Case Update

Zaleha bte Rahman v Chaytor [2001] 1 SLR 459
High Court - Maintenance Summons No 3175 of 2000 (Registrar's Appeal No 720071 of 2000)
GP Selvam J
19 October, 14 November 2000

Appeal - Right of appeal from district judge's decision - Maintenance order - Whether leave of court required

Mary Edmonds (Chiang Wee & Partners) for the complainant.
Mirza Namazie (as counsel) and Alice Yeo (Tan Peng Chin & Partners) for the respondent.

The complainant took out a summons against her husband, the respondent, under ss 69(1) and 69(2) of the Women's Charter (Cap 353) ('the Charter'), applying for maintenance for herself and their daughter. The district judge ordered the respondent to pay a monthly maintenance of $1,500 to the wife and $1,000 for the child, which order was to stand until the Syariah Court ruled on the talak pronounced by the respondent and all ancillary issues.

The complainant filed a notice of appeal against the decision, which was rejected on the grounds that the complainant had no right of appeal and that leave to appeal was required. Citing s 21(1) of the Supreme Court of Judicature Act (Cap 322) ('the Act'), the complainant argued that leave was not required as the amount in dispute or the subject matter exceeded the threshold limit of $50,000 under s 21(1) of the Act. She filed an application seeking leave to appeal to the High Court. The district judge reaffirmed that leave was required and refused to grant leave to appeal. The complainant appealed.

Held, ordering that the appeal be allowed to proceed:

The appeal should have been allowed to proceed as of right. Leave to appeal against maintenance orders was not required and the rejection of the notice of appeal was improper. Section 77 of the Charter conferred unrestricted appellate power on the High Court. It provided that, subject to the provisions of Part VIII and VII of the Charter, an appeal shall lie from any order or the refusal of any order by a District Court or a Magistrate's Court under Part VIII and VII to the High Court exercising appellate civil jurisdiction under the provisions of the Act. The provisions in Part VIII deal with the maintenance of wife and children.

The power of the High Court to entertain appeals against such orders was unaffected by s 21(1) of the Act. The Rules of Court cannot reduce the power of the High Court to entertain appeals under s 77 of the Charter. The provisions in O 55C and O 55D relating to obtaining leave to appeal only applied to appeals under s 21 of the Act. Accordingly, the $50,000 requirement and the rules relating to it did not apply to appeals under s 77 of the Charter. The respondent's further argument that the floodgates will be opened if the monetary limit of $50,000 did not apply to s 77 of the Charter was unmeritorious.

Per curiam
If leave to appeal to the High Court is required, the merits of such an application should be measured by the level of hardship to the wife and children under Part VIII of the Charter and the severity of violence under Part VII of the Charter. If the wife received more than $7,400 before February 2000, a maintenance of $2,500 would not adequately alleviate their hardship. For that reason, leave ought to have been given.

LEGAL PROFESSION

Law Society of Singapore v Singham Dennis Mahendran [2001] 1 SLR 566
High Court - Originating Summons No 1410 of 2000
Yong Pung How CJ, LP Thean and Chao Hick Tin JJA
24 November 2000, 2 January 2001

Show cause action - Grossly improper conduct in discharge of professional duties - Sexual misconduct with client - Appropriate penalty

Prem Gurbani and Mabel Mak (Gurbani & Co) for the applicant.
Kenneth Tan SC (Kenneth Tan Partnership) for the respondent.

The respondent, an advocate and solicitor of 25 years' standing, faced a charge of grossly improper conduct in the discharge of his professional duties within the meaning of
s 83(2)(b) of the Legal Profession Act (Cap 161) ('the Act') in that he carried on a sexual relationship with a client ('the client') of the firm in which he was a partner when he had the conduct of the client's divorce proceedings. The essence of the charge against the respondent was that between 20 April 1995, when the client's divorce petition was filed, and 18 October 1995, when the decree nisi was made absolute, the respondent carried on a sexual relationship with her while there was a solicitor-client relationship between them.

The client's evidence was that from the first meeting, the respondent was very attentive to her and by the third meeting, he had professed his attraction to her. Subsequently, he made suggestions that he was a better man than her then husband and also made several attempts to be intimate with her. By May 1995, their relationship had developed into a sexual one. Although the respondent expressed his intention to marry the client, their relationship did not last but ended two years later. The client did not lodge a complaint against the respondent. Instead, one Selvaratnam a/l S Rasiah ('Rasiah') lodged a complaint against the respondent in 1999, alleging that the respondent had engaged in a sexual relationship with his wife while acting for her in divorce proceedings against him.

Upon the Law Society's Disciplinary Committee's conclusion that the respondent's behaviour was grossly improper conduct under s 83(2)(b) of the Act, the Law Society filed OS 1410/2000 for the respondent to show cause why he should not be dealt with under s 83 of the Act as the court shall deem fit.

Held, suspending the respondent from practice for three years:

Personal and sexual relationships between solicitors and their clients are clearly wrong. Solicitors, as members of an honourable profession, have the duty to exhibit the highest standards of professionalism in their relationships with clients. If solicitors become too involved in their clients' personal lives during the existence of the solicitor-client relationship, they may find themselves placed in a position of a conflict of interest and the clients' interests may be seriously prejudiced. It is unbecoming for solicitors to abuse the relationship of trust and take advantage of vulnerable clients for their own purposes.

By making his advances at a time when there was a solicitor-client relationship and when the client was extremely depressed and unstable emotionally, the respondent had clearly taken advantage of her vulnerability. Such conduct was clearly unbecoming of an advocate and solicitor, whose role is to protect and act in the best interests of clients and not to take advantage of and benefit from the weakness and vulnerability of clients.

The test of 'grossly improper conduct' in the discharge of a solicitor's professional duty under s 83(2)(b) of the Act is whether the conduct is dishonourable to him as a man and dishonourable in his profession. The respondent's conduct was undoubtedly dishonourable to him as a man and as an advocate and solicitor, therefore he was guilty under s 83(2)(b).

In determining what the appropriate penalty should be, the two primary considerations are the protection of the public and the interests and reputation of the legal profession. The relevant facts and circumstances of each case have to be considered since lapses from the high standards imposed on solicitors may take different forms and be of varying degrees.

The authorities cited with regard to the appropriate punishment were of limited assistance. First, the facts and circumstances differed from case to case. Secondly, the standards to be applied in such cases would be influenced by factors such as societal values and culture. The authorities had little relevance since they were decided in other jurisdictions and the standards to be applied may differ among various jurisdictions.

In this case, both objectives of disciplinary sentencing were relevant in deciding upon the appropriate sanction. There was a public interest to be served in protecting female clients in a depressed and emotionally vulnerable state from the inappropriate advances of male solicitors whom they deal with in their matrimonial proceedings. Further, the penalty imposed upon the respondent must be one that would be effective in deterring the respondent or any other solicitor from engaging in such conduct. Although there was no dishonesty on the respondent's part and his misconduct did not warrant a striking-off, such misconduct remained very serious and required a more severe sanction than a mere censure. Hence, the respondent was ordered to be suspended from practice for three years.