Law Society of Singapore v de Souza Christopher James 

What Constitutes Assisting a Client in Suppressing Evidence?

Law Society of Singapore v de Souza Christopher James

[2024] 3 SLR 1570; [2023] SGHC 318

I. Executive Summary

Under rule 10(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 (the “PCR”), a legal practitioner must prevent his or her client from, must not be a party to, and must not assist the client in suppressing evidence. Breach of this rule may amount to improper conduct and practice within the meaning of section 83(2)(b) of the Legal Profession Act 1966 (2020 Rev Ed) (the “LPA”) and warrant a suspension from legal service.

Mr Christopher James de Souza (“Mr de Souza”) was found by a Council of the Law Society disciplinary tribunal (“DT”) to be guilty of the charge of being a party to and assisting his client in suppressing evidence, in breach of rule 10(3)(a) of the PCR (the “Charge”). The Law Society subsequently applied for Mr de Souza to be sanctioned under the LPA. However, this application was dismissed by Court of Three Supreme Court Judges (“C3J”) in Law Society of Singapore v de Souza Christopher James [2024] 3 SLR 1570. The C3J held that intention was a necessary ingredient of such a charge, and further that Mr de Souza’s actions in representing his client did not come from an intent to assist Amber in suppressing evidence. Further, a key affidavit which Mr De Souza was involved in preparing (“Sudesh’s 29/1/19 Affidavit”), objectively construed, did not in fact suppress evidence. As such, the Charge against Mr de Souza was not made out and Mr de Souza was not to be sanctioned for breaching rule 10(3)(a) of the PCR.

II. Material Facts

A. Background

Amber Compounding Pharmacy Pte Ltd and Amber Laboratories Pte Ltd (collectively, “Amber”) had commenced suit against six defendants (collectively, the “Defendants”), which included Ms Priscilla Lim Suk Ling (“Ms Lim”) and Urban RX Compounding Pharmacy Pte Ltd (“UrbanRX”). At this point, Amber was represented by Mr Alfred Dodwell (“Mr Dodwell”) of Dodwell & Co LLC.

Amber essentially claimed that the Defendants had misappropriated Amber’s confidential information and/or trade secrets for UrbanRX’s benefit. Amber subsequently applied for ex parte (i.e. done with respect to or in the interests of one side only) search orders against Ms Lim and UrbanRX. The purpose of the orders was apparently “purely and solely” for “obtaining further evidence that [was] necessary to [Amber’s] case without risking [Ms Lim and UrbanRX’s] destruction of the said evidence”. Regarding this application, the High Court (“HC”) ordered Ms Lim and UrbanRX to disclose to Amber all email correspondence on their email accounts, all data processing devices, and all documents relating to trade secrets and/or confidential and/or proprietary information of Amber (“Search Orders”). 

In applying for the Search Orders, Amber expressly undertook not to “use any information or documents obtained as a result of the carrying out of [the] Order except for the purposes of these proceedings or to inform anyone else of these proceedings until the trial or further order” (“Search Order Undertaking”). This undertaking made explicit the implied obligation not to use discovered documents or information obtained therefrom for any purpose other than pursuing the action in which the discovery was obtained. This implied obligation was acknowledged in the English case of Riddick v Thames Board Mills Ltd [1977] 1 QB 891 (“Riddick Undertaking”). The Search Orders were executed, and more than 100,000 documents were seized. 

About a month later, Ms Lim and UrbanRX sought to set aside the Search Orders, asking for the Search Orders to be discharged and for Amber to return all seized items and destroy all copies of items made during the searches. The HC ordered Amber, Ms Lim and UrbanRX to carry out a “Listing Exercise” to determine the ownership of the documents. Documents which undisputedly belonged to one party or the other were to be returned to their rightful owners and deleted/destroyed by the other party by a certain date, while documents with disputed ownership were to be retained by the defendants’ counsel (and not to be kept by any party). The Listing Exercise was not completed by the required dates, and the HC extended the relevant deadlines.

While conducting the Listing Exercise, Amber considered that certain documents (the “Documents”) showed that Ms Lim and/or UrbanRX had committed offences under various Singapore laws. In July-October 2018, Amber’s representative Mr Samuel Sudesh Thaddaeus (“Mr Sudesh”) made reports on these matters (the “Reports”) to various Singapore authorities such as the Ministry of Manpower (“MoM”), the Corrupt Practices Investigation Bureau (“CPIB”) and the Singapore Police Force (collectively, the “Authorities”). The Reports were made while Amber was represented by Dodwell & Co LLC, and in breach of Amber’s Search Order Undertaking.

Separately, in November 2018, Amber instructed Messrs Lee & Lee (“L&L”), Mr de Souza’s firm, to prepare and lodge reports with law enforcement and regulatory agencies as it believed that its confidential information had been stolen by the Defendants. Amber also sent L&L the Reports on 30 November 2018. In December 2018, L&L was officially appointed by Amber as its legal representative for the suit against the Defendants for misappropriating Amber’s confidential information and/or trade secrets.

Upon being informed by a lawyer in the L&L team about Mr Sudesh’s suspected breach of the Search Order Undertaking, Mr de Souza instructed the L&L team to “halt work” on the same day. The L&L team attempted to understand from Mr Sudesh which of the evidence used for the Reports was obtained through the Search Orders, so that steps could be taken to remedy Amber’s breach of the Search Order Undertaking. Mr Sudesh denied any use of the Search Order documents in the Reports. However, the L&L team formed the view that Amber had in fact made use of some of the Documents in making the Reports, in breach of the Riddick Undertaking.

B. Court proceedings

During a pre-trial conference before a Senior Assistant Registrar (“SAR”) in January 2019 (“23/1/19 PTC”), the Defendants argued that Amber had not complied with the Listing Exercise timelines. Mr de Souza argued that Amber’s failure to comply was due to the “sheer number of documents involved”. It was not disputed that L&L did not mention Amber’s breach of its Search Order Undertaking at this time. L&L later wrote a letter on 25 January 2019 (the “25/1/19 Letter”) to Ms Lim and UrbanRX’s legal counsel to seek consent for extension of time for the Listing Exercise; this also did not mention that various Search Order documents had been used in making the Reports without leave of court.

Subsequently, Amber applied for court orders that the documents it obtained under the Search Orders be preserved, and that it be entitled to use the said documents to make reports to law enforcement agencies (“SUM 484”). At this point, Mr Sudesh filed an affidavit – the aforementioned Sudesh’s 29/1/19 Affidavit – in support of SUM 484. It was undisputed that Mr de Souza was personally involved in the preparation of this affidavit. 

L&L wrote to the court in February 2019 to request an urgent hearing due to “the urgency of the subject matter … which involve[d] the potential commission of criminal offences and which necessitated it to be filed on an ex parte basis”. However, the court denied the request, and stated that Amber was to serve SUM 484 and Sudesh’s 29/1/19 Affidavit on the Defendants by 13 February 2019. Amber then served the documents on the Defendants, which was when the Defendants first learnt that Amber had used and intended to use the Documents for the extraneous purpose of making criminal reports to the Authorities.

The HC heard the parties’ arguments on SUM 484 in April 2019. Mr de Souza informed the court, based on what Mr Sudesh had told L&L, that in making the Reports, Amber “ha[d] only quoted certain WhatsApp messages and other information which they gleaned from the documents” and “did not hand over any of the documents to the authorities”.

In a follow-up hearing in June 2019, Mr de Souza stated that he “[did not] disagree” that he had advised Amber to take out SUM 484 because it had breached the Riddick Undertaking. He also clarified that Amber was seeking both retrospective and prospective leave to disclose the Documents, and that he had yet to identify which documents had already been given to the authorities. The HC directed Amber to file an affidavit stating which documents had already been disclosed to the Authorities. Mr Sudesh then filed another affidavit on behalf of Amber in July 2019 (“Sudesh’s 8/7/19 Affidavit”), explaining that he had only used excerpts of ten Search Order documents in support of the Reports he had made to the Authorities.

In October 2019, the HC sanctioned the retrospective and prospective disclosure of the documents (“EFMA Documents”) to the authorities pertaining to the Defendants’ possible commission of certain offences under the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“EFMA”). The HC considered the potential offences under the EFMA to be serious, the materials sought to be disclosed to be cogent, and did not find SUM 484 to be motivated by an improper purpose. The HC did not grant Amber leave to disclose documents purportedly connected to other offences (“Other Documents”). L&L had at this point discharged itself as Amber’s solicitors; Amber was subsequently represented by Allen & Gledhill LLP.

Both Amber and the Defendants appealed against the HC decision. The Court of Appeal (“CA”) reversed the HC’s decision to grant Amber leave to disclose the EFMA Documents to the Authorities and held that Amber’s application in SUM 484 was motivated by an improper purpose.

C. Disciplinary Proceedings

Following the CA’s decision, the Deputy Registrar of the Supreme Court (“DR”) referred information regarding Mr de Souza’s conduct to The Law Society of Singapore (the “Law Society”) on behalf of the CA under section 85(3)(a) of the LPA. The DR highlighted the CA’s observations that Mr de Souza had made no mention of Amber’s extraneous use of the Documents at the 23/1/19 PTC or in the 25/1/19 Letter, but had instead sought an extension of time to comply with the Listing Exercise on the basis of “the sheer number of documents involved”. The DR noted that it was not clear whether this extension of time was sought for the purpose of completing the Listing Exercise or for reviewing the Defendants’ documents in connections with the Reports. 

The resulting Inquiry Committee (“IC”) found that Mr de Souza’s failure to inform the court at the 23/1/19 PTC of Amber’s breach of its Search Order Undertaking was not borne of a desire to mislead the court, hence this did not amount to a breach of rule 9(2)(a)(i) of the PCR. In particular, the IC found that Mr de Souza did not disclose Amber’s breach of its Search Order Undertaking to the court because he believed he needed Amber’s permission to disclose the said breach to the court and had yet to obtain such permission as of the hearing.

The IC also found no evidence that Mr de Souza knowingly misled or attempted to mislead the Defendants’ legal counsel or any witness in or any other person involved in or associated with those proceedings in breach of rules 9(2)(a)(iii) and 9(2)(a)(iv) of the PCR. Rules 9(3)(b)(i), which requires a legal practitioner to disclose to the court every fact, evidence, information and other matter which the practitioner is required by law to disclose to the court, and 10(3)(a), which requires a legal practitioner to prevent his or her client from, not be a party to, and not to assist the client in suppressing evidence, were also not engaged. Nonetheless, the IC found that Mr de Souza had failed to place his duty to the court above the duty to his clients: he ought, at the very least, to have informed the court at the 23/1/19 PTC that he had “advised [Amber] that an urgent leave application in relation to the seized documents was necessary”, but did not do so. The IC found Mr de Souza guilty of misconduct within the meaning of section 83(2)(h) of the LPA and suggested that he be fined $2000.

However, the Council of the Law Society disagreed with the IC’s findings and sought the appointment of a DT to formally investigate Mr de Souza’s conduct. The DT was appointed in November 2021, where the Law Society preferred five charges against Mr de Souza. Ultimately, the DT found Mr de Souza guilty of only the Charge.

In this regard, the DT considered that the “duty not to suppress evidence is the other side of the coin of the duty to disclose matters required by law as well as a facet of the paramount duty to disclose material facts and not to mislead the Court”. It stated that “non-disclosure” would engage the duty of full and frank (“F&F”) disclosure and a legal practitioner’s paramount duty to the court. The DT hence treated the key question as whether “material facts that should have been the subject of [F&F] disclosure [were] suppressed”. The DT did not consider the subjective state of mind of a legal practitioner (i.e. his intention) to be relevant, and stated that “once actual knowledge of material facts to be disclosed is proven, the question of whether there was breach of [the] duty to disclose should be considered objectively, and not based on the subjective view of the legal practitioner”.

The DT decided that Mr de Souza was aware that Amber had breached its Search Order Undertaking, and that Sudesh’s 29/1/19 Affidavit neither made F&F disclosure of Amber’s breach of its Search Order Undertaking, nor disclosed that documents and information had already been used. Thus, the DT concluded that Amber had suppressed evidence in Sudesh’s 29/1/19 Affidavit. By preparing and filing this affidavit, Mr de Souza was a party to and assisted in Amber’s suppression in breach of rule 10(3)(a) of the PCR, proving the Charge.

Finally, the DT found that Mr de Souza’s breach of rule 10(3)(a) of the PCR amounted to improper conduct and practice, and constituted a breach of sufficient gravity for him to show cause before the C3J for disciplinary action existing in respect of this particular primary charge. The Law Society duly commenced an application for Mr de Souza to be sanctioned under section 83(1) of the LPA.

III. Issues on Appeal

To determine whether the Charge was made out, the C3J considered the following key issues:
(a)   Whether intention was a necessary ingredient of the Charge and if so, whether the DT erred by treating the question of intent as irrelevant;
(b)   If intention was a crucial element of the Charge, whether Mr de Souza’s alleged omissions came from an intent to assist Amber in suppressing its breach of the Search Order Undertaking; and
(c)   Whether Sudesh’s 29/1/19 Affidavit had suppressed Amber’s breach of its Search Order Undertaking from the court.

A. Whether intention was a necessary ingredient of the Charge and if so, whether the DR erred in its analysis by treating the question of intent as irrelevant

The C3J held that intention was a necessary ingredient of the Charge. The Charge was highly specific: it accused Mr de Souza of both being a party to and assisting Amber to suppress its breach of its Search Order Undertaking from the court. This alleged a high degree of participation in Amber’s suppression of evidence on Mr de Souza’s part. 

Furthermore, it was the Law Society’s case that Mr de Souza was a party to and assisted Amber in its suppression of evidence as he had failed to exhibit the Reports and the relevant supporting documents in Sudesh’s 29/1/19 Affidavit. It alleged that Mr de Souza was aware of Amber’s breach of its Riddick Undertaking by the time he prepared and filed Sudesh’s 29/1/19 Affidavit, and that he chose to omit the Reports and supporting documents from the affidavit as he wanted to bolster Amber’s chances of obtaining an order in terms of SUM 484. This was inherently goal-orientated and intentional. 

Thus, the Law Society had to prove that not only had Amber suppressed its breach of its Riddick Undertaking from the court because it did not exhibit the Reports nor supporting documents to Sudesh’s 29/1/19 Affidavit, but also that Mr de Souza himself omitted these documents from Sudesh’s 29/1/19 Affidavit because he had intended to assist Amber suppress the breach from the court, to obtain a favourable outcome for Amber. The latter inquiry focused on Mr de Souza’s subjective intention, as objectively ascertained.

Intent was not (as the DT had stated) irrelevant. The DT had conflated a legal practitioner’s duty under rule 10(3)(a) of the PCR with rule 9(3)(b)(i) of the PCR, which the DT considered had in turn embodied the common law duty to make F&F disclosure especially in ex parte applications. These were however three distinct legal duties: a breach of the latter two duties did not lead to the inevitable result that rule 10(3)(a) of the PCR was also breached. 

B. Whether Mr de Souza’s alleged omissions under the Charge came from an intent to assist Amber in suppressing its breach of the Search Order Undertaking

The C3J held that there was no evidence demonstrating that Mr de Souza intended to assist Amber to suppress its breach of the Search Order Undertaking. On the contrary, the drafting history of Sudesh’s 29/1/19 Affidavit showed that Mr de Souza consistently intended to disclose Amber’s breach of its Search Order Undertaking to the court, stuck to this intention in the face of an intransigent client, and believed that he had effectively done so.

Specifically: L&L took out SUM 484 and drafted Sudesh’s 29/1/19 Affidavit after it suspected Amber of using the Documents to make the Reports in breach of its Riddick Undertaking. The email correspondence within L&L, and between L&L and Mr Sudesh, showed that Mr de Souza (and the L&L team) intended to make Amber’s breach of its Riddick Undertaking known to the court through Sudesh’s 29/1/19 Affidavit. The L&L team also informed Mr Sudesh that Amber required approval from the court before it could disclose Search Order documents to the Authorities, and rebuffed his request for the L&L team to independently put together legal reports based on the Search Order documents and submit them to the Authorities. 

The C3J further found that Mr de Souza’s intention to disclose to the court Amber’s breach of its Search Order Undertaking persisted throughout the entire drafting process of Sudesh’s 29/1/19 Affidavit and up to the time L&L filed this affidavit with the court. For instance, in one exchange between Mr de Souza and his team, a team member informed Mr de Souza that Mr Sudesh was “insistent that none of the doc[uments] were disclosed although it is quite apparent that they were … even the disclosure of information contained in documents (without disclosing the documents themselves) would be a breach of the implied undertaking, so there is no point in playing around with semantics. I think we have to make clear to client that he has to be fully forthright to Court in his affidavit.” Significantly, Mr de Souza replied to say “Yes, agree”.

Mr de Souza also crafted a paragraph for Sudesh’s 29/1/19 Affidavit, stating “[a]ware that the Defendants had potentially committed serious offences, I felt it a matter of duty to report their conduct to the authorities – in this case the Ministry of Manpower (“MoM”), Corrupted Practices Investigation Bureau and the Singapore Police Force”, with the comment that “it [was] important that [they] disclose the fact that some documents [had] already been disclosed to MoM and CPIB, as there [was] a duty to make full and frank disclosure to the court”.

The drafting history to Sudesh’s 29/1/19 Affidavit was also highly significant in revealing that the drafting process was a team effort on L&L’s end. The members of the L&L team attested that L&L always intended to disclose Amber’s breach of its Search Order Undertaking to the court and believed that L&L had effectively made such disclosure via Sudesh’s 29/1/19 Affidavit. Thus, the Law Society’s submission that Mr de Souza intended to assist Amber in suppressing evidence from the court must have meant that either the entire L&L team was in on Amber’s ploy to conceal evidence from the court, or that Mr de Souza went off on his own to assist Amber in its deception on the court. However, there was no evidence to support either hypothesis.

The C3J was also unpersuaded that Mr de Souza’s failure to append the Reports to Sudesh’s 29/1/19 Affidavit indicated that he intended to assist Amber in suppressing its breach of the Search Order Undertaking. The non-annexation of the Reports was not, in itself, strong evidence for the issue of whether Mr de Souza had intended to assist Amber in suppressing its breach of the Search Order Undertaking. Furthermore, the place to disclose the facts, both favourable and adverse, is in the body of the affidavit and not in the exhibits, especially in this case where the exhibits to Sudesh’s 29/1/19 affidavit were highly voluminous.

The C3J considered that Mr de Souza’s failure to inform the SAR at the 23/1/19 PTC regarding Amber’s breach of its Search Order Undertaking also did not assist the Law Society’s case. The omission had caught the CA’s attention because the CA was concerned that SUM 484 was Amber’s ploy to secure itself more time to obtain more information about the criminal conduct of the Defendants. However, the C3J rejected this view of Amber’s actions, holding that DT correctly found that the evidence conversely suggested that Amber’s request for an extension of time to complete the Listing Exercise at the 23/1/19 PTC was genuine. In the absence of the ploy, whatever insinuation aimed at Mr de Souza’s failure to disclose Amber’s breach of its Search Order Undertaking to the court at the 23/1/19 PTC would go away, and this failure was not probative of an intent to assist Amber suppress evidence on Mr de Souza’s part.

The C3J also accepted Mr de Souza’s submission that he had no duty to disclose Amber’s breach of its Search Order Undertaking at the 23/1/19 PTC. The 23/1/19 PTC was concerned with the Defendants’ request for a penal notice to be inserted at the end of the draft order for Ms Lim and UrbanRX’s application to set aside the Search Orders, and Amber had not waived solicitor and client privilege as at the date of the 23/1/19 PTC. Mr de Souza owed Amber a duty of confidentiality and was, in light of Mr Sudesh’s unwillingness to disclose Amber’s breach of its Search Order Undertaking, not at liberty to unilaterally disclose Amber’s breach to the court at the 23/1/19 PTC.

C. Whether Sudesh’s 29/1/19 Affidavit had suppressed Amber’s breach of its Search Order Undertaking

The C3J found that Sudesh’s 29/1/19 Affidavit did not suppress Amber’s breach of its Search Order Undertaking. Sudesh’s 29/1/19 Affidavit sufficiently admitted that Amber had made use of prior information from the Documents in breach of its Search Order Undertaking to the court. In this manner, it disclosed Amber’s prior breach of its Search Order Undertaking to the court such that this fact could not have been said to be suppressed from the court.

While the Charge was directed at the fact that the Reports and the supporting documents made to the Authorities were not annexed to Sudesh’s 29/1/19 Affidavit, the more important question was whether the body of Sudesh’s 29/1/19 Affidavit had already revealed Amber’s breach of its Search Order Undertaking. If it did, even the inclusion of the Reports as exhibits without explanation in a voluminous affidavit would be of little or no assistance to a court reading the affidavit as the Reports would be buried. Thus, the omission to exhibit the Reports would not be critical.

Written by: Neo Winkyi, 2^nd-Year LLB student, Singapore Management University Yong Pung How School of Law.
Edited by: Ong Ee Ing, Singapore Management University Yong Pung How School of Law.