CJ Chan’s chapter explainshow, in the course of that journey, he overcame “strongresistance from an inuential lawyer in the Attorney-General’s Chambers”,6 then Parliamentary counsel AlanDaniel, who fought a rearguard attempt to put off reform ofs 5 of the Civil Law Act from 1979-1993.

Almost as valuable as the story of the enactment of the AELA are the attendant materials which are included in thechapter, which showcase a living history of law reform.

These materials include the initial letter from then LawSociety president M Karthigesu inviting Mr Chan Sek Keong(as he then was) to review s 5 of the Civil Law Act in 1978,a declassied note from then Prime Minister Lee Kuan Yewto then Minister for Law Prof S Jayakumar in 1990, and arebuttal paper opposing the repeal of s 5 of the Civil Law Act written by Alan Daniel, peppered with former CJ Chan’shandwritten annotations.

Another point of interest for students of legal history is thememoranda written by members of the Law faculty of theNational University of Singapore (inter alia: Professor TanYock Lin, then Professor Andrew Phang and Professor TanSook Yee) on the proposed reforms.

When Judges Write Separately

Another of the book’s standout contributions is its chapteron the issuance of separate judgments, authored byformer Justice’s Law Clerk Mr Lau Kwan Ho. The chapteris probably the rst detailed empirical study of separate

judgment writing in Singapore, and sifts through dissentsand concurrences over 47 years of reported judgments inan attempt to identify some trends and conclusions about

when Judges write separately in Singapore.

While Mr Lau cites approvingly to Alan Paterson’s illuminatingbook on judicial decision-making in the UK Supreme Court“Final Judgement: The Last Law Lords and the Supreme

Court”.7 Mr Lau’s work on the subject matter is considerablymore modest but, in context, no less signicant. In thecourse of his chapter he asks (and then suggests answersto) some questions that many legal professionals would takefor granted: are Judges in Singapore legitimately allowed towrite separately? If so, where is this right founded?

Mr Lau then goes on to crunch the numbers to reveal

a marked level of judicial agreement in Singapore, incomparison to their judicial brethren in other jurisdictions.

For instance, Mr Lau demonstrates that, between April1994-November 2012, only 22 of 1,111 reported Courtof Appeal decisions contained a dissenting judgment (adissent rate of 1.5 per cent). This compares with a dissentrate of 59 per cent in the US Supreme Court between theperiod of 1998-2008, a dissent rate of 46 per cent in theHigh Court of Australia for a similar period, a dissent ratein the House of Lords of 19 per cent and a dissent rate inthe Hong Kong Court of Final Appeal of 5.3 per cent in therst decade of Hong Kong’s return to Chinese sovereignty

in 1997.

Mr Lau then breaks down the types of cases in whichdissenting judgments most frequently occur. Leading thepack at nine out of the 26 dissenting judgments between 9 August 1965 and 5 November 2012 is the eld of criminallaw, evidence and procedure (nine out of 26 cases), followedby contract law (four out of 26 cases).

More infrequent, but no less interesting, are concurring judgments: separate judgments authored by individualJudges expressing agreement with the majority. Mr Launotes an uptick in concurring judgments during the tenure of

former CJ Chan: seven were written in his Court comparedto none in the time of former CJ Yong Pung How Courtand two in the time of former CJ Wee Chong Jin. He thengoes on to analyse the circumstances in which concurring judgments are issued and posits reasons for their issuance.

Analysing concurring judgments might seem esoteric if notfor the fact that, as Mr Lau notes, “It may not be surprisingin future to see a perpetuation of this trend”.

Indeed, two relatively recent developments make Mr Lau’spredictions potentially relevant: the indication by the Courts




Lifestyle

Book Shelf

that special three Judge panels will be convened to presideover Magistrate’s Appeals in criminal appeals of a novel or

landmark nature,8 and the constitution of ve-Judge panels

for selected cases of jurisprudential signicance in unsettledareas of the law.9

While I had originally approached the task of reviewing

a 900-page book on 50 years of Singapore with sometrepidation, the apprehension was unwarranted.

Singapore Law – 50 Years in the Making is an importantand much needed contribution to the legal profession at

a turning point in Singapore’s history. The book managesto be an illuminating, useful and an enjoyable read: one

equally suited for the history books and the practitioner’s

bookshelves.

Notes

1 Cap 7A, 1994 Rev Ed.

2 Singapore Parliamentary Debates, Official Report (12 October 1993) vol61 at col 609.

3 Y. Goh, P. an, Singapore Law – 50 Years in the Making (AcademyPublishing: Singapore, 2015), p 28

4 Ibid , at 2.14.

5 Ibid , at 2.22.

6 Ibid , at 2.9.

7 Paterson, Alan, (Oxford: Hart Publishing, 2013).

8 Speech by Judge of Appeal Chao Hick in: “Te Art of Sentencing – An

Appellate Court’s Perspective”. Delivered at Sentencing Conference 2014.

9 Speech by Chief Justice Sundaresh Menon, Opening of Legal Year 2014

Singapore Law – 50 Years in the Making is available fromthe Singapore Academy of Law at $86.67 for membersand $96.30 for non-members. Prices include GST.

u Choo Zheng Xi

Peter Low LLC E-mail:

[email protected]

I . 1 11 1

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Misplaced your copy of the Singapore Law Gazette ?Looking for an article on insolvency published 5 years ago?No idea where to look?

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Notices

Disciplinary Tribunal Reports

Pursuant to s 93(5) of the Legal Profession Act, the Council of the Law Society isrequired to publish the ndings and determination of the Disciplinary Committee in

the Singapore Law Gazette or in such other media as the Council may determine toadequately inform the public of the same.

This summary is published pursuant to the requirement of s 93(5) of the LegalProfession Act.


In the Matter of Ong Teck Ghee, an Advocateand Solicitor

The Disciplinary Tribunal (“DT”) found, pursuant to, s 93(1)of the Legal Profession Act that cause of sufcient gravityfor disciplinary action exists under s 83 of the Act.

M/s Ong & Lau (“Ong & Lau”), of which the Respondent wasthe sole proprietor, entered into a consultancy agreement(the “Agreement”) with Bavarian Nordic A/S (“BN”), aDanish pharmaceutical company that wanted to distributesmallpox vaccines in Singapore. The Agreement requiredthe Ong & Lau to market the product to potential buyers

as well as obtain the requisite consents of the competentauthorities at its own expense. The Respondent invitedvarious persons to contribute funds in exchange for a shareof the commission that Ong & Lau would receive underthe Agreement. In the furtherance of this, the Respondentdrew up an agreement between Ong & Lau with oneCaron Veronica Batchelor (“Batchelor”), which providedfor the investment of $400,000/- by her. The agreementalso specied that of the $400,000, $200,000 was “aninvestment” by Tang Li Yang (“Tang”), the complainant. Tangwas an acquaintance of Batchelor. Batchelor, Ong & Lauand signed the Agreement, though Tang was not a party tothe Agreement. The Agreement also contained a promise

to refund the sum of $400,000 to Batchelor on demand butno earlier than 31 December 2012 should the project proveto be unsuccessful. The Agreement gave Tang no right ofseeking a refund directly from Ong & Lau.

Not long thereafter Ong & Lau entered into a secondagreement with Batchelor on the similar terms save that theinvestment sum was $280,000 of which Tang’s “investment”was $80,000. The second agreement also did not giveTang any rights. Tang subsequently wanted to withdrawher contributions and instructed her solicitors to send theRespondent a Letter of Demand. He responded by saying

that Tang was not privy to the agreements and this promptedTang to make the complaint.

The following charges was preferred against the Respondentat the onset of the proceedings.

First Charge

“You, Ong Teck Ghee, an Advocate and Solicitor of theSupreme Court of Singapore, are charged that sometimebetween 28 December 2011 and 16 November 2012,pursuant to a consultancy agreement between MessrsOng & Lau (a law rm which you are Managing Partner

and the registered sole proprietor) and Bavarian Nordic ASdated 21 February 2006 (and as amended by amendmentagreements dated 28 April 2008, 3 September 2008, 23December 2009, 17 June 2011 and 25 January 2012)(collectively, the “Consultancy Agreement”), you did:

(i) Undertake endeavours to help and assist BavarianNordic AS to promote, increase and maximise thesales of the Product (as dened in the Consultancy Agreement) throughout Singapore to procure thepurchase by Customers (as dened in the Consultancy Agreement) of the Product; and

(ii) Conduct lobbying/networking activities to ensure a“buy-decision” from the Customers,

which trade of business detracts from or is compatible withthe profession of the law and amounts to a contravention ofsection 83(2)(i) of the Legal Profession Act (Cap 161)”.

*Alternate charge under s 83(2)(h) of the Act was also

tendered which differed in classifying the offence as one

of misconduct unbetting an advocate and solicitor as an

ofcer of the Supreme Court of Singapore or as a member

of an honourable profession.




Notices


Second Charge

“You, Ong Teck Ghee, an Advocate and Solicitor of theSupreme Court of Singapore, are charged that sometime onor around 28 December 2011, you entered into a prohibitedborrowing transaction , thereby contravening Rule 33 of theLegal Profession (Professional Conduct) Rules in that youentered into an agreement with one Caron Veronica Batcheloron terms which in substance constituted an interest-free loanof S$400,000.00 with a prospective return of 100% of theprincipal sum, and you are thereby guilty of improper conductor practice as an advocate and solicitor within the meaningof section 83(2)(b) of the Legal Profession Act (Cap 161)”.

Tird Charge

“You, Ong Teck Ghee, an Advocate and Solicitor of theSupreme Court of Singapore, are charged that sometime onor around 30 January 2012, you entered into a prohibitedborrowing transaction, thereby contravening Rule 33 of theLegal Profession (Professional Conduct) Rules in that youentered into an agreement with one Caron Veronica Batcheloron terms which in substance constituted an interest-free loanof S$280,000.00 with a prospective return of 100% of theprincipal sum, and you are thereby guilty of improper conductor practice as an advocate and solicitor within the meaningof section 83(2)(b) of the Legal Profession Act (Cap 161)”.

Fourth Charge

“You, Ong Teck Ghee, an Advocate and Solicitor of theSupreme Court of Singapore, are charged that sometime onor around 28 December 2011, you took unfair advantage ofone Tang Yi Ling in a way that was contrary to your positionas an advocate and solicitor or ofcer of the Court, therebycontravening Rule 53A of the Legal Profession (ProfessionalConduct) Rules in that you failed to inform the aforesaid TangYi Ling to obtain independent legal advice in connection withand/or arising from an agreement between Messrs Ong &Lau (a law rm which you are Managing Partner and theregistered sole proprietor) and one Caron Veronica Batchelordated 28 December 2011, which the aforesaid Tang Yi Ling

was concerned with, involved in and/or otherwise interestedin as an investor, signatory and/or counterparty, and you arethereby guilty of improper conduct or practice as an advocateand solicitor within the meaning of section 83(2)(b) of theLegal Profession Act”.

Fifth Charge

“You, Ong Teck Ghee, an Advocate and Solicitor of theSupreme Court of Singapore, are charged that sometime onor around 28 December 2011, you took unfair advantage ofone Tang Yi Ling in a way that was contrary to your position

as an advocate and solicitor or ofcer of the Court, therebycontravening Rule 53A of the Legal Profession (ProfessionalConduct) Rules in that you failed to inform the aforesaid Tang

Yi Ling to obtain independent legal advice in connection withand/or arising from an agreement between Messrs Ong &Lau (a law rm which you are Managing Partner and theregistered sole proprietor) and one Caron Veronica Batchelordated 30 January 2012, which the aforesaid Tang Yi Ling wasconcerned with, involved in and/or otherwise interested inas an investor, signatory and/or counterparty, and you arethereby guilty of improper conduct or practice as an advocateand solicitor within the meaning of section 83(2)(b) of theLegal Profession Act”.

Sixth Charge

“You, Ong Teck Ghee, an Advocate and Solicitor of theSupreme Court of Singapore, are charged that sometimebetween 28 December 2011 and 16 November 2012, youfailed to record in such cash book and ledger or such othercolumns of a cash book and ledger and such journal as youchose to maintain, all dealings relating to your practice asa solicitor in Messrs Ong & Lau (a law rm which you areManaging Partner and the registered sole proprietor), therebycontravening Rule 11(2B) of the Legal Profession (Solicitors’ Accounts) Rules in that you failed to keep proper account ofmonies received in connection with and/or arising from thefollowing agreements with Messrs Ong and Lau:

(i) a consultancy agreement with Bavarian Nordic AS dated21 February 2006 (and as amended by amendmentagreements dated 28 April 2008, 3 September 2008, 23December 2009, 17 June 2011 and 25 January 2012);and

(ii) agreements with one Caron Veronica Batchelor dated28 December 2011 and 30 January 2012,

including but not limited to the receipt, deposit, withdrawaland/or use of the said monies, and you are thereby guiltyof improper conduct or practice as an advocate and solicitorwithin the meaning of section 83(2)(b) of the Legal Profession

Act”.

At the close of the Law Society’s case, the Respondentdeclined to take the stand to be cross-examined andrequested to be excused from the proceedings. The LawSociety applied to strike out the Respondent’s Afdavit-Evidence-In-Chief (“AEIC”) and the DT granted ordered the AEIC to be struck out.

Findings of the Disciplinary ribunal

The DT was of the view that the consultancy agreement






Notices


totaling $204,000 covering the period from January 2012 to April 2012.

By the 2nd loan agreement, the Complainant was to advanceto the Respondent $500,000 and the Respondent would payher $1,000,000 by way of nine instalments. The DT acceptedthat the 2nd loan agreement likely to have been entered intoand effected on 14 January 2012.

The Respondent defaulted on the instalment payments andthe Complainant instituted proceedings against him andmade a complaint to the Law Society against the conduct ofthe Respondent. Before the DT the Law Society proceededon the following charges:

Amended First Charge

“You, Ong Teck Ghee, have been guilty of grossly improperconduct in the discharge of your professional duty, or guiltyof such a breach of rule of conduct made by the Council(under section 71 of the Legal Profession Act) as amountsto improper conduct as an advocate and solicitor undersection 83(2)(b) of the Legal Profession Act in that youborrowed the sum of S$150,000 on or around 19 December2011 from one Zhao Qian pursuant to the loan agreemententered between you and Zhao Qian on 19 December2011 and contravened Rule 33(a) of the Legal Profession(Professional Conduct) Rules 1998 by entering intoprohibited borrowing transactions by virtue of which money

was borrowed by you from your client”.

Second Charge

“You, Ong Teck Ghee, have been guilty of grossly improperconduct in the discharge of your professional duty, orguilty of such a breach of rule of conduct made by theCouncil (under section 71 of the Legal Profession Act) asamounts to improper conduct as an advocate and solicitorunder section 83(2)(b) of the Legal Profession Act in thatyou entered into a loan agreement with Zhao Qian on oraround 14 January 2012 and borrowed monies from herpursuant thereto, and contravened Rule 33(a) of the LegalProfession (Professional Conduct) Rules 1998 by enteringinto prohibited borrowing transactions by virtue of whichmoney was borrowed by you from your client”.


It was not disputed that the 1st and 2nd loan agreementswere loans, the Complainant did not receive independentlegal advice on the loans and that the exceptions to r 34of the Professional Conduct Rules (the “PCR”). The maindispute was whether the Complainant was a “client” of theRespondent such that any loan transaction was prohibitedunder r 33(a) of the PCR.

The DT was of the view that rr 32 to 34 of the PCR arequite clear. The unambiguous effect of limb (c) under r32 makes is that once someone seeks to invest money

through an advocate and solicitor that person is deemed tobe a client of the advocate and solicitor for the purposes ofdetermining whether there has been a prohibited borrowingtransaction. Also, once an advocate and solicitor (or hisagent) approaches someone to invest money through thatadvocate and solicitor, that person is deemed to be a clientof advocate and solicitor for the purposes of determiningwhether there has been prohibited borrowing transaction.Further r 32 does not impose an additional requirementthat the “client” approaches the advocate and solicitor toact in his capacity as an advocate and solicitor. If a solicitorwas acting for or was approached to act in his capacity asadvocate and solicitor for the purposes of the investment,

the investor would already be a “client” within the meaningof s 2(1) of the Act.

On the facts, the DT found that the Complainant and theRespondent had met and discussed investing throughthe Respondents well before 17 December 2011, whenthe 1st loan agreement was signed. Thus by that date theComplainant was a client of the Respondent by virtue of limb(c) of the denition of client in r 32 of the PCR. Thus whenthe 1st loan agreement was signed on the 17 December2011 and the 2nd loan agreement on 14 January 2012 weresigned the Respondent was borrowing money from theComplainant contrary to r 33 of the PCR and this breach

amounted to grossly improper conduct. The Respondent’sacts of entering into prohibited transactions in breach of r33(a) of the PCR without ensuring that the Complainantreceived independent legal advice constitute professionalmisconduct. Accordingly, the DT found the Respondentguilty of both charges and that cause of sufcient gravityexists for disciplinary action under s 83(2)(b) of the Act.

Te Council’s Decision

Council determined to accept the determination of the DTunder s 93(1)(c) of the Act. Accordingly, the Law Societymade the requisite applications under s 98 of the Act as to

why the Respondent should not suffer any of the orders madepursuant to s 98(1) of the Act by the Court of Three Judges.

Decision of the Court of Tree Judges

The Respondent was struck off the roll of advocates andsolicitors.

In the Matter of Gopinath Pillai, an Advocate and

Solicitor

The DT determined pursuant to s 93(1)(c) of the Legal




Notices


Profession Act that cause of sufcient gravity exists fordisciplinary action against the Respondent under s 83 ofthe Act.

The disciplinary proceedings arose from a complaint by theRespondent’s client (the “Complainant”) that the Respondenthad furnished the Complainant with various forged Courtorders of Court in a suit in which the Complainant hadinstructed the Respondent. These purported orders ofCourt purported to set out various orders or directions madein the Complainant’s favour. The Complainant alleged thatthe Respondent lied to the Complainant that there hadbeen various steps taken in Court in relation to the suit.The matter was the subject of police investigations andresulted in criminal charges being preferred against theRespondent. The Attorney-General subsequently withdrew

the charges preferred on certain conditions, includingthat the Respondent undergoes psychiatric evaluation,treatment and counselling and that he admits to the chargespreferred by the Law Society.

The Law Society preferred two charges against theRespondent:

First Charge

“You, Gopinath Pillai, between the months of September2012 and April 2013 in Singapore, were guilty of fraudulentand grossly improper conduct in the discharge of your

professional duty as an ofcer of the Supreme Court anda member of an honourable profession within the meaningof section 83(2)(b) of the Legal Profession Act (Cap 161) inthat between September 2012 and April 2013, you forgedand sent to your client four Orders of Court dated 31 August2012, 8 November 2012, 10 April 2013 and 11 April 2013, aCerticate for Security for Costs dated 8 October 2012 anda Notice of Appeal dated 21 November 2012 in relation toSuit No.199/2011/C”.

Second Charge

“You, Gopinath Pillai, between the months of January 2013

and April 2013, in Singapore, were guilty of misconductunbetting an Advocate and Solicitor as an Ofcer of theSupreme Court and a member of an honourable professionwithin the meaning of section 83(2)(h) of the LegalProfession Act (Cap 161),in that you lied to your client, theComplainant, on matters relating to the Suit, in which theComplainant was the Plaintiff, by giving the Complainantfalse information mentioned in paragraph 7 of the Statementof the Case, which he (sic.) knew to be false”.

The Respondent pleaded guilty to the charges and throughhis counsel offered his mitigation plea.

Mitigation Plea

The mitigation plea set out the various personal andfamily issues the Respondent had faced which affectedhim physically and mentally and led to episodes of clinicaldepression. The plea also set out the Respondent’scontribution towards volunteer and pro bono work inthe area of criminal law practice and legal clinics andincluded 20 references/testimonials mostly from membersof the Singapore Bar with whom the Respondent hadworked, recognising the Respondent’s commitment to theunderprivileged, and articulating the general view that theRespondent’s transgressions were out of character. Twopsychiatric reports were also submitted which showedthat his clinical depression could have led to his irrationalbehaviour, an aberration that caused him to make decisions

which he would not otherwise have made. In one reporthe was diagnosed with “severe stress disorder” and thathis actions were not one of malice but borne out of aninappropriate response to stop the pressure on himself.


The DT noted that the Respondent pleaded guilty tothe charges preferred against him and agreed with theSociety’s submissions that there was cause of sufcientgravity for disciplinary action under s 83 of the Act andthat the case be referred to the Court of Three Judges. Accordingly, the DT determined that the Respondent’s

admitted and repeated forgeries and blatant lying overan extended period of time constituted cause of sufcientgravity for disciplinary action under s 83 of the Act pursuantto s 93(1)(c) of the Act.

On the issue of costs, the DT took the view that it doeshave the power to make an order as to costs (contrary tor 24 of the Legal Profession (Disciplinary Tribunal) Rules)on account that the charges tendered relate to acts bythe Respondent when he was a practising solicitor andbrought against him for acts done in his capacity as anadvocate and solicitor. Accordingly, the DT ordered that theRespondent pay the Society’s costs and disbursements

which shall be taxed if not agreed.

Decision of the Court of Tree Judges

Council considered the DT report and, pursuant to s 94 ofthe Act, made an application by Originating Summons forthe Respondent to be dealt with in accordance with s 98 ofthe Act.

The Court of Three Judges heard the Originating Summonson 4 May 2015 and ordered that the Respondent be struckoff the roll of advocates and solicitors.






Notices

Information on Wills

Name of Deceased (Sex)NRIC

Date of Death

Last Known Address Solicitors/Contact Person Reference

Cheng Siah Keng (M) S1238813F

23 October 2015

Blk 2 Lorong 7 Toa Payoh

#07-29

Singapore 310002

Wong Thomas & Leong

6501 9400CSC 1510026 kg

Tay Hwa Lim (F) S0291727J

15 July 2015

37 Crowhurst Drive

Singapore 557916J.S Yeh & Co

6533 1188YJS.dt.22218.15

Chua Siok Noi @Serene Chua (F) S1207997D

31 October 2015

Blk 206 Serangoon Central #10-182

Singapore 550206

Lexton Law Corporation

6220 2231ES/15118247JW2/kp

Kho Sing Tow (M) S1395390B

18 October 2015

Blk 187 Pasir Ris Street 11

#11-86

Singapore 510187

Tng Soon Chye & Co6438 3133

TSC.2997.PROB.2015

Lee Mei Yan Theresa (F) S1680988H

27 August 2014

46 Cheng Soon Garden

Singapore 599822Ong Sim Ho

6804 7567OSH/PCS/2015-0046

Tan Keow Tee (F) S0132463B

23 June 2015

Blk 122 Jurong East Street 13

#07-37

Singapore 600122

Maurice Lee & Tan

6342 4700LTP.TWN.1171.2015.jc

Moderge Gamini Fernando (M) S1221708J

27 July 2015

Blk 528 Hougang Avenue 6

#03-229

Singapore 530528

Derrick Wong & Lim BCLLP

6221 8877

PN.20306.2015

Liu Chin Mu (M) S2193306F

24 October 2015

1 Jalan Anak Bukit #06-09

Singapore 588996

Templars Law LLC

6299 1141SL/wy/20151179/LIU/MCA

Angela Wong Yoke Chin (F) S0670597I 19 April 2015

22 Norris Road

Singapore 208264

49 Dorset Road #12-104

Singapore 210049

Jayne Wong Advocates &Solicitors

6466 9221

JW/ll/81875/P

Law practices are encouraged to submit their Information on Wills requests via the online form available at our website www.lawsociety.org.sg > For Members > eForms> Information on Wills. Using the online form ensures that requests are processed quicker and details published with accuracy.

Persons with any knowledge of the whereabouts of the original Will made by Hoon Siu Kai (NRIC No. S1283444F),please contact Anthony Law Corporation at Tel: 6435 0119 (Ref: AL.WILL.HSK.15).



57 Appointments

These are a small selection of our current vacancies. If you require further details or wish to have aconfidential discussion about your career, market trends, or would like salary information thenplease contact one of our consultants in Singapore (EA Licence: 07C5776):

Jason Lee or Jean Teh on +65 6557 4163.To email your details in confidence then please contact us on [email protected].

(852) 2920 9100

[email protected]

Hong Kong Singapore

(65) 6557 4163

[email protected]

Beijing

(86) 10 6567 8728

[email protected]

Shanghai

(86) 21 6372 1058

[email protected]

CORPORATE M&A ASSOCIATE Singapore 3-7 PQE

Global magic circle firm is looking for a mid-level M&A lawyer in

Singapore. The ideal candidate should be qualified in Singapore, Australia or

UK, with strong transactional experience in corporate M&A work from a top

tier local or international firm. (SLG 12999)

PROJECTS ASSOCIATE Singapore 3-5 PQE

An established US law firm is seeking to hire a mid-level projects lawyer in

Singapore. The candidate should be qualified in Singapore or Commonwealth

jurisdictions and with strong practice experience in advising on project

development and infrastructure work. (SLG 13058)

AVIATION/ASSET

FINANCE ASSOCIATE Singapore 3-5 PQE

A leading international law firm is seeking an asset finance lawyer. Candidates

with experience in aviation matters will be at an advantage. This team is

growing and offers a broad workload for the right candidate. (SLG 12963)

CONSTRUCTION DISPUTES

ASSOCIATE Singapore 2-4 PQE

Leading disputes practice is seeking a first class construction lawyer with a

focus on contentious work. This firm has access to top tier internationalmatters and has a renowned reputation in its field. (SLG12965)

OFFSHORE CORPORATE

ASSOCIATE Singapore 1-4 PQE

Leading offshore firm is looking for a junior associate to join its new team in

Singapore. The lawyer will assist in a broad range of advisory and

transactional corporate legal work and will also be involved in business

development. (SLG 12777)

ENERGY ASSOCIATE Singapore 1-3 PQE

This top tier international law firm is seeking an energy lawyer, ideally,

with previous experience in M&A/project development in the energy sector.

Those who have power, O&G/LNG, mining and energy trading experience

will be well regarded. (SLG 12840)

FINANCE COUNSEL(PROJECT FINANCE) Singapore 7-12 PQE

Singapore based engineering company seeks a mid to senior level financelawyer to join their legal team based in Singapore. The ideal candidate shouldhave at least 7 years PQE with strong banking finance experience especiallyin drafting, negotiating and advising on project finance. (SLG 12929)

INSURANCE LAWYER Singapore 5-12 PQE

An international transport corporation is looking for a mid to senior levelinsurance lawyer to join their growing Asia business in Singapore. The idealcandidate should have at least 5 years PQE in both contentious andnon-contentious insurance work gained from law firm and/or as an in-houselawyer, ideally with a general insurance business. (SLG 12948)

REGIONAL COUNSEL(PROJECT/CONSTRUCTION) Singapore 5-7 PQE

Major international property company is looking for a mid-level lawyer to jointheir team in Singapore. The ideal candidate should have a t least 5 years PQEwith experience in either advising on real estate construction related issues ordrafting construction contracts, or construction related dispute matters.(SLG 12710)

CORPORATE LAWYER Singapore 4-8 PQE

Major US listed company in the IT space is looking for a legal counsel to jointheir established legal team based in Singapore. This counsel will be part of adynamic team of lawyers supporting the business across the APAC region.Candidate should have at least 4 years PQE in corporate commercial work gained

from either in-house or private practice. (SLG 11732)

LEGAL COUNSEL(OTC DOCUMENTATION) Singapore 3-5 PQE

Global investment bank is looking for a junior lawyer to join their legal team based in Singapore. This lawyer will be responsible for supporting the bank inadvising and negotiating on OTC documentation in relation to structured products. The ideal candidate should have at least 3 years PQE with experienceand familiarity in either banking finance, capital markets or derivatives products,gained in a top tier law firm or financial institution. (SLG 12773)

LEGAL COUNSEL(HOSPITALITY) Singapore 2-4 PQE

A leading hospitality company is seeking a junior to mid-level lawyer to jointheir established legal team in Singapore. The ideal candidate should have atleast 2 years PQE gained in a leading law firm and with strong corporate background. Candidate with commercial dispute background will be considered.

(SLG 13082)

In-HousePrivate Practice





59 Appointments

PART OF THE SR GROUP

Brewer Morris | Carter Murray | Frazer Jones | SR Search | Taylor Root

LEGAL RECRUITMENTFIRM OF THE YEARSINGAPORE 2015



60Appointments

YOUR PROFESSION

OUR PASSION

hays.com.sg

AMBITIOUS LEGAL COUNSEL (BANKING)

A prominent bank with a strong regional presence is seeking a Legal

Counsel to join its established legal department in Singapore.

You’ll be working with legal experts in the banking sector, whilst being

provided with a wide range of work pertaining to the bank’s products and

operations. The role will entail a good level of contracts drafting, review

and negotiation, legal research, legal advisory and corporate structuring.

You’ll be exposed to a wide range of legal issues pertaining to areas such

as OTC derivatives, foreign exchange, fixed income securities and treasury

related matters.

You must be admitted as a solicitor in Singapore, with 3-5 years of legal

experience in the area of banking, finance or mergers & acquisitions.

Previous experience within the banking & financial services sector is

desirable but not essential. This would be an excellent opportunity for a junior to mid level lawyer seeking to take the next step in their career with

an exciting in-house position.

Contact Armin Hosseinipour (Reg ID: R1440509) for more information at

[email protected] or +65 6303 0725.

FINANCIAL SERVICES LEGAL COUNSEL

A leading multinational bank is seeking a Legal Counsel to join its legal

department in Singapore.

You’ll have a strong focus on investment funds, trusts and financial

regulation in the provision of legal advice to the bank’s operations. You

will be liaising with senior lawyers in a collaborative team environment,

together with assisting in the review and negotiation of legal and

commercial documentation concerning the bank’s products.

You must be qualified as a solicitor and advocate in Singapore with 4-8

years of PQE. It is highly desirable that you come from a legal positionpertaining to financial services, funds or investments, from a top-tier

law firm or similar in-house position. This is a great opportunity for a

financial services lawyer seeking to take the next step in their career with a

prominent institution.



CONTRACTS MANAGER - HEALTHCARE MNC

A reputable player in the healthcare industry is seeking a Contracts

Manager to oversee its legal operations within the APAC region. Although

this role is based in Singapore, you’ll regularly liaise with offices in Hong

Kong, Taiwan, Vietnam, Malaysia, Indonesia and the Philippines with

respect to contractual matters and procedures.

You’ll be responsible for establishing systematic procedures for contracts

review and management of all commercial agreements entered into on

behalf of the company. You must review all contracts and identify keyareas of risk and advise on mitigation of risks. You’ll also be responsible for

drafting contracts and ensuring compliance with local Singapore laws.

You must hold an LL.B. and possess a minimum of 3 years of contracts-

related experience. Previous experience in a healthcare-related industry

would be highly desirable.

Contact Negeen Pejooh (Reg ID: R1547320) for more information at


AVIATION FINANCE ASSOCIATE

A prominent international law firm is seeking an Associate to join its strong

asset finance practice in Singapore. You’ll focus on aviation and structured

finance including challenging and complex transactions pertaining to

aircraft sales and purchase, aircraft leasing, debt financing and securities

matters. The position is highly transactional and will involve extensive

contracts drafting and negotiation.

You must be admitted as a solicitor in the UK, Australia or Singapore and

possess 2-6 years of legal experience in aviation or structured finance.

You’ll demonstrate a strong passion for this particular area, together with

being collaborative, ambitious and driven to succeed.



TECHNOLOGY LEGAL COUNSEL

A leading technology corporation is seeking a commercial lawyer with

a background in IT&T related work. You’ll be part of a large team of

dedicated lawyers who are passionate about technology.

You’ll be exposed to a variety of commercial contracts relating to various

business divisions and products. You’ll be responsible for advising on risk

mitigation and ensuring legal compliance. You’ll also collaborate with

external counsel in the oversight of any disputes.

You must be a qualified lawyer with 5 years of PQE, a strong foundation

in commercial law as well as familiarity with Singapore regulations. Prior

experience in the IT&T space is highly desirable.



CORPORATE (M&A) ASSOCIATE - PRESTIGIOUS FIRM

A leading international law firm is seeking a mid to senior level Corporate

Associate to join its expanding practice in Singapore.

You’’ll be joining a high-performing team and be responsible for managing

junior associates within Corporate Practice. You’ll oversee a spectrum of

complex public and private M&A transactions and be involved in corporate

advisory work and joint ventures.

You must have 5-8 years of PQE in a Corporate team at a top law firm,

have excellent academic qualifications, leadership qualities and the ability

to work within a fast-paced environment.







Documents

Singapore Law Gazette December 2015