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
- Judges: Sundaresh Menon CJ, Judith Prakash JCA and Steven Chong JCA
- 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)
- Case Number: Civil Appeal No 227 of 2019
- Originating Summons: Originating Summons No 1015 of 2019
- Statutory Framework: Review of Disciplinary Tribunal determination under s 97; Court of Three Judges referral under s 98
- Plaintiff/Applicant: Andrew Loh Der Ming
- Defendant/Respondent: Koh Tien Hua
- Legal Area: Legal Profession; disciplinary proceedings; solicitor’s duties to client and court
- Statutes Referenced: Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”)
- Key Statutory Provisions (as reflected in extract): ss 75B, 83(2)(b), 83(2)(h), 85(1), 94(3), 96(4)(b), 97, 98
- Length of Judgment: 41 pages, 12,369 words
- Cases Cited: [2013] SGHC 5; [2021] SGCA 81 (as reported); also referenced in the extract: Loh Der Ming Andrew v Law Society of Singapore [2018] 3 SLR 837 (“Andrew Loh (pre-DT)”)
Summary
In Andrew Loh Der Ming v Koh Tien Hua ([2021] SGCA 81), the Court of Appeal considered how a solicitor should respond when client instructions risk advancing an unreasonable or incorrect legal position, and how that tension interacts with the solicitor’s paramount duty to the court. The case arose from disciplinary proceedings under the Legal Profession Act (“LPA”) following a divorce-related dispute in which the respondent solicitor consented to the striking out of parts of his client’s Statement of Particulars without the client’s instructions and then failed to communicate the consent arrangement candidly to the client.
The Court of Appeal set aside parts of the High Court’s decision and clarified the proper scope of a judge’s powers when hearing a review application under s 97 of the LPA. Substantively, the Court emphasised that while a solicitor may be entitled to take positions before the court that are professionally correct, the solicitor must communicate frankly and candidly with the client—particularly where the solicitor’s actions diverge from the client’s instructions. Where such divergence is unavoidable, the solicitor should attempt to persuade the client to change instructions; failing that, the solicitor may need to discharge himself to preserve the integrity of the process and comply with professional duties.
What Were the Facts of This Case?
The appellant, Mr Andrew Loh Der Ming (“Loh”), engaged the respondent, Mr Koh Tien Hua (“Koh”), as his solicitor in divorce proceedings commenced in July 2015. Loh was the plaintiff in the divorce action. His wife withdrew her defence to adultery, but a co-defendant (a neighbour alleged by Loh to have been in an adulterous relationship with his wife) maintained his defence and denied the alleged adultery. The co-defendant brought an application to strike out certain parts of Loh’s Statement of Particulars (“SOP”).
On 27 July 2015, the strike-out application (FC/SUM 2009/2015, “SUM 2009”) was heard by Assistant Registrar Eugene Tay (“AR Tay”). At that hearing, Koh consented to various parts of Loh’s SOP being struck out, and those consents were recorded as consent orders. A key factual dispute later emerged as to whether Koh had been authorised to consent to the striking out in the exercise of his professional judgment. Loh’s position was that Koh acted contrary to his instructions.
After Loh discovered 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 effected by consent and that, as a general rule, consent orders are not ordinarily appealable. Loh’s insistence led to the filing of an appeal, but only after significant delay and with reluctance on Koh’s part. Loh later learned the full circumstances of what had occurred at the hearing, including the consent arrangement.
On 12 May 2016, Loh lodged a complaint against Koh with the Law Society of Singapore (“Society”). The complaint letter contained multiple heads of complaint under s 85(1) of the LPA alleging, among other things, perjury, knowingly misleading the court, dishonesty, acting against instructions and deception concerning consent orders, and acting in a manner that was allegedly unfair to the judge and to the client. Loh also brought complaints under s 75B of the LPA relating to alleged failures in diligent service, timeliness, keeping the client informed, and competence. The Society’s process ultimately led to the constitution of an Inquiry Committee and, following further court intervention in an earlier stage (as referenced in the extract), the appointment of a Disciplinary Tribunal (“DT1”).
What Were the Key Legal Issues?
The case raised two interlocking categories of issues: (1) substantive disciplinary questions concerning Koh’s conduct and the appropriate professional characterisation of his actions; and (2) procedural and institutional questions about the proper role and powers of a judge hearing a review application under s 97 of the LPA.
On the substantive side, the central issue was whether Koh’s conduct amounted to “fraudulent or grossly improper conduct in the discharge of his professional duty” (s 83(2)(b) of the LPA) and/or “misconduct unbefitting an advocate and solicitor as an officer of the Supreme Court or as a member of an honourable profession” (s 83(2)(h)). In particular, the Court had to assess whether Koh’s consent to striking out parts of the SOP without instructions, and his subsequent failure to disclose the consent position candidly to Loh, crossed the threshold from professional error or lack of care into misconduct of the kind contemplated by the LPA.
On the procedural side, the Court of Appeal had to determine whether the High Court judge, in reviewing DT1’s determination under s 97, exceeded the scope of her powers. The extract indicates that the Court of Appeal ultimately set aside an order that exceeded the scope of the judge’s powers, and also set aside part of the DT’s determination, directing that the matter be referred to the Court of Three Judges (“C3J”) under s 98. This raised the question of when and how a s 97 review can properly revisit determinations that should be escalated to the C3J.
How Did the Court Analyse the Issues?
The Court of Appeal began by framing the case around a professional dilemma: 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. The Court’s analysis treated this as a recurring and practical problem in legal practice, particularly in emotionally charged contexts such as family law. The Court’s guidance was not merely abstract; it was directly linked to the solicitor’s conduct in the divorce proceedings.
In the Court’s view, the proper course where client instructions would lead to an unreasonable or incorrect legal position is for the solicitor to communicate frankly and candidly with the client, with a view to persuading the client to change instructions. This is consistent with the solicitor’s duty of candour and the expectation that solicitor-client communication should be transparent, especially where the solicitor’s professional judgment diverges from the client’s demands. The Court suggested that if persuasion fails, the solicitor may have no choice but to discharge himself, because the solicitor’s paramount duty to the court cannot be compromised.
Applying these principles to Koh’s conduct, the Court accepted that Koh had acted correctly in the position he took before the court. However, the Court found Koh’s conduct improper “as far as his client was concerned” because Koh (i) consented to striking out contrary to the client’s instructions and (ii) concealed from Loh what he had done. The Court’s reasoning distinguished between what is permissible or even correct in court advocacy and what is required in the solicitor’s relationship with the client. Even if a solicitor’s court position is defensible, the solicitor must still handle the client’s instructions and the resulting procedural consequences with honesty and clarity.
The Court of Appeal also addressed the High Court judge’s approach in the s 97 review. The extract indicates that the High Court judge found additional charges made out beyond those found by DT1, and concluded that there was no need to remit the matter to DT1 because her conclusions were based on matters already dealt with during DT1’s hearing. The Court of Appeal disagreed. It held that the High Court judge’s order exceeded the scope of her powers, and it set aside the relevant portion of the determination. The Court further set aside part of DT1’s determination and directed Loh to file an application to refer the matter to the C3J under s 98.
While the extract is truncated and does not reproduce the full doctrinal discussion, the Court’s procedural correction is clear in its effect: certain determinations in disciplinary proceedings must follow the statutory escalation path, and a s 97 review is not a vehicle for the High Court to restructure the disciplinary outcome beyond what the LPA permits. The Court’s direction to refer to the C3J underscores the statutory design that reserves certain gravity thresholds and consequential determinations for a higher judicial forum.
In addition, the Court’s analysis of the specific charges reflected a careful evidential and legal calibration. The High Court’s findings (as described in the extract) included conclusions that some charges were not made out due to insufficient evidence of fraud, and that advice given to Loh about the appeal’s merit was not inaccurate in light of the District Judge’s dismissal even without considering the consent nature of the striking out. The Court of Appeal’s ultimate intervention, however, indicates that even where some evidential findings might be defensible, the review court must remain within its statutory remit and must not effectively substitute the disciplinary tribunal’s role in a manner inconsistent with the LPA.
What Was the Outcome?
The Court of Appeal set aside the High Court judge’s order that exceeded the scope of her powers. It also set aside part of DT1’s determination and directed the appellant to file an application to refer the matter to the Court of Three Judges pursuant to s 98 of the LPA. Practically, this meant that the disciplinary process would proceed along the statutory escalation route rather than being concluded at the s 97 review stage.
Although the extract does not provide the full final orders in detail, the Court’s directions indicate a dual outcome: (1) correction of the High Court’s procedural overreach in the s 97 review; and (2) continuation (or reconfiguration) of the disciplinary pathway to ensure that the matter is dealt with by the appropriate judicial forum under the LPA’s framework.
Why Does This Case Matter?
This case matters because it provides clear, practice-oriented guidance on solicitor-client communication where professional duties conflict with client instructions. The Court of Appeal’s emphasis on frank and candid communication, and the possibility of discharge where persuasion fails, offers a concrete compliance framework for solicitors. For practitioners, the message is that professional correctness in court advocacy does not absolve the solicitor from the duty to be transparent with the client about what has been done and why.
From a disciplinary law perspective, the case illustrates how the LPA’s misconduct provisions can be engaged by failures in candour and client communication, even where the solicitor’s court position may be defensible. The Court’s reasoning suggests that concealment or mishandling of consent-related procedural consequences can be treated as improper conduct in the solicitor’s professional relationship with the client, potentially supporting disciplinary findings.
Finally, the decision is significant for lawyers and law students studying the structure of disciplinary review under the LPA. The Court of Appeal’s correction of the High Court’s scope of powers in a s 97 review reinforces that statutory review mechanisms are bounded. Practitioners should therefore treat the LPA’s escalation provisions (including referral to the C3J under s 98) as mandatory components of the disciplinary architecture, not as optional procedural steps that can be bypassed through a broader review approach.
Legislation Referenced
- Legal Profession Act (Cap 161, 2009 Rev Ed), including ss 75B, 83(2)(b), 83(2)(h), 85(1), 94(3), 96(4)(b), 97, and 98
Cases Cited
- [2013] SGHC 5
- [2021] SGCA 81
- Loh Der Ming Andrew v Law Society of Singapore [2018] 3 SLR 837 (“Andrew Loh (pre-DT)”)
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.