LAW SOCIETY OF SINGAPORE v CHRISTOPHER JAMES DE SOUZA

Facts

Mr Christopher James de Souza, then a partner at Lee & Lee, acted for the Amber pharmacy companies in HC/S 164/2018, a claim that former employee Ms Lim and her company UrbanRX had misappropriated Amber's confidential information. Amber had obtained search orders on an undertaking not to use the seized documents except for the suit. Before Lee & Lee took over, Amber's representative Mr Sudesh made reports to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the police in 2018, using information from the seized documents in breach of that undertaking. When Lee & Lee discovered this, it advised an urgent application for leave. Mr Sudesh insisted no documents had been disclosed and resisted wording that admitted the breach or apologised.

On 29 January 2019 Amber filed HC/SUM 484/2019 ex parte, seeking to preserve the documents and use them for reports to law enforcement agencies, supported by an affidavit of Mr Sudesh that Mr de Souza helped prepare and finally amended. The Court of Appeal later refused Amber leave, finding an improper purpose, and the Supreme Court registry referred Mr de Souza's conduct to the Law Society. An inquiry committee suggested only a fine, but the Council sought a disciplinary tribunal, which dismissed four of five charges and found one proved: that Mr de Souza was party to and assisted Amber in suppressing evidence, contrary to r 10(3)(a) of the Legal Profession (Professional Conduct) Rules 2015, by filing the affidavit without exhibiting the reports. The Law Society then applied in Originating Application No 7 of 2022 for sanctions, seeking a suspension of at least four years.

Issues

1. Whether intention to assist the client in suppressing evidence is a necessary element of the charge under r 10(3)(a)
2. Whether Mr de Souza intended to help Amber suppress its breach of the search order undertaking
3. Whether the affidavit, objectively read, failed to reveal Amber's breach
4. Whether the charge was defective for going beyond the matters in the referral letter

Holding

The Court of Three Judges dismissed the application, holding that the charge and its alternative were not proved beyond reasonable doubt. The Law Society was ordered to refund Mr de Souza $32,394.12 in costs and disbursements he had paid after the tribunal proceedings, and each party bore its own costs of the application.

Reasoning

The court, with Belinda Ang Saw Ean JCA giving the majority grounds, held that intention was a necessary element, as the Law Society conceded. The tribunal erred by treating suppression of evidence as the same as a failure of full and frank disclosure. Those duties differ: full and frank disclosure in ex parte applications is breached regardless of the reason, whereas r 10(3)(a) targets a lawyer conniving in a client's misconduct, and disciplinary charges must be proved beyond reasonable doubt.

The drafting history showed that Mr de Souza and his team consistently intended to disclose the breach to the court despite a resistant client: they advised that prior disclosure had to be revealed, and he removed Mr Sudesh's sentence implying that no documents had been shared. The Law Society's theory that he hid the breach to improve Amber's chances was illogical, since the affidavit alluded to it. Not exhibiting the reports was not telling, as facts belong in the body of an affidavit, and filing ex parte was a genuine tactical decision. The majority also found that, though no model of drafting, the affidavit read as a whole conveyed that reports had already been made using information from the seized documents, which was itself a breach; opposing counsel learned of the breach from it.

The referral letter was only a starting point and did not confine the charges the Law Society could bring. It had not acted in bad faith, so no adverse costs order was made against it. The court cautioned that the affidavit was not as clear as Mr de Souza believed.

Kannan Ramesh JAD concurred in the result but would have held that the affidavit failed to disclose the extent of the breach, namely that excerpts of documents had been given to the authorities. He nonetheless found that Mr de Souza genuinely believed adequate disclosure had been made, so the required intention was not proved.

From the judgment