Articles & Judgments Selected Judgements Professional Discipline: Lembaga Tatatertib Peguam-Peguam v. Wan Mohd Nazri Wan Hassan 2006 [CA] 
| Professional Discipline: Lembaga Tatatertib Peguam-Peguam v. Wan Mohd Nazri Wan Hassan 2006 [CA] |
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| Wednesday, 26 July 2006 05:30pm | |
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LEMBAGA TATATERTIB PEGUAM-PEGUAM v. WAN MOHD NAZRI WAN HASSAN Zulkefli Makinudin JCA: Introduction [1] By way of originating summons filed on 13 September 2005, the plaintiff who is an advocate and solicitor sought several declarations and relief against the defendant, a disciplinary board constituted under the provision of s. 93 of the Legal Profession Act 1976 ("the Act")inter alia as follows:
[2] The learned High Court Judge allowed the plaintiff's application and made the orders as prayed for by the plaintiff. The defendant now appeals against the whole decision of the learned trial Judge of the High Court. Facts Of The Case [3] The relevant facts of the case giving rise to the plaintiff's action herein and the chronology of events may be summarized as follows:
Issue To Be Tried [4] Before the learned trial judge and again before us in this appeal learned counsel for both the plaintiff and the defendant agreed that there is only one main issue to be tried in this matter namely:
Contention Of The Parties [5] It is not disputed that the defendant had not at any time constituted an Investigating Tribunal to inquire into the complaint and submit a report to the defendant for its consideration. It is therefore the contention of the plaintiff that the defendant in by-passing the Investigating Tribunal and appointing a Disciplinary Committee has resulted in the defendant breaching the provisions of the Act and consequently rendered the proceedings commenced against the plaintiff to be void for procedural unfairness. [6] On the other hand it is the contention of the defendant that the Disciplinary Board has the power to constitute a Disciplinary Committee without first constituting an Investigating Tribunal. The defendant relies on s. 103A(a) read together with 103B of the Act in support of its contention. Decision Of The Court Of Appeal [7] Learned counsel for the defendant submitted that in certain circumstances, the defendant may appoint a Disciplinary Committee without the need of going through the mechanism of appointing an Investigating Tribunal. He referred to s. 103A(a) read together with 103B of the Act. For easy reference the provisions of s. 103A and 103B of the Act are reproduced in full as follows:
[8] In his argument before us learned counsel for the defendant submitted that we should look into the objective behind the enacting of the Legal Profession (Amendment) Act 1992 (Act 812/92) by the legislature which brought about the new amended provisions s. 103A and 103B of the Act. It is the defendant's position that these amended provisions give the defendant separate jurisdiction to forthwith appoint a Disciplinary Committee in the circumstances as set out in s. 103A(a), (b) or (c) of the Act. For the defendant it was submitted that in cases where an interpretation of a particular amended statutory provision is required, the explanatory statement of the bill could be referred as an aid to statutory interpretation. (See the case of Wilson v. First Country Trust Ltd. [2004] 1 AC 816). In this regard from a reading of the explanatory statement to s. 103A of the Legal Profession (Amendment) Bill 1992 dated 19 December 1991, the following is noted:
Learned counsel for the defendant contended that a reading of the explanatory statement to s. 103A of the Legal Profession (Amendment) Bill shows that s. 103A of the Act is to be read together with s. 103B of the Act. It was submitted for the defendant that ss. 103A and 103B of the Act need not be considered together with the preceding sections under Part VII of the Act in arriving at the proper interpretation of the said two sections. [9] It was further submitted for the defendant that s. 102(2)(a) and (b) of the Act already provides for instances where the Disciplinary Board may constitute a Disciplinary Committee, either upon the recommendation of the Investigating Tribunal or if the Investigating Tribunal finds that a formal investigation is not necessary, the Disciplinary Board may disagree and appoint a Disciplinary Committee to investigate. The defendant contended that the first limb of s. 103B(1) of the Act clearly caters for instances arising under s. 102(2)(a) and (b) of the Act and that the second limb of s. 103B(1) of the Act must cater for a different scenario which is that the Disciplinary Board is separately empowered to forthwith appoint a Disciplinary Committee in situations stated in s. 103A(a), (b) or (c) of the Act. Otherwise, the defendant contended this would result in duplicity in the interpretation of s. 102(2)(a) and (b) of the Act of the one part, and s. 103A read with s. 103B of the Act of the other part. [10] With respect, I do not think all the arguments put forward for the defendant's case are tenable in the circumstances of this case. I am of the view the provisions of ss. 103A and 103B in Part VII of the Act must be considered in the light of the preceding sections under the same Part VII of the Act relating to "Disciplinary Proceedings". It cannot be considered in isolation to circumvent the procedure and mechanism provided by the Act in dealing with complaints against advocates and solicitors. To do so will lead to arbitrariness which will be contrary to the spirit of the Act. [11] Looking at the scheme of the Act, disciplinary proceedings against an advocate and solicitor is governed by Part VII under the heading "Disciplinary Proceedings". Section 93 provides for the establishment of the Disciplinary Board and its corporation. Sections 95, 96 and 97 provide the procedure for the appointment of a Disciplinary Committee and an Investigating Tribunal. Section 99 provides how a complaint is to be made to the Disciplinary Board. Section 100(1) provides the mechanism for investigating a complaint which expressly provides as follows:
Clearly from the above, the only discretion vested with Disciplinary Board at this stage is to decide whether there is merit or not in the complaint. If it considers that there is merit in the complaint, then it shall forthwith constitute an Investigating Tribunal. [12] Section 101 of the Act provides the manner in which an Investigating Tribunal may investigate the complaint. Section 102 then contain provisions relating to the finding of the Investigating Tribunal and of the recommendations that the Investigating Tribunal may make in its report to the Disciplinary Board. The section provides that an Investigating Tribunal may recommend that a formal investigation is required or that it is not required. In the event the Investigating Tribunal recommends a formal investigation, then the Disciplinary Board shall constitute a Disciplinary Committee. Even where the Investigating Tribunal recommends that a formal investigation is not necessary, the Disciplinary Board may disagree and still appoint a Disciplinary Committee. [13] It can be seen that, only when the Disciplinary Board has received a report from an Investigating Tribunal and the Disciplinary Board determines there ought to be a formal investigation that a Disciplinary Committee is appointed to investigate the complaint. The prerequisite is that there must be a report from the Investigating Tribunal first and a decision by the Disciplinary Board that a formal investigation is required. [14] It is my view that the defendant's contention calls for a strained interpretation of the provisions of s. 103A and s. 103B of the Act as such a contention does not take into account the provisions of the preceding ss. 100, 102 and 103 of the Act. It is to be noted that s. 103A(a) of the Act provides as follows:
The phrase "a formal investigation" found in the said s. 103A(a) has appeared earlier in ss. 102 and 103 of the Act. If the defendant's contention is to be accepted, then one has to ignore this fact. 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. The fundamental principles of statutory interpretation is that a statute is to be read and interpreted as a whole and not in isolation. Sections 103A and 103B of the Act therefore cannot be read in isolation without considering the other preceding ss. 102 and 103 in the same Part VII of the Act. On this point I would like to refer to the case of Attorney-General v. H.R.H. Prince Ernest Augustus of Hanover [1957] 1 All ER 49 HL. wherein Viscount Simonds in delivering his speech inter alia at p. 55 had this to say:
[15] It is also my finding that if the interpretation by the defendant on ss. 103A and 103B is to be accepted, then it would render s. 100 of the Act meaningless. The relevant words used in s. 100 of the Act are that the Disciplinary Board "shall forthwith" constitute an Investigating Tribunal if the Disciplinary Board considers a complaint has merit. There is nothing in s. 100 of the Act to even suggest that the Disciplinary Board can "forthwith" appoint a Disciplinary Committee to investigate a complaint in certain circumstances as contended by the defendant. If the legislature intended the Disciplinary Board to have the powers to "forthwith" appoint a Disciplinary Committee and by-pass the appointment of an Investigating Tribunal, then there would have been an express provision to this effect. The provisions would presumably also set out the criteria, nature and type of complaints in detail that would enable the Disciplinary Board to by-pass the Investigating Tribunal and go straight to a Disciplinary Committee. However, there is no such provision. The construction that the defendant is propounding requires the court to insert words into the Act for the said construction to apply. To my mind this would go clearly against all principles of statutory interpretation. [16] With regard to the defendant's contention that the explanatory statement of the Legal Profession (Amendment) Bill 1992 be referred to as an aid to statutory interpretation of s. 103A and 103B of the Act, it is my finding that it does not necessarily show that it gives the defendant a separate jurisdiction to appoint a Disciplinary Committee without appointing an Investigating Tribunal in certain circumstances as set out in s. 103A(a) of the Act. Equally, it can also be interpreted to mean that in the circumstances as set out in s. 103A(a) of the Act the provisions in respect of the appointment and function of an Investigating Tribunal mentioned in the earlier preceding ss. 100 and 102 of the Act would have to be considered in its application. [17] I am in agreement with the view and finding of the learned trial judge when he stated that by the defendant herein by-passing the Investigating Tribunal and appointing a Disciplinary Committee, the defendant has unilaterally removed one of the tiers provided for by Parliament in the Act for investigating a complaint. In my view the defendant cannot unilaterally do this and ignore the clear and express provisions of the Act. [18] The learned trial judge was also right when he stated that looking at the scheme of the Act, the only time when the Disciplinary Board may constitute a Disciplinary Committee without constituting an Investigating Tribunal is when an advocate and solicitor has been convicted of an offence of criminal breach of trust or any other offence involving fraud or dishonesty or the advocate and solicitor has been suspended under s. 94(4) of the Act. In the present case the plaintiff has not been convicted of any criminal case nor has been suspended. Hence, it is incumbent upon the defendant to follow the procedures as laid down by the Act and not to unilaterally circumvent the statutory procedure provided for in the Act. Conclusion [19] For the reasons above stated, I would dismiss the defendant's appeal with costs and order that the deposit be paid to the plaintiff on account of taxed costs. [20] My learned brothers, Mokhtar bin Hj. Sidin and Hashim bin Dato' Yusoff, JJCA, have seen this judgment in draft and they have expressed their agreement with it. Counsel for the appellant: Datuk N. Chandran, Puan Maidzuara Mohammed and Miss Selena Chow
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