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Singh v Chief Registrar [2019] FJSC 8; CBV0002.2018 (26 April 2019)

IN THE SUPREME COURT OF FIJI
[CIVIL APPELLATE JURISDICTION]


CIVIL PETITION No: CBV 0002 of 2018
[On Appeal from Court of Appeal No: ABU 0058 of 2013]


BETWEEN:


ANAND KUMAR SINGH
Petitioner


AND:


THE CHIEF REGISTRAR
Respondent


Coram: Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Judge of the Supreme Court
Hon. Mr. Justice Frank Stock, Judge of the Supreme Court


Counsel: Mr. A. K. Singh with Ms. R. Ali for the Petitioner
Mr. A. Chand for the Respondent


Date of Hearing: 12 April 2019


Date of Judgment: 26 April 2019


JUDGMENT


Marsoof, J.


  1. I have had the advantage of perusing in draft the judgment of Stock, J and I agree with his reasoning and conclusions. I am also in agreement with the orders proposed by him.

Dep, J.


  1. I have read in draft the judgment of Stock J and I agree with his findings and the action proposed by him.

Stock, J.


Introduction


  1. The petitioner is a legal practitioner of long standing. In 2013 a former client lodged a complaint against him with the Chief Registrar (“the Registrar”) who forwarded it to the petitioner by a notice which required his answer. But the petitioner failed to respond within the time stipulated in that notice. So the Registrar sent a further notice but no substantive answer was provided in the time set by that notice. Accordingly, the Registrar initiated disciplinary proceedings before the Independent Legal Services Commission alleging that the petitioner failed within the time stipulated by notices issued by the Registrar to respond to a complaint lodged by a former client of the petitioner. The petitioner contested the allegation on the basis that he had a reasonable excuse for that failure, namely, his poor health at the material time. However, the Commissioner found the charge proved and suspended his practising certificate for two months. The petitioner failed in his appeal to the Court of Appeal and now petitions this Court for leave to appeal.
  2. The main issues raised by the petitioner are :

Background


  1. The facts fall within a narrow compass. By letter dated 14 February 2013, former clients of the petitioner lodged a complaint with the Registrar asserting that the petitioner had failed to appear for the company at two tribunal hearings and had otherwise been dilatory in the performance of his professional duties. By a notice dated 26 June 2013 the Registrar informed the petitioner that a complaint had been received pursuant to section 99 of the Act and enclosed the complaint adding that “[a]s per section 105 of the [Act] you are hereby granted twenty one (21) days from the date of receipt of this letter to furnish to the Chief Registrar’s office with a response. We wish to bring to your attention section 108 of the [Act].”[1] It seems common ground that the letter was received by the petitioner on 27th June 2013.
  2. No response was forthcoming. So by letter dated 29 July 2013, some ten days after expiry of the 21 days afforded by the June notice, the Registrar wrote again to the petitioner recording the absence of a reply and explanation and stating that the Registrar “grants you a further period of fourteen (14) days from the date of receipt of this notice to furnish the Chief Registrar’s office with a response” adding: “I bring to your attention section 108(2) of the [Act]...”
  3. That extended time limit expired on 12 August 2013. By letter dated 9 August 2013 the petitioner asked for an “indulgence in postponing my response to sometime after the 6th of September 2013,” giving as a reason for the request that he was “suffering from ill health and will be able to attend to the response after my surgery in late August 2013.” No attempt was made to address the complaint itself.

The charge


  1. The office of the Registrar did not reply and the Registrar did not extend time. Instead, he instituted disciplinary proceedings by serving a charge dated 8 October 2013. The charge reads as follows:

Count 1

PROFESSIONAL MISCONDUCT: Contrary to Section 83(1) (g) of the Legal Practitioners Decree 2009

PARTICULARS

ANAND SINGH a legal practitioner, from the 26th June 2013 till date, failed to respond to a complaint lodged by [ the client company] within the time stipulated in the notice issued by the Chief Registrar pursuant to Sections 104 and 105 of the Legal Practitioners Decree 2009, and thereafter failed to respond to a subsequent reminder notice dated 29th July 2013 issued by the Chief Registrar pursuant to Section 108(1) of the Legal Practitioners Decree 2009, which conduct was a contravention of Section 108(2) of the Legal Practitioners Decree 2009 and was an act of professional misconduct.


The hearing


  1. A hearing before the Commissioner, Madigan J, was scheduled for 17 October 2013. The petitioner did not himself attend that hearing because, so it was said on his behalf, he had “clients with him”, but he was represented by counsel. Through his counsel, he informed the Commissioner that he pleaded not guilty and that he was not prepared to admit any of the facts, not even that the relevant letters were written or received. Not surprisingly, the Commissioner took a bleak view of this stance and adjourned the hearing to 1 November 2013.
  2. At the hearing on 1 November, the petitioner attended and was again represented by counsel. The not guilty plea was maintained. On this occasion, no issue was taken about service of the notices of 26 June and 29 July and the absence of substantive responses thereto. It was not suggested that the letter of 9 August satisfied the requirement to comply with the notices. The Commissioner was, however, informed that the petitioner intended to advance a defence under section 108 (2) of the Act, namely, that he had a reasonable explanation for his failure to respond to the notices served on him by the Registrar. The reasonable explanation advanced was his poor health at the material time which was said to preclude him from providing a substantive response to the notices.
  3. In support of this defence, testimony was given by Dr Nusair, a cardiologist. The petitioner had been admitted to hospital on 6 June 2013 having suffered a heart attack and had been discharged on 14 June. He was also diabetic, suffered hypertension and other ailments. Significantly, an angiograph disclosed that two coronary arteries were diseased so he was advised to undergo by-pass surgery. He told the doctors that he wished to have that surgery performed in New Zealand. He traveled to New Zealand in time for the surgery which took place on 29 August and he was discharged from hospital the following day. On 23 September, he was admitted to hospital in Fiji for one night having experienced chest pain. Dr Nusair’s evidence was that as far as he knew there were no problems between 29 August and 23 September. A follow-up appointment was arranged for 25 October and a further angiograph arranged for mid-November. The doctor’s evidence was to the effect that in June the petitioner had been advised not to go back to work for six weeks, that when he came back from New Zealand “we did not have much objections” (to him working) “but after the 24th of September our recommendation was for him not to be engage in work.”
  4. The petitioner produced an affidavit sworn on 31 October 2013 by which he briefly stated the history of his hospitalisations in 2013 and to which he exhibited a series of medical reports. To the history thus far recounted in this judgment must be added the fact referred to in this affidavit that he departed from Fiji on 12 July 2013 to go to New Zealand for medical advice and returned “on or about 28 July 2013.” In a medical report dated 29 July, it was said that he had been advised not to engage in any type of work for at least six weeks after his heart attack and to avoid stressful mental work “(like arguing court cases)” until he had undergone and had recovered from the planned surgery. Relevantly for present purposes, one of the reports, a report by a cardiologist in New Zealand who had examined him, no doubt during his trip there in July, said that since his admission and discharge (presumably the discharge in June) the petitioner had had no further chest discomfort and that “he works as a barrister in Fiji. He has work he needs to attend to.” I say it is relevant because of its reference to anticipated work. A report from Dr Nusair dated 29 October 2013 referred to the chest pain in late September 2013 and to the planned further angiogram and the opinion was expressed that he be “exempted from strenuous mental ... jobs even in the event that we recommend him going back to work after his review in November.” It is noteworthy that no medical report had been forwarded to the Registrar with the letter of 9 August.
  5. The petitioner himself testified that upon his release he was advised “in very strict terms” to confine himself to bed, so he followed that advice and did not attend his office. He said that he did not respond to the letter of 26 June because he did not go into the office and therefore had not received it. However he conceded in cross-examination that he did appear in the Court of Appeal on 28 June and that in July “I may have appeared in some court cases but as far as the office was concerned I’d go to the office for an hour [or] two every week.” He also conceded that he had appeared in hearings in October. He explained that his various appearances were necessary because he had tried but had failed to brief out the cases in question.

Judgment


  1. Judgment by the Commissioner was issued on 7 November 2013. He stated that he accepted the medical evidence but found that in spite of instructions not to work, the petitioner had in fact worked, going to his office and briefing out cases and making regular court appearances:

“23. ... In spite of the instructions of his medical advisors, he continued to work, going to his office and briefing out files to other practitioners. He appeared regularly in Court and those appearances in Court were not just “appearances”; he was at all times filing intricately worded applications and accompanying affidavits on behalf of his client, Mr. Chaudhry and when attending Court making detailed submissions on those application which involved difficult points of law. That he was fit enough and capable enough to perform those feats is germane to his claim of reasonable excuse.

24. He had time to compose not one but several interlocutory applications, had time and capacity to draft accompanying affidavits and to draft submissions to argue those application in Court; yet he claims to be incapacitated enough to not to write one letter to the Registrar with a satisfactory explanation of the complaint made against him by a former client”.


  1. As for the letter of 9 July, it was, so the Commissioner found, a tactical device: it was dated only three days before expiry of the extended time limit; there was no supporting documentation; the reference to “surgery” was misleading since all that was envisaged was a procedure involving one overnight’s stay; even had the Registrar replied - as courtesy suggested he should have - refusing an extension, there could be no question of a meaningful response to the complaint in the scant time left; and compliance with the notices was an ongoing duty in which regard the medical evidence was that there were no problems between 24 August and 23 September and even then no response to the complaint was offered.
  2. Accordingly, the defence of reasonable excuse failed and the Commissioner found the charge proved.
  3. He then proceeded to the question of penalty : he took a starting point of three months suspension of the petitioner’s practising certificate and reduced that by one third on account of his medical condition resulting in a suspension of two months.

The appeal


  1. His appeal to the Court of Appeal was heard on13 February 2018 and judgment delivered on 8 March 2018 by which the Court dismissed the appeal. It is not necessary for present purposes to restate the grounds argued before that Court save to say that they included grounds pleaded before us. The Court dismissed the appeal.

The statutory provisions


19. The statutory provisions relevant to this petition are these:


(1) Section 83 (1) of the Act which states in so far as is pertinent that:

“ .. the following conduct is capable of being ... ‘professional misconduct’ for the purposes of this Act –

...

(g) conduct of a legal practitioner in failing to comply with any orders or directions of the Registrar or the Commission under this Act.”


(2) Section 105 (1) of the same Act which provides that:

“Upon receipt of a complaint under section 99 or commencement of an investigation under section 100, the Registrar may require that the legal practitioner or the law firm by written notice to furnish to the Registrar within the time specified in that notice a sufficient and satisfactory explanation in writing of the matters referred to in the complaint.”


(3) Section 108 of the Act which states :

“(1) Where any legal practitioner or law firm fails to comply with any notice issued under Section 105 or Section 106, the Registrar may notify the legal practitioner or law firm in writing that if such failure continues for a period of 14 days from the date of receipt of such notice, the legal practitioner or law firm will be liable to be dealt with for professional misconduct.

(2) If such failure referred to in subsection (1) continues for a period of 14 days from the date of such notification to the practitioner, such failure shall be deemed to be professional misconduct, unless the legal practitioner or law firm furnishes a reasonable explanation for such failure. In any proceedings before the Commission, the tendering of a communication or requirement from the Registrar with which the legal practitioner or law firm has failed to comply, together with proof of service of such communication or requirement, shall be prima facie evidence of the truth of the matters contained in such communication and any enclosures or annexures accompanying such communication”.


Notices, directions and orders


  1. It is contended that the findings of the Commissioner and the decision of the Court of Appeal are impugnable on the basis that the notices served on the petitioner were not orders or directions as contemplated by s 83(1) (g) of the Act and that therefore no professional misconduct was made out.
  2. The point is said to arise under section 83(1) (g) because the charge is headed “Professional Misconduct: Contrary to Section 83(1) (g) of the Legal Practitioners Decree 2009”. This heading sits uncomfortably with the fact that the professional misconduct alleged by the particulars is a contravention of section 108(2). It may be that the draftsman of the charge assumed that an allegation of professional misconduct could only be proffered if the conduct in question fell within one of the categories specified in section 83(1). Given the terms of section 108(2), such an assumption would be incorrect since section 108(2) deems failure to comply with a section 105 (or section 106) requirement to be, of itself, professional misconduct, absent a reasonable explanation for the failure. There was no need to resort to section 83(1).
  3. Such confusion as may be suggested to arise from the mis-match between the heading of the charge and the particulars resulted in no prejudice in this case. That is because the petitioner could not thereby have been misled as to the essence of the acts or omission said in his case to constitute professional misconduct – the letters to him of 26 June 2013 and 29 July 2013 specifically drew his attention to section 108(2); the particulars of the charge alleged in terms that his conduct was a breach of section 108(2); and his entire case was advanced on the basis of a defence provided by section 108(2).
  4. I would only add that even if section 83(1) were applicable, the point taken is in any event without merit for, read in context and purposively, a section 105 notice is plainly a direction. That much is evident from the fact that section 105 talks in terms of a requirement to furnish an explanation and section 108 of the need to comply with that requirement.
  5. There is a further complaint by the petitioner which may conveniently and briefly be addressed here. It is the suggestion that the Court of Appeal wrongly categorised section 108(2) as a strict liability provision. The complaint is not a sound one. Whilst in one paragraph of its judgment, that Court did say that section 108(2) imposed strict liability, that paragraph is not to be read in isolation. In the immediately preceding paragraph, the Court expressly referred to the defence of reasonable excuse. Viewed in its proper context, all that the Court of Appeal was saying when it referred to strict liability was that failure to comply with a section 105 notice was, subject to the defence of reasonable explanation, deemed to be professional misconduct. The Court was not suggesting that no defence was available.[2]

Bias


  1. There is next raised an issue of suggested bias or apparent bias on the part of the Commissioner. The point was raised in the Court of Appeal but not specifically addressed by their Lordships in the judgments.
  2. The point arises in this way. As already noted, the defence offered was that the petitioner’s health was at all material times such as to preclude him from providing an explanation as required by the section 105 notice of 26 June2013 within the time as extended by the Registrar in July. In the course of the hearing, the Commissioner alluded from time to time to the fact that during the material period and thereafter, the petitioner had made regular appearances before him when he, the Commissioner, sat as a High Court judge. In making these remarks, the judge was clearly intimating that this fact appeared to be at odds with the contention that the petitioner was so ill as to be incapable of answering the complaint.
  3. So, for example, at an early stage of the hearing on 1 November 2013, before any oral testimony was adduced and in the course of a discussion about the suggested relevance of the medical evidence, the Commissioner said to counsel for the petitioner:

“But ... [the petitioner] was running a law practice at that time and appearing in Court regularly, how can you say [he’s] not capable of replying his appearing in front of me on many occasions filing complicated affidavits and making complicated legal argument on certain matters in front of me all through this period so how can you say he can’t write a letter to the Registrar [?]”


  1. By way of further example, during submissions which touched upon court appearances on two occasions in October 2013, another period when he was said to be too unwell to work and worked only when he found it impossible to brief out, the Commissioner said:

“And your client knows that it’s more than the 16th and 18th he knows very well its more than that it’s on many occasions ... your client knows that and I know that because [he’s] appeared before me on many occasions on the Mahendra Pal Chaudry matters.”


  1. Against this background, the assertion is that the petitioner was deprived of his right to a hearing by an independent and impartial tribunal and that in any event there was a breach of natural justice in that he was not given notice of the matters to which the Commissioner alluded or that the Commissioner was minded to take them into account in coming to his decision and, further, was not provided with an opportunity to respond to the assertions thus made by the Commissioner.
  2. That the petitioner was entitled to a fair hearing is beyond question but issues of actual or apparent bias and of natural justice must always be examined in the light of the particular facts and circumstances. The fact that the Commissioner had presided in cases in which the petitioner had appeared at the material times was as well known to the petitioner as to the Commissioner. The petitioner is himself an experienced practitioner and in addition he was represented by counsel. Both must have been fully aware that it was open to the petitioner to seek the Commissioner’s recusal but he did not do so. Had the fact and nature of these appearances been in issue – by which I mean, had the petitioner contended that the facts put forward by the Commissioner were in dispute – it would have been incumbent on the Commissioner to recuse himself whether or not an application to that end was made. But it was never suggested that these facts were in dispute, so his failure to recuse himself of his own motion cannot be criticised.
  3. As for the suggestion that the petitioner was not forewarned of the fact that the Commissioner thought it relevant that he had appeared before him on numerous occasions during the material times or that he was minded to take that fact into account in coming to his decision, we have seen that at an early stage of the proceedings and on several occasions thereafter, the Commissioner expressed his misgiving about the assertion that the petitioner was too ill to respond to the complaint and the reason for that misgiving. Accordingly, it was open to those acting for the petitioner to seek time, if time was necessary, to take instructions or to prepare an answer and it was equally open to the petitioner to address these concerns when he testified. Those opportunities were not taken or in so far as they were answered, the answers were obviously assessed by the Commissioner to be unpersuasive.
  4. On the basis of the history which I have outlined, the allegations of bias and (subject only to the mitigation issue next addressed) of breach of natural justice must, in my opinion, fail.

Mitigation


  1. Under this head, there is another complaint of breach of natural justice in the Commissioner’s suggested failure to hear submissions on behalf of the petitioner in mitigation of penalty.
  2. In this regard, the Court of Appeal found that counsel for the petitioner was afforded the opportunity to mitigate but failed to avail himself of it and on this basis dismissed this ground of appeal.
  3. I am unable, with respect, to agree with that conclusion. A reading of the relevant part of the transcript makes it sufficiently clear that whilst an opportunity to mitigate was afforded and whilst it is also clear that no mitigation was advanced, it is plain that the fault for the failure at that stage to proffer submissions in mitigation did not lie at the door of the petitioner or his counsel.
  4. What happened was that at the close of the hearing, the Commissioner reserved his decision. He offered counsel the opportunity to advance submissions in mitigation then and there to cover the eventuality, should it materialise, of a finding that the charge was proved thereby to avoid the need for counsel to appear on another occasion. Understandably, counsel was reluctant to advance mitigation at that stage and said so. This may be because he had not anticipated mitigation before determination of the charge or, more likely, because, if there was to be an adverse finding, he would wish to study the reasons and the comments and analysis of the Commissioner in order to prepare submissions in mitigation made in the light of those findings, comments and analysis. Accordingly, counsel asked that mitigation be postponed to await the outcome of the Commissioner’s deliberations, to be advanced only, of course, if there was an adverse finding. That was a perfectly proper approach for counsel to adopt. It seems clear to me that the course thus suggested was acceptable to the Commissioner and that that is how matters were left at the end of the hearing. This is the exchange between the Commissioner and counsel:

“Mr. A.R. Singh : Yes Sir.

Commissioner : Both sides have raised very good points and I certainly

haven’t made up my mind on this matter and I won’t make up my mind until I look at it again very carefully, but having said that and so that you will never have to come back again and if I do fine against your client Mr. Singh I want you to tell me what an appropriate penalty would be.
Mr. A.R. Singh : At this point Sir.
Commissioner : Well if you don’t want to you don’t have to address me it’s

just I’m giving you the opportunity of addressing me on penalty but if you don’t wish to that’s fine, and I’m not saying I’m going to fine against your client I haven’t made up my mind, but normally to save you ever coming back to mitigate.

Mr. A. R. Singh : Sir, if a finding is made against the respondent, would

request to come back and put in mitigation in person.

Commissioner : Very well Mr. Ravindra Singh you’ll be told when the

judgment is going to be handed down. Nothing else you wish to say at this moment Mr. Sharma?”

  1. Unfortunately, the Commissioner appears either to have overlooked or misunderstood how matters had been left as regards mitigation for his judgment issued on 7 November 2013 addressed not only the question of culpability but also, having found that the charge was proved, penalty without first notifying counsel of the finding and without offering the opportunity then to advance submissions in mitigation of penalty.
  2. All that was said on the question of sentence was as follows:

“The Commission takes a starting point of three months' suspension of the practicing certificate of the practitioner. Given his dire medical condition however, for which the Commission has every sympathy, a one third discount of that period is deducted as an act of mercy. This is as lenient as the Commission can be in the circumstances”.


  1. Mr. Singh, the petitioner, who has conducted his own case before us, has intimated that there is much which he would have wished to advance in mitigation in addition to the solitary question of health to which that paragraph refers.
  2. In my judgment, he ought to have had the opportunity to pray in aid such matters as he considered relevant in mitigation of penalty. The fact that he was not provided with that opportunity is a material breach of the process to which any practitioner is entitled in the event of a finding of professional misconduct.

Result


  1. That said, the question of jurisdiction of this Court to grant leave in this case is somewhat problematic for it is certainly debatable whether the issues raised meet any one or more of the criteria prescribed by section 7(3) of the Supreme Court Act. I am prepared though to say that the question whether a notice by the Chief Registrar requiring compliance with a statutory time limit is an order or direction under section 83(1)(g) of the Act and that the relationship between section 83 (1)(g) and section 108(2) of the Act involve far reaching questions of law and to grant leave to appeal on that basis, but I would allow the appeal on the basis of the material breach of process to which I have earlier referred.
  2. Accordingly, I would grant leave to appeal, treat the hearing of the application for leave as the hearing of the appeal and allow the appeal in so far as it affects penalty and quash the order of the Commissioner by which he suspended the practitioner’s practising certificate for two months. I would remit the matter to the Commissioner to hear mitigation and to determine penalty in the light of the misconduct proved and the findings of fact underlying that proof and taking into account such mitigation as may be advanced. I am given to understand that Madigan J is no longer the Commissioner. That does not seem to me to preclude the Commissioner who has replaced him from addressing the issue of penalty afresh. I understand that the two month’s suspension of the practicing certificate has long since been effect. That said, remission for reconsideration of penalty is none the less not a hollow exercise for if, in the light of mitigation to be advanced, there were to be any change in the penalty thought appropriate – as to which this Court is not in any position to comment one way or the other – then the petitioner would be entitled to a correction of the record. Although I anticipate that the petitioner would wish to avail himself of the opportunity to advance mitigation to the Commissioner, I propose that the order remitting the matter for the purpose of mitigation be subject to the petitioner’s consent; that is merely in case he does not wish, for whatever reason, to pursue the matter further.
  3. Although the appeal has succeeded, it has succeeded on a narrow and briefly argued ground. In addition, the petitioner has not incurred the expense of outside representation although no doubt he has spent much of his time in the preparation of the appeal. In all the circumstances, I would make no order as to the costs of this appeal. The Court of Appeal ordered the petitioner to pay $3,500.00 in costs to the Respondent. Since he should have succeeded upon that appeal as to mitigation only but failed as to the rest, I would substitute it by an order that there be no order as to the costs of that appeal.

Addendum


  1. I have earlier in this judgment referred to the fact that the office of the Chief Registrar did not acknowledge, let alone provide a substantive reply to, the letter from the petitioner dated 9 July 2013.[3] Another application for leave in the present session of this Court also revealed a somewhat casual attitude by that office in acknowledging or responding to letters. Courtesy and good practice dictate that letters be acknowledged swiftly and that substantive replies be given. Whatever the cause of this failing – whether it be understaffing or movement of personnel or some other cause – it is to be hoped that this reminder will encourage a change.

The Orders of the Court are:


  1. Leave to appeal the decision of the Court of Appeal dated 8 March 2018 is granted and the hearing of the application for leave is treated as the hearing of the appeal.
  2. The appeal is allowed as to penalty only and the order of the Court of Appeal dismissing the appeal is set aside to that extent and, further, the order of the Court of Appeal affirming the judgment of the Legal Services Commission dated 7 November 2013 is substituted by an order that the said judgment be affirmed save as to penalty.
  3. The order for costs made by the Court of Appeal is set aside and substituted by an order that there be no order as to the costs of that appeal.
  4. The order of the Commissioner dated 7 November 2013 ordering two months’ suspension of the practising certificate is set aside unless the petitioner gives notice under paragraph 5 below that he foregoes a hearing of mitigation.
  5. The case is remitted to the Commissioner of the Independent Legal Services Commission to hear mitigation and to determine penalty in the light of the charge proved against the petitioner, of the findings of fact in the judgment of the former Commissioner dated 7 November 2013 and of such mitigations as may be advanced at the said hearing; save that no such hearing is to take place if within 28 days of this order, the petitioner notifies the Independent Legal Services Commission in writing that he wishes to forego the opportunity to advance submissions in mitigation.
  6. There be no order as to the costs of this appeal.

Hon. Mr. Justice Saleem Marsoof

Judge of the Supreme Court


Hon. Mr. Justice Priyasath Dep

Judge of the Supreme Court


Hon. Mr. Justice Frank Stock

Judge of the Supreme Court

[1] The notice in fact referred to the statutory instrument as the Legal Practitioners Decree of 2009 but for consistency this judgment refers to “the Act”.
[2] Paragraphs [31] and [32} Court of Appeal judgment
[3] Paragraphs [4]-[5] above

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