Articles & Judgments Selected Judgements Professional Discipline: Lembaga Tatatertib Peguam-Pegaum v Wan Mohd Nazri Wan Hassan 2007 [FC] 
| Professional Discipline: Lembaga Tatatertib Peguam-Pegaum v Wan Mohd Nazri Wan Hassan 2007 [FC] |
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| Wednesday, 28 February 2007 07:11pm | |
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LEMBAGA TATATERTIB PEGUAM-PEGUAM V. WAN MOHD NAZRI WAN
HASSAN Abdul Aziz Mohamad FCJ: [1] Pursuant to a complaint concerning the respondent's conduct as an advocate and solicitor, the Disciplinary Board appointed a Disciplinary Committee by virtue of para. (a) of s. 103A of the Legal Profession Act 1976 ("the Act") without constituting an Investigating Tribunal under s. 100 to investigate into the complaint and report its findings to the disciplinary board. Taking the stand that this was wrong, the respondent, after the Disciplinary Committee had commenced to hear the complaint, brought proceedings in the High Court for declarations to invalidate the disciplinary proceedings brought against him so far and for an injunction to stop further proceedings against him by the Disciplinary Committee. The respondent succeeded in the High Court and also, on appeal by the appellant Disciplinary Board, in the Court of Appeal. [2] In the High Court and the Court of Appeal it was agreed that there was only one main issue to be decided in this case, namely:
[3] The appellants were granted leave to appeal to this court on the following question:
[4] Disciplinary proceedings against advocates and solicitors are regulated by a number of sections in Part VII of the Act. Major changes in the disciplinary hierarchy and procedure were effected by the Legal Profession (Amendment) Act 1992 (Act A812) through the substitution of ss. 93 to 103 of the Act, which are in Part VII, with new provisions and the addition in that Part of new ss. 103A to 103E. Several of those new ss. 93 to 103E were later amended by the Legal Profession (Amendment) Act 1993 (Act A861). Further major changes in hierarchy and procedure, including the abolition of the Investigating Tribunal, were effected by the Legal Profession (Amendment) Act 2006 (Act A1269) which came into force on 2 October 2006, but they do not affect the case of the respondent because, by virtue of s. 35 of that Act, his case continues to be governed by the applicable provisions as they stood before Act A1269 came into force. Therefore the provisions of the Act that we will be referring to are provisions introduced by Act A812 as amended by Act A861 but as unamended by Act A1269. [5] The Disciplinary Board is established under s. 3. Section 94(1) vests it with control over all advocates and solicitors "for the purposes of all disciplinary actions". Section 94(2) lays down the penalty for "misconduct": striking off the roll or suspension for a period. Section 94(3) defines "misconduct". It includes "conviction of a criminal offence which makes him unfit to be a member of his profession". Section 94(4) provides that in certain circumstances pertaining to an advocate and solicitor, such as where he is found guilty by a court of law of any offence involving dishonesty, the Bar Council, the governing body of the Malaysian Bar, may apply to the Disciplinary Board for an order suspending him from practice until further notice, if the Bar Council considers that such suspension "would be in the public interest or in the interest of his clients or of the profession". [6] Section 95 requires, for the purposes of disciplinary proceedings under Part VII of the Act, that there be established a Disciplinary Committee Panel "with a Disciplinary Committee established under it" and an Investigating Tribunal Panel "with an Investigating Tribunal established under it". Those Panels are appointed by the Disciplinary Board under ss. 96 and 97.
[7] By s. 99(1) any complaint concerning the conduct of an advocate and solicitor must in the first place be made or referred to the Disciplinary Board. By s. 100(1) the Disciplinary Board "shall, if it considers that there is merit in the ... complaint, forthwith constitute an Investigating Tribunal", and that is done by appointing, under s. 100(2), three members from the Investigating Tribunal Panel. That was not done in this case and that was what the respondent contended the appellants should have done. [8] The duty of the Investigating Tribunal is, according to s. 101(1), to investigate into the complaint and report its findings to the Disciplinary Board, and also, according to s. 102(1), to make any one of three recommendations, two of which are either that a formal investigation is not necessary or that there should be a formal investigation by a Disciplinary Committee. Section 102(2) provides as follows:
[9] Section 103A provides as follows:
It was in reliance on para. (a) that the appellant Disciplinary Board appointed the Disciplinary Committee in this case. [10] Section 103B provides as follows:
[11] Section 103C sets out the choice of recommendations one of which the Disciplinary Committee is required to make to the Disciplinary Board according to the recorded findings of fact that it has made after "hearing and investigating any matter referred to it". Section 103D provides for the orders that the Disciplinary Board may make after considering the report of the Disciplinary Committee. [12] The respondent rightly accepted, as the High Court and the Court of Appeal rightly thought, that in the circumstances mentioned in paras (b) and (c) of s. 103A the Disciplinary Board may appoint a Disciplinary Committee directly without first constituting an Investigating Tribunal under s. 100(1). The reasons are not difficult to see. As regards para (b), conviction of a criminal offence which makes an advocate and solicitor unfit to be a member of his profession is, as s. 94(3) says, a misconduct; and for it disciplinary proceedings may be taken against him. The fact that para (b) singles out conviction of specific offences of that nature means that a case of conviction of any of the specific offences is to be subject to a different disciplinary procedure from cases of conviction of other offences of that nature, that is, a procedure where a Disciplinary Committee is appointed directly without an Investigating Tribunal having first to be constituted. As regards para (c), there can be no question of having to appoint an Investigating Tribunal because, as has been seen, a suspension under s. 94(4) comes about not from a complaint to the Disciplinary Board but from an application by the Bar Council for suspension. Therefore the question that we had to answer actually turned on the circumstance in para (a) of s. 103A. We answered the question in the affirmative and allowed the Disciplinary Board's appeal. [13] It was for a combination of three reasons that we were of opinion that in the circumstance in para (a) of s. 103A the Disciplinary Board is vested with "an independent and distinct" power to appoint a Disciplinary Committee, that is, a power that is independent of and distinct from its power or duty under s. 102(2) to appoint a Disciplinary Committee, which arises only after the Investigating Tribunal has made its report and which therefore cannot arise unless an Investigating Tribunal has been constituted. [14] The first reason is this. The requirement of s. 103A that "the Disciplinary Board shall forthwith appoint a Disciplinary Committee which shall hear and investigate the matter" is, as the section is drafted, a requirement that applies equally to each of the circumstances in paras (a), (b) and (c). Since the power to appoint that is implicit in that requirement is independent of and distinct from the power to appoint under s. 102(2) where the circumstances in paras (b) and (c) are concerned, it must be so too where the circumstance in para (a) is concerned. There could not have been intended a severance, splitting or dichotomizing of the quality of the power according to which of the three circumstances it is that may be in question. [15] For the second reason, it is expedient to first quote what Zulkefli Makinudin JCA, speaking for the Court of Appeal panel, said: "The phrase 'a formal investigation' found in ... s. 103A(a) has appeared earlier in ss. 102 and 103 of the Act ... It is my view whether there should be a formal investigation or not as envisaged by s. 103A(a) of the Act it must be subject to a report made by the Investigating Tribunal under s. 102(2) of the Act". In those words there seems to be a perception that the decision of the Disciplinary Board under para. (a) of s. 103A that there should be a formal investigation, upon which the section requires it to "forthwith appoint a Disciplinary Committee", is somehow related to what happens under s. 102(2), which involves the report of the Investigating Tribunal, or somehow flows from that section. It must be observed that in para. (a) of s. 103A the word is "determines". The Disciplinary Board determines that there should be a formal investigation. Section 102(2) has two paragraphs. Under para. (a) the Disciplinary Board is bound to constitute a Disciplinary Committee if the investigating tribunal recommends that there should be a formal investigation. There is no question under that paragraph of the Disciplinary Board determining that there should be a formal investigation. Under para. (b) the Disciplinary Board is given the discretion to nevertheless appoint a Disciplinary Committee, even where the investigating tribunal recommends that a formal investigation is not necessary, if it disagrees with the recommendation. Of course the disagreement with the recommendation means that the Disciplinary Board thinks or takes the view that a formal investigation is necessary, but para. (b) does not speak of the Disciplinary Board determining that there should be a formal investigation. We were of the view that the word "determines" in para. (a) of s. 103A is intended to denote the making of a decision by the Disciplinary Board on its own volition and not as a response under s. 102(2) to a recommendation of the Investigating Tribunal. That is the second reason. [16] The third reason lies in s. 103B(1). Section 103B is basically intended to set out the composition of the Disciplinary Committee, which has not been set out before, whereas the composition of an Investigating Tribunal has been set out in s. 100(2). As the duty to appoint a Disciplinary Committee has been laid down in ss. 102(2) and 103A, and in view of its contents, s. 103B(1) is basically intended to be a recapitulation of the instances, already laid down in ss. 102(2) and 103A, when the Disciplinary Board "shall" appoint a Disciplinary Committee, coupled with a statement of what the Disciplinary Committee has to do, and is not intended to provide for other instances of appointment of a Disciplinary Committee. Section 103B(1) looks to two instances of appointment in terms of the purpose of the appointment. One instance is that of an appointment of a Disciplinary Committee to consider the report of the Investigating Tribunal. That applies "in cases where an Investigating Tribunal has been appointed". Those have to be cases where the appointment was pursuant to s. 102(2). The other instance is that of an appointment of a Disciplinary Committee to investigate and make recommendations to the Disciplinary Board in respect of cases under s. 103A. There is in one or two respects a want of consistency between s. 103B(1) on the one hand and ss. 102(2) and 103A on the other. For example, s. 103B says that in the first of the instances the Disciplinary Committee is "to consider ... the report of the Investigating Tribunal" whereas the implication to be drawn from para (a) of s. 102(2) is that the Disciplinary Committee's function is to carry out a formal investigation. But this want of consistency does not detract from the fact that s. 103B(1) is intended to refer back to ss. 102(2) and 103A. The important thing to note from s. 103B(1) for the question in the appeal is that the first instance is of "cases where an Investigating Tribunal has been appointed". That means that the second instance, that of "cases under s. 103A", that is cases under all the three circumstances of the section, including the circumstance in para (a) thereof, are not cases where an Investigating Tribunal has been appointed. That is the third reason. [17] The independent and distinct power of the Disciplinary Board to appoint a Disciplinary Committee in the circumstance of para (a) of s. 103A means that where the Disciplinary Board receives a complaint concerning the conduct of an advocate and solicitor it has an unfettered discretion to determine that there should be a formal investigation and to straight away appoint a Disciplinary Committee for the purpose and is not bound under s. 100(1) to "forthwith constitute an Investigating Tribunal" to make recommendations to it as to whether or not there should be a formal investigation by a Disciplinary Committee. One reason why the Court of Appeal was not in favour of the appellant's construction of s. 103A(a) is the absence of express provisions setting out the types of complaint to deal with which the Disciplinary Board may straight away act under the section and appoint a Disciplinary Committee instead of first appointing an Investigating Tribunal under s. 100(1). The Court of Appeal envisaged that disputes might arise on the question, the determination of which would require the court "to insert words into the Act", and "this would go clearly against all principles of statutory interpretation". Once, however, it is accepted that the Disciplinary Board has an unfettered discretion to act under s. 103A(a), the concern expressed by the Court of Appeal would not arise. It is true that the provisions that involve the Investigating Tribunal would become a dead letter if in every case the Disciplinary Board chooses to act under s. 103A(a), but that is the inevitable consequence of the manner in which, in our judgment, the section has to be construed, and such a consequence ought not to inhibit such a construction. Counsel for the appellants: Datuk N. Chandran (Maidzuara Mohammed with him) Solicitors for the appellants: Logan Sabapathy & Co. Counsel for the respondent: Alex De Silva (S. Shamalah with him) Solicitors for the respondent: De Silva
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