Case Details
- Citation: [2021] SGCA 81
- Case Title: ANDREW LOH DER MING v KOH TIEN HUA
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 11 August 2021
- Civil Appeal No: 227 of 2019
- Originating Summons No: 1015 of 2019
- Proceedings Type: Review under s 97 of the Legal Profession Act (Cap 161, 2009 Rev Ed)
- Statutory Focus: s 97 LPA (High Court review of DT determination); clarification of scope/powers of the High Court on s 97 review; interaction with s 98 LPA (reference to Court of Three Judges)
- Judges: Sundaresh Menon CJ, Judith Prakash JCA and Steven Chong JCA
- Appellant/Applicant: Andrew Loh Der Ming
- Respondent/Defendant: Koh Tien Hua
- Legal Areas: Legal Profession; Professional Discipline; Civil Procedure (statutory review mechanism)
- Statutes Referenced: Legal Profession Act (Cap 161, 2009 Rev Ed)
- Cases Cited: [2013] SGHC 5; [2021] SGCA 81 (this case)
- Judgment Length: 41 pages, 12,369 words
Summary
This Court of Appeal decision concerns disciplinary proceedings against an advocate and solicitor arising from his handling of a family law dispute. The appellant, Andrew Loh Der Ming, complained that the respondent, Koh Tien Hua, mishandled the litigation by consenting to the striking out of parts of Loh’s Statement of Particulars contrary to Loh’s instructions and then concealing the effect of what had occurred. The case ultimately required the Court to clarify the proper approach for solicitors when client instructions conflict with the solicitor’s duty to the court, and to delineate the scope of a High Court judge’s powers when conducting a review under s 97 of the Legal Profession Act (“LPA”).
The Court of Appeal set aside parts of the High Court’s decision and corrected the procedural route taken. While acknowledging that Koh’s conduct before the court was not necessarily improper in the narrow sense of what he did in court, the Court held that his conduct towards his client was improper because he consented contrary to instructions and concealed material information. Importantly, the Court also held that the High Court judge exceeded the scope of her powers on the s 97 review, and directed that the matter be referred to the Court of Three Judges (“C3J”) under s 98 of the LPA.
What Were the Facts of This Case?
The underlying dispute arose from divorce proceedings in which Loh was the plaintiff. Loh alleged that his wife had been in an adulterous relationship with a neighbour, who was joined as a co-defendant. The wife withdrew her defence to the adultery allegation, leaving the co-defendant to maintain a denial. In the divorce proceedings, the co-defendant filed an application (FC/SUM 2009/2015, “SUM 2009”) seeking to strike out certain parts of Loh’s Statement of Particulars (“SOP”).
SUM 2009 was heard by Assistant Registrar Eugene Tay (“AR Tay”) on 27 July 2015. At that hearing, Koh consented to the striking out of various parts of Loh’s SOP, and those consents were recorded as consent orders. A key factual dispute later emerged: whether Koh had been authorised to consent to the striking out in the exercise of his professional judgment, and whether Koh’s consent was consistent with Loh’s instructions. Loh’s position was that Koh acted against his instructions. Koh’s position, as reflected in the disciplinary findings and the High Court’s reasoning, was that he had acted in the moment and that there was no intention to deceive the court.
After the striking out occurred, Loh insisted that an appeal be filed. Koh did not immediately inform Loh that the striking out had been effected by consent and that, as a matter of procedural law, consent orders ordinarily cannot be appealed. Loh eventually filed the appeal, but only after delay and “purely because of Loh’s insistence”. Loh later discovered the circumstances surrounding the consent orders and lodged a complaint against Koh with the Law Society of Singapore (“Society”) on 12 May 2016.
The disciplinary process unfolded in stages. The complaint letter alleged multiple heads of misconduct under s 85(1) of the LPA (including perjury/knowingly misleading the court, dishonesty, acting against instructions, conflict of interest, wasting court time, and lack of fairness/courtesy) and also alleged failures under s 75B of the LPA (including failure to provide diligent service, failure to complete work within a reasonable time, failure to keep Loh informed, failure to respond without reasonable grounds, failure to explain important developments, and incompetence). The Society referred only certain aspects for further consideration. An Inquiry Committee (“IC”) was constituted and found that only the third head of complaint under s 85(1) was made out, recommending a penalty of $2,500 without a formal DT investigation. Loh then sought court intervention to compel the appointment of a Disciplinary Tribunal (“DT”).
What Were the Key Legal Issues?
The case raised two broad legal issues. The first concerned the substantive professional conduct expected of solicitors when client instructions conflict with the solicitor’s duties. The Court framed the central question as follows: what should a solicitor do when fidelity to client instructions conflicts with the solicitor’s duty to the court not to advance unreasonable or incorrect legal positions? Although the facts involved a family law context, the principle is general: solicitors must manage conflicts between client demands and professional duties without compromising integrity or candour.
The second issue was procedural and statutory: what is the proper role and scope of a judge hearing a review application under s 97 of the LPA? The Court of Appeal emphasised that the High Court’s powers on a s 97 review are not unlimited. In particular, where the DT’s determination and the judge’s conclusions implicate matters beyond the DT’s remit or beyond what can be properly reviewed, the correct statutory pathway may require referral to the C3J under s 98 of the LPA.
Accordingly, the Court had to decide not only whether Koh’s conduct warranted disciplinary consequences, but also whether the High Court judge’s approach to reviewing and expanding findings was consistent with the LPA’s structure for disciplinary review and escalation.
How Did the Court Analyse the Issues?
The Court of Appeal began by setting out the professional dilemma in clear terms. The Court recognised that solicitors may sometimes face client instructions that, if followed, would require the solicitor to advance positions that are unreasonable or incorrect. In such circumstances, the solicitor’s paramount duty to the court requires more than passive compliance. The Court held that the proper course is to communicate frankly and candidly with the client, with a view to persuading the client to change the instructions. This is not merely a matter of etiquette; it is an essential component of professional responsibility, because the solicitor must ensure that the litigation is conducted within the bounds of law and integrity.
Critically, the Court explained that if frank and candid communication fails—meaning the client persists in instructions that would place the solicitor in conflict with the duty to the court—the solicitor may have no choice but to discharge himself. This reflects the seriousness of the conflict: a solicitor cannot simply “choose” to proceed in a way that undermines the court’s processes or the administration of justice. The Court’s analysis therefore treated communication, persuasion, and (if necessary) withdrawal as the structured response to such conflicts.
Applying these principles to the facts, the Court of Appeal found that Koh mishandled the situation. The Court accepted that Koh’s conduct before the court could be defended as correct in the position he took there. However, the Court held that Koh’s conduct was improper as far as his client was concerned. The Court’s concern was twofold. First, Koh consented to the striking out of particulars contrary to Loh’s instructions. Second, Koh compounded the problem by concealing from Loh what he had done and the effect of the consent orders on the viability of an appeal. The Court’s reasoning thus distinguished between what Koh did procedurally in court and what he owed to his client in terms of disclosure and fidelity to instructions.
On the procedural/statutory issue, the Court of Appeal clarified the role of the High Court on a s 97 review. The LPA provides a structured disciplinary framework: DT determinations can be reviewed by the High Court under s 97, but where the matter goes beyond the DT’s remit or where the High Court’s conclusions effectively require escalation, the LPA contemplates referral to the C3J under s 98. The Court of Appeal held that the High Court judge exceeded the scope of her powers. In particular, the High Court had found Koh guilty of additional charges (the Eighth and Tenth charges) beyond what the DT had determined within its proper remit, and the High Court concluded there was no need to remit because its conclusions were based on matters dealt with during the DT hearing.
The Court of Appeal rejected that approach. It emphasised that the statutory architecture is not merely about whether evidence was “available” at the hearing; it is about the proper jurisdictional boundaries and the correct procedural route. Where the DT’s remit was limited (as shaped by the earlier court order defining the DT’s investigation), the High Court could not effectively expand the disciplinary findings without complying with the LPA’s escalation mechanism. The Court therefore set aside the High Court’s order that exceeded its powers and directed the appellant to file an application to refer the matter to the C3J pursuant to s 98.
In doing so, the Court also addressed the High Court’s treatment of the specific charges. The High Court had reasoned that the Seventh charge was not made out because Koh’s consent stemmed from lack of care and thought rather than intention to deceive the court, and that the Ninth charge was not made out because there was insufficient evidence of fraud. The Court of Appeal’s overall conclusion, however, was that the High Court’s handling of the review exceeded its statutory scope, and that the disciplinary consequences and findings must proceed through the correct statutory pathway.
What Was the Outcome?
The Court of Appeal set aside the High Court judge’s order in so far as it exceeded the scope of her powers on the s 97 review. It also set aside part of the DT determination as reflected in the High Court’s expanded findings. The Court directed that the appellant 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 would continue along the statutory escalation route rather than being concluded by the High Court’s expanded conclusions. At the same time, the Court’s substantive guidance on solicitor-client communication and candour remained central: solicitors must not conceal material information from clients and must respond to conflicts between client instructions and professional duties through frank communication and, if necessary, discharge.
Why Does This Case Matter?
This decision is significant for two reasons. First, it provides clear, practical guidance on solicitor conduct when client instructions conflict with the solicitor’s duty to the court. The Court’s emphasis on frank and candid communication, persuasion, and the possibility of discharge offers a structured professional response that can be applied across practice areas, including emotionally charged family law matters. For practitioners, the case underscores that professional responsibility is not satisfied by “doing the right thing in court” while failing to manage the client relationship with honesty and transparency.
Second, the case is important for disciplinary procedure. By clarifying the scope of the High Court’s powers on a s 97 review, the Court of Appeal reinforced the statutory boundaries built into the LPA. Practitioners and students should take note that review is not an opportunity to reconfigure the disciplinary remit without complying with the LPA’s escalation mechanism. This has implications for how parties frame review arguments, how courts assess jurisdictional limits, and how disciplinary findings are structured at the DT stage.
For complainants and respondents alike, the case also illustrates the long tail of disciplinary disputes. The Court noted that Koh had endured five years of proceedings and faced the prospect of further proceedings. That observation serves as a cautionary reminder: errors in professional conduct and errors in procedural handling can prolong disputes and increase costs and uncertainty for all parties.
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
- [2013] SGHC 5
- [2021] SGCA 81
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.