Disciplinary proceedings – Disciplinary Board – Professional misconduct – Advocate and solicitor struck off from Roll – Whether decision excessive, harsh and disproportionate in absence of criminal element – Whether wrong had been remedied – Whether decision missed humanitarian aspect – Whether High Court correct in setting aside decision of Disciplinary Board

Majlis Peguam Malaysia v Norsiah Ali
[2020] 4 CLJ 149, Court of Appeal

see the grounds of judgment here

Facts The respondent was retained by one Zainab to handle the purchase of a property at the purchase price of MYR58,800. The property was assigned to AmBank (M) Bhd (‘AmBank’). Upon the signing of the sale and purchase agreement, the full purchase price was paid but no receipt of payment was issued by the respondent. Out of the purchase sum, MYR4,800 was paid to the vendor and the remaining MYR54,000 was to be used to redeem the property from AmBank. However, the respondent failed to redeem the property, stating that there were outstanding administrative and maintenance fees owed by the vendor to the developer and the balance amount of MYR54,000 was insufficient to redeem the property. As the applicant failed to execute the sale transaction after the lapse of five years, a letter of complaint was sent to the Disciplinary Board (DB) against the respondent. The Disciplinary Committee, after having heard the evidence of relevant parties, found the respondent had committed professional misconduct against the complainant and thereafter, the DB made its decision. The respondent submitted that the sentence to be struck off the Roll by the DB was excessive, harsh and disproportionate as there was no criminal element in the respondent’s case but misconduct for failing to pay the balance sum to the assignee bank. The respondent also had remedied the wrong committed by paying more than the full amount of the purchase price of the property. The High Court agreed to the respondent’s submission and set aside the DB’s decision in striking off the Roll of Advocate and
Solicitor of the respondent and the order to make restitution to the complainant. Hence, this appeal.

Issues It has been determined that an advocate and solicitor is dishonest, and has committed misconduct through misappropriation of client's monies (breach of trust), whether it amounts to misconduct sufficient to merit the advocate and solicitor being struck off the Rolls?;
Whether act of the late repayment of the monies misappropriated by the solicitor a mitigating factor sufficient to excuse the said solicitor from being struck off the Rolls as opposed to a mere suspension; and
Whether the considerations for sentencing in disciplinary proceedings are aimed to protect the public, deter the other practitioners, or limited to punishing the errant solicitor according to his circumstances?

Held In dismissing the appeal, the Court of Appeal held that questions posed to the court in the style of ‘hardtalk’ was not the courteous approach to address the Bench. It was undesirable for this court to answer the abusive questions framed by a responsible body related to rule of law, and courts should not do so like it was a case of leave to appeal to the Federal Court by posing questions of law to the Federal Court. The Court of Appeal’s role here was to administer justice as per section 69
[1] of the Courts of Judicature Act 1964 and not under section 96[2] of the same Act.

ZUL RAFIQUE & partners
{15 May 2020}

[1] Hearing of appeals
[2] Conditions of appeal