My ref: CIV1981 of 2010 & CACV41 of 2010.
October 11, 2010
The Chairperson
The Legal Practice Board
Atten:
Mr. Shung Kee Neoh, Legal Officer.
5th Floor, Kings Building, 533 Hay Street
PERTH WA 6000
Telephone: (08) 6211 3600; Facsimile: (08) 9325 2743
Dear Sir FACSIMILE TRANSMISSION
TWO CRIMINAL CHARGES UNDER SECTION 13(1) OF THE LEGAL PROFESSION ACT, 2008
I refer to the above matter and the Statements of Material Facts (in Forms 5 and Form 3 of the Criminal Procedure Regulations, 2005 in 7 pages dated 7.10.2010), which was served on me on the 8.10.2010. I was pleasantly surprised and shocked at this seeming wrongful persecution. This promptly caused me to call and I spoke to the legal officer who signed these documents, one Mr. Shung Kee Neoh. After a brief conversation with him, he told me that based on what he heard from me, he would consult Counsel with regard to the withdrawal of these two charges. He told me that he would call me to confirm this matter by the latest Wednesday 13th day of October, 2010. Under the circumstances as explained above, I would like to state the following:
a) The Statements of Material Facts pertains to the Summons in Chambers in CIV 1112 of 2007 prepared by me dated 8.10.2009 together with my Affidavit in Support of it dated 12.10.2009 for the purpose of amalgamating it with CIV 1903 of 2008 in which I was made Plaintiff by Justice Hasluck (the First Judge) under Order 83 of the Rules of Supreme Court, 1971 WA (the Amalgamation).
b) For the purpose of the Amalgamation, I stated that I was a Barrister & Solicitor acting as counsel for my son Paul Chin Chung Kiong pursuant to ss.13 and 14 of the Legal Profession Act, 2008 (the Act) and r.5 of the Legal Profession Regulations, 2009 (the Regulations) under the mandate given to me by the First Judge in His Orders dated 17.6.2009 to be read together with the transcript of those proceedings.
c) It was on the ground that the mandate requires my son to remain inactive in these proceedings that I had to resort to act for my son as his counsel and in my capacity as barrister and solicitor because that is only way I could enter into the Caveat Case to defend my son’s human rights because that Caveat-duress case employed by lawyer Thies was without my name as defendant but it contains only my son’s name and my son was required to remain inactive, as there would be deleterious health consequences for him if he were not to remain so.
d) The difficulty for me to enter into the Caveat-duress case as counsel for Paul was caused by the difficulties posed by lawyer Thies himself as was being explained to him and the Chief Registrar in my letter to them dated 3.10.2010. (See copy attached). In this letter, I had similarly put in disclaimers as I did subsequently (in the Summons in Chambers and Affidavit of Civ 1112 of 2007) in that I was entitled to be engaged in legal practice as a litigant in person whilst acting for my son Paul as his counsel pursuant to s.13(1) of the Act, knowing that I was not transgressing the law and that it would be an offence of strict liability if I were to do so (the s.13 representation).
e) The s.13 representation did invite the complaint of Lawyer Thies which came through the Legal Profession Complaints Committee’s letter to me dated 27.10.2009 to which I had responded by way of my facsimile letter dated 29.10.2009 at paragraph 3 at page 3 contained in my CIV 1981 Application.
f) As soon as I realized that the second judge in CIV 1903 of 2008 His Honour Justice Kenneth Martin sometime in May, 2010 was refusing to think along the same lines as the First Judge, my son, Paul with the help of myself and some friends sought to rectify the situation by presenting his own set of documents as a litigant in person instead of my s.13 representation thus violating the Order of the First Judge that Paul is to remain inactive (Paul’s documents). Unfortunately, the Second Judge did not accept these documents giving as his excuse that it was unsigned as indicated in his written judgment. This is not the truth as Paul’s documents were signed by himself and filed by me.
g) I had pleaded with the Second Judge to cease and desist from hearing the second stage of the s.36 Magistrate Court Act, 2004 proceedings on the ground of his apprehended bias as he should have adopted the common law by using the normal approach as is in the case of Ex-parte Brecker but it was otherwise. I therefore made an Application for judicial review for prerogative orders in CIV 1981 of 2010 on 28.6.2010 in 126 pages.
h) The Second Judge, with due respect to him, however, went on with the case by ordering the unlawful caveat of lawyer Thies to be removed anyway without any costs orders but lawyer Thies is in contempt of court when he disobeyed the First Judge Orders by contacting my son and demanding him for another $650.00 for the costs of the removal of the caveats.
i) I have in the meantime appealed the decision of the Second Judge who gave judgment against me in favour of lawyer Thies by granting him security for costs orders thus stultifying my s.36 proceedings in CIV 1903 of 2008 all in the name of the null costs orders of the courts below that had been stopped by the First Judge except for the District Court Appeal No.6 of 2008 judgment of Commissioner Herron, which as I understand it, is also unenforceable.
j) Even if I had acted for my son Paul in the duress-Caveat Case which I did not, I would not have played the public role of a solicitor for my son as I was acting for myself as a litigant in person pursuing my own case against Lawyer Thies as my son was never in a client-solicitor relationship with him as Paul had acted under coercion and was under my undue influence. That client solicitor-relationship was in reality with me and was subject to those pre-contractual terms which he reneged and therefore that relationship had been terminated. There was therefore no debt for him to sue and in the process he had extorted monies from me and my son on a sham compromise.
k) In view of the foregoing paragraphs, it is apparent that I knowingly had evinced no intention to represent that I could be engaged in legal practice other than as a litigant in person. I filed the first set of those documents with disclaimers and my son Paul had it exchanged for the second set of those documents with Paul’s name as a litigant in person as soon as the Second Judge objected to it. If I had ever stated publicly that I am a Barrister & Solicitor, I have always qualified it with the words “non-certificated”. As from today, I shall cease to apply the title “Barrister and Solicitor” to any documents that I shall prepare so as to stop confusing the minds of the public that I am entitled to be engaged in legal practice until my dispute with the Legal Practice Board of Western Australia is settled or until I assume supervised practice.
l) Assuming that s.13 of the Act pertains to a strict liability offence; I could have been labouring under a mistake of fact as to the nature of the mandate given to me by the First Judge until it was objected to by the Second Judge, and the situation would have been retrieved if the Second Judge had given his reasons for so objecting. The mandate by the First Judge would have qualified me under column 6 of r. 5(2) of the Regulations; consequently, I would have realized that unless I worked under the mandate of the First Judge or under other circumstances, I should not use the name Barrister & Solicitor. Despite this, I had taken remedial action to remove myself from this mistake. In the premises, I have not committed any offence under subs. 13(1) of the Act that warrants this prosecution.
Yours faithfully
NICHOLAS N CHIN
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