Chief Registrar v Titoko [2022] FJILSC 3 (21 January 2022)

IN THE INDEPENDENT LEGAL SERVICE COMMISSION
AT SUVA

ILSC CASE NO. 001 OF 2019

BETWEEN : CHIEF REGISTRAR

APPLICANT

AND : SEMI TITOKO

RESPONDENT

Counsel : Ms V Prasad for the Applicant

Mr D Toganivalu for the Respondent

Date of Decision: 21 January 2022

DECISION

The Allegations

[1] The legal practitioner is charged with ten counts of professional misconduct as follows:

Count 1
Representative Count
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, principal of Qarcia Barristers & Solicitors and Trustee of Qarcia Barristers & Solicitors Trust Account kept with WESTPAC Bank, Rakiraki Branch, bearing Account Number 9804945369, between the 25^th day of September, 2017 to date, failed to ensure that the trust monies from the proceeds of sale of CT No. 42310 on Lot 2 on DP No.10460 that Tara Devi was entitled to receive, were not utilized for unauthorized purposes, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 2
Representative Count
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, principal of Qarcia Barristers & Solicitors and Trustee of Qarcia Barristers & Solicitors Trust Account kept with WESTPAC Bank, Rakiraki Branch, bearing Account Number 9804945369, between the 25^th day of September, 2017 to date, failed to ensure that the said Trust Account was not overdrawn, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 3
Representative Count
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, since the 25^th day of September 2017 until to date whilst acting for both the vendor, TARA DEVI and the purchaser, MONISHA KUMAR, for the sale of CT No. 42310 on Lot 2 on DP No. 10460 for a consideration sum of $232,000 failed to disburse to TARA DEVI the remaining sum of $130,000 that she was entitled to receive from the proceeds of sale of the said property, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 4
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, by way of a letter dated 20^th of March, 2018 provided false information to the Office of the Chief Registrar that all monies of transfer had been paid to TARA DEVI, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 5
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, by way of a letter dated 12^th of April, 2018 provided false information to the Office of the Chief Registrar that the sum of $6960 paid by MONISHA KUMAR was for the full fees for the transfer of CT No. 42310 on Lot 2 on DP No. 10460, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 6
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, on the 7^th day of May 2018, provided false information to the CHIEF REGISTRAR during a meeting that all monies of transfer had been paid to TARA DEVI, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 7
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, on the 3^rd day of April, 2018 made a false document by forging the signature of TARA DEVI on a payment voucher number 0029, with the intention that the payment voucher will be used dishonestly to show that TARA DEVI has received the sum of $130,000, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 8

Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, on the 18^th day of October 2017, made a false document by forging the signature of TARA DEVI on a payment voucher number 0024, with the intention that the payment voucher will be used dishonestly to show that TARA DEVI has received the sum of $100,000, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 9
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, on the 18^th day of October, 2017 made a false document by forging the signature of TARA DEVI on an unnumbered payment voucher, with the intention that the payment voucher will be used dishonestly to show that TARA DEVI has received the sum of $2000, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Count 10
Statement of Offence

Professional Misconduct: Contrary to section 82 (1) (b) of the Legal Practitioners Act 2009.

Particulars of Offence

Semi Titoko, a legal practitioner, on the 1^st day of June, 2018, placed undue influence on TARA DEVI to enter into an Agreement in order to release the remaining sum of money that TARA DEVI was entitled to receive from the proceeds of sale of CT No. 42310 on Lot 2 on DP No. 10460, which conduct constitutes professional misconduct pursuant to section 82 (1) (b) of the Legal Practitioners Act 2009 which would if established justify a finding that the said Semi Titoko is not a fit and proper person to engage in legal practice.

Professional Misconduct

[2] The statutory definition of professional misconduct includes:

conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice, or that the law firm is not fit and proper to operate as a law firm (section 82 (1) (b) of the Legal Practitioners Act 2009).

Burden and Standard of Proof

[3] The onus is on the Chief Registrar to prove the allegations on the balance of probabilities. In other words, it is for the Chief Registrar to establish that it is more likely than not that the practitioner engaged in the alleged conduct that justify a finding that practitioner is not a fit and proper person to engage in legal practice.

Evidence led by the Chief Registrar

[4] At the hearing, the Chief Registrar led evidence from four witnesses. The practitioner gave evidence on his defence. Both parties rely upon documents tendered by consent and the following agreed facts:

The Respondent, Mr Semi Titoko was the Principal of Qarcia Barristers & Solicitors, Trustee and sole signatory of Qarcia Barristers and Solicitors Trust Account kept with Westpac Bank, Rakiraki branch bearing account number 9804945369, at the time of the alleged incident.

The complainant in this matter is Ms. Tara Devi of Wairuku, Rakiraki (hereinafter referred to as “the complainant”).

The complainant was the vendor in a sale and purchase transaction of property comprised and described as Certificate of Title 42310 as Lot 2 on deposited plan No. 10460 part of Waiqumu & Covoka (hereinafter referred to as ‘’the property).

The purchaser of the property was Ms. Monisha Kritika Kumar of Wairuku, Rakiraki (hereinafter referred to as ‘’the purchaser’’).

The sale price of the property was in the sum of $232,000.

The property was transferred to the purchaser on the 20^th of December 2017.

A sum $400 was paid to William, a staff of the Respondent, out of which, $300 was for the lodgment fees of capital gains tax and $100 was for service charge.

The purchaser deposited a sum of $222,750 in the trust account of the Respondent on the 25^th of September 2017.

On the 18^th of October 2017, 2 separate deposits in the sum of $2000 and $100,000 all to the total sum of $102,000 were made into the complainant’s bank account kept at the Bank of Baroda bearing account number 91070100006613.

Notices

Notices pursuant to sections 104 and 105 of the Legal Practitioners Act 2009 in relation to Ms. Monisha Kumar’s complaint served on the Respondent 15^th of March 2018.

Notices pursuant to 104 and 105 of the Legal Practitioners Act 2009 in relation to Ms. Tara Devi’s complaint were served on the Respondent on the 15^th of March 2018.

Notice pursuant to section 108 of the Legal Practitioners Act 2009 in relation to Ms. Monisha Devi’s complaint was sent to the Respondent on the 20^th of March 2018.

The Respondent provided a response to the Applicant’s Office on the 20^th of March 2018, in relation to Ms. Monisha Kumar’s complaint.

The Respondent provided a response to the Applicant’s Office on the 20^th of March 2018, in relation to Ms. Tara Devi complaint by stating that all money of transfer had been paid to Ms. Devi.

On the 29^th of March 2018, the Applicant’s Office sent a letter to the Respondent to seek further explanation in relation to Ms. Tara Devi’s complaint.

The Respondent provided a response to the letter dated 29^th of March 2018 to the Applicant’s Office on the 18^th of June 2018 in relation to the complaint of Ms. Tara Devi.

[5] The complainant, Tara Devi’s evidence is that she engaged the legal practitioner to carry out a conveyancing transaction for the sale of her property to one Monisha Kumar. The practitioner acted for both the vendor and the purchaser. The sale price was $232,000.00. The Sale and Purchase Agreement and the Transfer documents were signed at the practitioner’s office. Ms Devi said that when she signed the documents the practitioner was not present and that only his staff was present in the office. She was informed that the legal practitioner was going to sign the documents later.

[6] The Sale and Purchase Agreement and the Transfer documents are part of the Agreed Documents. Both documents are dated 13 July 2017. Both documents contain the signatures and initials of the parties and the legal practitioner.

[7] Clause 3 of the Sale and Purchase Agreement reads:

Price and Deposit

The sum of $10,000.00 (TEN THOUSAND DOLLARS) is paid as the Deposit and the balance sum $222,000.00 (TWO HUNDRED AND TWENTY TWO THOUSAND DOLLARS) will be paid. The full purchase price for the said property shall be $232,000.00, shall be paid and satisfied by the Purchaser to the Vendor upon stamping and registration of Transfer of Certificate of Title 42310 on settlement date.

[8] The Agreement also contained a standard settlement clause of 90 days to settle or such other date as may be mutually agreed in writing between the parties (Clause 5).

[9] There is also in the Agreed Bundle of Documents a receipt dated 7 July 2017 by Qarcia Barristers and Solicitors showing the firm has received a fee of $750.00 for transfer of CT 42310 from the purchaser, Monisha Kumar.

[10] It is not clear when the settlement took place, but the bank statements of Qarcia Barristers & Solicitors Trust Account (Applicant’s Exhibit No 4) show the following transactions:

3 August 2017 Balance - $144.83

25 September 2017 Deposit Monisha - $222,740.00

Thereafter, the following withdrawals are noted:

27 September 2017 - $30,000.00

18 October 2017 - $100,000.00

18 October 2017 - $2,000.00

31 October 2017 - $30,000.00

17 November 2017 - $35,000.00

6 December 2017 - $25,800.00

Balance as of 6 December 2017 $84.83

[11] Ms Devi said that she received two separate payments in the sum of $100,000.00 and $2000.00 for the sale of her property from the practitioner on 18 October 2017. The money was deposited in Ms Devi’s account at the Bank of Baroda. The bank statements of Qarcia Barristers and Solicitors Trust Account and Ms Devi’s Bank of Baroda Account support Ms Devi’s account.

[12] While Ms Devi confirmed receiving a total sum $102,000.00 from the proceeds of the sale of her property, she said that she did not sign the two payment vouchers of Qarcia Barristers and Solicitors that show receipt of money by her. She said that the purported signature on the two payment vouchers is not hers.

[13] Ms Devi’s evidence is that the practitioner avoided her every time she visited his office for the balance of the proceeds of the sale of her property. She said that his staff gave her numerous excuses for the practitioner’s unavailability in the office.

[14] On or about 4 January 2018, Ms Devi filed a complaint against the practitioner with the Chief Registrar (Agreed Document).

[15] On or about 18 February 2018, Ms Devi made a formal complaint in writing against the practitioner with the Fiji Independent Commission Against Corruption (Agreed Document).

[16] On 12 March 2018, the Chief Registrar brought Ms Devi’s complaint to the attention of the practitioner and gave him notice of the investigation against him. The Chief Registrar also gave the practitioner 7 days to respond to the complaint.

[17] On 29 March 2018, the Chief Registrar informed the practitioner in writing not to practice law as he had not renewed his practising certificate.

[18] On or about 3 April 2018, Ms Devi said that she signed a letter withdrawing her complaint against the practitioner to the Chief Registrar. She said that the practitioner wrote the letter and induced her to sign it if he was to release the balance of the proceeds of the sale of her property to her. Ms Devi said that she signed the letter because she wanted her money.

[19] Ms Devi said that she was called to collect a cheque from the practitioner’s office. When she went to the office, an employee of the firm handed her a cheque dated 3 April 2018 in the sum of $130,000.00. She said that the employee told her to hold on to the cheque and wait for their instructions before cashing the cheque. She said that she contacted the practitioner regarding the cheque but he also told her to hold on to the cheque and not to deposit it. She said that she did not know the reason why the practitioner did not want her to cash the cheque.

[20] Ms Devi said that she deposited the cheque in her Bank of Baroda account, but that cheque was returned to her due to lack of funds in the Qarcia Barristers and Solicitors Trust Account.

[21] Mr Dharvish Chand from the Bank of Baroda gave evidence that Ms Devi deposited a Westpac cheque in the sum of $130,000.00 into her account on 8 June 2018. Westpac returned that cheque to Bank of Baroda with a note ‘refer to the drawer’, meaning refer to Qarcia Barristers and Solicitors Trust Account. Mr Chand returned that cheque to Ms Devi on 15 June 2018.

[22] Ms Devi said that when she contacted the practitioner regarding the dishonored cheque, he got really angry at her for depositing the cheque. She said that as of to date she has not received the balance of the proceeds of sale in of her property from the practitioner in the sum of $130,000.00.

[23] As part of the investigation by the Chief Registrar, the transaction details of Qarcia Barristers & Solicitors Trust Account for the period 1 January 2016 to 30 September 2018 were obtained from Westpac by the LPU’s Investigator, Sanjay Singh. The bank statement is an agreed document.

[24] Mr Avneel Chand was assigned by the Chief Registrar to look into the complaints against the practitioner by Ms Devi and Ms Kumar. Both complaints related to the sale and purchase of Ms Devi’s property.

[25] Ms Kumar was exempted from paying stamp duty for the purchase of Ms Devi’s property (Agreed Document). As a result, there was a tax refund of $6,965.00 made to Ms Kumar (Agreed Document). That refund was collected by Qarcia Law and Ms Kumar’s complaint was that the practitioner did not pass on the refund to her.

[26] Ms Devi’s complaint was that the practitioner had failed to release the entire proceeds of the sale of her property to her.

[27] Mr Chand said he referred the complaints to the practitioner and called for a response from him as required by the Legal Practitioners Act.

[28] The practitioner’s responses to the complaints were brief. Both responses are in writing and dated 20 March 2018.

[29] In response to Ms Kumar’s complaint, the practitioner wrote:

Re: Notice – Section 105 of the Legal Practitioners Act 2009

Complaint by Monisha Kritika Kumar- Ref no.003/18

I, refer to the above and state that the title transfer document of Monisha Kritika Kumar has been send to her at New Zealand.

Signed

Semi Titoko

[30] In response to Ms Devi’s complaint, the practitioner wrote:

Re: Notice – Section 105 of the Legal Practitioners Act 2009

Complaint by Tara Devi - Ref no.044/18

I, refer to the above and state that all Money of transfer has been paid to Tara Devi.

Signed

Semi Titoko

[31] On 12 April 2018, the practitioner gave a further explanation in writing to the Chief Registrar regarding Ms Kumar’s complaint. The explanation reads:

Re: Notice – Section 105 of the Legal Practitioners Act 2009

Complaint by Monisha Kritika Kumar Re No. 003/18

I refer to the above.

That client Monisha Kritika Kumar had paid in the sum of $750.00 as the deposit of transfer between her and Tara Devi and that $6960.00 was the full fees for the transfer as agreed by the client and also included are the disbursement and travelling fee.

Signed

Practitioner

[32] Mr Chand said that they called for further explanations supported by documents from the practitioner but he did respond.

[33] Eventually the practitioner did release the tax refund to Ms Kumar and that complaint was settled.

[34] Mr Chand said that in May 2018 the practitioner attended a meeting with him and the Chief Registrar with the view to resolve Ms Devi’s complaint against him. The practitioner was informed to bring the supporting documents to the meeting to confirm his claim that he had released the entire proceeds of the sale of property to Ms Devi.

[35] Mr Chand said that the practitioner brought some documents with him to the meeting and that one of the documents was a letter signed by Ms Devi withdrawing her complaint against the practitioner. The practitioner maintained that he had released the entire proceeds of the sale of property to Ms Devi.

[36] Mr Chand said that when she contacted Ms Devi regarding her withdrawal letter she informed him that the practitioner induced her to sign the letter to release her money. She said that the practitioner gave her a cheque that was later dishonored.

[37] Mr Chand also tendered his self-recorded statement dated 13 December 2018 as exhibit 3.

[38] The Chief Registrar filed the current charges against the practitioner on 4 January 2019.

[39] The practitioner in his evidence denies the allegations.

[40] The practitioner said that he had paid Ms Devi the entire proceeds of the sale of her property. He admits that the signature on the cheque in the sum of $130,000.00 is his. He said that the payment of this cheque was facilitated by his clerk, Aporosa Ratuveikau, as he was busy campaigning for the election in 2018. He said that Aporosa was also known as William.

[41] When the practitioner was asked to explain the withdrawal transactions that occurred shortly after $222,740.00 was deposited in his trust account, he said that he had only signed one blank cheque and gave it to William who was going to do the transactions. The practitioner denies signing cheques in the sum of $100,000.00 and $2,000.00. The practitioner denies instructing William to advise Ms Tara Devi of payments of $100,000.00 and $2000.00 into her account. The practitioner said that neither did he instruct William to make those payments nor did he sign any authority for the payment vouchers dated 18 October 2017. The practitioner further denies forging Tara Devi’s signature on the payment vouchers.

[42] The practitioner denies preparing the purported agreement dated 1 June 2018 at page 73 of the Agreed Bundle promising to pay Tara Devi $130,000.00 held in his trust account. He said that the agreement could have been prepared by his clerk. He said that his purported signature on this agreement is forged. The practitioner denies forging Tara Devi’s signature on the payment voucher for $130,000.00.

[43] The practitioner said that he informed the Chief Registrar that Tara Devi had been paid the entire proceeds from the sale of her property because his clerk William told him that Tara Devi had been paid. The practitioner said that he came to know that Tara Devi had not been paid in full the proceeds of the sale of her property when the police commenced criminal investigations against him.

[44] The practitioner said that he is facing fraudulent conversion and attempt to pervert the cause of justice charges arising from Tara Devi’s complaint. His former clerk (William) is charged with aiding and abetting the practitioner with fraudulent conversion by trustee. The practitioner said that he could not ascertain from William what he had done with Tara Devi’s money because he had lost contact with him. The practitioner tendered the charge sheet as RE 1. The practitioner said that he is contesting the criminal charges against him.

[45] The practitioner was cross-examined on a document (Agreed Bundle page 65) that he had provided to the Chief Registrar, stating that he had agreed to represent both Monisha Kumar and Tara Devi and that upon execution of the Sale and Purchase Agreement the ‘clients paid $750.00 cash in office’. The practitioner maintained that he only represented Monisha Kumar and that Tara Devi was in person.

[46] The practitioner admitted that he had received a refund of stamp duty exemption in the sum of $6,960.00. He stated that the money was to be taken as his fees. He said that he only returned the money to Monisha Kumar on the Chief Registrar’s instruction after he commenced an investigation against him.

[47] The practitioner did not deny receiving emails in the month of March 2018 from Monisha Kumar requesting him to return her the stamp duty refund.

[48] The Chief Registrar had also followed up with the practitioner regarding the complaints against him and an email sent to the Chief Registrar from the practitioner’s email address on 26 March 2018 stated:

We have replied to LPU last week stating the money has all been PAID TO TARA

[49] When the practitioner was cross-examined whether he had enquired with the bank when he learnt about the possibility of forgery in relation to his trust account, his response was that he trusted his clerk who was responsible for conveyancing.

[50] Under cross-examination, the practitioner admitted that he was responsible for the trust account as a trustee and signatory and that it was his duty to ensure that his clients’ monies were not used for other purposes. He said that he trusted his clerk and that in 2018 he was busy campaigning for the election. The practitioner said that his clerk carried out the reconciliations of his trust account after receiving the bank statements. The practitioner said that he did not know that his trust account did not have sufficient balance when he wrote the cheque in the sum of $130,000.00 to be given to Tara Devi. He said that he prepared the cheque and gave it to his clerk to give to Tara Devi. He denied that he spoke to Tara Devi when she called to complain that the cheque was dishonored.

[51] When the practitioner was cross-examined on his written response to the Chief Registrar regarding Tara Devi’s complaint (Agreed Bundle page 71), the practitioner responded ‘but, I can’t say that’s my signature or not’. The written response was provided in the firm’s letterhead as follows:

18^th June 2018

The Chief Registrar

RECEIVED

18 June 2018
Chief Registrar’s
Legal Practitioners Unit

High Court of Fiji

Suva

Dear Sir,

Attention: Mr Avneel Chand – Legal Practitioners Unit

Re – Tara Devi Complaint

We have received your e-mail and apologies for the late response as I was sick.

We deny all allegations by Tara Devi as they are false and misleading.

That we had entered into a contract with Tara Devi on the 1^st June 2018 (attached copy of agreement) in which we were going to pay Tara her money $130,000 in which we had written a cheque and gave it to her prior to signing of such agreement with a piece of quarter acres of land at Denarau Road, Nadi worth $130,000.00 which she had instructed us that her money with us to be the deposit of such Denarau quarter acres land to be on hold and that she will return us our cheque for such matter in purchasing the land at Denarau.

We had also agreed that $5,000.00 will be paid by us for her stamp duties at FIRCA as to the Denarau land and further we agreed that we will assist her to build a new house at Wairuku, Rakiraki and support her financially in such building of her house at Wairuku, Rakiraki which in having her intention known, she signed the agreement without any further hesitation.

We did not know that she had deposited the cheque until you emailed us as she was well aware and agreed to have returned her cheque for the payment for her land at Denarau road, Nadi and on her instruction to hold the money as her payment, she was liable to sue or be sued under such agreement which she is well aware of after being explained of such agreement and with her intention to be known, she signed the agreement.

Sir, we will soon be advising our legal counsel to sue Tara Devi for defamation and any other legal civil remedy as what she had informed your office is false and misleading for ewe had not said anything like that to her as this is a civil matter now.

Thank you sir

QARCIA BARRISTERS & SOLICITORS

Signed

Per: ..........................

SEMI TITOKO

[52] On further cross-examination, the practitioner denied even writing the above letter of response to Tara Devi’s complaint to the Chief Registrar. He maintained that he prepared the cheque of $130,000.00 and gave it to his clerk to give to Tara Devi.

Analysis

[53] In his closing submissions, Mr Toganivalu on behalf of the legal practitioner concedes that there is sufficient evidence to prove the allegations contained in counts three, four and five. However, I have a duty to independently assess all the evidence to determine whether the allegations have been proven because the legal practitioner contested the allegations.

Counts 1-3

[54] The first three counts are founded on the same facts. It is not in dispute that the practitioner received a sum of $232,000.00, being proceeds of sale of Tara Devi’s property. The practitioner held that money on trust for Tara Devi. I find that both Monisha Kumar and Tara Devi were the clients of the practitioner. I accept Tara Devi’s evidence that she had only received $102,000.00 from the sale of proceeds of her property held in trust by the practitioner and that she had not been paid the balance sum of $130,000.00 as of to date.

[55] It is clear from the bank statement (Applicant’s Exhibit 4) that immediately before a deposit of $222,740.00 was made in the trust account on 25 September 2017, the account balance was $144.00. Within two days of that deposit, on 27 September 2017, $30,000.00 was withdrawn from the trust account without the authority of either Monisha Kumar or Tara Devi. In essence, $30,000.00 was taken from the proceeds of the sale of Tara Devi’s property without the authority of the client. Between 18 October 2017 and 6 December 2017, five more withdrawals were made from the trust account, of which Tara Devi received the two payments in the sum of $100,000.00 and $2000.00. The remaining three withdrawals were made without the knowledge or authority of Monisha Kumar or Tara Devi.

[56] The property was transferred to the purchaser on 20 December 2017. But by 6 December 2017, the trust account was overdrawn with a balance below $100.00. Clearly the proceeds of sale of Tara Devi’s property held in trust by the legal practitioner were withdrawn without the authority of either Monisha Kumar or Tara Devi before the settlement took place.

[57] In that regard, the practitioner is facing four counts of fraudulent conversion by trustee arising from the withdrawals made from the trust account. The practitioner’s clerk is facing four charges of aiding and abetting conversion by trustee of the same funds. The truth of the criminal charges is a matter for the criminal court. As far as the disciplinary charges are concerned, the rules of evidence are relaxed and the standard of proof is the civil standard of proof.

[58] The practitioner’s defence to the allegation contained in count one is that the charge is defective because the evidence shows that the trust funds were used for unauthorized purposes by the practitioner’s clerk, who is charged with depositing funds into his personal bank account. I do not think the charge is defective.

[59] The conduct alleged on count one is that the practitioner failed to ensure that the trust funds held by him as a trustee were not utilized for unauthorized purposes. Proceeds from Tara Devi’s sale of property held by the practitioner as a trustee were withdrawn, but not given to Tara Devi.

[60] Sections 3-10 of the Trust Accounts Act 1996 sets out the responsibilities and duties of a legal practitioner operating a trust account. Section 6 of the Trust Accounts Act expressly sets out the responsibilities pertaining to withdrawals of moneys from trust account as follows:

(1) A trustee shall not withdraw moneys from a trust account except for the following purposes:-

(a) payment to the person on whose behalf the moneys are held or in accordance with that person's directions;

(b) payment to the trustee of disbursements properly paid by the trustee on behalf of the client in question. Disbursements shall be deemed to have been paid on the day the cheque in payment of the disbursement has left the possession and control of the trustee, and the trustee has no reason to believe that the cheque will not be paid on presentation;

(c) payment to the trustee for professional costs in the following circumstances:-

(i) where the payment is supported by authorization in writing by the person on whose behalf the moneys are held. Where the authorization is not specific as to the amount to be paid, the trustees shall forward an account to the client in question prior to making such payment;

(ii) in payment of an account which has been delivered to the client and at the expiration of 30 days after delivery no evidence exists of any objection by the client to the quantum thereof;

(iii) where payments in the trust account were received by the trustee in payment or part payment of an account previously rendered to the client in question;

(d) payment that is otherwise authorized by statute or made pursuant to an order of the Court.

(2) A trustee shall not withdraw any moneys from a trust account for the purpose of making an investment of such moneys (including, without limiting the generality hereof, a deposit with a financial institution, a loan, or government securities) save in accordance with the written authority of the person entitled to such moneys. The word “investment” in this sub-section shall include the payment for any land, chattels or livestock in the name of the person for whom or on whose behalf the moneys were paid into the trust account.

[61] Section 7 of the Trust Accounts Act 1996 sets out the method of payment from trust account and the method is mandatory:

(1) A trustee shall not cause any payment to be made from a trust account unless the payment is made by the trustee’s cheque or by a cheque drawn by a bank, crossed and marked on its face “not negotiable” and payable to order.

(2) Cheques drawn on a trustee’s trust account shall be drawn on cheque forms having on the face thereof a direction to pay to order, a crossing “not negotiable” and the words "Trust Account".

(3) Where a trustee purchases a cheque drawn by a bank, and make payment for that cheque by the trustee's cheque, the trustee’s cheque shall have endorsed on the back thereof the intended payee of the bank’s cheque, and such endorsement shall be signed by an authorized signatory of the trust account.

(4) No person shall be a signatory to a trust account unless that person is a legal practitioner entitled to practice on his or her own account, or approved by the Law Society on such conditions, if any, as it may decide.

[62] Section 83 (1) (h) of the Legal Practitioners Act states that professional misconduct includes conduct of a legal practitioner consisting of a contravention of the provisions of the Trust Accounts Act 1996.

[63] The practitioner said that he prepared the cheque for Tara Devi and relegated the responsibility to his clerk to pay Tara Devi. He said that he was not aware of the other unauthorized withdrawals from the trust account or that the trust account had been overdrawn.

[64] However, under the Trust Accounts Act the legal practitioner was responsible for the operation of the trust account. It was his duty to ensure that the trust funds held by him on behalf of his client, Tara Devi were not withdrawn without her authority, or that the trust account was not overdrawn or that the trust moneys were disbursed to the rightful beneficiaries. The practitioner cannot relegate his responsibilities under the Trust Accounts Act to his clerk who is not a legal practitioner, in order to avoid liability (CR v Haroon Ali Shah ILSC Case No 007 of 2011 para 37).

[65] On count one, I am satisfied that it is more likely than not that the legal practitioner failed in his duty as trustee to ensure that the trust moneys from the sale of proceeds of Tara Devi’s property were not withdrawn and utilized for unauthorized purposes, and that he is not a fit and proper person to engage in legal practice. The allegation in count one is established.

[66] On count two, I am satisfied that it is more likely than not that the legal practitioner failed in his duty as a trustee to ensure his trust account was not overdrawn, and that he is not a fit and proper person to engage in legal practice. The allegation on count two is established.

[67] On count three, I am satisfied that it is more likely than not that the legal practitioner failed in his duty as a trustee to disburse to Tara Devi the entire proceeds of sale of her property held in his trust account, and that he is not a fit and proper person to engage in legal practice. The allegation in count three is established.
Counts 4-6

[68] Counts four, five and six are based on the same facts. The allegations are that the legal practitioner provided false information to the Chief Registrar in response to the complaints made against him by Monisha Kumar and Tara Devi.

[69] I accept the evidence of Tara Devi that she filed a complaint against the legal practitioner with the Chief Registrar after exhausting her avenues to get the practitioner to pay the balance sum of the proceeds of sale of her property held in his trust account. I accept her evidence that she relentlessly tried to get her money from the practitioner but he avoided her and did not make contact with her.

[70] I accept the evidence of Avneel Chand that on 20 March 2018, the Office of the Chief Registrar received a response in writing from the legal practitioner after he was served with a notice of investigation and asked to respond to Tara Devi’s complaint against him. The practitioner’s response was that he had paid Tara Devi the entire proceeds of sale of her property.

[71] I accept the evidence of Avneel Chand that the legal practitioner in a meeting held in May 2018 to clarify his response to Tara Devi’s complaint provided further information, maintaining that he had paid Tara Devi the entire proceeds of sale of her property.

[72] The practitioner claims that his responses to Tara Devi’s complaint were based on what he was advised by her clerk. However, I do not accept that when the legal practitioner responded to Tara Devi’s complaint he honestly believed that Tara Devi had been paid the entire proceeds of sale of her property. The practitioner in his own evidence has said that he had not communicated with Tara Devi during the period when she was relentlessly trying to get the practitioner to release the proceeds of the sale of her property to her.

[73] The practitioner was required to provide a reasonable and satisfactory response to the complaint against him. There is no evidence that he carried out a due diligence inquiry into Tara Devi’s complaint before asserting that he had paid her the entire proceeds of sale of her property. I find the statement made by the legal practitioner to the Chief Registrar that he had paid Tara Devi the entire proceeds of sale of her property was false and that the legal practitioner knew that he was making a false assertion to the Chief Registrar.

[74] I accept the evidence of Avneel Chand that on 20 March 2018, the Office of the Chief Registrar received a response in writing from the legal practitioner after he was served with a notice of investigation and asked to respond to Monisha Devi’s complaint that the legal practitioner was not releasing the stamp duty refund in the sum of $6960.00 on the purchase of the property despite numerous requests to him to do so. The practitioner’s response to Monisha Kumar’s complaint was that the sum of $6960.00 was his legal fees.

[75] However, the practitioner knew $6965.00 was a refund of stamp duty paid to Monisha Kumar on the purchase of the property. Monisha Kumar had not agreed to pass on that refund to the legal practitioner as his legal fees. Instead she had paid the legal practitioner his legal fees when she gave instructions to him to carry out the conveyancing. When the Chief Registrar confronted the legal practitioner with Monisha Kumar’s emails requesting him to release the stamp duty refund to her, the practitioner refunded the money to her. I find that the practitioner did not honestly believe that he could keep the stamp duty refund as legal fees, and therefore, his assertion to the Chief Registrar that the said sum of money was his legal fees was false.

[76] On counts four, five and six, I am satisfied that it is more likely than not that the legal practitioner provided false information to the Chief Registrar in response to the complaints against him by Tara Devi and Monisha Kumar, and that he is not a fit and proper person to engage in legal practice. Counts four, five and six are established.

Counts 7-9

[77] Counts seven, eight and nine are allegations of similar character. The allegations are that the legal practitioner forged Tara Devi’s signature on three separate payment vouchers. There is no direct evidence of forgery. The circumstantial evidence of forgery is thin. I accept Tara Devi’s evidence that she did not sign the three payment vouchers. Her evidence is that she was mostly communicating with the legal practitioner’s employees and in particular William regarding the release of her money. I am satisfied that it is more likely than not that Tara Devi’s signature on the three payment vouchers was forged but I am not so satisfied that it is the legal practitioner who forged the signature. The allegations on counts seven, eight and nine are not established.

Count 10

[78] On count ten, I accept the evidence of Tara Devi that after she filed a complaint against the legal practitioner with the Chief Registrar, she was called to the practitioner’s office and made to sign a letter of withdrawal of her complaint in return for the payment of the balance of the money in the sum of $130,000.00 held by the legal practitioner. Tara Devi signed the document and collected the cheque dated 3 April 2018 in the sum of $130,000.00. However, when she deposited the cheque in her account, the cheque was dishonored and returned.

[79] I accept Tara Devi’s evidence that when she contacted the legal practitioner regarding the dishonored cheque, he got really angry at her for depositing the cheque.

[80] I do not accept the legal practitioner’s evidence that he did not place any undue influence on Tara Devi to withdraw her complaint against him. The practitioner had both motive and opportunity to influence Tara Devi to withdraw her complaint against him. The legal practitioner knew that Tara Devi’s complaint that he had not paid her the entire proceeds of sale of her property had merits.

[81] I am satisfied that it is more likely than not that the legal practitioner placed undue influence on Tara Devi to withdraw her complaint against him, and that he is not a fit and proper person to engage in legal practice. The allegation contained in count ten is established.

Result
[82] The findings of the Commission, in summary, are:

Allegations of Professional Misconduct as per counts one, two, three, four, five, six and ten are established.

Allegations of Professional Misconduct as per counts seven, eight and nine are not established.

. ...........................................
Hon. Mr Justice Daniel Goundar

COMMISSIONER
Solicitors:
Legal Practitioners Unit for the Applicant.
Toganivalu Legal for the Respondent.