DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. 02–8–2006 (W)
LEMBAGA TATATERTIB PEGUAM–PEGUAM … PERAYU
1. HOO LIN COLN … RESPONDEN–
2. WONG WENG WOH RESPONDEN
[ Dalam Mahkamah Tinggi di Kuala Lumpur
Rayuan Sivil No. R–17B–28–2005
Hoo Lin Coln … Perayu
1. Wong Weng Woh … Responden–
2. Lembaga Tatatertib Peguamcara–Peguamcara Responden ]
( In the Matter of a Complaint before the
Advocates & Solicitors Disciplinary Board
Complaint No. DC/00/0592
Wong Weng Woh … Complainant
Hoo Lin Coln … Respondent )
NIK HASHIM NIK AB RAHMAN, F.C.J.
AUGUSTINE PAUL, F.C.J.
ABDUL AZIZ MOHAMAD, F.C.J.
Judgment of Dato' Abdul Aziz Mohamad, FCJ:
1. Of the several grounds of the first respondent’s preliminary objection, that which I find merits consideration the most is that, viewed against the legislative backdrop of the Legal Profession Act 1976 (“the LPA”) and the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994 (“the 1994 Rules”), disciplinary proceedings against an advocate and solicitor are adversarial in nature and that therefore the “party aggrieved” in section 103E of the LPA must refer to one of the adversaries, which in the case of an appeal to this court, as the present appeal is, must be the complainant, who is the second respondent here, and cannot be the adjudicating Disciplinary Board (“DB”) itself.
2. The position taken by the appellant DB as to that ground is expressed in paragraph 3 of its outline submission:
“3. With respect, this submission is based on a misunderstanding of the nature of disciplinary proceedings. In proceedings relating to the discipline of professionals, there are no parties in the commonly understood meaning of the word where one party is seeking some sort of relief. There is no lis, or inter partes controversy, akin to a criminal prosecution or civil dispute.”
3. That statement was, I believe, inspired by certain pronouncements in Attorney–General of the Gambia v Pierre Sarr N’Jie  A.C. 617 (“the Gambian case”) and Bar Council of Maharashtra v M.V. Dabholkar, etc. etc., AIR 1975 S.C. 2092 (“the Indian case”). In the Gambian case Lord Denning said at page 631: “When the judges exercise their power to suspend or expel, they do not decide a suit between parties. There is no prosecution as in a criminal case, nor any plaintiff as in a civil suit.” In the Indian case A.N. Ray C.J. said at paragraph 24: “… there is no lis in proceedings before the disciplinary committee. When the disciplinary committee exercises the power to reprimand the advocates, or suspend the advocate from practice or remove the name of the advocate, the committee does not decide a suit between the parties”.
4. But those pronouncements are not the expression of a universal norm as to the nature of disciplinary proceedings against legal practitioners. They were made in the context of the state of the relevant legislation in the jurisdiction concerned. Were it clear from our legislation, from express words or by necessary implication, that in Malaysia disciplinary proceedings against advocates and solicitors are adversarial in nature, those pronouncements will immediately be seen as incapable of applying to us.
5. I do not think that it is a matter beyond controversy that in Malaysia disciplinary proceedings against an advocate and solicitor are not adversarial in nature. There are indications tending otherwise in the LPA and the 1994 Rules. But I do not intend to go into them or to decide the question because I find that, even assuming that there is no lis or inter parties controversy in disciplinary proceedings under the LPA, the DB’s reasons for claiming to be a “party aggrieved” under subsection (3) of section 103E of the LPA are unacceptable. I will only say that, in my view, contrary to what is stated in paragraph 25 of the DB’s outline submission, in Jerald Allen Gomez v Shencourt Sdn Bhd; Majlis Peguam (Intervenor)  1 CLJ 88 the High Court did not decide that disciplinary proceedings against an advocate and solicitor are non–adversarial. What happened in that case was that the disciplinary committee heard the advocate and solicitor first in his defence and it was only thereafter that the complainant company’s representative propounded his complaint and was cross–examined by the advocate and solicitor. It was argued for the advocate and solicitor that such a procedure was unfair because the complainant company had a burden to prove its case beyond reasonable doubt and must discharge that burden before the advocate and solicitor could be called upon to enter upon his defence. The High Court (of three judges) said at page 99:
“In our view there is nothing irregular or unfair in the procedure adopted by the disciplinary committee. The proceedings although quasi–judicial in nature need not emulate the strict adversarial procedure practised in a criminal court. This is not a criminal trial but a disciplinary proceedings. So long as it is seen that “fair play is in action” to borrow Lord Morris’ words, and that the procedures applied are just and fair, then, in this court’s view, it cannot be said that the disciplinary committee had committed a breach of procedural fairness.”
It was an opinion about fairness of procedure and not about whether the proceedings before the disciplinary committee were adversarial. The High Court merely said that the proceedings “need not emulate the strict adversarial procedure practised in a criminal court”. That does not equate with saying that the proceedings were non–adversarial.
6. The DB’s essential reason for claiming to be a “party aggrieved” may perhaps best be stated by quoting certain words from paragraphs 27 and 30 of the Indian case, since heavy reliance seems to be placed on the case in making the claim. In paragraph 27, in relation to the meaning of “a person aggrieved” in a statute that creates a right of appeal to courts against an administrative or judicial decision and that gives that right to a “person aggrieved”, it is stated: “A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality”. The liberal approach that should be adopted in construing section 103E of our statute is to encompass within the term “party aggrieved” a person who, to quote from paragraph 30 of the Indian case, “represents the collective conscience of the standards of professional conduct and etiquette” of advocates and solicitors or “acts as the protector of the purity and dignity of the profession”.
7. In the Indian case it was held that the Bar Council of Maharashtra was such a person. Its disciplinary committee had suspended certain advocates and solicitors from practice for three years. On their appeal to the Bar Council of India, its disciplinary committee set aside the orders of the disciplinary committee of the Bar Council of Maharashtra, which sought to appeal to the Supreme Court as a “person aggrieved” under section 38 of the Advocates Act 1961.
8. In the present case, the DB claims that it is such a person. The DB was established by amendments to the LPA by the Legal Profession (Amendment) Act 1992 (Act A812) to take over the control and disposal of disciplinary actions against advocates and solicitors which had been in the domain of the Bar Council, because of public dissatisfaction with its performance in the disposal of complaints against advocates and solicitors. In paragraph 12 of the DB’s outline submission, it is submitted that the amendments transferred the responsibility for the discipline of lawyers from the Bar Council to the Disciplinary Board.
9. That is essentially true. Subsection (1) of section 93 does state in effect that the DB is established for “the purposes of disciplinary proceedings” under Part VII of the LPA. Subsection (1) of section 94 subjects all advocates and solicitors to the control of the DB, but “for the purposes of all disciplinary actions”. It is clear from section 99 that the DB only acts on a complaint that is made or referred to it, which it is required to deal with in accordance with rules made under Part VII.
10. But what may be understood from those provisions to be the
function of the DB, of great importance though it undoubtedly is, does
not, in my opinion, make the DB the person, to quote the words in the
Indian case again, who “represents the collective conscience of the
standards of professional conduct and etiquette” of advocates and
solicitors or “acts as protector of the purity and dignity of the profession”.
The person who meets that description is, in my view, the Bar Council,
which, under subsection (1) of section 47 of the LPA, is responsible for
the proper performance of the functions of the Malaysian Bar, one of
whose functions is, under paragraph (b) of subsection (1) of section 42,
“to maintain and improve the standards of conduct and learning of the
legal profession of Malaysia”. In addition, under paragraphs (b) and (c)
of section 57, the Bar Council has specific powers “to answer questions
affecting the practice and etiquette of the profession and the conduct of
members”, “to take cognizance of matters affecting … the professional
conduct” of members of the Malaysian Bar, and to “take any action as it
considers fit” in relation to “the interests of the profession”.
11. With those functions and powers, if, for example, there is public
dissatisfaction with the conduct generally of members of the legal
profession, it becomes the concern of the Bar Council to find ways and
means to improve matters so as to restore public confidence in the
profession and the dignity of the profession. It is not the concern of the
DB, whose function is only in relation to actual complaints of misconduct
that fall into its lap. It is answerable for the disposal of the complaints. It
has not the higher function of worrying about the good name and dignity
of the profession. That is the function of the Bar Council. Subsection (2)
of section 93, which says: “The Disciplinary Board shall have the same
powers as those exercised by the Bar Council before the coming into
force of this Act”, has to be construed as referring to powers relating to
the conduct of disciplinary proceedings and cannot be construed as
effecting the transfer of the Bar Council’s higher function to the DB.
12. It is a reflection of that higher function of the Bar Council that in the
realm of actual disciplinary proceedings the Bar Council is enabled to
play certain important roles. Apart from the usual run of individual
complainants, the Bar Council itself, under subsection (3) of section 99,
may make a complaint against an advocate and solicitor and become
the complainant in the ensuing disciplinary processes. Under
paragraph (1) of rule 8 of the 1994 Rules, where a complaint by a
person has been withdrawn the Bar Council is empowered to proceed
with the complaint as if it was made of its own motion, and become the
complainant in the ensuing disciplinary proceedings. Under subsection
(4) of section 103E, in an appeal under the section in a case where the
Bar Council is not the complainant, the Bar Council is given the
discretion to intervene and participate in the appeal.
13. For those reasons, even if the term “party aggrieved” in subsection
(3) of section 103E has to be construed according to the liberal
approach that, according to the Indian case, has to be adopted in the
case of a statute dealing with professional conduct, I am of opinion that
the DB does not qualify as a party aggrieved. In this I am in agreement
with the conclusion of my learned brother Augustine Paul FCJ that the
Disciplinary Board is not a “party aggrieved” for the purposes of section
14. I am, however, with respect, unable to find, as my learned brother does, that the DB is nevertheless a “party aggrieved” because an order for costs was made against it by the High Court. Although in oral submission the DB’s counsel did include the order for costs as a ground for claiming the DB to be a “party aggrieved”, in the outline submission that was subsequently prepared on our direction to encapsulate the oral submission, this point has not been urged. I take it that it has been abandoned, and I think rightly, because the DB’s memorandum of appeal, even as amended, does not include the order for costs as a ground of appeal.
15. What has been urged in the DB’s outline submission as an additional ground – but admitted as “a narrow ground” – for claiming the Disciplinary Board to be a “party aggrieved” is the allegation that the High Court made several comments on the procedure adopted by the Disciplinary Committee, comments allegedly made on the High Court’s interpretation of rule 23 of the 1994 Rules as a rule that makes the proceedings a formal trial between two parties, which interpretation is viewed as conflicting with the perceived opinion of the High Court in the Jerald Gomez case, supra, that the proceedings are non–adversarial, as to which I have said that the High Court did not so opine. It is submitted that the DB is a “party aggrieved” because it has an interest to obtain a final decision as to the proper procedure to be adopted in the future. If the said comments of the High Court in this case have a bearing on its decision to allow the first respondent’s appeal, then the comments are a matter that forms part of the merits of the appeal. If the DB has no locus standi to bring this appeal, it has no locus standi to show that the comments are wrong and that were it not for the matter of the comments the High Court should have dismissed the appeal. If the matter of the comments has no bearing on the High Court decision, then it is academic. The merely academic need to have a determination of a point of law or procedure for future guidance cannot, in my opinion, by any stretch of the imagination or of argument, render the DB a “party aggrieved” under subsection (3) of section 103E.
16. I would allow the preliminary objection.
Judgment of Dato’ Bentara Istana Dato’ Nik Hashim bin Nik Ab. Rahman, FCJ:
1. With regard to the preliminary objection raised by the 1st respondent at the outset of the hearing, I agree that the objection be dismissed with no order as to costs. I agree, without qualification, with the reasons which are so clearly expressed in the judgment of my learned brother Augustine Paul, FCJ.
2. As to whether the Disciplinary Board (the DB) was a party aggrieved, it appears to me that section 103E(3) of the Legal Profession Act 1976 confers a right of appeal to any party aggrieved by the decision of the High Court. And since the DB was made a party by the 1st respondent before the High Court and the interests of the DB had been prejudicially affected by the order of costs against the DB by the decision of the High Court, the DB was a party aggrieved and was therefore entitled to appeal to the Federal Court against the High Court’s decision (see Cook v Southend Borough Council (1990) 1 All ER 243 CA). In the circumstances, this Court orders that this appeal be heard on its merit.
14 May 2008
Counsel for the appellant: Dato’ D.P. Naban and Nitin Nadkarni
Solicitors for the appellant: Lee Hishammuddin Allen & Gledhill
Counsel for the 1st respondent: Gurbachan Singh s/o Bagawan Singh,
Harjinder Singh and Amrit Pal Singh
Solicitors for the 1st respondent: Harjinder Singh & Associates
Counsel for the 2nd respondent: Jagjit Singh
Solicitors for the 2nd respondent: Jagjit Siingh & Co.