Case Details
- Citation: [2021] SGCA 81
- Title: Loh Der Ming Andrew v Koh Tien Hua
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 11 August 2021
- Civil Appeal No: Civil Appeal No 227 of 2019
- Coram: Sundaresh Menon CJ; Judith Prakash JCA; Steven Chong JCA
- Judgment Author: Sundaresh Menon CJ (delivering the grounds of decision)
- Plaintiff/Applicant (Appellant): Loh Der Ming Andrew
- Defendant/Respondent (Respondent): Koh Tien Hua
- Counsel: The appellant in person; Narayanan Sreenivasan SC and Ranita Yogeeswaran (K&L Gates Straits Law LLC) for the respondent
- Legal Area: Legal Profession — Disciplinary proceedings
- Statute(s) Referenced: Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”)
- Key Procedural Pathway: s 97 review of Disciplinary Tribunal determination; clarification of scope of s 97 review; direction to refer to Court of Three Judges under s 98
- Prior/Related Decisions Cited: [2013] SGHC 5; [2021] SGCA 81 (this case); and an earlier High Court decision in the same disciplinary matter: Loh Der Ming Andrew v Law Society of Singapore [2018] 3 SLR 837 (“Andrew Loh (pre-DT)”)
- Judgment Length: 20 pages, 11,474 words
Summary
Loh Der Ming Andrew v Koh Tien Hua [2021] SGCA 81 is a significant Court of Appeal decision on the conduct expected of solicitors in disciplinary proceedings, particularly where a solicitor’s duty to the court conflicts with a client’s instructions. The case arose from divorce proceedings in which the solicitor, Koh, consented to the striking out of parts of the client’s Statement of Particulars. The client, Loh, later complained that Koh had acted contrary to his instructions and had concealed the effect of the consent order, thereby undermining Loh’s ability to pursue an appeal.
At the disciplinary level, a Disciplinary Tribunal (“DT1”) found Koh guilty of certain charges but acquitted him of others. The High Court judge, hearing a review under s 97 of the Legal Profession Act (“LPA”), expanded the findings by holding that additional charges were made out and adjusted the penalty. On appeal, the Court of Appeal clarified that a s 97 review judge must stay within the scope of the DT’s remit and the earlier directions governing what issues were properly before the DT. The Court of Appeal set aside parts of the High Court’s determination and directed that the matter be referred to the Court of Three Judges (“C3J”) pursuant to s 98 of the LPA.
What Were the Facts of This Case?
The underlying dispute began in July 2015 when Loh engaged Koh to represent him in divorce proceedings. Loh was the plaintiff in the divorce action; his wife was the defendant; and a neighbour was joined as a co-defendant. Loh alleged that the neighbour had been involved in an adulterous relationship with his wife. While Loh’s wife withdrew her defence to the adultery allegation, the co-defendant maintained his defence and denied adultery. The co-defendant then brought an application (FC/SUM 2009/2015, “SUM 2009”) seeking to strike out certain parts of Loh’s Statement of Particulars (“SOP”).
At the hearing before Assistant Registrar Eugene Tay on 27 July 2015, Koh consented to various parts of the SOP being struck out. The record reflected that those consents were treated as consent orders. A central factual dispute later emerged as to whether Koh had been authorised by Loh to consent in the exercise of professional judgment. Loh’s position was that he had not instructed Koh to concede those parts. When Loh discovered that the particulars had been struck out, he insisted that an appeal be filed. Koh did not immediately inform Loh that the striking out had been effected by consent, and Loh only later learned the true procedural position.
On 12 May 2016, Loh lodged a complaint against Koh with the Law Society of Singapore. The complaint letter set out multiple heads of complaint under s 85(1) of the LPA, including allegations of perjury, knowingly misleading the court, dishonesty, acting against instructions and deception concerning consent orders, and other related misconduct. Loh also made complaints under s 75B of the LPA, alleging failures in diligence, timeliness, communication, and competence. The Law Society’s process then followed: some complaints were referred for inquiry, and the Inquiry Committee (“IC”) ultimately found that only one head of complaint was made out, recommending a penalty of $2,500 without the need for a formal DT investigation at that stage.
Loh was dissatisfied and sought judicial intervention to compel the appointment of a DT. In Andrew Loh (pre-DT) [2018] 3 SLR 837, the High Court directed the Law Society to apply to the Chief Justice for a DT to investigate two specified heads of complaint. Those heads were: (a) whether Koh knowingly misled the court and/or failed to discharge his duty of honesty and truthfulness by making three untrue statements to AR Tay; and (b) whether Koh acted against Loh’s instructions by conceding to the consent order and then deliberately suppressed from Loh the fact that the consent order had been made and its effect on the viability of Loh’s appeal against the striking out order.
What Were the Key Legal Issues?
The case raised two interlocking legal issues. First, it concerned the substantive professional conduct expected of solicitors when client instructions conflict with the solicitor’s paramount duty to the court. The Court of Appeal framed the core dilemma in terms of fidelity to client instructions versus the duty not to advance unreasonable or incorrect legal positions. Where a client demands resistance to an application that is likely to succeed against them, the solicitor must communicate candidly and attempt to persuade the client to change course; if the conflict cannot be resolved, the solicitor may need to discharge himself rather than compromise the integrity of the court process.
Second, and equally important, the case concerned procedural scope: what a judge may do on a review under s 97 of the LPA. The Court of Appeal had to determine whether the High Court judge exceeded the scope of her powers by making findings on charges that were outside the remit of the DT as defined by the earlier directions (including the Woo J “remit”). This required the Court of Appeal to clarify the role and powers of a judge hearing a s 97 review application, particularly where the DT’s determination is limited to specific heads of complaint.
How Did the Court Analyse the Issues?
The Court of Appeal began by setting out the professional ethics problem in plain terms. The Court asked: what should a solicitor do when the client instructs the solicitor to resist an application, even though resisting would require the solicitor to advance unreasonable or incorrect legal positions? The Court’s answer was prescriptive. A solicitor should not simply comply with the client’s demands. Instead, the solicitor must communicate frankly and candidly with the client, with a view to persuading the client to change instructions. This is not merely good practice; it is tied to the solicitor’s paramount duty to the court.
In the Court’s view, the respondent solicitor, Koh, mishandled the situation. The Court accepted that Koh’s conduct in the position he took before the court was not necessarily improper in itself; however, Koh’s conduct was improper as far as the client was concerned. The Court emphasised that, even where a solicitor may have to act in a way that protects the integrity of the court process, the solicitor must not conceal what has been done. The Court described Koh’s errors as including consenting to the striking out contrary to the client’s instructions and then concealing from Loh what he had done. The Court also noted the practical consequences: the client’s complaint triggered five years of proceedings and the prospect of further proceedings.
Turning to the procedural question, the Court of Appeal examined the High Court’s approach on review. The DT1 had found Koh guilty of the Fourth and Sixth charges, but acquitted him of the others. DT1 also questioned whether certain charges (the Eleventh to Fourteenth) were properly before it because they appeared to fall outside the scope of Woo J’s remit. On review, the High Court judge found that, in addition to the Fourth and Sixth charges, Koh was also guilty of the Eighth and Tenth charges. The High Court reasoned that there was no need to remit the matter to DT1 because her conclusions were based on matters dealt with during the DT1 hearing.
The Court of Appeal disagreed. It held that the High Court judge exceeded the scope of her powers under s 97. The Court’s reasoning was rooted in the statutory structure of the disciplinary process under the LPA. A s 97 review is not a mechanism for the review judge to expand the DT’s remit or to make findings on charges that were not properly within the DT’s jurisdiction as defined by the earlier directions. Where the DT’s determination is limited to specific heads of complaint, the review judge must respect those boundaries. The Court therefore set aside the High Court’s order that went beyond what was properly before it. It also set aside part of the DT’s determination and directed that Loh file an application to refer the matter to the C3J under s 98 of the LPA. This direction reflects the LPA’s design: certain findings and consequences require escalation to the C3J, and the disciplinary architecture must be followed.
What Was the Outcome?
The Court of Appeal set aside the High Court judge’s order insofar as it exceeded the scope of her powers on the s 97 review. It also set aside part of the DT’s determination and directed that the appellant file an application to refer the matter to the Court of Three Judges pursuant to s 98 of the LPA. The practical effect is that the disciplinary consequences for Koh could not be finally determined on the expanded basis adopted by the High Court; instead, the matter had to proceed through the correct statutory pathway.
Although the Court of Appeal’s decision contains strong ethical commentary about solicitor-client communication and the duty to the court, the operative orders focus on procedural correctness and the proper allocation of authority between the DT, the s 97 review judge, and the C3J under the LPA.
Why Does This Case Matter?
This case matters for two main reasons. First, it provides a clear articulation of solicitor ethics in high-conflict contexts, especially family law practice. The Court’s opening framing—how to respond when client instructions conflict with the solicitor’s duty to the court—highlights that the solicitor’s role is not passive. Solicitors must manage conflicts through frank communication and persuasion, and where necessary, through self-discharge. The Court’s emphasis on concealment is also important: even if a solicitor’s position before the court is defensible, failing to inform the client of what has been done can amount to improper conduct.
Second, the decision is a procedural guide for disciplinary litigation under the LPA. Lawyers and law students should take note of the Court of Appeal’s clarification of the role and powers of a judge hearing a s 97 review application. The decision underscores that review is bounded by the remit of the DT and the statutory scheme. Practitioners should therefore carefully consider whether particular charges or findings are properly within the DT’s jurisdiction and whether escalation to the C3J is required. This is not merely academic: it affects strategy, the framing of complaints, and the likelihood that a review court will correct or expand findings.
For practitioners, Loh Der Ming Andrew v Koh Tien Hua serves as a reminder that disciplinary outcomes can turn on both substantive conduct and procedural compliance. Solicitors should ensure that client instructions are handled with candour, that consent orders and procedural steps are communicated accurately, and that any conflict between client demands and professional duties is addressed promptly and transparently.
Legislation Referenced
- Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”)
- 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
- Loh Der Ming Andrew v Law Society of Singapore [2018] 3 SLR 837 (“Andrew Loh (pre-DT)”)
- [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.