Vasandi A/P Kandasamy … Perayu(No. K/P: 630609-07-5536)DanPasupathy A/L Suburamaniam … Responden(No. K/P: 660404-08-6183)DanMajlis Peguam Malaysia … Pencelah

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. 17D-17-04/2014

 

Dalam perkara mengenai suatu Pengaduan di hadapan Lembaga Tatatertib Peguam-Peguam

 

PENGADUAN NO DC/12/7496;

 

Dan

 

Dalam perkara mengenai Seksyen 103D Akta Profesyen Undang-

 

Undang;

 

Dan

 

Dalam perkara mengenai Kaedah profesyen Undang-Undang (Prosiding Tatatertib) (Rayuan) 1994;

 

Dan

 

Dalam perkara suatu Perintah

 

Lembaga Tatatertib Peguam-peguam bertarikh 28.3.2014 di bawah Seksyen 103D Akta Profesyen Undang-

 

Undang.

 

ANTARA

 

VASANDI A/P KANDASAMY … PERAYU

 

(No. K/P: 630609-07-5536)

 

DAN

 

PASUPATHY A/L SUBURAMANIAM … RESPONDEN

 

(NO. K/P: 660404-08-6183)

 

DAN

 

MAJLIS PEGUAM MALAYSIA … PENCELAH

 

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GROUNDS OF JUDGMENT

 

INTRODUCTION

 

1. By the Originating Summons dated 25th April 2014 the appellant has sought, amongst others, for leave to appeal against the decision of Disciplinary Board (“DB”) given on 28th March 2014 whereby the DB had affirmed the Disciplinary Committee’s (“DC”) findings of liability and adopted the DC’s recommendation for the appellant to be struck off the Rolls of Advocates and Solicitors of the High Court of Malaya (see Exhibit “VKS-1” of Supplement Affidavit at pages 62 to 69). The appeal was made pursuant to section 103D of the Legal Profession Act 1976 (“LPA”) (“Enclosure 1”). The appellant has also sought for the decision to be set aside by this Court. The grounds for the said application were as stated in the Originating Summons dated 25th April 2014.

 

THE DOCUMENTS

 

2. For the purpose of the appeal the following documents were filed and referred to by the Court:

 

2.1. Affidavit in Support affirmed by Vasandi a/p Kandasamy on 23rd April 2014 (“Enclosure 2”);

 

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2.2. Affidavit in Reply by the Intervener affirmed by Wee Thiam Seng on 5th August 2014 (“the Intervener’s Affidavit in Reply”) (“Enclosure 17”);

 

2.3. Affidavit of Explanation by the agent affirmed by Panirchelvam a/p Tangaveloo which is undated (“Affidavit of Explanation by the Agent”) (“Enclosure 20”);

 

2.4. Affidavit of Explanation by the Purchaser affirmed by Santha Kumaree a/p Muthiah Retnasamy on 4th September 2014 (“Affidavit of Explanation by Purchaser”) (“Enclosure 22”);

 

2.5. Affidavit in Reply by the Appellant affirmed by Vasandi a/p Kandasamy on 5th September 2014 (“the Appellant’s Affidavit in Reply”) (“Enclosure 21”);

 

2.6. Affidavit in Reply (2) by the Intervener affirmed by Wee Thiam Seng on 18th September 2014 (“the Affidavit in Reply (2)”) (“Enclosure 26”);

 

2.7. Supplementary Affidavit Enclosing With Record of Appeal affirmed by Vasandi a/p Kandasamy on 3rd October 2014 (“Supplementary Affidavit”) (“Enclosure 30”);

 

2.8. Affidavit by the Appellant (3) affirmed by Vasandi a/p Kandasamy on 3rd October 2014 (“the Affidavit by the Appellant (3)”) (“Enclosure 31 ”);

 

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2.9. Affidavit in Reply (3) by the Intervener affirmed by Wee Thiam Seng on 20th October 2014 (“the Affidavit in Reply by the Intervener (3)”) (“Enclosure 35”); and

 

2.10. Affidavit by the Appellant (4) affirmed by Vasandi a/p Kandasamy on 3rd November 2014 (“the Affidavit by the Appellant (4)”) (“Enclosure 37”).

 

3. Vide a notice of motion dated 26th May 2014 (“Enclosure 9”) the Bar Council of Malaysia applied for leave to intervener pursuant to section 103E (6) of the LPA read together with Order 15 Rule 4 (2) (b) (i) of the Rules of Court 2012 (“RoC”).

 

4. The respondent, one Pasupathy a/l Suburamaniam who was the complaint in this case did not turn up in Court to pursue his complaint against the appellant.

 

BACKGROUND

 

5. The background leading to this appeal could be stated as follows:

 

5.1. On 26th April 2012, the respondent who was a vendor in a

 

Sale and Purchase Agreement dated 1st June 2011 (“the SPA”) lodged a complaint with the Director of Complaints Secretariat, Advocates and Solicitors Disciplinary Board

 

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against the appellant (see Exhibit “WKS-1” of Supplementary Affidavit at pages 5 to 11).

 

5.2. The complaint was on the basis that the appellant had failed to remit and/or had held the balance of the purchase price for the sum of RM44,500.00 in respect of the SPA for a property known as Lot B3-02-32, Kepong Central Condominium, Jalan Puncak Desa, Kepong, 52100 Selangor Darul Ehsan despite being requested for a few times.

 

5.3. The reason given by the appellant was that the developer and the financier were delaying the transaction. However, this was not supported by any proof or evidence either from the developer or the financier.

 

5.4. The appellant has refused to make any payment and kept changing the date when payment of RM44,500.00 could not be made. This had caused the respondent to be suspicious of the appellant.

 

5.5. However, on 4th April 2012, the appellant had issued a letter to the respondent notifying the respondent that the payment due to the respondent would be made within seven (7) days. The appellant had again postponed the payment to 10th April 2012 and later requested the respondent to come and collect the cheque on 13th April 2012.

 

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5.6. On 13th April 2012 the appellant had sent a message to the respondent informing the respondent that her office would be closed on 13th April 2012 and requested the respondent to come to her office the following week.

 

5.7. The respondent did not receive any further information pertaining to the payment of RM44,500.00 due to him, he then lodged a police report against the appellant on 16th April

 

2012.

 

5.8. As there was no payment coming from the appellant on 26th April 2012 the respondent lodged a complaint against the appellant to the DB (see Exhibit “VKS-1” at page 37 of Supplemental Affidavit).

 

5.9. The DB had requested the appellant for an explanation pursuant to s.100 (1) (b) of LPA. The appellant failed to respond to the said letter and/or exercise her right to defend the complaint lodged against her (see pages 39 to 41 of Exhibit “VKS-1” of Supplemental Affidavit).

 

5.10. A DC was set up on 1st July 2013 to deliberate on the complaint lodged by the respondent against the appellant.

 

5.11. On 4th July 2013, the DC had caused a letter to be sent to the appellant pursuant to sections 103B (4) (a) and 103B (4) (b) of the LPA to request for explanation and/or an indication

 

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if the appellant wished to be heard by the DC in 15 days from the date of the receipt of Exhibit VKS-1.

 

5.12. The appellant had failed and/or refused to furnish any explanation to the DC even after the lapsed of the 15 days granted to her to do so.

 

5.13. A hearing and investigation of complaint was fixed to 5th September 2013. The appellant was notified of this hearing date vide a letter dated 19th July 2013 under Rule 20 of Legal Profession (Disciplinary Proceedings) Investigation Tribunal and Disciplinary Committee Rules 1994. This letter was acknowledged by the appellant vide Exhibit VKS-1 of the Supplemental Affidavit at page 57 to 60. The appellant failed to turn up during the hearing and investigation (see pages 51 to 52 of Exhibit “VKS-1” of Supplemental Affidavit).

 

Proceedings before the DC

 

6. The DC was compelled to decide the complaint lodged by the respondent without the benefit of the explanation of the appellant and the respondent. Based on the documents that was placed before the DC, the DC made the following findings:

 

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6.1. The appellant had failed to discharge her duty as a stakeholder and trustee to release the sum of RM44,500.00 to the respondent.

 

6.2. The appellant had failed to honour an undertaking and this amounted to a professional misconduct. Hence, there was breach of Rule 14.09 (1) of the Rules and Ruling of the bar Council 2008.

 

6.3. Vide Exhibit VKS-1 of the Supplemental Affidavit the appellant had informed the respondent that the differential sum of the purchase price would be paid to the respondent once the said sum had been resolved under Clause 4(a) and (b) of the SPA with respect to outstanding bills such as the quit rent, electricity, telephone and other bills within seven (7) days from the date of the letter (see Exhibit “VKS-1” of Supplemental Affidavit at page 14).

 

6.4. The DC found by way of the appellant’s letter dated 4th April 2012 the appellant had unilaterally vary the terms of the stakeholding obligations provided under the SPA. The appellant had no right to do so. This according to the DC amounted to improper and dishonest conduct with the aim to deny the respondent of his money.

 

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6.5. The appellant had not adhered to the terms of the stakeholding thereby committing a breach of Rule 14.10 (3) of the Rules and Rulings of the Bar Council 2008.

 

6.6. It was also the findings of the DC that the appellant’s misconduct in failing to comply with her obligations as trustee and stakeholder amounted to a grave impropriety. This conduct was highly prejudicial to the respondent, dishonest in nature and fell below the standard expected of her as an advocate and solicitor.

 

DC’s Recommendation

 

7. Based on the aforesaid the DC had made a recommendation to the DB for the appellant to be struck off the Rolls of Advocates and Solicitors of the High Court of Malaya (see Exhibit “VKS-1” of Supplemental Affidavit).

 

Decision of the DB

 

8. The report submitted by the DC was deliberated by the DB, which affirmed the findings of the DC in its meeting dated 13th December

 

2013.

 

9. The DB was also of the view that an Order of restitution was to be made against the appellant under section 103D (5) of the LPA and for the appellant to refund all monies due to the respondent.

 

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10. Pursuant to the above, the DB issued a notice dated 27th January 2014 for the appellant to appear before it on 28th March 2014. The appellant failed, and/or refused to be present before the DB leaving the DB with no choice but to affirm the decision of the DC to strike off the appellant from the Roll of Advocates and Solicitors of the High Court of Malaya (see Exhibit “KV-3” of the Affidavit in Support).

 

SUBMISSIONS BY THE RESPECTIVE PARTIES For the Applicant

 

11. The applicant, among others, raised the following arguments:

 

11.1. The charge was defective and incomplete. The findings of fact by the DC were not suitable with the complaint lodged by the respondent.

 

11.2. The entire proceeding before the DC was focused on the interpretation of the Clause 4 of the SPA dated 1st June 2011 between the purchaser, who was the client of the appellant and the complaint who was the vendor (“the respondent”).

 

11.3. DC erred because it acted on the assumption that the handwriting on the appellant’s letter dated 4th April 2012 was that of the respondent based on “beyond reasonable doubt”.

 

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This burden did not exist as both the respondent as well as the appellant did not appear before the DC on 5th September

 

2014. This fact was not proven beyond reasonable doubt, as the respondent did not appear before the DC to explain his version.

 

11.4. The DC had failed to investigate the complaint satisfactorily. It had acted as a Court of law and had based its findings solely on the written evidence of the complainant without taking into consideration that the respondent did not turn up before the DC. It failed to consider whether the complaint was tainted with mala fide.

 

11.5. The DC failed to consider all facts that were presented before it especially the Police Report (Brickfield / 806035 / 12) dated 16th April 2012 lodged by the respondent and the fact that there was no action taken by the police against the appellant.

 

11.6. The DC failed to consider that the burden of proof of the alleged misconduct against the appellant was beyond reasonable doubt.

 

11.7. The DC had also failed to take into account there was no misappropriation of the money in the stakeholder’s account by the appellant.

 

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11.8. The penalty imposed the appellant did not commensurate the alleged offence committed by the appellant.

 

11.9. Clause 4 (a) and (b) of the SPA could not be invoked if the respondent had refused to furnish the invoices and receipts for payment of the utility bills to the appellant. The respondent had to furnish all the receipts, invoices and bills to the appellant before he could invoke Clause 4 (a) and (b) of the SPA. This is implied in Clause 4 (a) and (b) of the SPA.

 

11.10. The DC and DB erred as it was not proven beyond reasonable doubt that the respondent had not furnished the receipts, invoices and bills as prove of payment pursuant to Clause 4 (a) and (b) and Clause 5 of the SPA as well as the respondent’s undertaking pursuant to Clause 23 (2) of the SPA.

 

11.11. For the purpose of the Clause 4 (a) and 4 (b) of the SPA the bills, invoices and receipts had to be furnished to the appellant to settle all the dues. This is in line with Clause 2 (a) of the SPA which provided that the balance of the purchase price including the sum of RM44,500.00 shall be paid to the purchaser to the appellant to hold as stakeholder in accordance with the terms of the SPA.

 

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11.12. The DC and DB failed to appreciate that the appellant merely acted for the purchaser as stakeholder and not the respondent. Therefore, the appellant required to get written instruction from the purchaser to pay to the respondent. Based on the affidavit filed by the agent and the purchaser, the purchaser had requested the appellant to hold any payment to the respondent, as there were outstanding issues between them. As a stakeholder, the appellant had to comply with the terms and condition of the SPA.

 

11.13. There was no unilateral variation of the terms of the stakeholding by the appellant. Therefore, before the sum of RM44,500.00 released under Clause 5 of the SPA Clauses 4 (a) and 4 (b) would have to be complied by the appellant. The delay in the payment of the sum of RM44,500.00 under the SPA did not amount to a breach of the stakeholding as the appellant would have to comply with the terms of the SPA before releasing the said sum.

 

11.14. The appellant had not breached Rule 14.09 (1) and 14.10 (3) of the Bar Council Rulings 2008.

 

11.15. The DB failed to give its reasons for confirming the DC’s findings.

 

11.16. The respondent failed to be present and/or appoint Counsel during the proceedings. The respondent had failed to reply

 

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to all the averments in the affidavits filed by the appellant. He was deemed to have accepted the contents of the affidavits and he had not exercised his rights to contradict the averments by way of affidavit in reply.

 

11.17. It was further contended that even of she had attended the DC hearing her explanation would not be any different from the letter she sent dated 3rd March 2014 where she had stated that the alleged balance purchase price had been forwarded to the respondent on 30th May 2012 and 1st June 2012 respectively. As such, there was no breach of the undertaking. Hence, the striking off the roll is a draconian punishment, which should not have been made against her.

 

For the Intervener

 

12. The learned Counsel for the Intervener, amongst others, raised the following arguments:

 

12.1. The appellant had a duty to honour the undertaking. To honour undertaking is strict even if a lawyer had erred or made an oversight or even the circumstances had changed radically and/or to adhere to the undertaking would cause hardship to the lawyer, the lawyer must still honour the undertaking. The failure to honour an undertaking is prima facie evidence of professional misconduct.

 

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12.2. The appellant had forwarded the balance purchase price to the respondent on 31st May 2012 and 1st July 2012 respectively. She had not denied that she had failed and/or refused to release the balance purchase price when being requested by the respondent. The appellant ought to have explained to the respondent the reason she was not able to release the said sum when requested.

 

12.3. The settlement with the respondent was no defence. In the case of a breach of undertaking, the breach alone is enough and that is of the essence. This breach was itself misconduct and a serious dereliction of duty.

 

12.4. The DC had adopted the correct procedure in its decision to proceed with the hearing of the inquiry in the absence of the appellant. It had acted based on the documents provided by the respondent and made the findings.

 

12.5. Rule 22 of the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee Rules 1994) empowers the DC to proceed to hear and investigate the complaint in the absence of the person and to make its determination and recommendations to the DB if the DC is satisfied that the notice of the hearing had been posted to the person concerned.

 

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12.6. As sufficient notice had been given (see pages 39 to 41 of Exhibit “VKS-1” of the Supplemental Affidavit) the DC

 

had acted within the boundaries of the law to proceed with the inquiry in the absence of the appellant. Despite having notified of the hearing date, the appellant had chosen not to attend and defend herself. The appellant had not accounted for her failure to respond and/or to present herself at the hearing of the DC. The appellant had notice of the hearing before the DC but opted not to be present to state her defence.

 

12.7. The appellant had offered her explanation only after the appeal was lodged to this Court by way of the affidavit of her client and a real estate agent (Enclosures 20 and 22 respectively). In Enclosure 22, the purchaser had stated that she had instructed the appellant to defer to release the balance of the purchase price to ensure that the respondent performed his oral promise to repair and paint the property that she purchased from the respondent as well as for the respondent to comply with Clause 4 (1) of the SPA, to settle all outstanding utilities bills and management fees. The respondent had failed to honour his part of the promise.

 

12.8. According to real estate agent (“Enclosure 20”), one Mr. Panirchelvam a/l Tangaveloo, after the purchaser had collected the keys of the said property from the appellant, the respondent has not performed his part of the promise as

 

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the property was still occupied by a third party. The respondent had in fact breached Clauses 2 (b), 23 (f) and 15 of the SPA.

 

12.9. The facts, which were deposed in the Enclosures 20 and 22, were not before the DC. Hence, the DC did not have the benefit of considering this fact in its deliberation of the complaint against the appellant. The appellant had chosen not to present this fact to the DC but filed the same for the purpose of the appeal before this Court.

 

12.10. With regards to the issue whether the DB has a statutory obligation to provide the grounds in affirming the DC’s recommendations, the learned Counsel had referred the Court to Section 103D (1) of the LPA 1976 which provide that only if the DB rejects the findings and/or recommendations of the DC, the DB shall record the reason for the rejection. Therefore, under this provision of the LPA the DB has no statutory obligations to provide reasons on its affirmation of the DC’s recommendations. The DB had acted within the four corners of the law in the conduct of the hearing involving the appellant.

 

12.11. Despite the fact both the respondent and the appellant were absent during the hearing before the DB, the Intervener being the body entrusted by the LPA to protect the interest of the public at large and the legal profession specifically has a

 

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duty to maintain a high standard of conduct. This is entrenched in section 42 of the LPA.

 

12.12. As had been illustrated above the appellant in this case had demonstrated conduct, which is unbecoming, and unacceptable to the profession.

 

12.13. It is not disputed that the DB had vide a letter dated 27th June 2012 requested the appellant to provide an explanation in respect of the complaint lodged against her by the respondent. This statutory letter issued by the DB pursuant to section 100 (1) (b) of the LPA is sufficient to provide the appellant the opportunity to defend herself against the complaint lodged against her.

 

12.14. The DB had constituted a DC on 1st July 2013 under section 100 (11) of the LPA 1976 to decide on the complaint lodged by the respondent.

 

12.15. Vide a letter dated 4th July 2013 the DC had requested the appellant to provide a written explanation and/or given the opportunity to the appellant on whether the appellant wished to be heard before the DC. A time frame of the fifteen (15) days was given to the appellant to furnish her explanation to DC. The appellant had failed and/or refused to provide any explanation to the DC.

 

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12.16. The DC had subsequently fixed a hearing and investigation date of the complaint to 5th September 2013. The appellant was notified of the date, time and venue of the hearing vide a letter dated 19th July 2013 (see Exhibit “VKS-1” of Supplemental Affidavit at pages 57 to 60). Despite receiving the notification letter, the appellant had failed and/or refused to be present at the hearing, which was scheduled on 5th September 2013.

 

DECISION

 

13. The following are the reasons for my decision dated 23rd December

 

2014:

 

13.1. It is pertinent to state here that in deciding this appeal, which is an appeal from the decision of the DB, dated 28th March 2014 this Court is only entitled to consider whether based on the facts that were presented before the DC and later confirmed by the DB, the DB was justified in arriving at the said findings.

 

13.2. I would begin to state that during the hearing of this appeal, this Court ought not to accept the new evidence (vide Enclosure 20 and 22) adduced by the appellant as it amounted to a fresh evidence which the DC and the DB did not have benefit to deliberate on. There was no application

 

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made by the appellant in this case to introduce the fresh evidence at the appeal stage. Further, the applicant had not shown this evidence was not available to the appellant during the hearing and investigation of the complaint and/or could not be reasonably secured by the appellant for the purpose of hearing before the DC. Therefore, this Court ought not to consider this evidence in deciding this appeal. This Court ought to examine only the facts placed before the DC and DB to see if the case against the appellant has been proved up the standard required of it, beyond reasonable doubt.

 

13.3. The facts disclosed in this appeal showed that the DC had done its best to afford the appellant every opportunity for the appellant to put forth her case and/or offer explanation but the appellant had blatantly disregarded and/or neglected and/or ignored all notifications sent to her. Since there was, no issue raised by the appellant that the statutory notifications under the LPA were not served on her I accepted that all notices and notifications concerning the hearing and investigation pertaining to the complaint at the outset had been sent to the appellant. Hence, the appellant knew the status of the proceeding before the DC and the DB. Despite all opportunities having been given to her to state her case and/or defend the complaint lodged against her she opted not to be present. She had done so at her own

 

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peril. Therefore, she could not now turn around and fault the DC and DB for all acts taken against her.

 

13.4. In such circumstance, the DC had to rely on the available documentary evidence to examine if the case against her had been proven beyond reasonable doubt.

 

13.5. From the facts that I had outlined above it was not disputed that the appellant had only forwarded the balance purchase price to the respondent on 31st May 2012 and 1st June 2012 respectively. This clearly showed that the appellant had failed and/or refused to release the balance purchase price when the same was requested by the respondent. If it was true as stated by the appellant the reasons for her refusal to forward the said amount to the respondent were as stated in Enclosures 20 and 22 respectively, the least she could have done was to explain to the respondent at the material time the reason she was not able to do so when the same was requested for by the respondent. This showed that Enclosures 20 and 22 that were filed in this Court were afterthoughts and ought to be rejected by this Court. If the true reasons were as stated in the Enclosures 20 and 22 the same would have been communicated to the respondent at the earliest, possible opportunity. I have to bear in mind that the case before me involved an advocate and solicitor who is well acquainted with the law and fully informed of her rights. If these were the real reasons the appellant would have in

 

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fact explained this to the DC at the outset and not almost two (2) years later.

 

13.6. Upon my perusal of Rule 22 of the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994, I am satisfied that DC had adopted the correct procedure in handling the complaint against the appellant. Rule 22 of the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994 provides:

 

“Where on the date fixed for the hearing and investigation of the complaint or the advocate and solicitor concerned or both fails to attend before the Disciplinary Committee, the Disciplinary Committee may, upon being satisfied that the notice of the hearing has been posted to the person or persons concerned, proceed to hear and investigate the complaint in the absence of such _ person or _ persons without further notice to such person or persons and make its determination and recommendations to the Disciplinary Board. ” (emphasis added)

 

13.7. It is not disputed that the DC had given the appellant all opportunities for her to state her defence, but the appellant had taken the liberty to remain silent and had not offered any explanation with regard to her conduct in handling the stakeholder’s and/or trust fund. Despite being fully acquainted with the facts, pertaining to the steps to be

 

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undertaken by the DC to hear and investigate the complaint the appellant purposely chose not to present herself at the hearing.

 

13.8.

 

With regard to the appellant’s contention that she was not afforded the grounds / reasons in affirming the DC’s recommendations, I am satisfied that the law does not impose a duty on the DB to provide the grounds in affirming the DC’s recommendation. Section 103D (1) of the LPA 1976 states:

 

“(1) After consideration of the report of the Disciplinary Committee, the Disciplinary Board may make an order affirming or rejecting the finding or recommendation of the Disciplinary Committee and if the Disciplinary Board rejects the finding or recommendation of the Disciplinary Committee, the Disciplinary Board shall record the reason for the rejection. ” (emphasis addedj

 

13.9. From the reading of the above provision it is clear that only in the circumstances that the DB rejects the findings or recommendation of the DC, that the DB is required to provide its reason in doing so. In view of the above the DB did not commit any error of law is not providing the reasons on its affirmation of the DC’s recommendation. Further, it is observed that the explanation letter furnished by the appellant to the DB on 3rd March 2014 was only in answer to the issue on the order of restitution which was not considered by the DC.

 

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13.10. With regards to the stand taken by the Intervener to pursue the complaint, despite the non appearance of the respondent before the DC, I am of the view that the Intervener as the body entrusted by the LPA to regulate and discipline the legal profession has a duty to protect and safeguard, the public as well as the profession. It has a duty to ensure that its members maintain a high standard of professional conduct and etiquette in the legal profession. The Intervener acts as the custodian of the high traditions of the profession.

 

13.11. I had perused the points submitted by the Intervener to oppose this appeal and I fully endorsed all the points raised by the Intervener.

 

13.12. Based on the factual matrix of this case the appellant had fallen short of the standard required of her in protecting the interest of the people she was dealing with, i.e. the respondent.

 

Penalty

 

13.13. Turning now to the contention of the appellant that the penalty imposed by the DB was too harsh and disproportionate to the offence committed. There is a plethora of cases on point, which had dealt with the issue of

 

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penalty imposed by the body, consisting of the peers of the persons, who were being disciplined by the profession.

 

13.14. The role of Intervener is to maintain integrity and professional standard of its members. It has a statutory duty to uphold the standard of the professional conduct / etiquette in the profession, which is founded upon integrity and mutual trust. In performing its obligation under the LPA, the Intervener has a duty to oversee that its members maintain the highest standard of probity, which is demanded by the profession to members of the profession themselves.

 

[See Lembaga Tatatertib Peguam-peguam v. Hoo Lin Coin & Anor 4 [2008] 1 MLRA 330; Au Kong Weng v. Bar Committee Pahang [1980] 1 MLRA 475; Re Ghconaghan [1961] 1 MLJ 81].

 

13.15. Since the law has entrusted the duty to safeguard and oversee the professional conduct of the profession to the DB can this Court interfere with the punishment meted out by the DB. It had been illustrated in the case laws which are often quoted in Court that it is a well entrenched principle of law that a Court should only interfere with the exercise of discretion of the DB in rare and exceptional circumstances. This principle had been reiterated in a recent case of the Court of Appeal vide Civil Appeal No. K02-2354-10/2012 (Bar Malaysia v. 1) Mohd Fadli bin Shuib 2) Md Zaini bin

 

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Md Noor). The Court can disturb the findings of the DB if it could be shown that the DB had erred in principle, or if the DB has overlooked, misconceived or disregarded some material matter of fact, or to have failed to act judicially. Only in the rarest of cases should the Court interfere with the findings of the body which is entrusted with the power to regulate the professional misconduct of its members. In Re A-Solicitor [1956] 3 AER 516 it was held:

 

“The court is always, and always has been, very loath to interfere with the findings of the Disciplinary Committee either on the matter of fact because they understand these matters so well and/or with respect to penalty.

 

If a matter is one, of professional misconduct, it would take a very strong case to induce this Court to interfere with the sentence passed by the Disciplinary Committee, because the Disciplinary Committee are the best possible people for weighing the seriousness of professional misconduct.”

 

[See Majlis Peguam v. Mohinder Kaur D/O Balbir Singh Deo (Court of Appeal) No. W-04-1374-2008; Keith Sellar v. Lee Kwang Tennakoon v. Lee Kwang [1980] 2 MLJ 191 (FC); Gana Muthusamy v. LM Ong & Ors [1998] 3 MLJ 341; Bolton v. Law Society [1994] 2 AER 486 (CA); Merchant v. Law Society of Saskatchewan [2002] 8 W.W.B 214 Saskatchewan Court of Appeal, Canada; Pearlman v. Law Society (Manitoba), [1991] 2 S.C. R 869]

 

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13.16. In view of the above high authorities, I am of the view that it is entirely appropriate that an individual whose conduct is to be judged should be assessed by a group of his and her peers who are themselves subject to the rules and standard that are being enforced. This Court therefore ought not to disturb the findings of the DC, which were affirmed by the DB.

 

CONCLUSION

 

14. This appeal was therefore dismissed with costs which was agreed by both parties to be RM2,000.00 to be paid by the appellant to the respondent.

 

t.t.

 

(ASMABI BINTI MOHAMAD)

 

JUDGE

 

HIGH COURT SPECIAL AND APPELATE POWERS

 

KUALA LUMPUR

 

Date of Grounds Date of Decision Date of Notice of Appeal

 

15th May 2015

 

23rd December 2014 6th January 2015

 

rd

 

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Parties:

 

1. Messrs Murugayah Advocate & Solicitor For and on behalf the Appellant Suite 269-B1, Taman AST Jalan Sungai Ujung 70200 Seremban NEGERI SEMBILAN

 

[Ref: MBC/V/039(A)SEL/10S&P/BC(1)/AU] … Mr. Shahul Hameed bin Abdul Wahab

 

2. Tetuan Arthur Wang, Lian & Associates Advocate & Solicitor For and on behalf the Intervener Unit No. 568-9-10 & 9-11 9th Floor, Kompleks Mutiara 3 % Miles, Jalan Ipoh,

 

51200 KUALA LUMPUR

 

[Ref: AMW/AL/4907-14] … Mr. Arthur Wang

 

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