What was Re Mohamad Shafee Khamis [2024] SGHC 274 about?

It was a contested application by Mohamad Shafee Khamis for admission to the legal profession under Section 12 of the Legal Profession Act 1966 and Rule 25 of the Legal Profession (Admission) Rules 2011, heard by Sundaresh Menon CJ; the applicant had earlier faced ten charges under the Films Act.

How did the court approach admission in Re Mohamad Shafee Khamis [2024] SGHC 274?

Sundaresh Menon CJ noted the court acts as gatekeeper to the profession, requiring competence, professionalism and probity. Recent jurisprudence on contested admissions focuses on the applicant's character at the time of application, with rehabilitation the primary consideration, citing Re Wong Wai Loong Sean [2023] 4 SLR 541.

[2024] SGHC 274 — Mohamad Shafee Khamis

SUPREME COURT OF SINGAPORE

28 October 2024

Case summary

Re Mohamad Shafee Khamis [2024] SGHC 274

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Decision of the General Division of the High Court (delivered by Chief Justice Sundaresh Menon):

Outcome: The General Division of the High Court allowed the applicant to withdraw his application to be admitted as an Advocate and Solicitor of the Supreme Court of Singapore and imposed a Minimum Exclusionary Period of two years.

Pertinent and significant points of the judgment

• The Court emphasised that the nature of the inquiry in an application for admission to the Bar was different from that in the prosecution of criminal offences, or disciplinary proceedings. In applications of the former, which are more regulatory in nature, there will almost invariably be no oral evidence or cross-examination. These procedural features of the latter enhance the assurance of due process to the alleged wrongdoer which is a key consideration in proceedings that are punitive in nature. This distinction was a relevant consideration in the court’s determination of whether an adverse finding concerning the applicant’s character should be made.

• The Court clarified, concerning the duty of candour owed to the court in applications for admission to the Bar, that the assessment was a holistic one guided by the central objective of determining whether the applicant’s conduct, when viewed in totality, evinced any lack of appreciation of the duty of candour. In this regard, the inquiry should not be reduced to a mechanical exercise of identifying every error and inconsistency in an applicant’s disclosure and concluding that this was reflective of an attempt to mislead the court or withhold candid disclosure.

• The Court formulated the “Protective Principle”, founded in the court’s responsibility to protect public confidence in the administration of justice as a gatekeeper of the legal profession, which is the need to protect the standing of the profession by considering whether the nature of an applicant's misconduct is of such gravity that the grant of the admission application at the time it is made would risks undermining public trust and confidence in the legal profession and thus in the administration of justice.

Introduction

1 This was an application by Mr Mohamad Shafee Khamis (the “Applicant”) to withdraw his application for admission as an Advocate and Solicitor of the Supreme Court of Singapore (the “Withdrawal Application”). The Applicant also applied to rectify certain irregularities concerning the documents forming part of the court record, which was granted at the commencement of the hearing.

Background to the Withdrawal Application

2 The Applicant had earlier faced ten charges, under the Films Act (Cap 107, 1998 Rev Ed) and the Penal Code (Cap 224, 2008 Rev Ed), for certain offences committed between 2017 and 2018 (the “Offences”). He pleaded guilty to four charges and consented to the remaining six being taken into consideration for the purposes of sentencing. On 23 March 2022, the Applicant was convicted and sentenced by a District Judge (“DJ”) to 10 weeks’ imprisonment and a fine of $2,000. No appeal was brought against the DJ’s decision and the Applicant served his imprisonment term from 19 April 2022 to 4 June 2022.

3 From July 2019 to June 2022, the Applicant pursued a course of further studies in the Juris Doctor (“JD”) programme at the Singapore Management University. He graduated with a JD (High Merit). From 3 January 2023 to 3 July 2023, the Applicant undertook and completed his practice training with a local law firm.

4 On 16 May 2023, the Applicant commenced HC/AAS 336/2023 (“AAS 336”), seeking to be admitted as an Advocate and Solicitor under s 12 of the Legal Profession Act 1966 (2020 Rev Ed) (the “LPA”). In the Applicant’s initial supporting affidavit filed on 19 July 2023, he declared the existence of the Offences. Following the Applicant’s initial disclosure, several requests for further information were made by the institutional stakeholders, namely, the Attorney-General (appearing by his Chambers and hereinafter referred to as the “AGC”), the Law Society of Singapore, and the Singapore Institute of Legal Education (collectively, the “Stakeholders”).

5 The Applicant made three further rounds of disclosure in response to the Stakeholders’ requests. Having reviewed the information disclosed by the Applicant, the Stakeholders indicated that they would be objecting to AAS 336. Following a discussion which took place between the AGC and the Applicant, the AGC communicated that it would not object to a withdrawal application, subject to his undertaking to abide by its terms of the withdrawal, which included, among others, an undertaking to defer any future application for admission for a minimum period of four years (“Minimum Exclusionary Period”).

6 The Applicant subsequently commenced this Withdrawal Application on 17 April 2024 to withdraw AAS 336. In the affidavit filed in support of the Withdrawal Application, the Applicant agreed to the terms of the withdrawal and of the other undertakings sought by the AGC. The Applicant acted in person throughout the proceedings.

Decision of the Court

7 As a preliminary matter, the court considered that there was no impediment to the Applicant representing himself in the present proceedings. The Applicant was a self-represented person as envisioned in s 34(e) of the LPA. However, the court observed that as a matter of legal tradition, permitting self-representation in the context of an application for admission to the Bar would be the exception to the norm as there was important symbolic value in having the admission of an Advocate and Solicitor conducted as part of a ritual involving the wider legal profession: at [39] to [40].

8 The court held that applying only the framework in Re Wong Wai Loong Sean and other matters [2023] 4 SLR 541 (“Re Sean Wong”), under which the central inquiry was whether an applicant is suitable for admission in terms of his character, would not have warranted a substantial Minimum Exclusionary Period or a lengthy deferment of the Applicant’s application for admission to the Bar. The court accepted, however, that the Applicant had some distance to go principally on account of the gravity of the Offences, such that there remained a need for the court to be entirely satisfied that he had been fully rehabilitated: at [64] to [65] and [119].

9 Concerning the nature of the Offences, which was the first factor in the framework in Re Sean Wong, the court observed that the Applicant’s misconduct involved serious sexual offences which would undoubtedly render him unfit for admission as an Advocate and Solicitor. The court considered that the Offences justifiably warranted the DJ’s characterisation as involving some “degree of depravity”, noting a number of aggravating factors. Further, the court accepted the AGC’s submission that the greater the severity of the underlying misconduct, the clearer the objective evidence must be as to the Applicant’s present character so as to satisfy the court that he had indeed been satisfactorily rehabilitated: at [68] to [70].

10 Concerning the Applicant’s conduct in the criminal investigations, which was the second factor in the framework in Re Sean Wong, the court held that the evidence could not sustain an inference that the Applicant lacked remorse or accountability. In particular, the court noted that first, the documents which the AGC relied on for its submission were not put into evidence in the criminal proceedings; second, the nature of the inquiry in the present application was different from that in the prosecution of the Offences; and third, any such inference would be inconsistent with the DJ’s decision to accord mitigating weight for the Applicant’s cooperation with the authorities in the criminal proceedings: at [71] to [74].

11 Concerning the Applicant’s conduct in AAS 336, which was the third factor in the framework in Re Sean Wong, the court considered that the manner in which the Applicant approached the disclosure process, when viewed as a whole, could not be said to reveal any intention to conceal matters. Nor did it reflect any clear disregard for the duty of candour. The Applicant had disclosed the material facts in relation to the Offences and actively sought to comply with the Stakeholders’ requests for further disclosure, answering the multitude of queries in a conscientious manner: at [78] to [88].

12 The Court further declined to draw the inference that the Applicant’s conduct in AAS 336 was suggestive of a lack of ethical insight into or an abrogation of his responsibility for the Offences. The court considered that the Applicant’s description of the Offences in his supporting affidavits were not inconsistent with the agreed factual record in the criminal proceedings, and to the extent that some apparent inconsistency existed, that it was insufficient to sustain an adverse finding as to the Applicant’s character: at [89] to [100].

13 The Court also did not give weight to any alleged lack of disclosure by the Applicant to his supervising solicitor and the Ministry of Education, noting that they were not institutional stakeholders within the admission regime: at [101] to [106].

14 Concerning the evidence of remorse, which was the fourth factor in the framework in Re Sean Wong, the court found no basis to suggest that the objective signs of remorse were negated by the objections canvassed by the Stakeholders under the first three factors of the framework in Re Sean Wong, which was found to be unsustainable. The court observed that the objective evidence did not suggest that the Applicant was someone who was unwilling to confront his wrongdoing openly and unreservedly: at [108] to [109].

15 Concerning the evidence of rehabilitation, which was the fifth and final factor in the framework in Re Sean Wong, the court did not agree with the Stakeholders that the medical evidence adduced by the Applicant were unreliable or contradicted by the Applicant’s conduct in AAS 336. Apart from the medical evidence, the Applicant’s evidence of rehabilitation was further supported by five other objective factors: (a) the Applicant’s commitment to seek medical treatment; (b) the fact that the Applicant maintained a clean record for six years; (c) the fact that the Applicant demonstrated a willingness to confront his wrongdoing and face the ensuing punishment by actively seeking to progress his prosecution and conviction; (d) the Applicant’s conduct in the admission process was candid and forthcoming; and (e) the Applicant had joined resource and support networks run by a non-governmental organisation which provided him a community and firm grounding: at [110] to [118].

16 The court observed that in the exercise of the discretion to admit an applicant as an Advocate and Solicitor under s 12(1) of the LPA, the court must be guided by its institutional duty to safeguard and protect the legal profession. This gave rise to a further and discrete consideration that the court should have regard to, apart from the framework in Re Sean Wong, which is the need to protect the standing of the legal profession by considering whether the nature of an applicant's misconduct is of such gravity that to grant the admission application at the time it is made would risk undermining public trust and confidence in the legal profession and thus in the administration of justice. This was referred to as the “Protective Principle”: at [120].

17 The normative basis of the Protective Principle was found in the court’s responsibility to protect public confidence in the administration of justice, which was a consideration of paramount importance. The focus of the Protective Principle, therefore, was the specific inquiry of whether, from the external perspective of the public, the admission of an applicant would risk undermining public confidence in the legal profession: at [127] to [132].

18 In operationalising the Protective Principle, the following non-exhaustive factors were relevant: (a) the nature of the offence; (b) the penalty already served by the applicant; (c) the duration since the completion of the penalty; (d) efforts of the applicant directed at demonstrating his or her ability to function as a member of the legal profession; and (e) finally, whether the court is satisfied, in the round, that the applicant is capable of being entrusted to aid the administration of justice as an officer of the court without any risk of undermining public confidence. However, the court emphasised that the Protective Principle was an exceptional one that would not apply in every instance where admission was sought and that it need not operate as an absolute bar to entry to the profession, save perhaps in the most egregious of cases: at [133] to [135].

19 Concerning the nature of the offence, two broad categories may be identified which would attract the application of the Protective Principle. The first concerned misconduct such as corruption, criminal breach of trust, and offences which reveal serious dishonesty, especially where this is tied to personal gain. These offences strike at the heart of the administration of justice and contravene the values which the legal profession stands for. The second includes offences which involve especially serious crimes. The court emphasised that this was not a closed list: at [139].

20 The court considered that the present case, where the Offences concerned were far more serious than has been considered in any previous admission case involving sexual offences, fell within the second category and thereby justified the invocation of the Protective Principle: at [140].

21 Concerning the factor of the extent of the penalty served, the court considered that, although the Applicant had served a sentence of ten weeks’ imprisonment for the Offences, given the gravity of the offences, this was a case where in the eyes of the public, the admission of the Applicant might reasonably give rise to concerns as to the standards of probity and virtue expected of members of the legal profession, which is an integral pillar in the administration of justice: at [142].

22 Concerning the factor of the length of time since the serving of penalty, the court observed that the Applicant had maintained a clean record since April 2018, with the exclusion of the ten-week period where he was serving his sentence of imprisonment. The court considered that the maintenance of a clean record for a lengthy period of six years to date to be significant and, when considered together with the medical evidence, suggested that the risk of reoffending was low : at [146].

23 Concerning the efforts of the Applicant directed at developing his ability to function as a member of the legal profession, the court observed that there was much to be commended about how the Applicant had conducted himself after his Offences had come to light in 2018. On the medical front, the Applicant made serious efforts to seek treatment and address the underlying psychiatric conditions which bore a contributory link to his Offences. On the personal front, the Applicant diligently pursued a course of studies and training which eventually culminated in AAS 336. On the community front, the Applicant had been actively volunteering and contributing to society, finding both support and purpose in helping others: at [148].

24 Finally, the court considered in view of the severity of the Offences and the need to uphold the standing of the profession in the eyes of the public, that, despite the considerable progress already made, the Applicant could not yet be said to be fully rehabilitated, and some time was needed before the Applicant could be entrusted as an officer of the court. The court concluded that a Minimum Exclusionary Period of two years was appropriate in all the circumstances and further imposed the usual undertaking that the Applicant must comply with any prevailing statutory or other requirements that the Stakeholders may reasonably require in order to assure themselves that he is a fit and proper person to be admitted to the legal profession: at [149].

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.

Mohamad Shafee Khamis

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What was Re Mohamad Shafee Khamis [2024] SGHC 274 about?

How did the court approach admission in Re Mohamad Shafee Khamis [2024] SGHC 274?

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