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FEATURE |
Composition of Clean Record -
Kalpanath Singh v Law Society
This article considers the possible collateral impact on the effect and relevance of composition and pending offences following the recent Court’s decision in Kalpanath Singh v Law Society.
The recent case of Kalpanath Singh v Law Society (“Kalpanath Singh”) [2009] SGHC 190 highlights that a disbarred lawyer’s record after his debarment is an important factor for the Court’s consideration as to whether he is worthy of reinstatement. Having dented the public confidence in him as well as the legal profession as a result of his debarment, a disbarred lawyer must be prepared to subject himself to stricter scrutiny in his application for reinstatement to the Rolls and his post debarment record is therefore highly relevant. As the Court stated at [53]:
The dent in public confidence in the legal profession is invariably the handiwork of some black sheep. If any of these black sheep desires to come back into the flock, he must prove himself to be really white.
One interesting question which is raised is what constitutes the applicant’s record. The Court in Kalpanath Singh focused on the several regulatory offences which the applicant was involved in and held that they caused the Court to entertain considerable doubts on the merits of his application for reinstatement. In fact, if not for these several regulatory offences, the Court made it clear at [24] that it would have been favourably inclined towards theapplication after the oral hearing on 25 February 2009.
After the oral hearing on 25 February 2009, the Court made two requests for information:
1. whether at the time the applicant was disbarred, there were any other pending complaints lodged against the applicant and which complaints were not pursued because of the debarment; and
2. whether after the applicant had after his disqualification committed any offence including regulatory offences.
In response to the first request for information, the applicant disclosed that there were two pending complaints against him but nothing appeared to turn on them as the Court did not refer to them any further in its Judgment.
A string of regulatory offences in which the applicant was involved in during the interim period (2003 to 2009) became the dominant factor which led to the Court’s dismissal of the application for reinstatement. The applicant disclosed the following seven regulatory offences following the Court’s request for information:
1. In 2003, he was summoned by the Ministry of Manpower for employing a foreign worker for 19 days, whose existing work permit did not allow him to work as a cleaner at his restaurant in Little India.
He was fined a sum of $7,680.
2. In 2007 and 2009 he was summoned by Traffic Police for driving past a red light. Both summonses were compounded by him paying a fine of $200 on each occasion.
3. In 2008, he was summoned twice by the URA (Urban Redevelopment Authority) for placing tables and chairs in the parking space outside his establishment in Little India on 1 and 2 December 2007.
Both summonses were compounded by him paying a fine of $400 for each occasion.
4. In 2008, he was summoned by the ACRA (Accounting and Corporate Regulatory Authority Singapore) in his capacity as a director of a company for failing to hold the company’s AGM and failing to lodge
the company’s annual returns in time. The matter was pending as at the hearing of his reinstatement application and he faced a maximum penalty of a $5,000 fine for each charge.
A search caused by the Court in the Subordinate Courts’ records revealed five additional summons involving the applicant as follows:
After the revelation of the several regulatory offences, the Law Society decided that it no longer wished to support the reinstatement application stating that the “numerous instances of the Applicant flouting the law” would dent the confidence of the public in the profession and that the “repeated breaches do suggest a cavalier attitude” which “raises more questions as to his trustworthiness, in a wider sense and in the public interest”.
| 1. 35 The question which now falls on this Court to determine is whether, having regard to the offences for which he was struck off the Roll and the various regulatory offences which he had committed in the interim, the Applicant may be considered to be a fit person to be restored to the Roll … (Emphasis added).
2. 44 … While we acknowledge that the offences were regulatory in nature, and that they do not per se reflect adversely on the Applicant’s integrity, the Applicant cannot escape the perception that, 3. 44 … Those offences for which he had been issued summonses had occurred between 2003 and 2009 and ran the gamut of traffic offences to manpower offences. 4. 44 … However, in our opinion, the commission of those offences does indicate a frame of mind which seems to have very little regard for the law. Here, we would agree with the Law Society that the ommission of those offences shows a cavalier attitude towards the law and raises concerns about his trustworthiness … (Emphasis added). 5. 44 … Moreover, we would have thought that having gone through the experience of a criminal prosecution and a disciplinary sanction, 7. 51 … No one could remain unperturbed that the Applicant had continued to breach the law even after he had been struck off the Roll. Nor can anyone be unconcerned |
However, such an approach sits uncomfortably with the well established effect of composition in law.
Under s 199(4) of the Criminal Procedure Code, the effect of composition of offences under the Penal Code is clearly spelt out:
(4) The composition of an offence under this section shall have the effect of an acquittal of the accused.
Although there was previous uncertainty as to whether the composition of offences under other Acts of Parliament such as the Income Tax Act and the Road Traffic Act carries the same effect of an acquittal of the accused, it has become established law that indeed a composition of offences under other Acts would carry the same effect. In fact, the five additional summonses revealed by the Court’s search in Kalpanath Singh (see [30] of judgment) carried the result that the applicant was granted Discharges Amounting to Acquittals (DATA) for them.
In Re Lim Chor Pee [1990] SLR 809, LP Thean J, in delivering the judgment of the Court of Three Judges in a show cause proceedings against a lawyer, held that that the lawyer’s composition of an evasion of income tax offence under the Income Tax Act cannot be considered as an implied admission of a wilful evasion of tax:
Whether the offence is compounded under the Code or under the Income Tax Act, payment of a sum of money is exigible from the alleged offender. The fact that the payment made is a penalty, is a large sum and is imposed at the same rate applicable upon conviction of the offence by court is not a valid ground for raising the inference of guilt against the alleged offender. We accept that there is no equivalent in the Income Tax Act of sub-s (4) of s 199 of the Code. However, in our opinion, on principle, the same rule should apply to a composition of an offence under the Income Tax Act, or to put it negatively composition of an offence by an alleged offender cannot constitute an admission of guilt against him. The effect of a composition is that no further action can be taken by the prosecuting authority against the accused on the offence compounded or indeed any
other offence in respect of which he could plead autrefrois acquit or autrefois convict in respect of the offence compounded.There are multiple reasons why a person may wish to compound an offence, whether it be an income tax offence or an offence compoundable under the Code, without any admission of guilt. In particular, in the case of a taxpayer being charged for tax evasion under s 96 of the Income Tax Act, where the burden of proof is shifted to him, he may, on grounds of practicality and expediency, if agreeable to the Comptroller of Income Tax, compound the offence and pay the requisite composition fee and penalty.
In Rajamanikam Ramachandran v Chan Teck Yuen [1998] SGHC 259, Tay Yong Kwang J applied Re Lim Chor Pee in addressing the effect of compositions under the Road Traffic Act:
40 It can be seen from the above two authorities that the rule embodied in Section 199(4) Criminal Procedure Code has general application to composition of offences outside
the Penal Code. I respectively agree with this proposition and hold that the same rule applies to the composition of an offence under the Road Traffic Act or the subsidiary legislation made
thereunder.
The Court in Kalpanath Singh did not explicitly state that the applicant was guilty of the nine regulatory offences that he had compounded and the two pending ACRA summonses in question, which may not be unsurprising since this was not an issue for decision by the Court. However, the various portions of the judgment extracted above would suggest that the Court was of the view that the applicant was at least factually guilty of the nine regulatory offences that he had compounded and the two pending ACRA summonses even if not legally guilty. Otherwise, there would have been little point in the Court’s heavy emphasis on the several regulatory offences as the main factor which led to the Court’s dismissal of the reinstatement application. If the Court took the view that the composition of nine regulatory offences meant that the applicant was legally and factually not guilty, there would be little concern that granting reinstatement to the applicant would affect public confidence in the legal profession.
Another interpretation could be that even though the Court did not view the applicant to be factually or legally guilty of the nine regulatory offences that he had compounded and the two pending ACRA summonses, the Court expected the applicant to prove that he was factually innocent of them given that an applicant for reinstatement to the Rolls bears an onerous task of demonstrating that he is fit to be restored to the Rolls. However, such an interpretation cannot be reasonably gleaned from the judgment and it is submitted that such an interpretation would be unfounded in legal principle.
In XP v PP [2008] 4 SLR 686, V K Rajah JA cautioned at [94] against further second guessing of offences for which an accused person has been acquitted of:
It is not helpful, therefore, for suggestions to be subsequently raised about the accused’s “factual guilt” once he has been acquitted. To do so would be to undermine the court’s finding of not guilty and would also stand the presumption of innocence on its head, replacing it with an insidious and open-ended suspicion of guilt that an accused person would be hard pressed to ever shed, even upon vindication in a court of law … In that result, there is no room for second guessing or nice distinctions; there is only one meaning to “not proved” and that is that it has not been established in the eyes of the law that the accused has committed the offence with which he has been charged. (Emphasis added).
The Minister for Law, Mr K Shanmugam also succinctly emphasised in a recent parliamentary speech in August 2008 that:
We should not assume guilt by reason of a person being charged because our legal system, like many others, and for various sensible reasons, does not go on to establish the factual innocence of the accused. (Emphasis added).
Given that it is not the function of our legal system to establish the factual innocence of the accused, an applicant seeking reinstatement to the Rolls should not have the burden of establishing factual innocence for offences that he had compounded in the interim.
The applicant’s single conviction in Kalpanath Singh for employing a foreign worker for 19 days in breach of his work permit conditions might have been a sufficient ground for the Court to dismiss the applicant’s reinstatement application. In that case, it may have been immaterial to the outcome of the application that the applicant had a string of nine compounded regulatory offences and two pending ACRA summonses.
The Court in Kalpanath Singh makes it clear that future applicants for reinstatement must disclose in their applications all offences that they have committed. Presumably, the disclosure must include regulatory offences which have been compounded as well as pending summonses such as those highlighted in Kalpanath Singh. However, the judgment in Kalpanath Singh leaves one to wonder if it heralds a new direction towards offences which have been compounded or are still pending. Would it be relevant in future show cause proceedings against an errant lawyer that he has a string of regulatory offences which he had compounded or are still pending prior to the show cause hearing for the Court to decide on the appropriate penalty against the errant lawyer? Would it abrogate the clear principles that composition does not equate to admission of guilt as set out in Re Lim Chor Pee? One
hopes that the possible collateral impact of Kalpanath Singh on the effect and relevance of compounded and pending offences may be addressed in future decisions.
Tan Hee Joek
Tan See Swan & Co
E-mail: thj@tssco.com.sg