Attorney-General v Shahira Banu D/O Khaja Moinudeen
17 cases cited
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Allen & Gledhill LLP Firm Attorney-General's Chambers Firm Nakoorsha Law Corporation Firm Jeyendran s/o Jeyapal Counsel Applicant Kenneth Lim Tao Chung Counsel Law Society Of Singapore Lim Toh Han Counsel Applicant Michelle Tan Hui Ming Counsel Respondent Nakoorsha bin Abdul Kadir Counsel Respondent Pesdy Tay Counsel Applicant Rasveen Kaur Counsel Respondent Sanjiv Rajan Counsel Law Society Of Singapore
Case Significance
Attorney-General v Shahira Banu d/o Khaja Moinudeen [2024] SGHC 111 was decided by a Court of 3 Supreme Court Judges of the Republic of Singapore in Originating Application No 15 of 2023, with Sundaresh Menon CJ delivering the grounds of decision of the court on 2 May 2024, sitting with Steven Chong JCA and Andrew Phang SJ, following hearings on 22 January and 12 March 2024. The Attorney-General was the applicant and Shahira Banu d/o Khaja Moinudeen was the respondent. The matter was a legal profession disciplinary proceeding brought pursuant to sections 16(4) and 98 of the Legal Profession Act 1966, raising issues of admission to the profession and the duty of candour. In the introduction, Sundaresh Menon CJ emphasised that the administration of justice is not an abstract exercise nor the exclusive preserve of individual members of the judiciary, but depends on the interconnected operation of different parts of the legal system, within which advocates and solicitors have a special role as officers of the court. The applicant Attorney-General was represented by the Attorney-General's Chambers, including Jeyendran s/o Jeyapal; the respondent by Nakoorsha Law Corporation, including Nakoorsha bin Abdul Kadir; and the Law Society of Singapore by Allen & Gledhill LLP, including Sanjiv Rajan and Kenneth Lim Tao Chung.
Summary
SUPREME COURT OF SINGAPORE
2 May 2024
Case summary
Attorney-General v Shahira Banu d/o Khaja Moinudeen [2024] SGHC 111
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Decision of the Court of 3 Supreme Court Judges (delivered by Chief Justice Sundaresh Menon):
Outcome: The C3J ordered that a solicitor who failed to disclose a previous academic offence of plagiarism in her affidavit for admission to the Bar be struck off from the roll of advocates and solicitors of the Supreme Court of Singapore, with a minimum period of four years before her reinstatement.
Background
1 Ms Shahira Banu d/o Khaja Moinudeen (“the Respondent”) was found by the National University of Singapore (“NUS”) to have plagiarised an essay answer in a take-home examination for the module, Constitutional and Administrative Law (“CAAL”), while she was a second-year law student in 2020 (“the Academic Offence”). The Respondent informed the resulting Inquiry Panel convened by NUS that she had prepared sample essays using her senior’s “mugger notes” and thought that she could use those materials in her answer to the CAAL examination question provided her senior had consented to this. The Inquiry Panel rejected this explanation as untenable. The Respondent responded apologetically. The NUS Inquiry Panel found the gravity of the Respondent’s academic offence to be “moderate” as the Respondent had no intent to cheat, and gave the Respondent zero marks for the relevant question in the CAAL examination.
2 Three years later, the Respondent filed her application for admission as an advocate and solicitor (“A&S”). Her affidavit for admission included a declaration that she had “no knowledge of any fact that affects my suitability to practise as an advocate and solicitor in Singapore or as a legal practitioner (by whatever name called) elsewhere”. There was no mention of the Academic Offence. The Respondent submitted a second affidavit for admission three days later to correct a typographical error, again without declaring the Academic Offence. The Respondent was subsequently admitted as an A&S in August 2023.
3 The Respondent’s Academic Offence was discovered when another student who had committed plagiarism in the same CAAL examination as the Respondent disclosed her offence in her application for admission. The documents disclosed by this other student contained information which eventually led the Attorney-General (“the AG”) to discover that the Respondent had been investigated and disciplined by NUS for the Academic Offence.
4 Following the AG’s filing of the Originating Application for the case, in the first affidavit filed by the Respondent, she attested that she had overlooked footnote j of paragraph 7(j) of Form A(1) (“footnote j”) in the Second Schedule of the Legal Profession (Admission) Regulations 2011 (“LP(A)R”), which specified that the Respondent ought to have disclosed, among other things, any determination by NUS of her commission of a deliberate assessment offence amounting to plagiarism. As a result, it did not cross her mind when applying for admission as an A&S that she ought to have declared the Academic Offence, particularly as it had taken place over three years ago and had already been dealt with by NUS.
5 The Respondent later filed a supplementary affidavit, stating that she had overlooked footnote j because she had relied on an outdated version of the LP(A)R hosted on the website of the Singapore Institute of Legal Education (“the SILE”) at the time of her preparing her admission affidavit, in which footnote j merely directed applicants for admission to state the “necessary particulars”.
Decision
The Respondent’s explanation for non-disclosure
6 The Respondent’s explanation that her failure to disclose the Academic Offence was purely inadvertent could not be accepted, even granting that she might have referred to an outdated version of the LP(A)R in preparing her affidavit. First, she could not have forgotten about the Academic Offence, for which she had to attend a meeting with the Inquiry Panel, was issued a formal offence report, and was given zero marks for an examination question. Second, the Respondent was aware of cases in the news where plagiarism and academic misconduct had been found by the court to amount to serious misconduct affecting one’s suitability for admission to the Bar, and thus knew that her Academic Offence was of a type of conduct which was, or at the very least could well be, relevant and material to her suitability for admission. Third, the Respondent had received emails from the SILE attaching an “SILE Guide for Mass Call 2023” (“the SILE Guide”) which included a reminder to applicants for admission to declare deliberate assessment offences and misconduct at university. The Respondent had had sight of the SILE Guide, and her explanation that she had simply not focused on the portions relating to her affidavit for admission was not believable: at [16] to [20]
Whether the Respondent should be struck off
7 It was undisputed that the Respondent’s affidavit for admission contained a substantially false statement in the form of her declaration that she did not have knowledge of any fact that affected her suitability to practise as an A&S in Singapore. Striking off followed as an automatic consequence under s 16(4) of the Legal Profession Act 1966 (2020 Rev Ed) (“the LPA”): at [23].
8 The Court of 3 Supreme Court Judges (“C3J”) also observed in relation to s 16(4) of the LPA that: (a) the reference to “any application, affidavit, certificate or other document filed by the person” in s 16(4) should only refer to applications, affidavits, certificates, or documents filed in connection with the process of being placed on the roll of advocates and solicitors of the Supreme Court of Singapore (“the Roll”); and (b) the term “substantially” within the term “substantially false statement” in s 16(4) should be read as requiring the nature of the falseness of a statement to be substantial, and not merely that a statement is false to a significant degree: at [24] and [25].
9 The Respondent’s affidavit for admission also involved suppression of a material fact. The Academic Offence was a material fact which she ought to have disclosed in her affidavit for admission, but did not. There was also a degree of deliberation behind her wrongful non-disclosure. This also warranted striking off as a consequence: at [26].
The period of the reinstatement interval to be imposed
10 It was appropriate to stipulate a minimum reinstatement interval before a fresh application for admission may be made by the Respondent, as the misconduct in question preceded the Respondent’s enrolment as an A&S and did not involve any improper act or omission done as an A&S. The present case was thus more closely analogised with cases of applicants whose admission applications were deferred on account of their conduct before and/or during their applications for admission; the key concern was thus rehabilitation, for which a stipulated reinstatement interval would be helpful in assisting the applicant in question to work towards this goal: at [27] and [28].
11 Although the Respondent’s initial misconduct in committing the Academic Offence would likely not have been fatal to her aspiration of becoming an A&S, and she initially showed some ethical insight into this misconduct, this was eclipsed by her subsequent non-disclosure of the Academic Offence, which constituted a breach of the duty of candour owed to the court: at [30] and [31].
12 In assessing when the duty of candour is breached, the approach of the concurring judgment of Kannan Ramesh JAD in Law Society of Singapore v de Souza Christopher James [2023] SGHC 318 was preferred over that of the majority judgment in that case. Determining whether there is a breach of the duty of candour should start with a contextual assessment of the nature and scope of the evidence that ought to have been disclosed, based on the nature and purpose of the proceedings in which the suppression of evidence occurred and the relevant law that applies to those proceedings, before going on to assess whether there was, objectively, a failure to disclose evidence falling within the scope of the duty of disclosure and whether the A&S subjectively intended the non-disclosure. The fact that some disclosure had been made would not be sufficient to support a finding that an A&S has discharged the duty of candour towards the court if the nature and purpose of the proceedings as well as the applicable law point to further information being necessary: at [37].
13 The duty of candour owed by an applicant for admission to the Bar derives from a combination of the LPA, the LP(A)R, and the common law. The requirement for an applicant for admission to be of “good character” as stated in s 13(1)(b) of the LPA involves a consideration of whether an individual can be trusted to aid in the administration of justice, which would necessarily involve an individual recognising the importance of the duty of candour because a willingness to mislead the court compromises the overriding public interest in maintaining the dignity and honour of the legal profession through the preservation of the highest ethical and moral standards amongst solicitors: at [41] and [42].
14 The extent of the duty of candour owed by an application for admission to the Bar is equal to that owed to the court by an AAS. In so far as applicants for admission aspire towards assuming the privileges and responsibilities of being an A&S, there is no reason why they should not be expected to demonstrate an ability to appreciate the importance of the duty of candour expected of A&Ss. That this duty should be equal to that owed by an A&S was also supported by consideration of the nature and purpose of admission proceedings, as well as the applicable law in relation to those proceedings: at [44] and [45].
15 The C3J made several observations relating to the content of the duty of candour owed by an applicant for admission to the Bar. First, the onus of disclosure lies on the applicant to avail the court and stakeholders of all relevant information. Where an applicant makes voluntary disclosure of such information, this will often weigh heavily in favour of a finding that the duty of candour towards the court has been discharged. Second, where an applicant for admission has reason to believe past misconduct may be relevant to the assessment of their suitability for admission to the Bar, the invariable course will be to disclose not just the fact of the misconduct but also the relevant circumstances and extent of the misconduct, to enable the court and the stakeholders to properly assess the applicant’s suitability for admission. Third, the requirement for an applicant to make disclosure of all facts relevant to the assessment of their “good character”, although somewhat onerous for good reason, does not extend to a confessional recantation of every historical transgression on the part of that applicant. The focus is on those aspects of character which are relevant to one’s suitability to be admitted as an A&S: at [47] to [49].
16 The Respondent’s failure to declare the Academic Offence in her affidavit for admission was a serious breach of the duty of candour she owed to the court as an applicant for admission to the Bar: not only did she fail to make any disclosure of the Academic Offence, but she also further took the questionable position of attempting to persuade the court that her decision to view her Academic Offence as insufficiently serious was a mere administrative error with no ethical implications. She also took positions on factual points which were self-serving and ultimately untenable: at [50].
17 The Respondent’s conduct throughout the course of her application for admission and in C3J proceedings showed little appreciation of her duty of candour to the court, what that duty required of her, or the insight to acknowledge that she had been woefully lacking in relation to the discharge of that duty. This compounded the seriousness of her initial misconduct and non-disclosure. In her affidavits to the court, she seemed to have supposed that her omission to disclose the Academic Offence was merely reflective of a lack of diligence in making herself aware of the administrative requirements of disclosure, rather than a failure of her ethical responsibilities as an aspiring A&S to appreciate the duty of candour owed to the court: at [51] to [54].
18 It was of little help to the Respondent that she had not contested the application for striking off, as it would have been hopeless for her to contest that her affidavit for admission did not contain a substantially false statement or suppression of a material fact, or to contest the automatic consequence of striking off prescribed by s 16(4) of the LPA that followed from these findings: at [55].
19 Given the Respondent’s lack of insight that her non-disclosure of the Academic Offence was a serious ethical breach of her duty of candour towards the court, a minimum of four years was an appropriate reinstatement interval, subject to satisfactory evidence of rehabilitative efforts, evidence of satisfactory appreciation of the Respondent’s ethical duties and reasonable requirements that may be in place either under statute or as may be imposed by the court or by the stakeholders : at [59].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.
What was Attorney-General v Shahira Banu d/o Khaja Moinudeen [2024] SGHC 111 about?
[2024] SGHC 111 was a legal profession disciplinary proceeding before a Court of 3 Supreme Court Judges, brought under sections 16(4) and 98 of the Legal Profession Act 1966, concerning admission and the duty of candour. Sundaresh Menon CJ delivered the grounds of decision on 2 May 2024.
Which judges heard Attorney-General v Shahira Banu d/o Khaja Moinudeen [2024] SGHC 111?
The matter was heard by a Court of 3 Supreme Court Judges comprising Sundaresh Menon CJ, who delivered the grounds of decision, together with Steven Chong JCA and Andrew Phang SJ. The hearings took place on 22 January and 12 March 2024, with the grounds given on 2 May 2024.
Statutes Cited
Cases Cited (17)
SG (3)
SLR (14)
[1999] 1 SLR(R) 266 [1999] 3 SLR(R) 685 [2005] 3 SLR(R) 449 [2007] 3 SLR(R) 133 [2009] 1 SLR(R) 753 [2010] 4 SLR 137 [2013] 1 SLR 719 [2017] 4 SLR 1369 [2018] 5 SLR 1068 [2022] 3 SLR 1417 [2022] 5 SLR 896 [2023] 4 SLR 1258 [2023] 4 SLR 541 [2023] 5 SLR 1272
Referenced in
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Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGHC 111)