The Law Society of Singapore v Seah Choon Huat Johnny

1 In or around September 2016, Mr Lim Kim Seng (“Mr LKS”) engaged Mr Seah to represent him as the plaintiff in HC/S 960/2016 (“Suit 960”). The defendant in Suit 960 was represented by Mr Jason Lim (“Mr Lim”) from De Souza Lim & Goh LLP (“DSLG”). On 17 November 2016, Seah & Co filed a Notice of Discontinuance (“NOD”) in Suit 960. The NOD was mistakenly filed by Mr Seah’s administrative assistant, Ms Chan Cheng Yee (“Vellina”): at [3]–[4].

2 Mr Seah discovered that the NOD had been erroneously filed later the same day on 17 November 2016 when he was preparing for the hearing of HC/SUM 5334/2016 (“SUM 5334”) on 18 November 2016. Mr Seah then requested Mr Lim to mention on his behalf at the hearing for SUM 5334. Mr Lim mentioned on Mr Seah’s behalf for SUM 5334 and informed the court that a NOD had been filed and that Mr Seah had indicated that costs would be agreed between the parties: at [6]–[7].

3 After the hearing, Mr Lim wrote to update Mr Seah on the outcome of the hearing. In the same letter, Mr Lim also offered to mention on Mr Seah’s behalf in respect of DSLG’s striking out application in Suit 960, HC/SUM 5369/2016 (“SUM 5369”), which had been fixed on 21 November 2016. Mr Seah agreed: at [8].

4 All this time, Mr Seah did not notify Mr LKS of the NOD. He did not update Mr LKS on the outcome of SUM 5334 and take instructions on the same nor did he inform Mr LKS of his understanding with Mr Lim for the parties to come to an arrangement on costs following the filing of the NOD. Mr Seah had also not advised Mr LKS nor taken instructions from Mr LKS in respect of SUM 5369 following the filing of NOD. All in all, Mr Seah clearly had no instructions to discontinue Suit 960 and had no corresponding instructions to seek the consent of the defendant to the discontinuance and to pay costs. He also did not have Mr LKS’s instructions to consent to the withdrawal of these summonses: at [9].

5 Sometime around the end of December 2016, Mr Seah called Mr LKS to inform him that he had made an error in Suit 960 and that he would formally write to him in this respect. On 4 January 2017, Seah & Co sent a letter to Mr LKS stating that Suit 960 had been discontinued because his firm had mistakenly filed an NOD. Seah & Co indicated that they would be responsible for their error and for the costs payable to the defendant in Suit 960. Seah & Co also advised Mr LKS that his claim was not time-barred and that they could still file a fresh action upon Mr LKS’s instructions: at [14]–[15].

6 In or around April 2019, Mr LKS appointed Mr Kertar Singh (“Mr Singh”) of Kertar & Sandhu LLC (“K&S”) to take over Suit 960 from Seah & Co.: at [16].

7 On 6 February 2023, after several exchanges between Mr Seah’s solicitors and K&S, Mr Seah and Mr LKS agreed to a settlement sum of $38,888, with Mr Seah undertaking to indemnify Mr LKS should the defendant in Suit 960 decide to seek legal costs against Mr LKS: at [22].

8 Before the disciplinary tribunal (the “1st DT”), Mr Seah admitted to the Agreed Statement of Facts and the two charges contained therein. The 1st DT determined that there was cause of sufficient gravity under s 83 of the LPA in respect of the Second Charge (OA 1), which pertained to a breach of r 5(2)(h) of the Legal Professional (Professional Conduct) Rules 2015 (“PCR”), for failing to provide timely advice to Mr LKS, which amounted to improper conduct or practice as an advocate and solicitor in the discharge of his professional duty under s 83(2)(b) of the LPA: at [23]–[24] and [26].

9 Mr Seah’s misconduct plainly warranted the imposition of sanctions under s 83(1) of the LPA. He concealed from Mr LKS the critical fact that his firm had mistakenly filed an NOD in the Suit 960, and for seven weeks, had acted without Mr LKS’s instructions in agreeing to discontinue Suit 960 with costs against Mr LKS. The true position was then misrepresented to the court when Mr Seah allowed SUM 5334 to be mentioned on the basis that Suit 960 had been discontinued by consent when that had simply not been the case. Mr Seah’s conduct in those seven weeks showed complete disregard of his client’s interests. His misconduct was such as to engage the principal purpose of disciplinary proceedings, namely, to protect the public and uphold confidence in the integrity of the legal profession: at [28].

10 The crux of Mr Seah’s misconduct lay not in his failure to provide timely updates to Mr LKS per se, but the concealment from his client of his firm’s mistake in filing an NOD in Suit 960. More egregiously, Mr Seah went on to take matters into his own hands, allowing DSLG to mention on his behalf on two occasions and convey to the court that the parties had agreed for Suit 960 to be withdrawn with costs to be agreed. This created a false impression to the court that the NOD had been filed with Mr LKS’s instructions and that he consented to be responsible for legal costs. Therefore, considering the elements of concealment and misrepresentation, we found that the nature of Mr Seah’s misconduct to be more egregious than that of the respondents in Law Society of Singapore v Udeh Kumar s/o Sethuraju [2013] 3 SLR 875 and Law Society of Singapore v Chiong Chin May Selena [2013] SGHC 5: at [32].

11 Mr Seah had demonstrated genuine remorse for his misconduct in OA 1. Mr Seah indicated that the firm would take responsibility for a staff’s error and would bear the costs payable to the defendant in Suit 960. Mr Seah’s early offer of restitution, taken together with his timely admission to the charges before the 1st DT, demonstrated his remorse for his misconduct in OA 1: at [34].

12 Mr Seah’s past contributions to the legal sector did not mitigate the egregiousness of his present misconduct. Contrarily, his seniority would have caused greater damage to public confidence in the integrity of the legal profession. Consequently, little weight was accorded to Mr Seah’s track record of pro bono work and testimonials: at [35].

13 On a balance, considering Mr Seah’s early offer of restitution and his genuine remorse for his misconduct in OA 1, a six months’ suspension was an appropriate sanction for OA 1: at [36].

14 OA 6 concerned a second set of disciplinary proceedings in relation to separate instances of misconduct arising out of a complaint made in March 2021 by Mdm Tan Hong Kiang (“Mdm Tan”), a former client of Mr Seah. Mr Seah had acted for Mdm Tan in her divorce proceedings and subsequent related matters concerning the disposal of her matrimonial home: at [37].

15 Sometime in 2013, Mdm Tan engaged Mr Seah through his firm to act for her in D 1079 against her estranged husband Mr Sng Leong Chye (“Mr Sng”). Mdm Tan obtained interim judgment against Mr Sng and their marriage was dissolved. The Family Justice Courts (“FJC”) dealt with the ancillary matters arising out of the divorce by way of FC/ORC 13/2015 (“ORC 13”), where orders were made concerning, inter alia, the division of the couple’s matrimonial flat (the “Flat”): at [40]–[41].

16 The Flat was sold on the open market for $448,000. In accordance with cl 3(f) of ORC 13, both Mr Sng and Mdm Tan were required to refund to their Central Provident Fund (“CPF”) accounts all moneys utilised for the purchase of the Flat together with the accrued interest. The sum due to be refunded to Mr Sng’s CPF account amounted to $116,732.32. However, this posed a problem as a full refund to Mr Sng’s CPF account would mean that he would receive an additional sum of $86,200.92 (the difference between the sum refunded and the sum he was entitled to under ORC 13) (the “Additional Sum”), which he could not repay in cash to Mdm Tan. Mr Seah proposed that Mdm Tan apply to the court to amend ORC 13, to provide for the Additional Sum to be credited to her CPF account from Mr Sng’s CPF account. CPF Board stated that it would not object to the transfer of the Additional Sum from Mr Sng’s CPF account to Mdm Tan’s CPF account upon a full refund being made, if the court made an order to that effect and subject to certain other conditions (which are not relevant for the present purposes): at [44]–[45].

17 Mdm Tan proceeded with the completion of the sale of the Flat on 4 December 2015 following Mr Seah’s advice, without any variation of ORC 13. Mr Seah prepared the completion account for the sale, which recorded a full refund to Mr Sng’s CPF account in the sum of $116,732.32. This amount included the Additional Sum which Mdm Tan was entitled to pursuant to ORC 13: at [46].

18 On 25 November 2016, almost one year after the completion of the sale of the Flat, Seah & Co filed on behalf of Mdm Tan a summons in D 1079 to vary ORC 13, vide FC/SUM 4075/2016 (“SUM 4075”): at [47].

19 The first Case Conference for SUM 4075 was fixed on 22 December 2016 at 10.00am. Mr Seah attended this Case Conference on behalf of Mdm Tan. Mr Sng was not in attendance as SUM 4075 was not served on him. The Case Conference was adjourned to 10 January 2017 at 10.30am. However, on 10 January 2017, no one attended the Case Conference. The FJC Registry wrote a letter to Seah & Co and Mr Sng seeking an explanation in writing for the parties’ failure to attend the Case Conference. The FJC directed that no court date would be fixed for SUM 4075 should an explanation not be forthcoming within seven days. It is undisputed that Mr Seah did not attend the Case Conference on 10 January 2017 and did not furnish any explanation to the FJC for his absence. Therefore, SUM 4075 did not proceed with any further hearing and consequently, ORC 13 was never varied: at [49].

20 On 16 April 2019, Mr Sng passed away. His CPF moneys were distributed, without Mdm Tan receiving a single cent. Between 15 and 25 January 2021, Mdm Tan sent a series of anxious WhatsApp messages to Mr Seah inquiring about the Additional Sum due to her from Mr Sng’s CPF account and requesting that Mr Seah take urgent action to resolve the issue: at [50]–[51].

21 Sometime in late January 2021, Mdm Tan engaged Tan, Oei & Oei LLC (“TOO LLC”) to take over conduct from Seah & Co to recover the Additional Sum. Between 28 January and 12 March 2021, TOO LLC sent four letters to Mr Seah requesting for a hand over of all the documents in Seah & Co’s possession: at [52].

22 On 9 December 2021, TOO LLC filed, on behalf of Mdm Tan, a writ of summons vide DC/DC 2582/2021 (“Suit 2582”) against Mr Seah for inter alia, breach of an implied term of his retainer that he would exercise all due care and skill and diligence in relation to the divorce proceedings in D 1079 (including SUM 4075), the transfer of the Flat and transfer of CPF funds from Mr Sng’s CPF account to Mdm Tan’s CPF account. On the same day, TOO LLC filed on behalf of Mdm Tan an originating summons vide HC/OS 1258/2021 (“OS 1258”) for an order that Mr Seah deliver up to Mdm Tan all information and documents relating to all matters upon which the former managed and/or received instructions to act, including but not limited to the same matters outlined above in Suit 2582: at [54]–[55].

23 Mr Seah claimed trial to Three Charges before the disciplinary tribunal (the “2nd DT”). The First Charge (OA 6) concerned Mr Seah’s conduct of failing to: (a) act timeously on the instructions of his client, Mdm Tan, to vary the ancillary matters order in ORC 13 in Mdm Tan’s divorce proceedings in D 1079; and (b) keep Mdm Tan reasonably informed of the progress of her application to vary ORC 13, in breach of rr 5(2)(c), 5(2)(e), 5(2)(f) and/or 5(2)(h) of the PCR. The Second Charge (OA 6) pertained to Mr Seah’s failure to attend a Case Conference without reasonable justification or notice to Mdm Tan in breach of rr 5(2)(c) and 5(2)(e) of the PCR. The Third Charge (OA 6) concerned Mr Seah’s failure to respond to and/or comply with TOO LLC’s repeated requests to take over the conduct of D 1079 in breach of rr 5(2)(e), 5(2)(f) and/or 7(2) of the PCR. With Mr Seah’s conduct in all Three Charges amounting to grossly improper conduct or improper conduct or practice as an advocate and solicitor under s 83(2)(b) of the LPA. The 2nd DT found that due cause had been shown under s 83(2) of the LPA in respect of the Three Charges and that there was cause of sufficient gravity for disciplinary action under s 83 of the LPA: at [65].

24 Due cause was shown in respect of the First Charge (OA 6). Mr Seah did not offer any good explanation for his delay in acting on Mdm Tan’s instructions to vary ORC 13 between the completion of the sale of the Flat on 4 December 2015 and the filing of SUM 4075 almost one year later on 25 November 2016. Even after SUM 4075 was filed, Mr Seah failed to keep Mdm Tan reasonably informed of the progress of her application to vary ORC 13 for about four years. It was especially shocking that, even up till January 2021, Mdm Tan still had the impression that her variation application had succeeded. In response to Mdm Tan’s anxious messages seeking an update on her matter, Mr Seah deliberately chose to mislead her into thinking that he was taking action, when the reality was that he was simply doing nothing at all, because he “got too tired”. Ultimately, Mr Seah’s conduct of the matter lead to Mdm Tan losing a relatively significant sum of $86,200.92. This loss was entirely preventable had Mr Seah acted with reasonable diligence and competence in his management of the matter: at [92].

25 Due cause was shown in respect of the Second Charge (OA 6). Mr Seah admitted that he had deliberately chosen not to attend a Case Conference as he “believed that there was no purpose for [him] to attend”. When he received the FJC Registry’s letter requesting for an explanation for his absence, he “similarly believed that [he] should just allow SUM 4075 to lapse as it would not cause prejudice to [Mdm Tan]”. Mr Seah’s justification for his actions betrayed a signal lack of respect for the court and its processes. An advocate cannot unilaterally decide not to attend a scheduled Case Conference, at the expense of the court’s time and his client’s interests. Moreover, his failure to inform Mdm Tan of his non-attendance, the FJC Registry’s letter, and the possibility that SUM 4075 might lapse, demonstrated a reckless disregard for his client’s interest and the prejudice that she might suffer: at [93].

26 Due cause was shown in respect of the Third Charge (OA 6). Mr Seah did not dispute that he had failed to respond to and/or comply with TOO LLC’s repeated requests to take over conduct of D 1079 from January 2021 onwards. In particular, he not only ignored the four letters sent by TOO LLC requesting for a hand over of the matter, his intransigent behaviour left Mdm Tan with no choice but to sue for the documents. It took Mr Seah about a year to deliver up the requested documents. This was despite his awareness of Mdm Tan’s anxiety regarding recovering her share of Mr Sng’s CPF moneys and the urgency of setting things right. There was simply no explanation for Mr Seah’s conduct: at [94].

27 There was no doubt that a period of suspension was warranted for the first two charges. Mr Seah’s misconduct was more serious than the respondent in Law Society of Singapore v Ezekiel Peter Latimer [2020] 4 SLR 1171 due to several aggravating factors. However, it was less severe than the respondent in Law Society of Singapore v Ooi Oon Tat [2023] 3 SLR 966 as Mr Seah had no similar antecedents and he had made full compensation for the loss suffered by Mdm Tan which significantly mitigated the actual harm that she suffered as a result of his misconduct. The facts of Loh Der Ming Andrew v Koh Tien Hua [2022] 3 SLR 1417 were materially different from the facts of the present case. Based on all the circumstances of the case, a three-year suspension (in aggregate) was appropriate for the First Charge (OA 6) and Second Charge (OA 6): at [96], [99], [104] and [106].

28 In respect of the Third Charge (OA 6), Mr Seah’s conduct was more egregious and warranted a longer period of suspension than the respondent in Law Society of Singapore v Arjan Chotrani Bisham [2001] 1 SLR(R) 231. There was no reasonable explanation for Mr Seah’s delay in handing over the documents to her and TOO LLC. It was unacceptable that Mdm Tan had to institute legal proceedings just to obtain the relevant documents from Mr Seah. Considering all the facts in the round, a one-year suspension was appropriate for the Third Charge (OA 6): at [109].

29 Little weight was accorded to several personal mitigating factors raised by Mr Seah including his ill health and his record of pro bono work and testimonials from other legal practitioners and his past clients: at [110]–[112].

30 It was patently justified for the two terms of suspension in respect of OA 1 and OA 6 to run consecutively given that they related to two distinct sets of misconduct involving two different clients. In the circumstances, a global term of four years and six months’ suspension was appropriate for OA 1 and OA 6: at [115]–[116].