Breach of statutory duty – Malaysian Bar – Bar Council – Practice and etiquette – Professional etiquette – Whether appellant’s conduct was improper Breach of statutory duty – Duties imposed by statute – Filing of motion in relation to conduct of appellant in context of breach of etiquette and publicity rules of Legal Profession Act 1976

Tan Sri Dr Muhammad Shafee Abdullah v Tommy Thomas & Ors
[2018] CLJ JT(5), Court of Appeal

see the grounds of judgment here

Facts The appellant, a senior advocate and solicitor of the High Court in Malaya, was appointed as the lead counsel for the Public Prosecutor on an ad hoc basis for the case of Dato’ Seri Anwar Ibrahim v PP[1] under section 376[2] of the Criminal Procedure Code. On 10 February 2015, the Federal Court delivered its decision which resulted in Dato’ Seri Anwar Ibrahim’s (‘DSAI’) imprisonment. Subsequent to the decision, the appellant had allegedly behaved in a manner which constituted conduct unbecoming of an advocate and solicitor and had brought the legal profession into disrepute. This led to the filing of a motion by the first respondent, seconded by the second respondent, at the Annual General Meeting of the Malaysian Bar, to pass three resolutions to: (i) condemn, in the strongest terms, the appellant’s behaviour since 10 February 2015; (ii) call on the in-coming Bar Council to immediately lodge a complaint against the appellant with the Disciplinary Board (‘DB’); and (iii) urge the Bar Council to take steps to prevent the appellant from continuing to bring the legal profession into disrepute. Upon being aware of the motion, the appellant filed an action premised on breaches of statutory duty and on the tort of defamation against all the respondents. The appellant obtained an ex parte injunction against the respondents which, in effect, prevented the motion of the first respondent from being debated by the General Assembly of the Malaysian Bar. The High Court found in favour of the respondents. Hence, this appeal.

Issue The main issues are (i) whether the first and second respondents had breached their statutory duties by presenting the motion; and (ii) whether the third and fourth respondents had breached their statutory duties by accepting the motion.

Held In dismissing the appeal, the Court of Appeal held that the motion is nothing but a proposal and a direction from the members to the governing body to lodge a complaint with the Disciplinary Board if and when the motion is carried. It is also found that the Bar Council as the policing authority of the conduct of its members is duty-bound to receive and publish the motion.

[1] [2016] 6 CLJ 161 FC
[2] (1) The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.