Civil Procedure | Criminal Procedure |  Family Law | Legal Profession

Louis Pius Gilbert v Louis Anne Lise
[2000] 1 SLR 274
High Court - Divorce Petition No 388 of 1998
Goh Joon Seng J
15 July, 15 September 1999 

Appeal - Division of matrimonial assets - Appellate court not to interfere unless decision of first instance court perverse or wrong on principle 

See FAMILY LAW. 

Management Corporation Strata Title Plan No 593 (Delta House) v Grandfield Investment International Pte Ltd
[2000] 1 SLR 228
High Court - Magistrate’s Appeal No 166 of 1999
Yong Pung How CJ
28 September, 18 October 1999 

Sentencing - Continuing offence - Imposition of further fine for continuing offence - Continuing offence not committed yet - Whether court could impose fine in futuro - Land Titles (Strata) Act (Cap 158) s 42(11) 

Mahendra Prasad Rai (Cooma & Rai) for the appellants.
Kenny Chooi Yue Wai and Mabel Choo (Yeo-Leong & Peh) for the respondents.

The respondents were charged on a private summons for an offence under s 42(11) of the Land Titles (Strata) Act (Cap 158) (LTSA) for failure to pay up all the arrears of contributions and interest due to the appellants. The respondents pleaded guilty to the charge and were sentenced by the district judge to a fine of $3,000 with a further order that the respondents pay to the appellants all the outstanding arrears. The appellants appealed against part of the sentence, specifically, the district judge’s refusal to order a further fine for future default in the payment of the contributions and interest. It was argued by the appellants that the expression ‘and to a further fine not exceeding $100 for every day during which the contribution or interest remains unpaid after conviction’, found in s 42(11), LTSA, was mandatory in nature and compelled the court to impose the further fine at the time of conviction of the respondents. The issue that arose was whether a court could impose a fine in futuro for continuing offences that have yet to be committed.  

Held, dismissing the appeal:

A sentence for a continuing offence could only be imposed after it had been proved that the offence had been continued. It was a fundamental principle in criminal law that an offender could only be punished for an offence with which he was charged and of which he was convicted. To sentence an offender in advance, for a criminal act yet to be committed, would be going against all jurisprudential theory, either of the common law or the civil code. A statutory provision such as that of s 42(11) of the LTSA created, at the time of conviction, a liability for continuing the offence. However, this liability will only be crystallised subsequently, when it had actually been proven that the default had continued after the time of conviction.

It was crucial for the sentencing court to be able to establish at the time of sentencing, a precise calculation of the exact amount of fine to be imposed and which may be enforced against the offender. This would be impossible if the fine was sought to be imposed even before the default had continued. Furthermore, there could be good reasons leading to the continuation of the default and such factors must be taken into account by the sentencing court as an accused should not be unjustly deprived of his right of mitigation. 

Microsoft Corporation & Ors v SM Summit Holdings Ltd & Anor
[2000] 1 SLR 343
High Court - Criminal Motions Nos 6 and 7 of 1999
Yong Pung How CJ
27 October, 27 November 1999 

Criminal revision - Variation of court order made in criminal revision - Documents obtained pursuant to statutory search warrants that were subsequently quashed - Documents ordered to be returned -Court order prohibiting use of documents and information obtained therein in unrelated proceedings - Whether order of court may be varied to permit use of such documents and information in defending defamation proceedings -Whether implied undertaking made in criminal revision may be varied to permit use of documents and information in defending defamation proceedings 

VK Rajah SC (Rajah & Tann) for the first, second, third and seventh applicants.
Harry Elias SC and Tan Chee Meng (Harry Elias Partnership) for the fourth, fifth and sixth applicants.
Engelin Teh SC with Manjit Singh and Govin Menon (Manjit Samuel & Partners) for the respondents.

Criminal Motions Nos 6 and 7 of 1999 were two applications taken out by the applicants who were the defendants in a libel action in Suit No 1323/98. In the libel action, the respondents claimed against the applicants damages for defamation based on a press release published or caused to be published by them at a press conference. That press conference was held immediately after a raid carried out at the premises of the respondents pursuant to three search warrants obtained by the defendants. During the raid, various documents and materials of the respondents were seized and taken away by or on behalf of the defendants. Following the raid, the respondents applied to the High Court for an order to quash all three warrants. The Chief Justice upheld two search warrants granted by a magistrate but quashed the warrant granted by a judge of the High Court and ordered all the documents seized pursuant to the first two search warrants as well as all the items seized pursuant to the third search warrant to be returned to the respondents. [See [1997] 3 SLR 922.] 

In Suit 1323/98, the respondents pleaded that certain words in the press release, in their natural and ordinary meaning, meant and were intended to mean that the respondents were guilty of criminal conduct, namely, the systematic manufacturing of and trading in counterfeit CD-ROMs, on such an extensive scale that they were responsible for the pirate CD-ROM trade in Southeast Asia. Soon after the commencement of the action, the respondents applied for summary judgment. The defendants pleaded justification and/or fair comment. At the hearing for summary judgment, counsel for the respondents raised a preliminary objection to certain references in the defence and in the affidavits to documents and information obtained by the defendants pursuant to the search warrants, on the grounds (a) that there was an implied undertaking on the part of the defendants not to use such documents or information obtained in criminal proceedings in unrelated civil proceedings; and (b) that even if there was no implied undertaking, it followed from the order of the Chief Justice directing that all documents and copies seized in the raid to be returned, that the use of such documents and copies and information derived therefrom was impermissible. The preliminary objection was overruled and upheld on appeal by the Judicial Commissioner. On appeal in CA 39/99, the Court of Appeal reversed the decision below and upheld the preliminary objection, on the grounds that the order of the Chief Justice prohibited the use of the documents and that there was an implied undertaking owed to the court to use the documents only in the criminal proceedings brought against the respondents. [See [1999] 4 SLR 529.] 

Pursuant to the observation made by the Court of Appeal that the applicants could take out an application for a variation of the order of court or for a release of the implied undertaking, the applicants took out the two criminal motions in which they applied for the following: (a) the order made in CR 15/97 be varied to the extent and effect that the applicants be allowed to refer and rely on the documents and information therein for the purposes of defending Suit 1323/98; (b) the applicants be granted a release from or variation of the implied undertaking in respect of documents and information obtained pursuant to the execution of the search warrants that were the subject of the decision in CR 15/97; (3) the applicants be permitted to retain, refer and rely on the documents and information referred to and/or contained in all pleadings and affidavits filed and submissions made in all the foregoing proceedings in Suit 1323/98. 

Held, dismissing the applications:

The applicants had the locus standi to make the application for variation. The Court of Appeal had decided that it was not open for the applicants to make use of the documents obtained pursuant to the search warrants, or the information derived therefrom, in any collateral proceedings, without obtaining the prior leave of court. The applicants were parties directly affected by the restriction and they had a direct personal interest in seeking relief to vary the order of court or to be released from the implied undertaking. The High Court had jurisdiction to consider the application. The applicants were not seeking a review of its earlier decision or for a de novo hearing on matters decided in the criminal revision. This was an application to vary the decision on the basis of new circumstances that had arisen since the decision, namely, the defamation suit that was brought one year after the decision was made.  

In the application to vary the order of court of 29 September 1997, the burden was on the applicants to establish cogent and persuasive reasons. A very important consideration for such an application was the overall interest of justice. In determining the considerations of public interest, it was necessary to bear in mind the purposes of the order of court. One of the purposes was the protection of privacy and confidentiality of documents and information. That purpose was undermined if the applicants were permitted to use the documents and information derived therefrom and belonging to the respondents. 

An exercise of the court’s discretion in favour of granting the application would be granted in very exceptional circumstances. This was a fortiori in the case where a defendant raised justification and/or fair comment as a defence in a defamation action since a defendant was generally confined to the particulars of justification and was not permitted to fish for documents in the hope that something will be recovered. Prior to discovery, the applicants would have to have sufficient information to justify their allegations and to provide particulars of the same in their defence. There was no reason why the applicants should not have to go through the ordinary discovery procedure without using the prohibited information obtained before its time.  

The interest of justice did not lie in the applicants’ favour. It was the applicants who had previously invoked the criminal process of the court by obtaining the search warrants. They were found to have acted in a reprehensible and high-handed manner when they executed the search warrants. They seized a large quantity of documents and this was found to be improper because the documents were either not covered by the search warrants or were seized pursuant to the search warrant that was quashed. At the same time, they sought to apply for leave for the respondents to deliver up documents, including invoices issued to suspected pirated customers, and to make copies of such documents in an earlier criminal motion and did not succeed. An attempt was then made to use copies of the same documents and they were found in contempt of court. Similarly the applications for variation and/or release of the implied undertaking to the court failed as well. Given that the applicants did not succeed in both applications, it followed that they could not be allowed to retain the prohibited materials.

Louis Pius Gilbert v Louis Anne Lise
[2000] 1 SLR 274
High Court - Divorce Petition No 388 of 1998
Goh Joon Seng J
15 July, 15 September 1999 

Divorce - Ancillary orders - Reasonable access to children - Division of matrimonial assets - Wife’s contribution mainly indirect - Whether division just and equitable -Maintenance -Lump sum - Principles to be applied -Women’s Charter (Cap 353) s 112(2)

Halijah bte Mohamad (Halijah Mohamad & Co) for the petitioner.
G Raman (G Raman & Partners) for the respondent. 

The petitioner wife and respondent husband were married in Norway on 11 July 1980. They have two sons, Jean, aged 19 and Glen, aged 14. A decree nisi was granted in 1998. At the hearing of the petitioner’s application for ancillary reliefs, the district judge awarded custody, care and control of the two sons to the respondent with inter alia, weekend access of Glen to the petitioner from Friday evenings after school to Sundays 8pm. The judge also held that the petitioner was entitled to 35% of the couple’s net matrimonial assets, which included a Housing and Development Board HDB flat valued at $440,000 and the respondent’s Central Provident Fund (CPF) savings excluding the refund of withdrawals made for the purchase of the flat plus interest. The respondent was also ordered to pay the petitioner a lump sum of $8,000 as maintenance. The respondent appealed. 

Held, dismissing the appeal:

The court was not persuaded that the two-day weekend access order in respect of Glen was wrong as the district judge had interviewed Glen before making the order. A full weekend access would also give him more quality time with the petitioner who did not work on Saturdays. In fact, the order had already reduced the existing access for Glen’s convenience. 

The division of matrimonial assets was not a science. It was a judicial attempt to divide what was never intended to be divided. The legislature and the courts had formulated general guidelines, but it was possible for two judges, each doing his or her honest best, to come to two significantly different results and an appeal court should not interfere with the decision of a court of first instance unless it was so far out of line as to be perverse, or unless the lower court had clearly gone wrong on principle. It was not particularly helpful to try to ascertain the exact amount of money that each party had put in directly for the acquisition of the family home, as this ignored the indirect contributions. It was closer to reality to use as the starting point the assumption that both parties had contributed jointly and equally throughout the marriage to the acquisition and growth of the equity in the family home.  

The petitioner’s contributions towards the acquisition of the matrimonial assets were mainly indirect. The respondent had not shown that the district judge’s order on division of the HDB flat was out of line as to be perverse or that it was clearly wrong on principle. The refund with interest to the respondent’s CPF account was excluded from the pool of matrimonial assets for division although his CPF savings were acquired during the marriage principally from his employment as a teacher. The effective award to the petitioner therefore worked out to less than 20% of the respondent’s total CPF savings. The court was therefore not persuaded that the award to the petitioner of 35% of the respondent’s CPF should be reduced.  

On maintenance, the petitioner wanted a clean break. Taking into account the higher earning capacity of the respondent, the lump sum award of $8,000 was not excessive. 

Law Society of Singapore v Wee Wei Fen
[2000] 1 SLR 234
High Court - Originating Summons No 850 of 1999
Yong Pung How CJ, LP Thean and Chao Hick Tin JJA
24 September, 6 October 1999

Show cause action - Respondent convicted of forgery and cheating under Penal Code (Cap 224) - Appropriate penalty - Principles applicable - Legal Profession Act (Cap 161, 1994 Ed) ss 83(1), 83(2)(a) & 94A 

Tan Cheng Yew (Tan Cheng Yew & Partners) for the applicants.
Subhas Anandan (MPD Nair & Co) for the respondent. 

The respondent was an advocate and solicitor of some six years’ standing. At all material times, she was practising as a legal assistant in the law firm of M/s Quahe Tan & Partners. Sometime in 1998, 13 charges of cheating and forgery were brought against the respondent in the District Court. The respondent pleaded guilty and was convicted of three of those charges (two of forgery and one of cheating) and was sentenced to a total of four months’ imprisonment. The Law Society applied for and obtained an order under s 94A of the Legal Profession Act (LPA) calling upon the respondent to show cause why she should not be dealt with under s 83 of the LPA. 

Held, striking the respondent off the rolls:

The sole question for the court’s determination was what consequences should flow from the fact that the respondent had committed the offences for which she was convicted. The offences of forgery and cheating both involved an element of fraud and/or dishonesty. In cases of proven dishonesty, the court had almost invariably, no matter how strong the mitigating factors advanced for the solicitor, no choice but to order that he be struck off the rolls. There was no doubt that the gravity of the offences for which the respondent was charged was serious. Both the offences of cheating and forgery impinged greatly on the ability of the respondent to carry out her professional duties with integrity and trustworthiness and unquestionably demonstrate that the qualities of honour and uprightness were sorely lacking in her. Her conduct fell far short of the standard expected of any advocate and solicitor admitted into practice. 

Where the court was bound to consider the appropriate order to be made in respect of an advocate and solicitor convicted of a criminal offence - particularly one involving dishonesty - the paramount considerations must be that of the protection of the public and the preservation of the good name of the profession. Certainly the court would give its consideration to the mitigating circumstances in each individual case but it could do so only so far as was consistent with these two related objectives. Considerations which ordinarily weighed in mitigation of punishment had less effect on the exercise of the disciplinary jurisdiction than on sentences imposed in criminal cases as show cause proceedings were primarily civil and not punitive in nature. In any case, the weight to be attached to a plea in mitigation in disciplinary proceedings was negligible where the case was one involving proven dishonesty, as striking off would often be the consequence as a matter of course. 

Law Society of Singapore v Heng Guan Hong Geoffrey
[2000] 1 SLR 361
High Court - Originating Summons No 1430 of 1999
Yong Pung How CJ, LP Thean and Chao Hick Tin JJA
12, 24 November 1999 

Show cause action - Whether respondent guilty of grossly improper conduct in discharge of his professional duty under Legal Profession Act s 83(2)(b) - Whether respondent guilty of misconduct unbefitting an advocate and solicitor under Legal Profession Act s 83(2)(h) -Whether conduct unbefitting an advocate and solicitor extended to misconduct in solicitor’s personal capacity 

Savliwala Din (Salem Ibrahim & Partners) for the applicants.
Respondent absent. 

The respondent was found guilty, by the Disciplinary Committee, of six charges of misconduct unbefitting an advocate and solicitor under s 83(2)(h) of the Legal Profession Act (Cap 161, 1997 Ed) (the Act) and another charge of grossly improper conduct in the discharge of his professional duty under s 83(2)(b) of the Act. These charges were brought against the respondent on the basis of his dealings in respect of two of his properties, namely, 36 Jalan Buloh Perindu and 2 and 2A Bowmont Gardens. As a result of the Disciplinary Committee’s findings, the Law Society of Singapore applied for the respondent to show cause why he should not be dealt with under s 83 of the Act in such manner as the Court of Three Judges should deem fit. The respondent was not present nor represented at the proceedings before the Disciplinary Committee or before the Court of Three Judges. 

Held, striking the respondent off the rolls:

Grossly improper conduct in the discharge of a solicitor’s professional duty was conduct which was dishonourable to him as a man and dishonourable in his profession. The respondent’s conduct in this case was dishonourable to him as a man and as an advocate and solicitor.  

The respondent was guilty of grossly improper conduct in the discharge of his professional duty by withdrawing the caveats over 2 and 2A Bowmont Gardens without the authority and instructions of his client. Acting without express consent and authority and in a manner opposed to a client’s interests would be grossly improper conduct. 

The standard of judgment to be applied to a solicitor’s misconduct under s 83(2)(h) of the Act was a standard fixed by the court and not the standard which would commend itself to a body of reasonable advocates and solicitors or the standard of peer judgment.  

‘Conduct unbefitting an advocate and solicitor’ under s 83(2)(h) of the Act was not confined to misconduct in the solicitor’s professional capacity but also extended to misconduct in the solicitor’s personal capacity. The respondent’s dishonest misconduct would tend to bring the profession as a whole into disrepute and thus his conduct could only be regarded as unbefitting a solicitor. The facts alleged and proved clearly showed that the respondent’s whole course of conduct in relation to his dealings involving 36 Jalan Buloh Perindu and 2 and 2A Bowmont Gardens was calculated to enable him to obtain large sums of money from various parties through dishonest means. Such dishonest conduct was clearly unbefitting of an advocate and solicitor as a member of an honourable profession.