Tan Ng Kuang v Jai Swarup Pathak: Disciplinary Proceedings for Regulated Foreign Lawyer
Tan Ng Kuang and Lim Siew Soo, judicial managers of Punj Lloyd Pte Ltd and Sembawang Engineers and Constructors Pte Ltd, applied for disciplinary action against Jai Swarup Pathak, a regulated foreign lawyer. The Court of Three Judges of Singapore heard the case, concerning Pathak's alleged misconduct in assisting Punj Lloyd Limited to act dishonestly by not paying the applicants two tranches of a deposit. The court set aside the Disciplinary Tribunal's decision, dismissing the application.
1. Case Overview
1.1 Court
Court of Three Judges of the republic of singapore1.2 Outcome
Application Dismissed
1.3 Case Type
Regulatory
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Disciplinary action against Jai Swarup Pathak for misconduct as a regulated foreign lawyer. The Court of Three Judges set aside the Disciplinary Tribunal's decision.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Tan Ng Kuang | Applicant | Individual | Application Dismissed | Lost | |
| Lim Siew Soo | Applicant | Individual | Application Dismissed | Lost | |
| Jai Swarup Pathak | Respondent | Individual | Application Dismissed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Andrew Phang Boon Leong | Justice of the Court of Appeal | Yes |
| Steven Chong | Justice of the Court of Appeal | No |
| Woo Bih Li | Judge of the Appellate Division | No |
4. Counsels
4. Facts
- Applicants were judicial managers of Punj Lloyd Pte Ltd and Sembawang Engineers and Constructors Pte Ltd.
- Mr. Pathak was a regulated foreign lawyer and Partner-in-Charge of Gibson, Dunn & Crutcher LLP’s Singapore office.
- Applicants claimed PLL agreed to deposit S$2 million for managing the Companies.
- Gibson Dunn received two tranches of S$250,000 from PLL.
- Applicants demanded payment of the tranches, which was not made.
- PLL instructed Gibson Dunn to cease dealing with the applicants on fee discussions.
- PLL instructed Gibson Dunn that the S$500,000 was not to be used to pay the applicants’ fees.
5. Formal Citations
- Tan Ng Kuang and another v Jai Swarup Pathak, Originating Summons No 2 of 2021, [2021] SGHC 232
6. Timeline
| Date | Event |
|---|---|
| Companies filed applications to be placed under judicial management | |
| Applicants verbally conveyed that PLL would have to provide S$2 million | |
| Applicants provided Gibson Dunn with their Consent to Act as judicial managers of the Companies | |
| Applicants were appointed as the judicial managers of the Companies by the High Court | |
| Mr Pathak emailed the applicants to confirm that PLL will be placing SGD 500k with Gibson Dunn towards payment of the JM fees | |
| Ms Lim replied to note that the terms to fund the deposit for the judicial managers’ remuneration were not reflected in the 14 July 2016 email from Mr Pathak | |
| Applicants, Mr Punj and Mr Pathak met at Four Seasons Hotel | |
| Mr Pathak emailed the applicants regarding the agreed fee of S$2 million for the judicial managers and a success fee of S$1 million | |
| Mr Pathak emailed the applicants to confirm that the first tranche of S$250,000 had been received by Gibson Dunn | |
| Applicants’ then-lawyers from Tan Kok Quan Partnership issued a letter to Gibson Dunn | |
| Mr Pathak instructed Mr Lee to send an email stating that Gibson Dunn disputed the contents of TKQP’s letter and the draft affidavit | |
| Mr Lee sent an email reiterating that Gibson Dunn no longer represented PLL in respect of any fee discussions with the applicants | |
| Mr Punj wrote to the applicants to state that there had never been any agreement between PLL and the applicants | |
| TKQP issued another letter seeking payment of the full sum of the S$500,000 that Gibson Dunn had received from PLL | |
| Mr Pathak emailed Mr Lee informing him that they did not need to make any payment to the applicants as PLL had confirmed that they will pay the JM funds directly | |
| Mr Lee sent an email stating that Gibson Dunn no longer represented PLL in respect of any fee discussions with the applicants | |
| Companies were wound up | |
| Applicants made their complaint against Mr Pathak and Mr Lee to the Law Society of Singapore | |
| HC/OS 1505/2018 was heard before Chua Lee Ming J | |
| Chua J delivered his decision in respect of OS 1505 | |
| Applicants filed HC/OS 263/2020 pursuant to s 96(1) of the LPA to review the ICs’ decisions | |
| DT4A and Disciplinary Tribunal No 4 of 2020 were appointed | |
| Judgment reserved | |
| Judgment reserved |
7. Legal Issues
- Misconduct Unbefitting a Regulated Foreign Lawyer
- Outcome: The court found that the Disciplinary Tribunal's decision could not be sustained and set aside the conviction.
- Category: Substantive
- Dishonesty
- Outcome: The court found that the element of dishonesty in Charge 1A was not proven beyond a reasonable doubt.
- Category: Substantive
- Duty of Confidentiality to Client
- Outcome: The court emphasized the lawyer's duty to maintain and protect the confidentiality of the client's instructions and intended course of action.
- Category: Substantive
- Duty of Loyalty to Client
- Outcome: The court emphasized the lawyer's fiduciary duty to act for his client with undivided loyalty.
- Category: Substantive
8. Remedies Sought
- Disciplinary Action
- Financial Penalty
9. Cause of Actions
- Professional Misconduct
10. Practice Areas
- Regulatory Law
11. Industries
- Legal Services
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Law Society of Singapore v Lim Cheong Peng | Court of Appeal | Yes | [2006] 4 SLR(R) 360 | Singapore | Cited for the principle that an appellate court does not lightly interfere with findings of fact by a lower court or a disciplinary committee unless their conclusions are clearly against the weight of evidence. |
| Law Society of Singapore v Manjit Singh s/o Kirpal Singh and another | Court of Appeal | Yes | [2015] 3 SLR 829 | Singapore | Cited for the principle that an appellate court does not lightly interfere with findings of fact by a lower court or a disciplinary committee unless their conclusions are clearly against the weight of evidence. |
| Law Society of Singapore v Jasmine Gowrimani d/o Daniel | Court of Three Judges | Yes | [2010] 3 SLR 390 | Singapore | Cited for the principle that it is for the Court of Three Judges to decide on whether or not “due cause” has been proven in the first instance. |
| OCBC Capital Investment Asia Ltd v Wong Hua Choon | Court of Appeal | Yes | [2012] 4 SLR 1206 | Singapore | Cited for the principle that the utmost attention has to be paid to the facts and, in particular, the contemporaneous documentary evidence. |
| China Coal Solution (Singapore) Pte Ltd v Avra Commodities Pte Ltd | Court of Appeal | Yes | [2020] 2 SLR 984 | Singapore | Cited for the principle that the utmost attention has to be paid to the facts and, in particular, the contemporaneous documentary evidence. |
| Narindar Singh Kang v Law Society of Singapore | Court of Appeal | Yes | [2007] 4 SLR(R) 641 | Singapore | Cited for the principle that a lawyer is not a mere “legal mercenary” or a “hired gun”. |
| Law Society of Singapore v Tan Buck Chye Dave | Court of Appeal | Yes | [2007] 1 SLR(R) 581 | Singapore | Cited for the principle that the practice of law is “a noble calling that, in the final analysis, serves the public”. |
| Lie Hendri Rusli v Wong Tan & Molly Lim (a firm) | High Court | Yes | [2004] 4 SLR(R) 594 | Singapore | Cited for the principle that a lawyer’s legal duty to maintain confidentiality of his client’s communications has been described as a “fiduciary duty”. |
| Ho Yew Kong v Sakae Holdings Ltd and other appeals and other matters | Court of Appeal | Yes | [2018] 2 SLR 333 | Singapore | Cited for the principle that a lawyer’s fiduciary duty to act for his client with undivided loyalty is the core foundation of all fiduciary duties. |
| R v Central Criminal Court, ex parte Francis & Francis | House of Lords | Yes | [1989] 1 AC 346 | United Kingdom | Cited for the principle that it is the duty of the solicitor to protect his client’s privilege unless the client waives it. |
| Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals | Court of Appeal | Yes | [2007] 2 SLR(R) 367 | Singapore | Cited for the principle of litigation privilege. |
| Ravi s/o Madasamy v Attorney-General | High Court | Yes | [2021] 4 SLR 956 | Singapore | Cited for the principle that litigation privilege exists in Singapore by virtue of the common law. |
| Law Society of Singapore v Ezekiel Peter Latimer | Court of Appeal | Yes | [2019] 4 SLR 1427 | Singapore | Cited for the principle that a lawyer owes a duty of “unflinching loyalty” to his client. |
| Law Society of Singapore v Tan Phuay Khiang | Court of Appeal | Yes | [2007] 3 SLR(R) 477 | Singapore | Cited for the principle that a lawyer owes a duty of “unflinching loyalty” to his client. |
| Law Society of Singapore v Ng Chee Sing | Court of Appeal | Yes | [2000] 1 SLR(R) 466 | Singapore | Cited for the principle that, when considering if a solicitor’s conduct amounts to “conduct unbefitting an advocate and solicitor”, the standard of judgment to be applied is fixed by the court and not by his peers. |
| Law Society of Singapore v Choy Chee Yean | Court of Appeal | Yes | [2010] 3 SLR 560 | Singapore | Cited for the principle that, where an advocate and solicitor of the Supreme Court of Singapore has been guilty of dishonest conduct, the court will almost invariably order that he be struck off the roll of solicitors. |
| Law Society of Singapore v Amdad Hussein Lawrence | Court of Appeal | Yes | [2000] 3 SLR(R) 23 | Singapore | Cited for the principle that, where an advocate and solicitor of the Supreme Court of Singapore has been guilty of dishonest conduct, the court will almost invariably order that he be struck off the roll of solicitors. |
| Law Society of Singapore v Chong Fook Choon @ Ronnie Chong | Supreme Court of Singapore | Yes | [1998] SGDSC 1 | Singapore | Cited regarding misrepresentation of certain facts to the agent of a purchaser in respect of the potential sale of a property. |
| Loh Der Ming Andrew v Koh Tien Hua | Court of Appeal | Yes | [2021] SGCA 81 | Singapore | Cited regarding a solicitor is not obliged to comply with every one of his client’s unreasonable instructions. |
| Tan Ng Kuang and another v Law Society of Singapore | High Court | Yes | [2020] SGHC 127 | Singapore | Thean J found that the applicants had established a prima facie case and thus granted the application in OS 263 and ordered the Law Society to apply to the Chief Justice for the appointment of disciplinary tribunals to investigate the alleged misconduct of Mr Pathak and Mr Lee. |
13. Applicable Rules
| Rule Name |
|---|
| Legal Profession (Professional Conduct) Rules 2015 |
| r 10(6)(b) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 3(2)(c) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 3(1)(c) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 8 of the Legal Profession (Professional Conduct) Rules 2015 |
| r 8(3) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 8(2) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 8(1) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 6 of the Legal Profession (Professional Conduct) Rules 2015 |
| r 6(2) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 6(1) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 5(2)(c) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 5(2)(j) of the Legal Profession (Professional Conduct) Rules 2015 |
| r 5(2)(b) of the Legal Profession (Professional Conduct) Rules 2015 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Legal Profession Act (Cap 161, 2009 Rev Ed) | Singapore |
| s 83A(2)(g) of the Legal Profession Act | Singapore |
| s 36C of the Legal Profession Act | Singapore |
| s 85(8)(b) of the Legal Profession Act | Singapore |
| s 96(1) of the Legal Profession Act | Singapore |
| s 5(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
| s 90 of the Legal Profession Act | Singapore |
| s 93(1)(c) of the Legal Profession Act | Singapore |
| s 98(8) of the Legal Profession Act | Singapore |
| ss 128 and 131 of the Evidence Act (Cap 97, 1997 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Regulated Foreign Lawyer
- Disciplinary Proceedings
- Judicial Management
- Deposit Agreement
- Duty of Confidentiality
- Duty of Loyalty
- Dishonesty
- Legal Professional Privilege
15.2 Keywords
- Legal Profession
- Disciplinary Proceedings
- Regulated Foreign Lawyer
- Singapore
- Ethics
- Professional Conduct
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Disciplinary Proceedings | 95 |
| Legal Profession Act | 90 |
| Professional Ethics | 70 |
| Fiduciary Duty | 30 |
| Company Law | 10 |
| Corporate Law | 5 |
| Administrative Law | 5 |
16. Subjects
- Legal Ethics
- Professional Responsibility
- Regulatory Compliance