Court of Three Judges acquits PAP MP Christopher de Souza of misconduct charges

SINGAPORE: On Monday (31 Jul), the Court of Three Judges, which is composed of Justice Belinda Ang, Justice Woo Bih Li, and Justice Kannan Ramesh, cleared People’s Action Party(PAP) Member of Parliament (MP) Christopher James de Souza of any improper professional conduct as a lawyer.

In December 2022, the 47-year-old, who also holds the position of Deputy Speaker of Parliament, had been found guilty by a disciplinary tribunal.

Based on the report by the two-member tribunal, found cause of sufficient gravity for Mr de Souza to face disciplinary sanction before the Court of Three Judges on one charge, but dismissed the other four charges against him raised by Law Society (LawSoc).

The MP for Holland–Bukit Timah GRC, was accused of assisting a client in concealing evidence from the court.

The tribunal’s report found that Mr de Souza had not made full and frank disclosure to the court when he was aware that his client, Amber Compounding Pharmacy Pte. Ltd and Amber Laboratories Pte. Ltd (collectively referred to as “Amber”), had breached the conditions of a search order.

These confidential materials were initially obtained through search orders and were intended for use solely in a High Court suit. Instead, the client misused them to file police reports and other complaints against parties they were suing.

Court says LawSoc failed to prove beyond reasonable doubt that Mr de Souza had intended to help his client suppress evidence

Despite the initial ruling against him, the Court of Three Judges stated on Monday ruled that LawSoc failed to establish beyond reasonable doubt that Mr de Souza intended to assist his client in suppressing evidence.

The court, which is the highest disciplinary body for the legal profession, has the power to disbar, suspend, or fine a lawyer who is guilty of professional misconduct.

Represented by Mr Madan Assomull from Assomull & Partners, LawSoc initially sought a four-year suspension order for Mr de Souza.

During the proceedings on Monday, Mr Madan Assomull argued that Mr de Souza was aware of the breach but did not disclose it in the affidavit filed by a company representative to support the application.

He asserted that the affidavit was deliberately vague and that Mr de Souza made a considered decision not to include the relevant reports.

In response, The Court of Three Judges questioned Mr Assomull about the framing of the charge on which Mr de Souza had been found guilty. They also sought clarification on LawSoc’s precise case regarding Mr de Souza’s intention to suppress evidence.

Mr Tan, representing Mr de Souza, was asked about how the affidavit was drafted. He argued that the affidavit did disclose the wrongdoing but admitted that it could have been clearer.

Justice Woo said: “It’s not as crystal clear as you’re making it out to be … otherwise, we don’t have to be here today.”

Mr Assomull argued that internal correspondence at Lee & Lee indicated that Mr de Souza was aware of the breach and the significance of disclosing it.

He claimed that the absence of such disclosure in the affidavit implied an intention to suppress evidence.

Mr Assomull further stated that if a lawyer’s client refused to agree to certain facts or wordings necessary for an affidavit, the lawyer had a paramount duty to discharge themselves from the case in the best interest of the court.

“That is the paramount duty that every lawyer owes to the court,” Mr Assomull reiterated, “First the court – then the client. Not the client, then the court.”

Mr Tan countered Mr Assomull’s argument by pointing out that Mr de Souza had, in fact, discharged himself in July 2019 after realizing that the client had once again used the seized documents despite his advice.

“The immediate steps taken by Mr de Souza in consultation with Mr Tan Tee Jim was to discharge. He could not stand the nonsense of the client in breaching the undertaking,” said Mr Tan.

“That cannot be the conduct of an officer of the court who wanted to suppress evidence.”

The case background: Disciplinary Tribunal hearing initiated following Court of Appeal’s observations

The case came to light following observations made by the Court of Appeal in its judgement on appeals regarding the High Court judge’s decision on the use of documents obtained from the search order.

An Inquiry Committee was convened on 13 January 2021, which later found that Mr de Souza breached his paramount duty to the court and recommended a fine of S$2,000.

The committee, however, did not believe that a formal investigation by a disciplinary tribunal was necessary.

However, the Council of the Law Society applied to the Chief Justice on 5 November 2021 for a disciplinary tribunal to be set up, which resulted in the current tribunal hearing the matter.

After finding that one of the charges against Mr de Souza was made out, the tribunal ordered him to pay costs of S$18,000 to LawSoc, as well as the society’s reasonable disbursements.

Tribunal document reveals exchange between Mr de Souza and client

Amber commenced the High Court Suit (HC suit) on 14 February 2018.

Mr de Souza and Lee & Lee were not the original counsel for Amber – they were represented by Dodwell & Co LLC until 14 December 2018.

On 15 March 2018, Amber applied ex parte for search orders against the Defendants, which was granted on 13 April 2018.

On 31 May 2018, counsel for the parties in the HC Suit provided signed undertakings not to hand over the documents to their respective clients and/or any other three parties.

These undertakings were in addition to the express undertakings given by Amber as a condition for obtaining the Search Orders.

Riddick principle

The search orders granted were subject to an express undertaking by Amber not to use any of the information or documents obtained except for the purposes of the proceedings in the HC Suit, or to inform anyone else of the proceedings in the HC Suit until the trial or further order.

As a matter of law, Amber was also bound by the Riddick principle.

On 18 July 2018, Judicial Commissioner Audrey Lim decided against setting aside the Search Orders, and instead directed that a listing exercise to be carried out whereby Amber’s solicitors were directed to review, itemize and categorize each of the seized documents based on 32 search terms by 8 August 2018, and to provide the Defendants with a list of the seized documents arranged and/or separated by ownership by 22 August 2018.

While reviewing the documents seized pursuant to the Search Orders, Amber formed the view that certain documents were probative of serious criminal offences on the part of the Defendants.

Amber made three reports to MOM and CPIB in 2018, in breach of undertakings in the High Court suit

Amber’s representative, Mr Samuel Sudesh Thaddaeus, made three reports on 31 July 2018, 20 October 2018 and 22 October 2018 to the Ministry of Manpower, the Corrupt Practices Investigation Bureau and the Singapore Police Force disclosing ten (10) such documents, in breach of Amber’s undertakings in the High Court suit.

It should be noted that these reports were made after further undertakings on 31 May 2018.

Since the previous solicitors did not give evidence and Samuel Sudesh did not address this in his evidence, and was not cross-examined on this, the tribunal has not considered the breach of the further undertakings of 31 May 2018.

On 5 December 2018, Amber was advised by Mr de Souza and Lee & Lee to file an urgent application for leave, in the civil proceedings, for Amber to preserve and use the documents seized pursuant to the Search Orders for the purposes of making criminal reports.

In a pre-trial conference(PTC) held on 23 January 2019, Mr de Souza requested for an extension to complete the Listing Exercise, without disclosing the breach to the Court.

After the PTC, Mr de Souza requested for an extension of time to complete the Listing Exercise by 5 April 2019 in a letter dated 25 January 2019 to Defendant’s counsels, without mentioning the breach.

The Tribunal report found that Mr de Souza was clearly aware that documents and information had already been used and that his client was determined not to be honest with the Court.

In a response to their client, the Lee & Lee team acknowledged Mr Sudesh’s discomfort with paragraph 24 and rephrased it to convey the same point but in a different tone, as stated in their reply on 22 January 2019:

Paragraph 24 was re-drafted to read as follows:

On 22 January 2019, Mr Sudesh provided “further amendments to the wording” of the supporting affidavit. However, these amendments resulted in significant changes to paragraph 24:

Mr de Souza caught the amendments made by Mr Sudesh and expressed his disapproval in an email dated 22 January 2019.

On the following day, Mr de Souza further questioned the accuracy of Mr Sudesh’s amendments in an email, pointing out that documents had already been disclosed to the various authorities. This made Mr Sudesh’s proposed amendment inaccurate.

After Mr de Souza pointed out the inaccuracy of Mr Sudesh’s amendments, the Lee & Lee team revised the paragraph in question. The final version of the supporting affidavit was sent to Mr Sudesh on 25 January 2019.

According to the disciplinary tribunal’s report, the Lee & Lee team maintained an unyielding position on the disclosure of Amber’s breach of undertakings in the supporting affidavit, as evident from the chronology of amendments.

“Such an unflinching attitude was maintained by Mr de Souza even though he was of the knowledge that the defendants had not yet been contacted by the authorities. At no point in time did the team, including Mr de Souza, waver in their position that the fact of Amber’s previous breach must be disclosed to the court.”

The report said even when Mr Sudesh raised a ruckus, the team acquiesced to the extent of re-wording the paragraph but without losing the essence of its content.

When Mr Sudesh attempted further amendments, Mr de Souza promptly identified them as inappropriate due to their false impression.

The Tribunal concluded that Amber’s failure to fully and frankly disclose amounted to suppression of evidence, and Mr de Souza, as a party to and facilitator of the suppression, assisted in the act by filing the supporting affidavit.