Case Details
- Citation: [2021] SGCA 81
- Title: ANDREW LOH DER MING v KOH TIEN HUA
- Court: Court of Appeal of the Republic of Singapore
- Date of decision: 11 August 2021
- Procedural history: Appeal from the High Court judge’s decision on a review application under s 97 of the Legal Profession Act (Cap 161, 2009 Rev Ed)
- Judges: Sundaresh Menon CJ, Judith Prakash JCA and Steven Chong JCA
- Appellant/Applicant: Andrew Loh Der Ming
- Respondent: Koh Tien Hua
- Underlying matter: Originating Summons No 1015 of 2019
- Statutory focus: Review of Disciplinary Tribunal determination under s 97 of the Legal Profession Act
- Related statutory pathway: Potential referral to the Court of Three Judges under s 98 of the Legal Profession Act
- Key subject matter: Solicitor’s conduct in family/divorce proceedings; consent to striking out; alleged misleading conduct and concealment from client; disciplinary proceedings
- Legal areas: Legal Profession; Professional Discipline; Civil Procedure (consent orders and striking out); Family law practice context
- Statutes referenced: Legal Profession Act (Cap 161, 2009 Rev Ed)
- Cases cited (as provided): [2013] SGHC 5; [2021] SGCA 81
- Judgment length: 41 pages, 12,369 words
Summary
This Court of Appeal decision addresses a recurring tension in professional discipline: what a solicitor should do when fidelity to a client’s instructions conflicts with the solicitor’s paramount duty to the court not to advance unreasonable or incorrect legal positions. The case arose from divorce proceedings in which the appellant client, Andrew Loh Der Ming, instructed his solicitor, Koh Tien Hua, to resist an application to strike out parts of the appellant’s Statement of Particulars. Although the solicitor’s conduct before the court was not found to be improper in the sense of misleading the court, the court held that the solicitor mishandled the situation vis-à-vis the client by consenting to the striking out contrary to instructions and then concealing what had occurred.
Procedurally, the appeal also clarified the role and powers of a judge hearing a review application under s 97 of the Legal Profession Act (“LPA”). The Court of Appeal set aside parts of the High Court judge’s determination that exceeded the scope of the judge’s powers on a s 97 review. The Court of Appeal further directed the appellant to file an application to refer the matter to the Court of Three Judges (“C3J”) under s 98 of the LPA, reflecting the statutory architecture for escalating disciplinary findings of sufficient gravity.
What Were the Facts of This Case?
The underlying dispute began in 2015 when Andrew Loh engaged Koh to represent him in divorce proceedings. Loh was the plaintiff in the divorce action. His wife withdrew her defence to adultery, but a co-defendant—who Loh alleged had been in an adulterous relationship with his wife—maintained a defence denying adultery. The co-defendant brought an application to strike out parts of Loh’s Statement of Particulars (“SOP”).
One of the applications, FC/SUM 2009/2015 (“SUM 2009”), was heard by Assistant Registrar Eugene Tay on 27 July 2015. At that hearing, Koh consented to various parts of Loh’s SOP being struck out, and to that extent the striking out was recorded as a consent order. A key factual dispute later emerged as to whether Koh had been authorised to consent in the exercise of his professional judgment, given that Loh’s position was that he wanted those particulars to stand and wanted the solicitor to resist the striking out.
When Loh later learned that the particulars had been struck out, he insisted that an appeal be filed. Koh did not initially inform Loh that the striking out had been made by consent, nor that consent orders ordinarily cannot be appealed in the usual way. Only after Loh discovered the circumstances did Koh’s conduct come under scrutiny. The episode became the seed of a disciplinary complaint, because Loh viewed the solicitor’s actions as both contrary to instructions and deceptive in how they were communicated.
On 12 May 2016, Loh lodged a complaint against Koh with the Law Society of Singapore. The complaint letter contained multiple heads of complaint under s 85(1) of the LPA (including allegations of perjury, knowingly misleading the court, dishonesty and lying, acting against instructions and deception concerning consent orders, and wasting court time), and additional heads under s 75B of the LPA (including failure to provide diligent service, failure to keep Loh informed, failure to explain important developments, and incompetence). The Law Society’s process separated the complaints into those that would be inquired into under s 85(1) and those that would be dealt with under s 75B, with the s 85(1) complaints proceeding to an Inquiry Committee and then, following dissatisfaction, to a court-directed appointment of a Disciplinary Tribunal.
What Were the Key Legal Issues?
The appeal raised two main legal issues. First, substantively, the court had to determine whether Koh’s conduct amounted to professional misconduct of the kind contemplated by the LPA—particularly whether Koh acted against instructions and whether his failure to inform Loh about the consent orders crossed the line into dishonesty, fraud, or other misconduct unbefitting an advocate and solicitor.
Second, the appeal required the Court of Appeal to clarify the scope of a High Court judge’s powers when hearing a review application under s 97 of the LPA. The statutory scheme provides for a Disciplinary Tribunal determination, a review by a judge, and—where the matter is of sufficient gravity—possible referral to the C3J under s 98. The question was whether the High Court judge, on review, could effectively expand findings beyond what the Disciplinary Tribunal had determined, or whether the judge was constrained by the statutory limits of review.
How Did the Court Analyse the Issues?
The Court of Appeal began by framing the case around a solicitor’s duties. The court posed the central professional dilemma: when a client instructs a solicitor to resist an application, but the solicitor perceives that resisting would require advancing an unreasonable or incorrect legal position, the solicitor must reconcile the client’s instructions with the solicitor’s duty to the court. The court emphasised that the “proper course” is not to unilaterally proceed contrary to instructions and then conceal the consequences. Instead, the solicitor must communicate frankly and candidly with the client, attempting to persuade the client to change instructions.
On the facts, the Court of Appeal accepted that Koh’s position before the court was not found to involve improper conduct in the sense of misleading the court. However, the court distinguished between what is permissible in court-facing advocacy and what is required in the solicitor-client relationship. The court held that Koh’s conduct was improper as far as the client was concerned because Koh consented to the striking out contrary to Loh’s instructions and then concealed from Loh what he had done. This concealment compounded the initial error. The Court of Appeal’s reasoning thus treated the solicitor’s duty to the court as a baseline, but treated the solicitor’s duty to the client—particularly the duty of frankness and candour—as a separate and critical obligation.
The court also addressed the disciplinary findings and how they were handled at each stage. A Disciplinary Tribunal (“DT1”) had found Koh guilty of the Fourth and Sixth charges, but acquitted him of the other charges. DT1 also questioned whether certain charges were properly within the scope of the court’s earlier remit. Importantly, DT1 concluded that Koh’s misconduct did not constitute cause of sufficient gravity for disciplinary action under s 83 of the LPA, and therefore did not recommend referral to the C3J. DT1 recommended a penalty and ordered Koh to bear a portion of Loh’s costs.
When Loh brought a review under s 97, the High Court judge found Koh guilty of additional charges (the Eighth and Tenth charges), beyond those on which DT1 had convicted. The Court of Appeal held that the High Court judge’s approach exceeded the scope of her powers. The Court of Appeal’s analysis of the statutory framework stressed that a s 97 review is not a free-ranging rehearing that allows the judge to substitute new findings without respecting the disciplinary tribunal’s determinations and the statutory pathway for escalation. Where the matter implicates the threshold for referral to the C3J, the LPA’s architecture requires the correct procedural step rather than an expanded judicial determination at the review stage.
Accordingly, the Court of Appeal set aside the High Court’s order that went beyond the permissible scope. It also set aside part of the DT’s determination and directed the appellant to file an application to refer the matter to the C3J pursuant to s 98. This ensured that any disciplinary consequences that depend on the gravity threshold would be assessed within the intended statutory mechanism.
What Was the Outcome?
The Court of Appeal set aside the High Court judge’s order in part, holding that it exceeded the scope of the judge’s powers on a s 97 review. It also set aside part of the Disciplinary Tribunal’s determination. The Court of Appeal directed the appellant to file an application to refer the matter to the Court of Three Judges under s 98 of the LPA.
Practically, the outcome meant that the disciplinary process was not concluded at the review stage. Instead, the case was channelled into the next statutory step for assessing whether the misconduct warranted the more serious disciplinary consequences contemplated by the LPA’s escalation framework.
Why Does This Case Matter?
This decision is significant for two reasons. First, it provides a clear professional conduct message for solicitors: when client instructions conflict with the solicitor’s duties, the solicitor must communicate candidly and attempt to persuade the client to change course. The court’s emphasis on frankness and candour is especially relevant in emotionally charged contexts such as family law, where clients may be in a heightened state and where misunderstandings can easily escalate into allegations of misconduct.
Second, the case is important for practitioners and students of professional discipline because it clarifies the procedural boundaries of s 97 review. The Court of Appeal’s insistence on respecting the statutory scheme—particularly the referral mechanism under s 98—reinforces that disciplinary outcomes depend not only on the merits of misconduct but also on the correct procedural route. Lawyers advising clients in disciplinary matters, or solicitors responding to complaints, should therefore pay close attention to how findings are made and reviewed at each stage.
For disciplinary counsel, the case also illustrates how courts may distinguish between (i) advocacy conduct before the court and (ii) solicitor-client communications. Even where the court does not find that a solicitor misled the court, concealment from the client and acting contrary to instructions can still be treated as improper and may contribute to disciplinary liability.
Legislation Referenced
- Legal Profession Act (Cap 161, 2009 Rev Ed), including:Section 75B
- Section 83(2)(b)
- Section 83(2)(h)
- Section 85(1)
- Section 94(3)(a) and Section 94(3)(b)
- Section 96(4)(b)
- Section 97
- Section 98
Cases Cited
Source Documents
This article analyses [2021] SGCA 81 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.