Apex court reverses decision to refer LKY's lawyer to disciplinary tribunal

The Court of Appeal has reversed a High Court decision that required the Law Society to refer lawyer Kwa Kim Li to a disciplinary tribunal over a complaint that she failed to destroy the prior wills of founding prime minister Lee Kuan Yew.

The five-judge panel, led by Chief Justice Sundaresh Menon, found there was no evidence to suggest that Mr Lee had intended for those earlier wills to be destroyed physically, so long as they had been properly invalidated.

In its judgment released yesterday, the apex court also ruled that the Law Society council was well within its rights to ask the inquiry committee scrutinising the complaints to take a second look at its recommendations.

Under the law, complaints to the Law Society against lawyers are examined by an inquiry committee, which then recommends if the matter should be formally investigated by a disciplinary tribunal.

In 2019, the Law Society received four complaints by Mr Lee Hsien Yang and Dr Lee Wei Ling against Ms Kwa over her handling of their late father's will.

The inquiry committee convened said in May 2020 that two of the complaints warranted further disciplinary proceedings. But it issued a second report in August dismissing one of them, following the Law Society's request that it relook the case, and after it had heard Ms Kwa's explanations.

The Law Society proceeded on one complaint, which prompted an appeal by the two younger children of the late prime minister, who are executors of his estate.

They contended that the council had not followed procedure, as it had referred the matter to the inquiry committee twice, leading the committee to revoke one of its recommendations.

The High Court agreed with this argument and ruled last year that the disciplinary tribunal should investigate three of the complaints, one of which had to do with the allegation that Ms Kwa had failed to follow instructions to destroy Mr Lee Kuan Yew's superseded wills.

The Law Society appealed against the decision on this complaint, and in yesterday's judgment, the Court of Appeal found that the High Court judge had erred in finding that the Law Society council had no power to refer a case back for reconsideration once the inquiry committee had recommended a formal investigation.

The apex court said that based on a plain reading of Section 87 of the Legal Profession Act - which has to do with how the Law Society council should deal with an inquiry committee's report - the council is entitled to pose further queries and to invite the committee's reconsideration of a matter. This applies whether or not the committee has already made a recommendation for the matter to go to a disciplinary tribunal, the court added.

In fact, the contention that the council has no power to refer a matter back to the committee once there is a recommendation to set up a disciplinary tribunal, runs contrary to the wording of Section 87(2) of the Act, which says that the committee's report is to be "read with any response or further report", the court said.

The court also said this was in line with the intent of Parliament, when the Act was enacted in 1970 and subsequently when it was amended in 1979 and 2008.

Another issue the court had considered was whether the complaint against Ms Kwa, that she did not destroy the wills, was grave enough to merit a formal investigation by a disciplinary tribunal.

The complaint had arisen from an e-mail Ms Kwa sent to Mr Lee Hsien Yang, Dr Lee and their brother, Prime Minister Lee Hsien Loong, after their father's death in 2015, in which she stated: "Each time (Mr Lee) signed a new will, he would ask me to destroy the old will. I have managed to put together the cancelled photocopies."

Mr Lee Hsien Yang and Dr Lee contended that Mr Lee Kuan Yew had wanted Ms Kwa to physically destroy his earlier wills so there would be no remaining trace of them.

The Court of Appeal disagreed.

Ms Kwa had explained to the committee that the word "destroy" had come from her and not Mr Lee Kuan Yew, and that she had used it to refer to the act of invalidating a will, in the sense of destroying its legal force.

In front of Mr Lee, she had never physically destroyed a superseded will, and had only drawn a line through them, she had said.

She also said Mr Lee would often ask her about the contents of his previous wills, so she needed to be able to refer to the prior wills.

Based on the evidence from Ms Kwa, the inquiry committee had concluded that the documentary evidence did not show Mr Lee had expressly intended or instructed that his superseded wills should be physically destroyed.

Referring to this, the Court of Appeal said the inquiry committee's "conclusion that there is no prima facie case... was amply justified by the evidence".

The court also noted that in the 2015 e-mail in which Ms Kwa had used the word "destroy", she had attached superseded copies of the wills on which she had stamped the word "cancelled".

"She plainly did not think that (Mr Lee Kuan Yew) had instructed her to physically destroy the wills or that she was acting contrary to his instructions in retaining copies of the invalidated wills for her records," added the court.

The court also said there could be no doubt that Mr Lee knew Ms Kwa had retained old copies of his wills, which had been invalidated, since he had asked about the contents of his prior wills. "It is inconceivable that (Mr Lee Kuan Yew) imagined Ms Kwa could recall the precise contents of each of the wills by memory,"it said.