[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
THE COURT: By summonses both filed on 28 June 2024, the Council of the Law Society of New South Wales ("Law Society") seeks declarations that Mr Dung Quoc Vo and Ms Thi To Ngoc Dinh are not fit and proper persons to remain on the roll of Australian lawyers maintained under s 22 of the Legal Profession Uniform Law (NSW), and orders that their names be removed from the Roll.
Both proceedings arise out of the same facts and concern broadly the same offending. Both respondents pleaded guilty to offences contrary to s 192E of the Crimes Act 1900 (NSW) for which each received full-time custodial sentences.
Neither application is opposed. Mr Vo consents to the relief sought. Ms Dinh has signed an agreed statement of facts, and submitted that she does not wish to participate in the hearing, in response to the Law Society's solicitor proposing that the matter be determined on the papers. Mr Vo is no longer in custody, and Ms Dinh has been released on parole to serve the balance of her sentence.
Council of the Law Society of New South Wales v Vo; Council of the Law... [2024] NSWCA 275 | Case summary | Zoe
The Registrar has directed that each proceeding be heard and determined on the papers. Neither respondent has filed any evidence or submissions in response.
The Court has been assisted by court books filed on 11 November 2024, which include primary evidence as to the offending and the Law Society's response to it, submissions on behalf of the Law Society and the remarks on sentence. Each of Mr Vo and Ms Dinh has expressly authorised the Law Society to rely upon the remarks on sentence, which are accordingly admissible, s 91 of the Evidence Act 1995 (NSW) notwithstanding: Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]-[56].
The relief sought is an aspect of this Court's inherent jurisdiction with respect to the control and discipline of lawyers of this State, which is preserved and recognised by ss 23 and 264(1) of the Legal Profession Uniform Law (NSW).
Notwithstanding Mr Vo's consent and Ms Dinh's non-opposition to the orders sought by the Law Society, it is for this Court independently to assess whether Mr Vo and Ms Dinh are not presently fit to practise and are likely to remain unfit for the indefinite future such that the declaration and orders sought are appropriate: Council of the Law Society of New South Wales v Croke [2024] NSWCA 195 at [10]; Council of the Law Society of New South Wales v Duncan [2024] NSWCA 147 at [3]; Council of the Law Society of New South Wales v Li [2024] NSWCA 218 at [7]. That determination requires an appreciation of the factual background of each application. As the Chief Justice said in Li at [8]:
it is important in an application of this kind to provide some detail of the nature and extent of the offending which has rendered the Respondent unfit to practice and which warrants his removal from the Roll. The Respondent's conduct has brought great discredit on the legal profession, and it is importan[t] for the maintenance (and restoration) of confidence in the administration of justice that the public knows that such conduct is not tolerated and meets with professional consequences that are ultimately for the public's protection.
[3]
Background
Mr Vo was born in 1971 and was admitted to the legal profession in New South Wales on 18 February 2005 and held a practising certificate until 24 February 2020. Between 12 February 2009 and 24 February 2020, Mr Vo practised at a law practice known as Vo Lawyers. Ms Dinh was born in 1987 and was admitted to the legal profession in 2014. She was employed by Vo Lawyers as a solicitor from October 2017 and undertook her practical legal training at that practice.
On 24 February 2020, the Law Society resolved to suspend Mr Vo's practice certificate with immediate effect on the basis that Mr Vo "is unable to fulfil the inherent requirements of an Australian legal practitioner" and to commence an investigation into the affairs of the Vo Lawyers practice. Notices of the suspension were given to Mr Vo and in January 2020 several complaints in respect of Vo Lawyers were referred by the Legal Services Commissioner to the Law Society. Each concerned the misappropriation of funds deposited by clients into the practice's trust account variously for the payment of stamp duty, the purchase price for a home and a tenancy bond. The report of the investigations prepared pursuant to s 165 of the Uniform Law was referred to the NSW Police Force.
On 3 November 2021, Mr Vo pleaded guilty to three charges of dishonestly obtaining a financial advantage by deception, under s 192E(1)(b) of the Crimes Act 1900 (NSW). Charges under s 193B(1)(a) for dealing with those proceeds of crimes were later withdrawn. Ms Dinh also pleaded guilty to one of the above counts of fraud, and to being an accessory after the fact in respect of another of the above counts. Both were convicted and sentenced by the District Court in 2022.
The first offence occurred in November 2019. Mr Vo transferred $22,117, being an amount transferred in trust by one of Mr Vo's clients for the payment of stamp duty for a conveyance, to Mr Vo's personal account. Mr Vo subsequently spent that trust money on gambling at Adelaide Casino. Ms Dinh pleaded guilty as an accessory after the fact.
The second offence, to which Ms Dinh also pleaded guilty, was the misappropriation two months later of $1,572,896 received in trust for two clients for the settlement of a conveyance. It is not clear how that money was eventually spent by Mr Vo. However, in line with his consistent pattern of conduct, it was likely spent on gambling and incidental expenses. The sentencing judge noted that false records were sent to clients to allay their concerns about the whereabouts of their money. Ms Dinh, in particular, had accessed the PEXA platform and created a fictitious "Vendor Destination Line Items" in which she inserted the personal bank account details of the client to give the impression that PEXA had been instructed to pay the $1,572,896 to the client. The client was told that the irregularity in the accounts "was a PEXA problem" and when the client insisted on contacting PEXA directly, Ms Dinh said "Pexa will only take calls/discuss with the authorised solicitor/account holder". Once PEXA was notified by the client of the fraud, PEXA suspended Vo Lawyers' system access.
The third offence, later in 2020, was the misappropriation of $150,000 transferred by a client to Mr Vo for the payment of stamp duty. Again, that money was spent "largely, if not exclusively" on gambling. Although Ms Dinh pleaded guilty to this count, she was not separately sentenced for it; instead it was taken into account on a "Form 1" for the purposes of sentencing in accordance with s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Mr Vo was sentenced to an aggregate term of imprisonment of 6 years, expiring on 10 March 2028 with a non-parole period of 3 years, and Ms Dinh to 3 years and 2 months imprisonment, with a non-parole period of 1 year and 7 months. Both sentences reflect a 25% discount for their pleas of guilty.
[4]
Consideration
Admission to legal practice is a privilege, not a right. That privilege "will be withdrawn in cases where a lawyer is established not to be a fit and proper person to continue in practice": Council of the Law Society of New South Wales v Croke [2024] NSWCA 195 at [11]. Dishonesty is a paradigm case of offending which justifies a conclusion that a person is no longer a fit and proper person to continue in practice.
The offending by both respondents in this case was serious and self-serving. It involved significant breaches of the trust reposed in Mr Vo and Ms Dinh by their clients. For many clients, the amounts of money involved mean that buying a home will be the largest transaction in their lives.
By the time of his offending, Mr Vo was a solicitor of some 15 years' standing. He was well-regarded in the Vietnamese community. Indeed, it was because of that good standing in the community that Mr Vo was able, as the sentencing judge remarked, to access the funds which he misappropriated. The majority of the clients who were cheated had previously engaged Mr Vo and Ms Dinh to effect conveyances. But when the offences were committed, the personal funds of clients, amounting to some $2 million, were reduced to a vehicle to satisfy what Mr Vo acknowledged was a gambling disorder. While the clients have been fully reimbursed by the Fidelity Fund, it appears that neither Mr Vo nor Ms Dinh have made reparations to that fund. It is also difficult to reduce to words the stress and distress that each client must have suffered when large amounts of money they had entrusted to their solicitors were stolen from them.
In Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141, the Court considered that the misappropriation by a solicitor of trust monies amounting to a little more than $400,000 was a "substantial" amount which justified an order of removal from the roll. Mr Yoon's offending conduct was one-off. The offending of Mr Vo and Ms Dinh was much worse. It was not an isolated occurrence. It encompassed a period of several months during which clients' money was treated with abandon in almost weekly gambling trips to Adelaide. And the amounts of money involved were much larger.
It is fundamental that "the misappropriation of any sum of money by a lawyer is a gross violation of the oath or affirmation which every new lawyer makes on admission to practice": Council of the Law Society of New South Wales v Li [2024] NSWCA 218 at [23] and that "the ordinary consequence of misappropriation of trust funds by a practitioner is removal from the roll": Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [65].
Although Mr Vo, as principal of the practice, was the only person authorised to make withdrawals from the trust account, Ms Dinh was the point of contact for each client. Her conduct was repeated and calculated. In evidence was a series of text messages with clients indicating the lengths to which Ms Dinh went in concealing Mr Vo's fraud and in using her skills and professional knowledge as a solicitor to mislead the clients' attention to PEXA. In addition, Ms Dinh sent a falsified PEXA record to her client (although Mr Vo told police that he created the false record, Ms Dinh in fact created it, on Mr Vo's direction).
It was not suggested that Ms Dinh herself gambled any of the money. The sentencing judge recorded that Ms Dinh's motive for engaging in the fraud appeared to be "some deluded idea that she could assist her co-offender to gamble and win back the money that had been taken from the trust accounts and clients". However, she also obtained some incidental financial benefits - cashing gambling chips and spending money on food and expensive accommodation while in Adelaide.
In imposing sentence upon Ms Dinh, Buscombe DCJ noted that:
The offender's level of criminality here is considerably less than that of her co-offender Mr Vo. He was the principal in the firm, she his employed solicitor. It is he who removed the funds from the trust account, it is [he] who gambled those funds and transfers [sic] them to other accounts. However, [Ms Dinh's] role was still an important one, given her deceptive conduct towards the victims and her assistance to [Mr Vo] to gamble and win back the money that had been taken from the trust account and clients.
Both respondents were born in Vietnam and migrated to Australia at a young age. To their credit, both succeeded in obtaining tertiary qualifications, and were for a time respected members of the legal profession.
Ms Dinh, who is considerably younger than Mr Vo, had the benefit of highly favourable findings by the judge who sentenced her. His Honour found that she had no issues with alcohol or illicit substances, had a low risk of re-offending, had "excellent prospects for rehabilitation", and "is obviously intelligent and has a supportive family", although doubted that she fully recognised the impact her offending had had on her victims: R v Dinh [2022] NSWDC 716 at [56]-[61].
[5]
Conclusion and orders
Despite the favourable findings made when Ms Dinh was sentenced, the fact remains that members of the community put their trust in the honesty of solicitors. When that trust is abused by the commission of fraud, it is not only the client who suffers. The integrity of the profession is called into question. Further, members of the legal profession are entitled to, and expect to, be able to trust other members. The scale and nature of the offending of both Mr Vo and Ms Dinh indicates that both are likely to be unfit to remain admitted lawyers in the indefinite future. Their conduct brought the legal profession into disrepute. The only appropriate orders are those sought by the Law Society. That these applications were not opposed reflects the fact, which has already been mentioned, that the ordinary consequence of the dishonest appropriation of clients' money by a solicitor will be the removal of the solicitor's name from the Roll. Costs must follow the event.
The Court makes the following orders:
In 2024/238687:
(1) Declare that Mr Dung Quoc Vo is not a fit and proper person to remain on the Roll of Australian lawyers maintained under s 22 of the Legal Profession Uniform Law (NSW).
(2) Order that Mr Dung Quoc Vo's name be removed from the Roll.
(3) Order that Mr Vo pay the Council's costs of and incidental to those proceedings.
In 2024/238659:
(1) Declare that Ms Thi To Ngoc Dinh is not a fit and proper person to remain on the Roll of Australian lawyers maintained under s 22 of the Legal Profession Uniform Law (NSW).
(2) Order that Ms Thi To Ngoc Dinh's name be removed from the Roll.
(3) Order that Ms Dinh pay the Council's costs of and incidental to those proceedings.
[6]
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Decision last updated: 26 November 2024