Articles & Judgments Selected Judgements Thavanathan Balasubramaniam v Majlis Peguam Malaysia 2006 [HCKL] 
| Thavanathan Balasubramaniam v Majlis Peguam Malaysia 2006 [HCKL] |
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| Thursday, 28 September 2006 08:11am | |||||||||||||
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THAVANATHAN BALASUBRAMANIAM V. MAJLIS PEGUAM MALAYSIA Abdul Malik Ishak J: The Originating Motion [1] By way of a notice of originating motion in enclosure one (1), the applicant, Thavanathan a/l Balasubramaniam, (hereinafter referred to as the "applicant") sought for the following orders:
The Factual Matrix [2] The facts leading to the filing of enclosure one (1) may be stated as follows:
Is The Applicant A Fit And Proper Person To Have His Name Restored To The Roll? [3] This is the crucial question posed before this court. It cannot be assumed that re-instatement should automatically be granted. In his affidavit in support affirmed on 30 June 2005 as seen in encl. 2, the applicant avers at para. 15 that as a result of his conviction and striking off the Roll, he and his family members have suffered hardship and humiliation. With respect, this is inevitable and cannot be a basis for his re-instatement. The applicant has also mentioned in the same para. 15 of encl. 2 that he did not gain from the crime for which he was charged. But the fact remains that the applicant was convicted and that shows that he had the intention to gain from the crime. The applicant has not shown in any way that he is a fit and proper person to be restored to the position of trust as expected of an advocate and solicitor. It is of great importance to demonstrate to the public at large and particularly to the profession that dishonest conduct demands a severe penalty which may be mitigated by a lapse of a certain number of years. It is not a rule of law that an advocate and solicitor who has been struck off the Roll for dishonesty can never be reinstated. The onus is on the applicant to show that he is a fit and proper person to have his name restored to the Roll. It is a heavy burden to discharge. [4] I have perused through the report of the Disciplinary Committee as well as the letter of Miss Anita Sockalingam dated 8 March 2002 from Messrs Zain & Co as contained in exh. "T2" annexed to the applicant's affidavit in support in encl. 2. It is apparent that the Disciplinary Committee had considered all aspects of the applicant's case including the fact that he had served his term of imprisonment and the long period of suspension from his employment coupled with the sentences meted out in similar cases against the following individuals (it is interesting to note that another panel of the High Court in its judgment regarding the same applicant reported vide[2003] 3 CLJ 770 also considered the same comparables):
The Disciplinary Committee placed emphasis on Gooi Soon Seng's case and Phang Ah Hee's case (both of whom were former deputy public prosecutors) and recommended to the disciplinary board that the applicant be suspended from practice for a period of only six (6) months. The disciplinary board was of a different view and struck off the applicant from the Roll. It is submitted that the closest comparison in respect of the misconduct and punishment imposed would be that of the action taken against Mr. Wong Kim Fatt (PP v. Wong Kim Fatt [1991] 3 CLJ 2188; [1991] 3 CLJ (Rep) 620) who was also struck off the Roll. A comparison will now be made between these two cases.
[5] It must be borne in mine that Mr. Wong Kim Fatt committed the offence as a practising lawyer and he had to resign his Judicial Commissioner's post. The applicant, on the other hand, was a serving Magistrate when he committed the offence. It is undeniable that corruption by a serving Magistrate is a more serious offence as compared to an offence of a criminal breach of trust ("CBT") by a lawyer. I am asked to be magnanimous and to give the applicant a second chance. It is said that if I were to consider the case of Wong Kim Fatt, the applicant would be placed in a better light. I take into account that the applicant was 28 years old at the time of the offence and that he would be 42 years of age on 16 September 2006. Committing CBT while being at the bar goes principally to the heart of the economy. When the applicant committed that offence as a serving Magistrate, it goes to the heart of the judiciary. The integrity of the judiciary must be maintained at all times. [6]Section 107(1) of the Legal Profession Act 1976 enacts as follows:
Ultimately, everything would be dependent on the facts of each case (Re Chin Swee Oon [1964] 1 LNS 167; [1964] 30 MLJ 124). According to Harun J, with Vohrah and Zakaria Yatim JJ concurring, in Chan Chow Wang v. Malaysian Bar [1986] 1 LNS 94; [1986] 2 MLJ 159, 160 that:
Barakbah CJ sitting with Ong and Gill JJ and writing for the court in Re Chin Swee Oon (supra) also spoke of the need for the applicant to be "truly penitent" (at p. 124) before re-instatement was allowed. In Singapore, in the case of Re Lim Cheng Peng [1987] 1 LNS 104; [1988] 1 MLJ 231, Wee Chong Jin CJ sitting with Lai Kew Chai and Chua JJ construed the words "if it thinks fit" that appeared in s. 99 of the Legal Profession Act (Cap. 161, 1985 Ed.) to mean (see p. 232):
His Lordship Wee Chong Jin CJ also spoke of the time factor for re-instatement in these salient words (see p. 233):
The Supreme Court with a coram of Hashim Yeop A Sani CJ (Malaya), Harun Hashim and Mohamed Yusoff SCJJ in Teoh Hooi Leong v. Bar Council, Malaysia [1991] 1 CLJ 451 (Rep); [1991] 2 CLJ 1117; [1991] 2 MLJ 190, 194 sets out the appropriate test, in the words of Hashim Yeop A Sani CJ (Malaya), in this way:
[7] The respondent vehemently objects to the applicant's originating motion in enclosure one (1). The grounds for the respondent's objections are two folds. Firstly, this court is asked to look at the nature of the offence that the applicant was convicted for. Secondly, the lack of penitence (sorry) or repentance (regret) and the lack of an acceptance of the consequences of the grave wrong committed by the applicant that should be looked into. What is of significance to the respondent is the fact that the offence was committed by the applicant while holding a judicial office as a Magistrate. According to the respondent, the offence strikes at the very heart of the administration of justice and that would be its integrity. On the facts and by his conduct, the applicant has not demonstrated that he has accepted and has submitted to one of the fundamental dictates of the profession - that integrity cannot be compromised. Britannica World Language Edition Of The Oxford Dictionary at p. 1021 defines the word "integrity" in this way:
The conduct of the applicant does not reflect all these virtues. The courts are widely known as the last bulwark of justice. Its justices - including the Magistrates - must be men of incorruptible integrity whose only goal is to dispense justice without fear or favour. Sad to say, the applicant here do not come up to that expectation. Magistrates occupy professional positions of responsibility and influence that impose on them duties correlative with their positions and that would be to dispense justice according to law. [8] In my judgment, the fact that the applicant had served the sentence, that by itself, is not sufficient for him to come within the ambit of s. 107(1) of the Legal Profession Act 1976. After being convicted and sentenced, the applicant cannot argue that a concession should be accorded to him, so that he would come within the purview of s. 107(1) of the Legal Profession Act 1976, just because he had served the sentence. Such an argument cannot be accepted by this court for the following reasons:
[9] It is often said that to be a member of the legal profession, one has not only to understand but also to accept the importance of integrity in the administration of justice and it is this quality that will ultimately endear and serve the public interest. Miss S M Lim for the respondent submits that the applicant has not demonstrated that he has truly accepted this principle. She points out that, by his conduct, he has demonstrated that he does not believe that he should have been struck off the Roll despite his conviction by the highest court in this country. She advances the following reasons:
Dato' Mohd Shafee Abdullah for the applicant submits that what the applicant did by going through the rigmarole of appealing through the right procedures showed that the applicant went through the process of the law that was accorded to him and to others in like situations. He points that the applicant should not be criticised for pursuing and exploring his legal remedies to the fullest. By comparison, the applicant in Teoh Hooi Leong v. Bar Council, Malaysia (supra), on his own accord, applied to have his name removed from the roll. Later, the High Court refused to restore the applicant to the roll even though the Bar Council did not object. On appeal, the then Supreme Court allowed the appeal and ordered the name of the applicant appellant to be restored to the roll. Not many applicants are like Teoh Hooi Leong who applied on his own initiative to have his name removed from the roll. He had pleaded guilty to the charges of CBT of $99,240.00 under s. 409 of the Penal Code and he was sentenced to 18 months' imprisonment. The sentence was reduced on appeal to three (3) months' imprisonment with a fine of $2,000. He paid the fine and he served the sentence. What Evatt CJ said in Ex parte Clyne; Re Bar Association of N.S.W [1962] NSWR 709, 710 merits reproduction. It was this:
The greatest difficulty I feel is that he still, to some extent, asserts that what he did was unobjectionable, and he distinguishes between what he calls his acceptance of the reasons of the High Court and his agreement with such reasons. In my opinion, it is too early for this Court to be able to say that he has reformed to the necessary extent. However, I hope that when the passage of time gives him greater maturity and a fuller understanding of his obligations, he will be able to demonstrate the sincerity in his professed repentance. In my opinion, the door must not be regarded as shut for ever. I would dismiss the application with costs. Sufficient time lapse must prevail between the time the applicant was disbarred to the time the applicant applied for re-instatement. With the passage of more time and the growing maturity of the applicant, the applicant may be able to demonstrate to the satisfaction of the court his sincerity in repenting his past misdeeds. Sugerman J, writing a separate judgment, had this to say in Ex parte Clyne at p. 714 of the report:
Manning J, also writing a separate judgment, aptly said in Ex parte Clyne at p. 715 of the report:
But Dato' Mohd Shafee Abdullah for the applicant submits that the facts of the case of Ex parte Clyne are atrocious. It is like, according to him, comparing cheese with chalk. He says that the applicant in Ex parte Clyne wrote an article in the nation and criticised the court (see p. 713 of the report) and it is poles apart from the present case at hand. Notwithstanding the factual differences, I make reference to Ex parte Clyne for the principles of law which the judges there had laid down. [10] Here, the applicant had never accepted the consequences of his conviction especially that part when he was struck off the roll on 12 June 2002. On 19 June 2002, he appealed against the disciplinary board's decision to the High Court. On 24 March 2003, the High Court dismissed the applicant's appeal. And on 21 April 2003, the applicant's appealed to the Federal Court against the decision of the High Court. The Federal Court heard the appeal and dismissed the appeal with no order as to costs on 30 October 2003. The originating motion in enclosure one (1) to restore the applicant to the roll was filed on 5 July 2005. Calculation wise the applicant filed his originating motion in enclosure one (1) exactly 1 year eight months and five days after the decision of the Federal Court. The passage of time is too short for comfort. In Teoh Hooi Leong v. Bar Council, Malaysia (supra), the applicant graduated from the University of Singapore in 1966. On 27 June 1967 he was admitted as an advocate and solicitor of the High Court of Malaya and he was practising until October 1974. He was charged for CBT in 1974 and he pleaded guilty and he was sentenced to 18 months' imprisonment and, on appeal, his sentence was reduced to three months' imprisonment and he was also fined $2,000. He paid the fine and served the sentence. He was made a bankrupt in 1975 and in that year he voluntarily applied to have his name removed from the roll. But due to some miscommunication his name remained in the roll until 1989. However, from 1974 to 1987, he did not practice law but he was employed by various companies assisting in legal advice. On 10 May 1989, the applicant gave notice to the Bar Council of his intention to file an application to restore himself to the roll. And the Bar Council wrote to him on 14 June 1989 informing him that it would not object to the application. Calculation wise, the lapse of time would be approximately 14 years (from 1975 to 14 June 1989). In Re Lim Cheng Peng (supra), the applicant was convicted, on his plea of guilty, of CBT under s. 409 of the Penal Code and he was struck off the roll on 9 April 1984. In 1987, to be precise it was on 17 July 1987, he filed an originating motion to have his name restored. And the lapse of time between the applicant's disbarment to his application for restoration would be exactly three years three months and eight days. Yet Wee Chong Jin CJ (Singapore) sitting with Lai Kew Chai and Chua JJ, restored the name of the applicant to the roll. In delivering the judgment of the court, Wee Chong Jin CJ (Singapore) sounded a warning to this effect (see p. 233 of the report):
Obviously it is also too soon for the applicant here to apply for restoration to the roll. He must be patient. He must be willing to endure the long wait before he files, once again, for re-instatement to the roll. [11] Dato' Mohd Shafee Abdullah for the applicant submits that the applicant has repented and this is reflected, according to him, in the applicant's affidavit in support in encl. 2 at para. 15 thereof. With respect, para. 15 of encl. 2 does not show that the applicant has repented nor does it show that the applicant has apologised. In the early part of this judgment, I did say that that paragraph speaks of the applicant's hardship and humiliation after being convicted and struck off the roll and that paragraph too said that the applicant did not gain financially from the crime. However, the affidavit in support in encl. 2 annexed letters evidencing support of the applicant's good character. I also take into consideration that the applicant resumed practice from 3 July 1999 to 31 December 2000 and he ceased practice on 1 January 2001. During that short period of resuming legal practice, there was no complaint against the applicant. Lest I be accused of an oversight, I must state that I am aware of the following cases that laid down the following principles of law:
[12] My main concern is the lapse of time between the date of the order striking the name of the applicant off the roll and the date of the application for restoration (Re Lim Cheng Peng (supra)). It is far too short a time. The applicant too has not averred that he has repented in his affidavit in support in encl. 2. The applicant's age has a bearing when considering the originating motion in enclosure one (1) (Ex parte Macaulay [1930] 30 SR (NSW) 193). For all these varied reasons, I must dismiss enclosure one (1). As the respondent does not insist on costs, I, therefore, make no order as to costs. This is a unanimous decision of this court. [13] This judgment has been shown to my learned brothers, T. S. Nathan and Mohd Hishamudin bin Hj Mohd Yunus, JJ, and they have expressed their agreement with it. For the applicant - Dato Mohd Shafee Abdullah (Frida
Krishnan with him); M/s Shafee & Co
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