| The Law Society of Singapore v Khushvinder Singh Chopra [1999] 4 SLR 775; [1998] SGHC 313 |
| OS 686/1998 | |
| 21 Sep 1998 | |
| High Court | |
| Chao Hick Tin J, Lai Kew Chai J, Yong Pung How CJ | |
| Sundaresh Menon and Deanna Seow (Rajah & Tann) for the Law Society, Michael Hwang SC and Francis Xavier (Allen & Gledhill) for the respondent |
Judgment
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.] Yong Pung How CJ: 1 The Law Society of Singapore applied under s 98(1) of the Legal Profession Act (Cap 161) (‘the Legal Profession Act’) for the respondent, Khushvinder Singh Chopra, an advocate and solicitor of the Supreme Court, to show cause before this Court of Three Judges as to why he should not be dealt with under s 83(1) of the same Act. The respondent was at all material times the sole proprietor of the firm M/s Khush Chopra. He was a lawyer with four years standing at the date of the complaint resulting in the present proceedings against him, having been admitted to the Bar on 12 April 1989. Facts 2 The facts leading to the complaint against the respondent were set out comprehensively in two decisions, one in the High Court ( 3 In addition, we were referred to a Statement of Undisputed Facts, which the Law Society relied on throughout the course of the hearing. 4 For convenient reference, it was useful to replicate the facts leading to the dispute between the complainant and the respondent and the subsequent events culminating in this hearing against the respondent. 5 The respondent’s solicitor-client relationship with the vendors started sometime in May 1993. Then, Rajendran ran into some financial difficulties, as a result of which the vendors, through one Rocky Selvarajoo (‘Rajoo’), engaged the services of the respondent to act on their behalf with respect to a re-mortgage for the property. Unfortunately, this proved futile. It was therefore decided that the property should be sold. 6 Sometime on 11 October 1993, Rajoo found a prospective purchaser for the property. The respondent was instructed to prepare an option for the sale of the property at S$1.3m. For some reason which is unnecessary to dwell into, this transaction fell through and the sale was subsequently aborted. On 13 October 1993, Rajoo informed Rajendran that he had procured a new purchaser. It was a matter of some dispute whether Rajoo expressly informed Rajendran who this new purchaser was but it turned out to be the respondent himself. On the same day, the respondent met the complainant and was told by the complainant, in very vague terms, that all matters relating to the property were to be referred to Rajendran. Therefore, at about 11.45pm that same night, the respondent together with Rajoo met Rajendran and Silva at their home to discuss the purchase details. 7 After some ‘hard bargaining and lengthy negotiations’, Rajendran and Silva agreed, in the early hours of the morning of 14 October 1993, to grant an option for the sale of the property to the respondent at a price of S$1.25 million, out of which the sum of S$50,000 was to be paid later at an unspecified date. During the negotiations, the respondent had persuaded Rajendran that the price of S$1.3m for the property was excessive and unrealistic. He thereafter produced an option (‘the option’) which he had earlier prepared in favour of himself as purchaser of the property and which both Rajendran and Silva signed. In fact, the respondent had pre-prepared two options, one with a stated price of S$1.3m and the other with a price of S$1.2m when he was negotiating with Rajendran and Silva. The option was also expressed to have been given by the complainant but it was not signed by him, as he was neither present during the negotiations nor privy to any communications or discussions between the respondent, Rajendran and Silva. In their report investigating the complaint against the respondent (‘the DC report’), the Disciplinary Committee took the view, consistent with the Court of Appeal’s decision, that the complainant did not at any time then or thereafter consent to the option nor did he authorise Rajendran or Silva to consent on his behalf. It was also not disputed that the respondent did not at any time advise Rajendran or Silva to seek independent legal advice regarding the sale of the property to him, whom the Court of Appeal held was their solicitor at the material time the option was granted. The option provided for a purchase price of S$1.2m and stipulated that the respondent’s firm M/s Khush Chopra was to be the solicitors for the vendors and purchaser for the transaction. Consequently, the respondent paid by cheque an amount of S$12,000 representing the option money to Rajendran. 8 It was common ground that the terms of the option were more favourable to the respondent as purchaser of the property as compared to the one prepared earlier by him for the vendors for the aborted sale. The price contained in the option for the sale of the property was lower by S$100,000 (S$1.3m as compared to S$1.2m) and so too was the option fee payable to the vendors upon the grant of the option (S$12,000 as compared to S$30,000 for the aborted sale). Further, it was unspecified when the amount of S$50,000 which was to be paid later would be paid. This was in sharp contrast to the earlier option, which stated that all outstanding amounts were to be paid on completion. 9 After the grant of the option, the respondent wasted no time in lodging a caveat No CV/2843D (‘the first caveat’) against the property, by which he claimed an interest in fee simple in the property as the holder of the option. He also prepared and signed a typewritten note which Rajendran collected from his office and this note stipulated that the sum of S$50,000, being the commission to Rajendran for the sale of the property, would be paid by 25 July 1994. This typewritten note was intended to replace an earlier note which the respondent had written the day before the date on which the option was initially granted by Rajendran and Silva. 10 On the same day, 14 October 1993, the complainant, who did not know of the events which had transpired earlier between Rajendran, Silva and the respondent, met and negotiated to sell the property to one Raveentheran (‘Ravi’) and his wife Pushparanee Somasundram (‘Pushparanee’) for a price of S$1.3m. Rajendran soon after informed the complainant of his meeting with the respondent. The complainant was adamant that the option should not be granted to the respondent, since he had received a better offer. This led Rajendran to try and return the S$12,000 option fee to the respondent and revoke the option but the respondent refused to take the money back. 11 On 15 October 1993, Rajendran consulted another solicitor, Mr Bannirchelvam of M/s Bannir & Associates, and was advised that the option which he and Silva signed in favour of the respondent was invalid, since it lacked the signature of the complainant. As a result, on 18 October 1993, unaware that the first caveat had been lodged by the respondent on the property, a new option (‘the new option’) was executed in favour of Ravi and Pushparanee. Originally M/s Pereira & Netto were named as the solicitors for both parties in this new option but this was later replaced by M/s Bannir & Associates on 20 October 1993. It was then that the first caveat came to light. That very day, the respondent had a meeting with Rajendran to settle matters relating to the option but nothing was resolved. 12 As a finding of fact made by the Disciplinary Committee in the DC report which was not challenged by either party during the hearing before us, it was stated that despite the complainant indicating to the respondent to refer all matters relating to the sale of the property to Rajendran on 13 October 1993, the respondent became aware on a date between 15 and 22 October 1993 that the complainant did not wish to sell the property to him. 13 In spite of this, the respondent pressed on with the purchase of the property. On 22 October 1993, he wrote to the vendors seeking to ‘put straight’ the events relating to the granting of the option by Rajendran and Silva. He also stated that he would exercise the option and asked the vendors to nominate new solicitors if they did not wish to retain him as their lawyer in the transaction. As this letter is important we shall set it out in full: Dear Sirs, Re: Option to purchase No 91 Jalan Seaview I refer to [the option] to purchase the abovecaptioned property granted to me on 14 October 1993 by you. I write to put on record the fact that [Rajendran] and [Silva] had represented to me and [Rajoo] at the time of granting the option that they had the express and irrevocable authority of [the complainant] to grant the abovesaid option. Assurances were given to me by [Rajendran] that he had the absolute authority to sign and grant an option on behalf of his father [the complainant] and that [the complainant] had delegated the task of finalising the option to him. Also [Rajoo] who was also present in fact insisted prior to your granting the option that [Rajendran] confer with [the complainant] on the telephone to confirm the terms of the option which you did. Earlier that evening when I had visited 91 Jalan Seaview, [the complainant] and a person identifying himself as [Rajendran’s] brother expressly told me that we were to discuss the sale with [Rajendran] who had the authority to grant the option on [the complainant’s] behalf. In reliance of the aforesaid representations, I had made payment of S$12,000 being the option money and had foregone other options in respect of offers to me of certain properties. In consideration of my payment of a sum of S$12,000 by way of a cheque in favour of [Rajendran] the option in issue was granted to me. I intend to exercise the option and would be grateful if you would nominate solicitors to act for you should you now feel that you do not wish us to continue acting for you as previously instructed in the matter as soon as possible and in any event not later than 4pm 25 October 1993, ie being the day before the expiry date of the option. Kindly note that we have filed [the first caveat] against the property claiming Mr Chopra’s interest as purchaser under the option granted. 14 Three days later, on 25 October 1993, the respondent purportedly exercised the option, and served the notice of acceptance on the three vendors. Our attention was drawn to the fact that 22 October 1993 to 25 October 1993 fell within a weekend and from the time the three vendors received the notice of acceptance on 23 October 1993, a Saturday, to 25 October 1993, which was a Monday, the vendors had little time to do anything. 15 In addition to the notice of acceptance served on the vendors, a letter was written by the respondent’s firm which read: Dear Sir/Madam, Re:Option to Purchase No 91 Jalan Seaview We refer to the above and to the option to Purchase dated 14 October 1993 granted by you to Mr Khushvinder Singh Chopra. We are pleased to inform you that Mr Khushvinder Singh Chopra has today exercised the aforesaid option and tendered his cheque for S$108,000.00 being the balance of the 10%deposit which is to be held by us as stakeholders pending completion and we enclose herewith a copy of the letter from Khushvinder Singh Chopra exercising the said option together with copy of the Acceptance copy duly signed by him and copy of the said cheque for your information. As [Rajendran] has informed us that [the complainant] has indicated his unwillingness to continue with the sale, we are of the view that there is a conflict of interest in our continuing to act for you. In the premises, we would hereby discharge ourselves from acting for you. Please let us know the solicitors who will be acting for you herein so that we may communicate with them further on the matter. In this respect, please refer to para 7 of our letter to you of 22 October 1993. 16 The following day, the respondent lodged a further caveat No CV/5265D (‘the second caveat’) against the property by virtue of having exercised the option. The exercise of the option was completed through the payment of S$108,000 into the client account of the respondent’s firm as the vendors’ solicitors. This was done despite having given the vendors the opportunity to appoint new solicitors to act for them. That amount represented the balance of the 10% deposit due upon the exercise of the option. 17 On 27 October 1993, in order to protect their own respective interests, Ravi and his wife lodged a caveat against the property pursuant to the new option. On the same day, M/s Bannir & Associates, acting as solicitors for the three vendors, wrote to the respondent demanding a withdrawal of the first caveat against the property. The letter also disputed the respondent’s letter dated 22 October 1993 that Rajendran and Silva had the authority, express or otherwise, of the complainant to deal with the respondent with respect to the grant of the option. 18 The respondent thereafter sought the advice of M/s Allen & Gledhill, who subsequently became his solicitors in this matter. They replied to M/s Bannir & Associates indicating the respondent’s intention to resist their request to withdraw the first caveat and insisting that the option given to the respondent was valid and binding in law. 19 On 1 November 1993, Ravi and his wife exercised the new option. About two weeks later, on or about 16 November, the complainant wrote to the Law Society complaining about the respondent’s behaviour. It was this complaint which formed the basis of the disciplinary proceedings against the respondent. 20 The respondent claimed he did not learn about the complaint until well into February 1994. However, sometime prior to 21 November 1993, it transpired that the respondent met Rajendran, a consequence of which a supplementary agreement was faxed to Rajendran which was later signed by the vendors collectively. In the Court of Appeal’s decision, the court expressed the view that since the complainant had not signed the option, the respondent would have serious difficulty enforcing the option even as against Rajendran and Silva. It was in this context that the respondent tried to muscle the sale of the property to him instead of to Ravi and his wife through the supplementary agreement. At p 467C, the Court of Appeal made the following observation: There was absolutely no need at all for the [three vendors] to enter into any renegotiation with the respondent to sell the property to him at the price of $1,250,000. Indeed, we would say that at that stage they had no intention of selling the property to the respondent — certainly not at the price of $1,250,000. They had not appointed any solicitor to act for them with regard to the purported sale of the property to the respondent. Further, in so far as the [complainant] was concerned, the option was not binding on him and he had taken the advice of M/s Bannir & Associates who had disputed the purported sale of the property to the respondent. The respondent himself is a solicitor and, in addition, at the time had taken legal advice on his legal position. He was fully conversant with the facts and knew fully well the respective legal positions of the parties. He must have appreciated the weakness of his case for the purchase of the property and must have realised that unless an agreement was then made with all the [three vendors] rectifying the defects or omissions inherent in the unperfected agreement he would have considerable difficulty in securing the purchase of the property at the price of $1,250,000. Added to all these was the fact that a complaint against him had just been made by the [respondent] to the Law Society of Singapore. It was in these circumstances that the respondent conducted the direct negotiations with the [three vendors]. These direct negotiations were in effect a re-negotiation for the sale of the property to the respondent. He re-negotiated only with the [Rajendran] and had no direct contact with the [complainant] or [Silva]. It was the respondent who initiated this move. The inference that one can reasonably draw was that the respondent intended to insulate the [three vendors] from the [complainant’s] solicitors, M/s Bannir & Associates. 21 The gist of the supplementary agreement summarised by the Court of Appeal, without setting it out in full, was this (at p 467G): Arising from the discussions the respondent had with [Rajendran], the respondent prepared the supplemental agreement which was signed by the [three vendors]. The supplemental agreement, in so far as material, was as follows. It was expressed to be made supplemental to the option and recited that for a consideration of $12,000 the option was granted by all the appellants to the respondent to purchase the property at the price of $1,200,000. It recited also that the option was exercised on 25 October 1993 and the respondent ‘paid to the Vendor’ (ie the [three vendors]) the deposit of $108,000 and that the respondent agreed to pay to [Rajendran] a sum of $50,000 on 24 April 1994. There were only three principal provisions. The first was that in consideration of [Rajendran] waiving the payment of $50,000 the respondent agreed to pay a further sum of $50,000 towards the purchase price, thus increasing the price to $1,250,000. The second provision was that early possession was to be given, ie on 24March 1994 which was before completion, and the [three vendors] agreed to the respondent carrying out renovations in the property. The third provision was that the deposit of $108,000 ‘paid to the Vendor by the Purchaser on 26 October 1993’ was to be held by the [three vendors’] solicitors as stakeholders pending completion, and the deposit was to be released only on certain conditions, one of which was the [three vendors] procuring the withdrawal of the caveat no CV/5037D lodged by or on behalf of Ravi and Pushparanee and other caveats, if any, lodged against the property by third parties. 22 Apart from the supplementary agreement, the respondent also persuaded the vendors to sign a statutory declaration affirming the supplementary agreement. This was done on 8 December 1993, when the respondent arranged for a meeting with them before taking them to the High Court to affirm the declaration. Before the Commissioner for Oaths, the declaration was explained to the complainant in Tamil, who gave his indication that he understood the contents contained therein. The Commissioner of Oaths pointed out, in the course of explaining the contents of the declaration to the complainant, that the declaration was entirely disadvantageous to him but for some unexplained reasons, the complainant nevertheless agreed to affirm it. 23 The Court of Appeal, in the same decision, found that the declaration was wholly bias and one-sided for the benefit of the respondent. The gist of the declaration was to, in the words of LP Thean JA who delivered the judgment of the court, ‘secure to himself a cast-iron case to uphold the validity and integrity of the supplementary agreement and the option’. The relevant parts of the declaration read: (1) That we [the three vendors] had on 14 October 1993 in consideration of the sum of Singapore Dollars Twelve Thousand (S$12,000.00) paid to us by [the respondent] holder of NRIC No 1591657/E of No 1 Sennett Avenue, East Coast Hill, Singapore (hereinafter called the Purchaser) granted to the Purchaser an Option (hereinafter called the Option) for the purchase of the property known as No 91 Jalan Seaview, Singapore at the price of Singapore Dollars One Million Two Hundred Thousand (S$1,200,000.00). … We acknowledge the same to be valid and binding on all parties to the same. (2) That the reason I [the complainant] did not put my signature to the Option at the time the same was granted was because I had authorised [Rajendran] (my son) and [Silva] (my daughter-in-law) to represent me and to act on my behalf in all matters concerning the negotiation and granting of the Option to [the respondent]. (3) That the Purchaser did on 26 October 1993 pay to us the balance deposit of Singapore Dollars One Hundred and Eight Thousand (S$108,000.00) in exercise of the Option (which is being held by the solicitors as stakeholders). (4) That the Purchaser did by Acknowledgements both dated 14 October 1993 agree to pay to us the sum of Singapore Dollars Fifty Thousand (S$50,000.00) by the 24th day of April 1994. … (5) That the Purchaser did by a Supplemental Agreement (hereinafter the Supplemental Agreement) dated 22 November 1993 agree to the variation of several of the terms in the Option. … (6) That we had carefully read the Option and Supplemental Agreement before execution of the same and confirm that we fully understand the contents therein and did voluntarily enter in these transactions described in the Option and the Supplemental Agreement for our benefit. (7) … (8) That there was never at any time in relation to the Option and/or the Supplemental Agreement any impropriety or undue influence whatsoever by [the respondent] who had himself fully informed us of all the material facts including in particular divulging (prior to the execution of the Option) all circumstances relating to the then contemplated ex gratia payment by [the respondent] to [Rajendran] of a sum of S$50,000.00 and including fully and frankly disclosing his personal interest in the transaction and advising us of his conflict of interest and his advice therefore to seek independent legal advice before executing the Option and the Supplemental Agreement and we satisfied ourselves as to the fairness of the transaction, the price and other terms thereon. (9) … 24 It was only after the declaration was affirmed that the respondent brought the vendors to see one Mr Murugaiyan, an advocate and solicitor, to advise them as to the contents of the declaration. It was also only then that Mr Murugaiyan realised that the vendors were already represented by M/s Bannir & Associates, and advised them to seek the advice of the latter instead. We asked why the vendors were brought to seek independent legal advice only after the statutory declaration was affirmed and the reply was because it was late in the afternoon and the vendors and the respondent wanted to affirm the declaration before the Commissioner of Oaths office closed for the day. Counsel for the respondent submitted that this lack of forethought was because the respondent was anxious to resolve his dispute with the vendors. 25 The supplementary agreement was consequently annulled by the Court of Appeal on the basis that it was procured by the undue influence of the respondent. The court found that as a result of the vendors not being advised of the consequences and implications of the supplementary agreement or the statutory declaration, or being asked to seek independent legal advice prior to the execution of the documents, the two said agreements could not be enforced and were invalid. The statutory declaration now formed part of the charge against the respondent. 26 This brings us to the letter of complaint filed by the complainant against the respondent as a result of what we set out above. In the letter, the complainant sought the assistance of the Law Society in what he termed the ‘wrong done to [him] by [the respondent]’. The council of the Law Society referred the complaint to the Inquiry Panel and this subsequently resulted in three charges being brought against the respondent by the Law Society which were considered and determined by the Disciplinary Committee. The respective members of the Disciplinary Committee consisted of Mr Joseph Grimberg as the chairperson and Mr Woo Tchi Chu, Mr Roy Neighbour and Mrs Yvonne Goh. 27 The respective charges were: A That you, Khushvinder Singh Chopra, are guilty of grossly improper conduct in the discharge of your professional duty within the meaning of s 83(2)(h) of the Legal Profession Act (Cap 161) in that you, between 14 October 1993 and 25 October 1993 (both dates inclusive) while attempting to purchase the property known as 91 Jalan Seaview, Singapore 1543 for yourself, purported to act as solicitor for the vendor, [the complainant] and for yourself in the same transaction, and purported to bind [the complainant] to the attempted sale to yourself, even though the said [complainant] had not at any time instructed you to represent him in any such sale to you and had not in fact entered into any such sale to you nor authorised any person to do so on his behalf. B That you, Khushvinder Singh Chopra, are guilty of grossly improper conduct in the discharge of your professional duty within the meaning of s 83(2)(h) of the Legal Profession Act (Cap 161) in that you, between 14 October 1993 and 25 October 1993 (both dates inclusive) whilst attempting to purchase the property known as 91 Jalan Seaview, Singapore 1543 for yourself, purported to act as solicitor for the vendors of the said property, [the complainant], [Rajendran] and [Silva], and yourself in the same transaction, and thus allowed a conflict of interest to arise, without ensuring that the vendors had sought independent legal advice. C That you, Khushvinder Singh Chopra, are guilty of grossly improper conduct in the discharge of your professional duty within the meaning of s 83(2)(h) of the Legal Profession Act (Cap 161) in that you, after you had ceased to act or purportedly to act for [the complainant] in the attempted sale of his property, 91 Jalan Seaview, Singapore 1543 to you, and despite knowing that at all material times, he had instructed other solicitors to represent him, communicated and/or met with the said [complainant] in the absence of his solicitors, to procure the execution by [the complainant] of a Statutory Declaration dated 8 December 1993 which was drafted by you and/or by your servants/agents, without reference to the solicitors of the said [complainant], and without first advising [the complainant] of the legal consequences of the said Statutory Declaration, and/or affording him a reasonable opportunity to seek independent legal advice, the intent and effect of which Statutory Declaration was to, inter alia: i uphold the integrity and validity of the option purportedly entered into between you, [the complainant], [Rajendran] and [Silva] on or about 14 October 1993 and the Supplementary Agreement dated 22 November 1993, so as to bind [the complainant], [Rajendran] and [Silva] to the attempted sale to yourself on the terms of the said option and Supplementary Agreement; ii absolve you of allegations of fraud and impropriety contained in [the complainant’s] letter of complaint to the Law Society dated 11 November 1993. 28 At the hearing before the Disciplinary Committee, the respondent conceded that he was liable to some form of disciplinary action for charges A and C but took issue with charge B, in consequence of which the Disciplinary Committee considered charge B first before moving to charges A and C in the DC report. The Disciplinary Committee’s findings in the DC report 29 The Disciplinary Committee came to the conclusion that charge B against the respondent, namely that of putting himself in a position of conflict of interest without ensuring that the vendors had sought independent legal advice, was made out. Accordingly, the respondent was found ‘guilty of grossly improper conduct in the discharge of his profession duty, within the meaning of section 83(2)(h) of the Legal Profession Act’. The gist of the decision was summarised from 47 to 49 of the Disciplinary Committee report, the Disciplinary Committee emphasising that their decision was consistent with the Court of Appeal’s decision in the same respect: 47 Applying the principles to which we have referred, we have little hesitation in concluding that the respondent should, at least, have made it clear to Rajendran and Silva at the outset of his meeting with them at 11.45pm on the night of 13 October 1993, that he would not act for them in the proposed sale, unless the vendors took independent advice. 48 It is manifest from the facts we have recited that the respondent’s interests were inimical to those of [the complainant], Rajendran and Silva. He was determined to pay as little as he could for the property; they to secure the highest price possible. Vigorous bargaining took place over two hours late at night and into the early hours of 14 October 1993, the parties reaching a consensus by approaching the agreed consideration from opposite ends of the price spectrum. The respondent obtained, in the [option], terms no less favourable to the vendors than they had secured under the [earlier option in the aborted sale].Moreover, he did so against the background, as counsel for the respondent conceded, of a ‘strong’ property marked (sic). Indeed, on the very day the respondent secured the [option], the vendors were offered S$50,000 more for the property by Ravi and his wife. 49 On no account can it be said of the respondent in this case that he could have felt ‘assured of holding the scales evenly’ between himself and his clients. This was not ‘an exceptional case’ such that the respondent should have done otherwise than either to have ceased to act for his clients or ensured that they took independent advice. Instead, he persisted in continuing to represent the vendors until after he had purported to exercise the [option] on 25 October 1993 by which time, we find, the respondent must have known that [the complainant], at least, was unwilling to sell at the price of S$1,25m. In addition, so the Court of Appeal found, by 25 October 1993 the respondent ‘had taken legal advice on the matter and knew fully well that as a purchaser he was in a vulnerable position and that the purported sale could or would be likely to be successfully impugned.’ 30 Insofar as charge A was concerned, the Disciplinary Committee felt however that a reprimand per se, in line with the respondent’s concession, was sufficient. It was felt that there was insufficient evidence before the committee to warrant the charge being made out. The Disciplinary Committee made the following observation (at 65 of their report): 65 We have come to the conclusion that, having regard to the burden of proof required of professional bodies in disciplinary proceedings against their members, it would be unsafe for us to find the respondent guilty under either limb of charge A. Having said that we have no doubt that he was professionally remiss in failing to make any attempt to obtain [the complainant’s] signature to the [option]. We find that this failure arise from the respondent’s unseemly anxiety to close the deal over the property, but we draw back from any determination imputing dishonesty to the respondent with regard to the aspect of his conduct covered by Charge A. 31 Finally, with regards to charge C, the Disciplinary Committee decided that cause of sufficient gravity existed for disciplinary action against the respondent’s conduct. Again, reliance was placed on the Court of Appeal’s decision which held that the supplementary agreement and statutory declaration were obtained by the undue influence of the respondent without the benefit of independent legal advice for the vendors. Further, the committee found that the two agreements could only be to validate the option and to protect the respondent against any allegations of fraud or impropriety on his part as alleged by the complainant. Council of the Law Society’s decision 32 The Council of the Law Society (‘the Council’) subsequently considered the Disciplinary Committee’s report. Insofar as charges B and C were concerned, the Council took no further issue and applied under s 94(1) of the Legal Profession Act for an order calling the respondent to show cause. However, the Council disagreed with the Disciplinary Committee’s recommendation with respect to charge A. As a result, pursuant to s 94(3)(b) of the same Act, the Council proceeded to make an application under s 98 calling upon the respondent to show cause for that charge. 33 Counsel for the Law Society explained this course of action taken by the Council in his affidavit before us. Putting it briefly, the Council felt that the Disciplinary Committee erred in considering that there was insufficient evidence before them to find the respondent guilty of charge A. Having regard to all the circumstances of the case and the two decisions arising out of the High Court and the Court of Appeal, the Council felt that there was sufficient evidence before the Disciplinary Committee which warranted them finding that there existed cause of sufficient gravity for disciplinary action under s 83 of the Legal Profession Act. At 23 to 26 of his affidavit, counsel for the Law Society explained: 23 The Law Society is of the view that there was sufficient material before the DC to warrant a finding that the respondent could not reasonably have believed that [Rajendran] was properly authorised. However, the DC examined this from a purely subjective viewpoint, and on this the Law Society submits the DC erred… 24 In any case, the gravamen of charge A concerns more than merely whether the respondent believed as of the 13 October 1993 that he and [Rajendran] had the requisite authority. As stated above, there is an additional and crucial question, namely whether he knew by 25 October 1993, when he purported to exercise the [option] and purported, as the [three vendors’] solicitor, to pay the balance of the option moneys into the [three vendors’] client account, that [the complainant] did not wish to proceed with the sale to him, in circumstances where [the complainant] had not himself instructed the respondent to represent him, had not signed the option and had not conferred ostensible authority on anyone to do either of the aforesaid on his behalf. 25 It had been submitted on behalf of the Law Society to the DC that all three charges were concerned with the conflict between the respondent’s duty as an advocate and solicitor of the Supreme Court and his personal interest as a prospective purchaser of the property and that charge A is properly meant to reflect an aggravated conflict. This crucial point appears to have been overlooked by the DC. It had further been submitted that the basic foundation of charge A is the same for charge B, namely: i the respondent was interested personally in purchasing the property from [the complainant]; ii while attempting to purchase the property, he purported to act as the solicitor for the vendor and for himself; The resulting conflict was aggravated by: a The fact that [the complainant] had never entered into the transaction (he had never signed the [option]), nor authorised nor held anyone out to be authorised to enter into the transaction on his behalf; b [the complainant] had not authorised the respondent to act as his solicitor in the transaction; and c by 22 October 1993 at the latest, the respondent knew that [the complainant] did not want to sell the property to him. Yet the respondent had sought to bind [the complainant] to the transaction on 25 October 1993 in the manner described in para 24 above. It had been submitted to the DC that there was no sign at this stage of the respondent taking a step back and putting at the forefront his duty to his putative client, to assess the strengths of his position vis a vis his client. Instead he had insisted on asserting his own interest. 26 In the light of the foregoing, the Law Society is of the view that the DC, in dealing only with the issue of whether the respondent subjectively believed he had authority on 13 October 1993, did not give any or sufficient consideration to the matters stated above. A proper consideration of all these matters would, it is submitted, have led to the DC to conclude that cause of sufficient gravity exists for disciplinary action in respect of charge A so that the respondent should be called upon to show cause. Therefore the Law Society is proceeding under s 94(3)(b) of the [Legal Profession Act] to make an application that the respondent be called upon to show cause in respect of charge A. The show cause proceedings 34 We therefore moved to consider the show cause proceedings in the light of the Disciplinary Committee and the Council’s deliberations and findings. Before dwelling into the depths of the respondent’s actions, we found it useful to set out some of the settled general applicable principles pertinent to the case at hand, namely a solicitor’s duty to his clients when both were involved in the same transaction. The gist of the charges against the respondent was that he had intentionally acted against the wishes of his clients by forcing the vendors to sell their property to him and acting for them at the very same time, thus placing himself in a serious conflict of interest situation. Counsels on both sides referred to numerous cases but we needed only to refer to a handful for a feel of the law. In the case of Law Society of New South Wales v Harvey A conflict of interest which is avoidable, and ought to be avoided, is that which arises from a deliberate proposal of the solicitor that his client deal with him. If, for example, a client seeks aid or advice from a solicitor concerning lending or borrowing, or the acquisition or disposal or dealing with assets, the solicitor will disregard his primary duty as a solicitor referred to so trenchantly by Lord Westbury, if he uses the occasion to become the party who deals with his client. It can make no difference if he is not a party directly, but the transaction is with a company in which he has an interest. Even the tender of advice to his client to have independent legal advice, although of importance, does not really overcome the objection to the solicitor having proposed, invited or encouraged the client to deal with him or his company in the proposed transaction. We need not pause to analyse the differing problems which arise where the client rejects the advice to seek such independent advice, and the solicitor continues to act, or the client acts for himself or where he has independent legal advice either just for the transaction or has a permanent new solicitor. In varying degrees the trust of and reliance upon the solicitor to act fairly and independently arising from the initial preparedness of the solicitor and client to trade may remain as the reason why the client ultimately deals with the solicitor and not somebody else. It is difficult to be sure it does not. In the absence of very special circumstances, a solicitor who promotes himself as the dealer with his client misuses his position … The price of being a member of an honourable profession, whose duty to his client ought not to be prejudiced in any degree, is that a solicitor is denied the freedom to take the benefit of any opportunity to deal with persons whom he has accepted as clients. Therefore he ought neither to promote, suggest, nor encourage a client to deal with him, but rather should take all reasonable steps positively to avoid dealing directly, or indirectly, with his client. There are of course exceptional cases where the transaction may be in the special interest of a particular client, but such cases will be isolated and need to be dealt with conscientious regard for the procedures referred to. [Emphasis added.] 35 Law Society of New South Wales v Harvey was a case where clients lent money to three companies where the solicitor was a director and shareholder of. The court held that the solicitor was guilty of improper conduct as he had mixed his clients’ affairs with his own, had grossly preferred his interests to those of his clients and had failed to advise his clients to seek independent legal advice. 36 Law Society of New Sough Wales v Harvey was subsequently followed in the case of Law Society of New South Wales v Moulton In cases such as the present one, it is essential to remember, indeed to emphasize, that a solicitor stands in a fiduciary relationship to his clients. If he is to have business dealings with them on his own account, and in particular if he is to borrow money from them, the requirements of the law are rigorous. The need for that rigour is obvious. Commonly to a great extent, always to some extent, the solicitor is in a position of special influence in respect of his client. Clients must be able to rely upon the professional advice of their solicitor and to place him in the fullest confidence that he will protect them and handle their affairs in their interests. When a solicitor wishes to borrow from a client, the client must be put in a position to make a free and informed decision about the proposed transaction. Since in these circumstances the interests of the client and of the solicitor can and generally must conflict, the best and easiest way to achieve this result is to insist that the client have independent and informed advice. If this does not happen, a heavy burden indeed lies upon the solicitor to show that he has done everything in his power to protect the interests of his client and to ensure that the client is aware of every circumstances that is or might be relevant to his decision. If a solicitor wishes to use his client’s money to finance some business he is carrying on, it is almost impossible to see how the client can be adequately protected and advised without insisting that he gets independent advice. Moreover it must be borne in mind that many clients are not able effectively to decide whether an investment is a prudent one, no matter what information is given to them, and that the greater the trust of the client in the solicitor the greater is the need for independent advice where a conflict if interest may arise.… Because ofMrMoulton’s evidence and the submissions made on his behalf, it is also necessary to say that none of the propositions I have stated is new law; they were not established for the first time by the decision in Harvey 37 A case closer to the factual matrix of the present case was the very old case of Re Beard Before entering upon the facts in detail it is desirable to refer to the law which we consider relevant to the matter. As the relationship of solicitor and client necessarily renders the solicitor more or less conversant with the client’s private affairs, and as the trust which the client comes to repose in the solicitor gives the solicitor a position of influence over the client, the law, in the interests of the profession and the public, has in many ways sought to ensure that solicitors shall not abuse the confidence reposed in them. Thus courts of equity have always examined with great strictness any transaction in the nature of a purchase by a solicitor of a client’s property. The law does not absolutely forbid a solicitor from acquiring property from his client, but it does so relatively, and the onus of supporting the transaction if it should be attacked lies upon the solicitor. Lord O’Hagan, in Macpherson v Watt(1) states the position with great force: ‘If he (the solicitor) becomes the buyer of his client’s property he does so at his peril. He must be prepared to show that he has acted with the completest faithfulness and fairness; that his advice has been free from all taint of self-interest; that he has not misrepresented anything or concealed anything; that he has given an adequate price; and that his client has had the advantage of the best professional assistance which if he had been engaged in a transaction with a third party he could possibly have afforded. There must be uberrima fides between the attorney and the client, and no conflict of duty and interest can be allowed to exist.’ The cases in which the onus is cast on a solicitor to see that the client is put at arm’s length comprise those in which a personal ascendancy or influence has been acquired over the client, or in which the solicitor has gained some knowledge of the client’s property in virtue of his having acted for the client, or in which the circumstances of the transaction are such as to render it his duty to give advice or information to the client in regard thereto. We thus summarize what is laid down by Lord Blackburn in the same case(1). In regard to the last ground he says(2): ‘In Holman v Loynes(3) Lord Justice Turner mentions, among the instances in which an attorney cannot be allowed to deal with his client without divesting himself of his character, all cases in which the circumstances are such as to make it his duty to give advice to his client. When that is the case he cannot make a bargain without putting himself, as it has been commonly phrased, “at arm’s length” from his client. From the very nature of things, where the duty exists that he should give his client advice, it should be disinterested advice. The mere fact that you, being in the circumstances which made it your duty to give your client advice, have put yourself in such a position that, being the purchaser yourself, you cannot give disinterested advice, your own interests coming in conflict with his, that mere fact authorizes him to set aside the contract if he chooses so to do.’ In Macpherson v Watt(4), although the solicitor could not be said to have been the general solicitor of the sellers, and although there was no ground for suggesting undue influence, yet he was held to have placed himself in that fiduciary relation requiring the utmost good faith because he volunteered advice as to the value of the property, and the circumstances were such that those advised were entitled to look upon his advice as a solicitor’s advice given in their interests. 38 He continued (at p 208): On the other hand, if a solicitor has once been employed, say, to manage his client’s real estates, then, although the employment may have entirely ceased, yet there may still be a duty on the solicitor’s part towards his client—for example, that of possibly advising or possibly communicating information which he has obtained while acting as solicitor —and the existence of such a duty may bring the ordinary rule into operation and make the solicitor in hac re if he subsequently purchased the real estates from his client, although as a matter of fact the relationship of solicitor and client in strict sense had cased to exist altogether. 39 In the light of the above cases, the principle was this: in general, a solicitor ought not to put himself forward as a prospective principal to deal with his client, and in the present case, to purchase the client’s property. This however was not an absolute rule. Should the solicitor choose to do so, he must ensure that his client received the most disinterested advice possible, as if the client was transacting with a third party. In this respect, we thought the best form of disinterested advice was to advise the client to seek other independent advice, legal or otherwise. In fact, the most appropriate action to take would be to discharge himself as solicitor for the client and to advise the client to appoint new solicitors. But at the very least, the solicitor ought to ensure that the client has had the benefit of truly independent legal advice. 40 But the solicitor’s duty did not end there. Because of the principle that the solicitor owed a fiduciary duty to his client, if he entered into any transactions with his client, the law would be ‘rigorous’ on him, and any benefit received thereof by him must be fair and informed. This applied whether the solicitor was still acting for the client, or whether he had discharged himself, as was consistent with the case of Re Beard. Each case depended on its very own nature and facts. The solicitor must not take any advantage of his influence on his client to obtain the slightest benefit which he would otherwise not obtain. It was no answer to a charge of misconduct that the solicitor thought it was not misconduct or if he failed to appreciate the unsatisfactory or objectionable nature of his conduct. 41 Reverting to the present case, counsel for the respondent argued that charge B, namely a failure on the respondent’s part to ask the vendors to seek independent legal advice, was not made out. In this respect, the Disciplinary Committee erred. It was contended that there was only a duty to ensure independent legal advice in a number of circumstances, most notably where the nature of the transaction and the relationship between the solicitor and client was such that the client expected disinterested legal advice; where the transaction in favour of the solicitor was at an undervalue (see Demerara Bauxite Co v Hubbard 42 We disagreed. To begin with, we did not think that there were any rigid rules prescribing when a solicitor should advise his client to seek independent legal advice, particularly where he was entering into the same transaction with the client. To lay down and endorse such rigid rules ran counter to the general principle that a solicitor must always give his clients independent advice, especially when a potential conflict of interest arose. Such a duty was a general duty and depended entirely on the facts of each case. We agreed fully with Hosking J’s dicta in Re Beard (at p 211) when he held: Each case must depend on its circumstances. The principle, however, which the case illustrates is that, where a solicitor has out of a transaction with his client gained advantages at the expense of his client in circumstances which called for the advice and information which the client did not get when it was the solicitor’s business to see that he got it, the solicitor has transgressed a very plain duty essential for the maintenance of that honourable confidence which is a characteristic of the solicitors’ profession. Where a solicitor’s personal interests come into conflict with the duty of protecting the client, and he sacrifices his duty to his personal interests, he is guilty of professional misconduct 43 In any event, it was untenable to contend that the transaction between the respondent and the three vendors did not entitle the vendors to any independent advice. The respondent’s actions in persuading Rajendran and Silva to sell the property at only S$1.2m instead of S$1.3m, which was then the fair market value for the property, warranted at least some form of disinterested advice. We only had to refer to the complainant’s negotiations with Ravi and his wife to see that S$1.3m for the property was easily obtainable amid a strong property market. Both the respondent’s and the vendors’ interests were on the opposite ends of a scale. The respondent was obtaining the property at a lower price and this ought to have alerted him, as a lawyer of some years’ standing, to tell the vendors to get other legal advice. This ought to be all the more so when it became clear that the complainant did not want to sell the property to him. The fact that the respondent was prepared to pay S$1.3m for the property (as evidenced by the other option which he prepared before negotiating with Rajendran and Silva) and yet telling them at the same time that S$1.3m for the property was too high a price (which was accepted by Rajendran and Silva) indicated a fair amount of influence exerted by the respondent which, in our opinion, at its very least justified the vendors to some independent legal advice. This was a clear case of a solicitor, whilst acting for his clients, preferring his own interests to the latter. 44 In the Court of Appeal’s decision, LP Thean JA had this to say about the respondent’s conduct and we respectfully adopted it for the purposes of this hearing (at p 465E): It is manifestly clear to us from the documentary evidence that at all material times until 25 October 1993 the respondent was and remained the solicitor for the appellants in respect of the sale of the appellants’ property to himself. There was a solicitor and client relationship between the respondent and the appellants in which trust and confidence were reposed on the respondent as the solicitor for the appellants. He was undoubtedly in a position to exercise influence over the second and third appellants in the negotiations with them. The negotiations were conducted with them over the late hours of the night until past midnight and the option was signed by the second and third appellants in the early hours of the morning of 14 October. No opportunity was made available to the second and third appellants to seek independent legal advice. According to the respondent, he studiously advised the second and third appellants to seek independent legal advice. This is clearly untenable. It must be obvious to him that at that time independent legal advice could not possibly be available. While the appellants did desire to sell the property, it was the respondent who together with Rajoo went to look for the appellants and negotiated for the purchase of the property. 45 It was patently clear that the respondent was single-mindedly concerned with the purchase of the property between the dates stated in charge B and that throughout this period he also purported to act as the solicitor for its owners, the vendors. His interests were adverse to those of the vendors. In doing so, he precipitated, without any justifiable excuse, a conflict between the interest of the vendors, his clients, and his own interest, as the property’s intended purchaser. 46 Counsel for the respondent relied on the case of Hanson v Lorenz & Jones I think it is well settled, at least in the circumstances of this case, that it was no part of the solicitors’ duty to advise Mr Hanson about the business or financial prudence or imprudence of the proposed transaction.What was intended was a joint venture between Mr Hanson on the one side and the firm of solicitors and their company on the other. Provided that Mr Hanson, as the client, knew and understood the terms of the proposed joint venture and their implication, whether the proposed enterprise was prudent or not was a matter for him. Consequently, if he needed or ought to have been given any advice in relation to this transaction, this would have been about the nature and effect of it as exemplified by the May 1977 agreement and subsequent documents. It is clear from the findings of the learned judge which I have already quoted thatMr Hanson was fully aware of the nature and effect of the proposed joint venture and all the relevant documents. Further, on an objective view the proposed transaction was fair to him. In these circumstances I think that any obligations which the defendant solicitors owed to Mr Hanson in relation to the proposed transaction between them arising out of the fiduciary relationship of solicitor and client were quite clearly fulfilled. It follows, in my opinion, that the learned judge was correct in reaching the conclusion that the latter was not entitled to have the transaction set aside nor to any account of the profits made therein by Lorenz & Jones. 47 We found it useful to emphasise the Disciplinary Committee’s decision on this charge, which we had already reproduced in 29 above. There was no excuse for what the respondent did, and he compounded his misconduct further by indicating in a letter to the vendors on 22 October 1993 that he was going ahead with the exercise of the option, notwithstanding that he knew by then that the complainant was unwilling to sell the property to him. The fact that he asked the vendors to nominate new solicitors then was ‘at worse cosmetic and at best less than timeous’, given that the option was exercised on 25 October 1993, before the vendors had a reasonable opportunity to take any appropriate action. 48 Counsel for the respondent urged us to take the view that the mere fact that the transaction between the respondent and the vendors was set aside as held by the Court of Appeal’s decision did not necessarily mean that there had been grossly improper conduct. In Re Beard, Hosking J made the observation (at p 210): We are not to be considered as laying it down that, because a purchase by a solicitor from a client has been attacked, or is capable of attack, with success by reason of some infringement of the equitable doctrines of the court on that subject, a case has been made for exercising the disciplinary powers of the court; but we hold that these rules form a standard of honourable conduct on the part of a solicitor, and that a case is made out where the solicitor by consciously departing from the standard of conduct required of him in the transaction has profited at the expense of the client. 49 We fully agreed with counsel’s propositions. However, taking into account the circumstances of the case, in particular the respondent’s conduct throughout, it was near impossible to say that there was no gross improper conduct on the part of the respondent. The manner in which the respondent dealt with the vendors all pointed to the fact that he had prioritized his personal interest over that of his clients, all of whom at the material time took him to be their lawyer. Contrary to counsel’s arguments, the respondent had profited at the expense of the vendors. He obtained the option at a lower price, knowing fully well that the vendors did not secure any independent advice which if it was available to the vendors might have prevented the whole transaction. To this end, we upheld the Disciplinary Committee’s findings that the respondent was ‘guilty of grossly improper conduct in the discharge of his professional duty, within the meaning of s 83(2)(h) of the Legal Profession Act’. 50 We then moved to consider charge A. On this charge, counsel for the respondent took a preliminary issue. It would be recalled that the Disciplinary Committee found that there was insufficient evidence which warranted the respondent guilty of gross improper conduct but this finding was rejected by the Council. The Council thereafter applied under s 94(3) of the Legal Profession Act for an order that the respondent show cause as to why he should not be dealt with under the provisions of s 83 of the same Act. Counsel contended that the proper procedure for the Council in this respect was to apply under s 97 of the Legal Profession Act and not s 94(3) as they had done. It was argued that s 94(3) was not applicable in the present case, it coming into force only after the complaint against the respondent had been made. The right to review the Disciplinary Committee’s decision was a substantive right and therefore the procedure must be strictly complied with. Failure to do so meant the Council could not review the Disciplinary Committee’s decision. To that extent, charge A could not be determined, either by the Council, or by this court. Section 97, for present purposes, read: (1) (1) Where a Disciplinary Committee has determined — (a) that no cause of sufficient gravity for disciplinary action exists under section 83; or (b) that while no cause of sufficient gravity for disciplinary action exists under that section the advocate and solicitor should be reprimanded and the person who made the complaint, the advocate and solicitor or the Council is dissatisfied with the determination, that person, advocate and solicitor or the Council may, within 14 days of being notified of the Disciplinary Committee’s decision, apply to a Judge under this section. (2) Such an application shall be made by originating summons and shall be served on the Society and the secretary of the Disciplinary Committee who shall thereupon file in court the record and report of the hearing and investigation by the Disciplinary Committee. (3) Upon the hearing of the application, the Judge, after hearing the applicant and the Disciplinary Committee and, if it desires to be heard, the Society, may made an order— (a) confirming the report of the Disciplinary Committee; (b) directing the applicant or the Council to make an application under section 98; or (c) directing the advocate and solicitor concerned under section 98(1) to show cause, and such order for the payment of costs as may be just. 51 Section 94(3) appeared to cover similar grounds and it read: If the determination of the Disciplinary Committee under section 93 is that, while no cause of sufficient gravity for disciplinary action exists under section 83, the advocate and solicitor should be reprimanded, the Council shall — (a) if it agrees with the determination, reprimand the advocate and solicitor; or (b) if it disagrees with the determination, without further direction or directions proceed to make an application in accordance with section 98. 52 The issue which we considered was whether s 97 governed the present procedure which the Council ought to have followed, or alternatively s 94(3) was applicable. This question arose because the complainant complained to the Law Society in his letter on 1 November 1993 but the complaint was only referred to the chairman of the Inquiry Panel for consideration on 14 January 1994. As at the date of complaint by the complainant, s 97 was in force but on 14 January 1994, when the Inquiry Panel took over the complaint, s 94(3) was enacted. 53 We found much force in counsel for the respondent’s arguments that the proper procedure the Council had to adhere to was s 97 and not s 94(3). Section 97 was amended in 1986 pursuant to the Legal Profession (Amendment) Act 1986. The corresponding updated Legal Profession Act was the 1990 Edition (‘the 1990 Edition Act’). The amendment came about after the Privy Council decision in Chia Shih Ching James v Law Society of Singapore 54 Section 94, on the other hand, came about in 1993 pursuant to the Legal Profession (Amendment) Act 1993 (‘the 1993 Act’) and came into force on 1 January 1994. By s 31(1) of the 1993 Act, it read: This Act, with the exception of Section 29(c), shall not apply to any inquiry, investigation, application or other proceeding of a disciplinary nature commenced before the date of commencement of this Act and the principal Act in force immediately before that date shall continue to apply to that inquiry, investigation, application or proceeding as if this Act had not been enacted 55 Section 94(3) was incorporated in the 1994 Edition of the Legal Profession Act (‘the 1994 Edition Act’). 56 Our consideration of this issue started off with s 86(1) of the 1990 Edition Act, which was the relevant governing legislation when the complainant’s complaint was filed with the Law Society. This subsection dealt with the function of the Council when it received a complaint: Any application by any person that an advocate and solicitor be dealt with under this Part and any complaint of the conduct of an advocate and solicitor in his professional capacity shall in the first place be made to the Society and the Council shall refer the application or complaint to the Inquiry Committee 57 Section 86(1) was subsequently amended slightly and became s 85(1) of the 1994 Edition Act but both were still in similar terms. 58 If one ascribed to the view that the submission of the complainant’s letter to the Law Society constituted an ‘inquiry, investigation, application or other proceeding of a disciplinary nature’ as stated in s 31(1) of the 1993 Act, then the 1990 Edition Act (which had in force s 97) applied and the Council had to follow the procedure contained therein for a review of the Disciplinary Committee’s decision. 59 In Suppiah v Law Society of Singapore 60 We derived substantial assistance on this issue from a prior Disciplinary Committee report on a determination of a similar preliminary point, where the Disciplinary Committee decided that the 1990 Edition Act applied in the present instance of the complaint against the respondent instead of the 1993 Edition Act. In this respect, it is helpful to adopt in toto the Disciplinary Committee’s report on this issue, since counsel for both parties advanced the same arguments before us as they did before the Disciplinary Committee. The Disciplinary Committee had this to say: It seems to us that the answer lies in considering the meaning of ‘any…application’ in s 31(1) of the 1993 Act read with ‘application’ in s 86(1) of the [1990 Edition Act], in which the latter subsection ‘complaint’ also appears. By virtue of s 85(1), either an ‘application’ or a ‘complaint’ results in the initiation of the disciplinary process. The Council must refer the application or complaint to the chairman of the Inquiry Panel, who ‘forthwith’ constitutes an Inquiry Committee to inquire into ‘the application, complaint or information’—s 86(5). It follows, that ‘application’ in s 31(1) of [the 1993 Act] includes a complaint. Any other construction leads, in our view, to an artificial and absurd result. The submission to contrary on behalf of the Law Society offends the common law, in that it results in the retrospective operation of a procedural rule which affects the respondent’s rights. This is so because, were the [1993 Edition Act] to govern these proceedings, the Council would have the power to prefer charges against the respondent which were not referred, or inquired into, by the Inquiry Committee — s 87(3) of the [1993 Edition Act], which has no equivalent in the [1990 Edition Act]. The construction we have placed on s 31(1) of the [1993 Act] has the added advantage of ensuring certainty in ascertaining the date on which proceedings of a disciplinary nature are commenced, namely the date the complaint is lodged with the Law Society. Any other construction is capable of leading to uncertainty. Counsel for the Law Society submitted that proceedings of a disciplinary nature commence, ‘at the earliest … when the matter is referred to the Chairman of the Inquiry Panel’. Why? If, as he submitted, the Council’s role in considering the complaint is administrative and not investigative, and it ‘simply looks at the complaint’, the role of the Chairman of the Inquiry Panel is the more so. If that is right, does it then follow that proceedings of a disciplinary nature commence when the Inquiry Committee is constituted? Or when it first meets? Or when it commences its Inquiry? 61 We agreed fully with the Disciplinary Committee’s reasoning. Accordingly, in the present instance the Council had no authority to consider and come to its own conclusion on charge A without first having followed the proper procedure contained in s 97. It was clear that ss 94(3) and 97 overlapped in substantial terms but on thorough consideration, the proper applicable section for the Council was s 97 and not s 94(3). 62 This left us with an open question on charge A. Could we, sitting in the Court of Three Judges, nevertheless find that charge A against the respondent had been made out? Counsels on both sides left this question unanswered, and provided no useful assistance. In our opinion, the answer to this question was in the negative. The power of this court to hear and determine disciplinary matters was statutorily legislated, and arose on each occasion on the application of either the Law Society, the complainant or the advocate and solicitor charged with misconduct. This was clear from the various sections governing disciplinary proceedings in the Legal Profession Act. If none of the parties as stated followed the correct procedure and made the necessary application, this court could not on its own initiative hear the disciplinary proceedings and punished the advocate and solicitor in question. That being so, we came to the conclusion that the Disciplinary Committee’s findings with respect to charge A must be upheld, and accordingly we overturned the Council’s findings on the charge. 63 We finally came to charge C, which, to our mind, evidenced the most blatant misconduct from the respondent disregarding his professionalism as a lawyer. In the light of the Court of Appeal’s decision which more or less covered the same areas, we had little hesitation in concluding that the charge was made out. Counsel for the respondent had little defence for his client, except to mitigate on his behalf. Indeed, counsel admitted that the submissions presented before us were done so in mitigation. He sought to play down the respondent’s conduct by arguing that it was all done to resolve the unhappy dispute which the respondent had with the vendors but we found this wholly unsubstantiated from the facts which spoke for themselves. 64 It was manifest that after all that had occurred, and the respondent realising that he was about to lose the purchase of the property to some other party the vendors preferred, he took steps not only to bolster his weak position with regards the sale of the property but also, very boldly, to prevent a potential complaint against him which could otherwise jeopardise his legal career. Such conduct went against the very grain of this honourable profession—honesty and integrity, and was aggravated by the fact that the respondent knew at all material times that he was acting against the standard of this profession. The respondent knew that the vendors were already represented by other solicitors, yet, without informing his legal counterparts, which he knew at all material times he had to do, he took them to execute the statutory declaration and only after that did he allow them to seek the advice of their lawyer, by which time it was already too late. Such was the extent of his influence on the vendors whom all executed the statutory declaration absolving the respondent of all impropriety and upholding the imperfect option which Rajendran and Silva granted to him on 14 October 1993. The Court of Appeal stated in strong terms the respondent’s behaviour at p 474D when they held: [The statutory declaration] was brought about entirely by the machinations of the respondent, and the conduct of the respondent in preparing the statutory declaration and procuring [the vendors] to affirm it without affording them an opportunity of taking independent legal advice is, to say the least, questionable in the circumstances. 65 Charge C disclosed serious improprieties on the part of the respondent which we felt were amply made out. Inappropriate means were used to ‘stifle, or at least to influence, in his favour, apprehended disciplinary proceedings’ against him. In our judgment, this was adequate cause of sufficient gravity for disciplinary action against the respondent. Such conduct was deplorable which, if left unpunished, would tarnish the image of his profession. 66 This left us with the appropriate punishment for the respondent on charges B and C. In mitigation, counsel for the respondent explained that he was only in practice for about four years when the dispute with the vendors arose. The respondent was inexperienced and naïve. Since the dispute with the vendors, the respondent has had to incur a number of liabilities resulting from the Court of Appeal’s decision. This was a case not involving any fraud or dishonesty, and at most, the respondent deserved nothing more than a fine or suspension. 67 We were constrained to reject learned counsel’s plea for leniency. There was in our judgment no alternative but to strike out the respondent from the roll. He was at all material times a fiduciary of the three vendors. He knowingly placed himself in a position of aggravated conflict of interest and would have gained an advantage at the expense of the vendors, who had reposed in him both trust and confidence, but for the intervention of the Court of Appeal. He single-mindedly pursued and preferred his own interest over those of his clients. But he had not only offended the equitable rules governing fiduciaries simpliciter. He was both a fiduciary and an advocate and solicitor. As an advocate and solicitor, he was also an officer of the court. His status immediately brought into question the considerations of public interest generally, and the interest of the administration of justice in particular. He enjoyed the privileged position of being held out by the judiciary not only as a competent professional lawyer but also as aman who would conduct himself with probity. In this respect, his questionable conduct in procuring the statutory declaration for the twin and collateral purposes of augmenting his own case and the averting of apprehended disciplinary proceedings revealed a very serious defect in his character. He was cunning and deceitful and had used his legal knowledge to obtain sworn testimony which he contrived to use to his personal and professional advantage. It is generally true that often cases of striking off the roll involved fraud or dishonesty on the part of lawyers. However, fraud and dishonesty are but obvious examples of misconduct within the meaning of s 83(2)(h) of the Legal Profession Act (Cap 161). In our view, the respondent’s grave and serious misconduct committed whilst a member of an honourable profession and as an officer of the Supreme Court rendered him unfit to remain on the roll. Order accordingly. Reported by Tan Boon Khai