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ORIGINATING MOTION NO A7 OF 1985

OCJ KUALA LUMPUR

22 January 1986

HARUN, VOHRAH & ZAKARIA YATIM JJ

HARUN J (Vohrah and Zakaria Yatim JJ concurring): This is an application by Chan Chow Wang for an order that his name be restored to the Roll of Advocates & Solicitors under section 107 of the Legal Profession Act, 1976 (the Act).

Mr. Chan was called to the Bar of the Honourable Society of Lincoln's Inn on November 21, 1967. He was admitted as an advocate & solicitor of the Supreme Court of Singapore on October 9, 1968; and admitted and enrolled as an advocate & solicitor of the High Court in Malaya on August 8, 1969. He practised in Singapore from 1969 to 1974 and in Malaysia from 1975 to 1979. On November 22, 1974 he was struck off the Roll of Advocates & Solicitors by the High Court of Singapore. On March 29, 1979 he was disbarred and expelled from the Honourable Society of Lincoln's Inn by the Senate of the Inns of Court. On November 17, 1979 he was struck off the Roll of Advocates & Solicitors of the High Court in Malaya. On February 11, 1985 the High Court of Singapore ordered that the name of Mr. Chan be restored to the Roll of Advocates & Solicitors. On June 12, 1985 the Special Council of the Honourable Society of Lincoln's Inn did not consider that there was any proper reason to warrant re-admission of Mr. Chan to the Honourable Society or reinstatement to the Bar of England & Wales. A disbarment is not intended to be permanent: see Ex-parte Clyne [1962] State Reports (NSW) 436, 443. That this is so is obvious from the existence of section 107(1) of the Act itself which provides --

"The High Court may, if it thinks fair and reasonable, at any time order the Registrar to restore to the Roll the name of an advocate & solicitor which has been removed from, or struck off the Roll."

Each case has to be considered in the light of its own facts: Re Chin Swee Oon [1964] MLJ 124. The test therefore, is whether, in the circumstances of the case, it is fair and reasonable to re-admit the Applicant to the Bar.

In applying the test, it is necessary first to consider the conduct which led to the Applicant's disbarment. In the instant case Mr. Chan was struck off the Roll because he had been found guilty by the Disciplinary Committee and the High Court of Singapore of --

(a)   grossly improper conduct in entering into a champertous agreement with his client to accept as his fee 10% of any damages recovered in the event of success;

(b)   fraudulent conduct in representing to the client that the insurers of the employers of her son had offered to pay $ 3,300 as damages instead of $ 4,000 actually offered;

(c)   fraudulent conduct in deducting from the amount paid to him by the insurers the sum of $ 1,000 without disclosing this to the client.

These are very serious offences committed by an advocate and solicitor in the performance of his professional duties. In re-admitting applicants to the Bar, the Court has a duty to litigants and to the legal profession to ensure that such persons are of the highest integrity and honour. The Court must also be satisfied, in the public interest, that the Applicant is not likely to repeat these offences if he is re-admitted. The onus is therefore on the Applicant to show that --

(a)   there has been such a change in his character as to make him a fit and proper person to resume practice at the Bar;

(b)   he is truly penitent; and

(c)   he has made restitution.

In the present case the Applicant has shown that --

(a)   After the disbarment from Singapore he practised in Malaysia and observed the ethics of the profession;

(b)   He has suffered professionally, socially and economically; and is truly repentant;

(c)   He has made restitution.

The Disciplinary Committee of the Bar of Malaya in striking off Mr. Chan from the Roll under section 101 of the Act held that due cause had been shown under section 93(2)(1) of the Act. That sub-section reads --

"Due cause may be shown by proof that the advocate & solicitor in Malaysia or elsewhere has been, or is liable to be, disbarred, struck off, suspended or censured in his capacity as a legal practitioner in any other country;"

The reason for his being struck off the Roll in Malaysia is that he had been disbarred in Singapore. We do not condone the offences he had committed in Singapore especially with regard to the non-disclosure of costs. We are, however, of the view that his re-admission to the Bar in Malaya must be considered independently of his re-admission to the Bar in Singapore or the refusal of the Honourable Society of Lincoln's Inn to reinstate him to the Bar of England and Wales. In this regard we do not subscribe to the view of the Bar Council that Mr. Chan cannot be re-admitted because the Honourable Society of Lincoln's Inn refused to re-admit him to that Society and therefore is no longer a Barrister which qualification makes him a "qualified person" for admission to the Bar in Malaya. In our opinion the requirement of a qualified person applies only to the initial admission to the Bar under section 10 but does not arise in cases of re-admission (as here) under section 107 of the Act.

On a full consideration of the facts and circumstances of this case, we are satisfied that it is fair and reasonable to re-admit Mr. Chan to the Bar of Malaya. We accordingly ORDER the Registrar to restore to the Roll of Advocates & Solicitors the name of Mr. Chan Chow Wang. We further order that all costs of this application shall be borne by the Applicant.

Application allowed.

SOLICITORS:

Rithauddeen & Aziz; Sri Ram Zulkifly & Kumar.

COUNSEL:

Raja Abdul Aziz Addruse for the applicant.

Sri Ram for the Bar Council.