Ajmain Bin Abd Rahim v 1. Nik Suhaidi Bin Nik Othman (Saman Pemula No. WA-17D-7-02/2017)

Nik Suhaidi Bin Nik Othman (No. K/P: 730924-03-5487)

Majlis Peguam Malaysia … Responden-Responden Grounds of Decision Azizah Nawawi, J: Application [1] This is the applicant’s appeal seeking the following prayers:

That the Advocates & Solicitors Disciplinary Board’s (“DB”) decision dated 13.1.2017 made in pursuant to Section 103D of the Legal Profession Act 1976 (the “LPA 1976”) in allowing the Respondents’ complaint and ordered that the applicant’s name be struck off the Rolls of the Advocates & Solicitors(the “Decision”) be set aside; and

(ii) For an order that the 2nd Respondent (“Bar Council”) is to reinstate the applicant’s name into the Rolls of the Advocates & Solicitors. [2] Having considered the application and the submission of the parties, this Court has allowed the application with no order as to costs. The Salient Facts 3 [3] The applicant was enrolled as an advocate and solicitor of the High Court of Malaya on 17.5.2001. [4] Vide a letter of complaint dated 10.7.2013, the 1st Respondent (the “Original Complainant”) had lodged a complaint (the “Complaint”) with the 2nd Respondent, the Bar Council. The gist of the Complaint was that the legal firm of Messrs Abdul Aziz & Associates (the “Firm”) had misapplied the client’s money belonging to the Original Complainant amounting to RM143,851.13. [5] Following the said Complaint, the DB had issued a letter dated 2.9.2013 to Asmadi Faizal bin Ibrahim (“Asmadi”), a partner of the Firm, demanding for an explanation from him. Asmadi then replied to the DB’s letter vide his letter dated 17.12.2013. Subsequently, the Original Complainant replied to Asmadi’s letter vide a letter dated 21.1.2014. [6] On 21.2.2014, upon hearing the explanation and submission given by Asmadi, the DB made a decision to include the applicant and three

others as the Respondents to the Complaint. The DB also formed a Disciplinary Committee (“DC”) to investigate into the Complaint against the following persons:

Asmadi Faizal Bin Ibrahim of Messrs Abdul Aziz & Associates; 4

(ii) Ajmain bin Abd Rahim (previously practicing at Messrs Khairul A & Co);

(iii) Nor Azril Bin Roselan (previously practicing at Messrs Khairul A & Co);

(iv) Abdul Aziz Bin Muhammad Tahir (previously practicing at Messrs Abdul Aziz & Associates); and

Siti Asilati Binti Basri of Messrs Abdul Aziz & Associates; [7] Nevertheless, on 26.5.2014, the Original Complainant decided to withdraw the Complaint. Vide its letter dated 19.6.2014, the DB had informed the DC’s Chairman that the Original Complainant has the right to withdraw the Complaint against all the respondents, including the applicant. However, since the Bar Council has already intervened and was a party to the said Complaint, the DC is to proceed with the investigation. [8] With regards to the applicant herein, at the end of the investigation, the DC made the following recommendation to the DB: “2. That R2 (Ajmain) was a Partner of the Firm and in the view of the DC, he continued to remain so even though he ostensibly withdrew from the Partnership of Messrs Abdul Aziz & Associates to join Messrs Khairul A & Co on 1.5.2011 by reason of the fact that he continued to be one 5 of the signatories to the Ambank CA. therefore, he is culpable for: -

The conversion of original complainant’s funds in the Ambank CA to pay PKNS; and

For the conversion of PKNS fund received into Ambank CA. ……

Accordingly, the DC recommend to the DB as follows: -

….

R2 be struck off under Section 94(2) of the Legal Profession Act 1976...” [9] The findings of the DC have been affirmed by the DB, and on 13.1.2017 the DB had ordered for the applicant’s name to be struck off from the Rolls of the Advocates & Solicitors. [10] Being aggrieved by the said decision, the applicant has filed this Originating Summons to set aside the said decision. The Findings of the Court [11] It is common ground that both the DC and the DB are required to apply the standard of proof, beyond reasonable doubt, in the 6 disciplinary proceedings. In Keith Sellar v. Lee Kwang Tennakoon V Lee Kwang [1980] 2 MLJ 191, the Federal Court held as follows: “The second question is what burden of proof did the Disciplinary Committee apply in arriving at its findings. Looking at the grounds given in its statement of findings, the Disciplinary Committee although it made very firm findings unfortunately did not say expressly what standard of proof it adopted in arriving at its decision. First, what is the standard of proof required in such a proceeding? Very recently, this Court in Au Kong Weng v. The Bar Committee, State of Pahang [1980] 2 MLJ 89 dealt with the same question and accepted the standard set by Bhandari's case [1956] 3 All ER 742. Lord Tucker in that case approved the required standard established by the Court of Appeal in that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for. The Court of Appeal also expressed the view that any body of professional men sitting in judgment on a colleague should not be content to condemn on a mere balance of probabilities. The standard of proof required in a proceeding of this type is proof beyond reasonable doubt. In the judgment of this Court in Au Kong Weng's case, the Chief Justice said: 7 It is a question for the committee to decide, first, whether the facts alleged in the charge had been proved beyond reasonable doubt and secondly whether the appellant in relation to those facts, was guilty of such conduct. The absence in the Committee's determination of any mention of the standard of proof does not justify an inference that it had failed to have regard to it.” [12] It is the submission of the Bar Council that based on the contemporaneous documents, the following facts are not in dispute:

Vide a letter dated 1.7.2013 issued by the Firm, admitting that the Firm had decided to appropriate the Original Complainant’s monies and apply it towards discharging the Firm’s debt to PKNS.

(ii) That the Original Complainant’s money was taken out from the Firm’s Client Account No. 023-202-200112-0 maintained at AmBank’s Medan Pasar Branch, Kuala Lumpur.

(iii) That up to 26.5.2014, the sole signatories to the Firm’s Client Account are the applicant and one Nor Azril bin Roslan (“Azril”), with the condition that both are to sign.

(iv) Hence, both the applicant and Azril had signed the Remittance Form. These signatures have been verified and there was a verbal confirmation by one Rosnani and one JC, from the bank, 8 at 11.25 am on 18.6.2013. However, both Rosnani and/or JC did not attend the DC proceedings as witnesses. [13] Therefore, based on the contemporaneous documents and the undisputed facts, it is the submission of the Bar Council that the applicant was involved in the misappropriation of the Original Complainant’s monies in the Firm’s client account. [14] However, it is the applicant’s submission that the DC has failed to appreciate that the facts alleged in the misconduct had not been proven beyond reasonable doubt and that the applicant was not guilty of such misconduct. [15] The core issue raised by the applicant is that his signature on the Remittance Form for the sum of RM75,837.67 (exhibit R2W1D4) out of AmBank to Permodalan Kemajuan Negeri Selangor (“PKNS”) was forged, that he did not sign on exhibit R2W1D4. To support his contention, the applicant called Mr. William Pang, who testified before the DC that based on his analysis of the signatures of the applicant, there are differences between the signature on the Application Remittance Form, exhibit R2W1D4, and the applicant’s specimen signature given to him. [16] However, the DC took the position that the applicant only challenged his signature on exhibit R2W1D4, but had failed to challenge the signature on the other Remittance Form for the sum of RM65,000.00. Added to that, the DC also finds that ‘the comparison of their 9 signatures on both forms show beyond doubt that they are the same. Additionally, they did not challenge their signatures drawn on the AmBank CA withdrawing funds from AmBank CA after 1.5.2011.’ [17] But, the DC failed to consider that in the letter issued by the Firm dated 1.7.2013 to the Original Complainant, the Firm had only admitted to the use of the sum of RM76,000.00 of the Original Complainant’s money. The said letter reads: “….. Oleh itu, demi untuk mengurangkan masalah semua pihak dan Pemilik Tetuan Abdul Aziz & Associates dan Pihak Akaun Clients’ AmIslamic Bank sendiri iaitu En. Nor Azril bin Roselan, maka kami telah membuat keputusan untuk ‘meminjam’ sebahagian dari jumlah wang baki pembelian rumah/balance purchase price iaitu berjumlah RM76,000.00 untuk melangsaikan hutang dengan PKNS. Hutang PKNS itu adalah merupakan hutang En. Nor Azril ...” [18] Therefore, I am of the considered opinion that there is merit in the applicant’s contention that the reason why he is only challenging his signature on exhibit R2W1D4 is because the admission to the misappropriation is only in respect to the RM76,000.00. Indeed, the DC has decided on the issue of culpability based on the Form’s admission to the misappropriation of RM76,000.00. Added to that, it is also the Bar Council’s submission that the undisputed fact is that 10 vide a letter dated 1.7.2013 issued by the Firm, the Firm had decided to appropriate the Original Complainant’s monies and apply it towards discharging the Firm’s debt to PKNS. [19] As such, since the finding of misconduct centred around the admission to the misappropriation of RM76,000.00, it is therefore not unreasonable for the applicant to only challenge the Remittance Form for the sum of RM76,000.00. [20] With regards to the evidence of the expert, Mr. William Pang, the DC made the following findings: “The DC’s view is as follows: -

Needless to say the strongest point which R2 & R3 have in their favour is the evidence of the expert to the effect that in the expert’s opinion, there are differences in the respective signatures of R2 and R3 as shown in their respective specimen as compared to the signatures which appear on the bank remittance form (Appendix A). However, the DC is mindful as stated earlier that in all fairness to the expert as readily admitted by him, his evidence is at best an opinion. He cannot say conclusively that R2 and R3’s signatures have been forged.” 11 [21] There is nothing in the DC’s ‘Report of Investigation Proceedings’ where it is clearly stated by the witness, Mr. William Pang that he cannot say conclusively that the applicant’s signatures had been forged. What is before the Court is the DC’s summary of Mr. William Pang’s evidence, not his oral testimony. And also before this Court is the expert report prepared by Mr. William Pang, where he has made the following conclusion: “CONCLUSION Based on the abovementioned observations and considerations, I am of the following opinion: There is very strong support for the proposition that the writer of the AJMAIN ABD RAHIM signatures on the specimen document referred to in items S1 to S5 and SB-1 did not write the AJMAIN ABD RAHIM on the questioned document referred to in item Q1 compared to the support for the alternative proposition that another writer the questioned signature.” (emphasis added) [22] Therefore, I am of the considered opinion that the expert opinion of Mr. William Pang supports the applicant’s contention that he did not sign the Remittance Form, exhibit R2W1D4. 12 [23] Bearing in mind that the standard of proof required is beyond reasonable doubt, I find that the expert report has created a doubt with regards to the applicant’s signature on exhibit R2W1D4. As the DC’s finding on the culpability of the applicant is based ‘on the fact that he continued to be one of the signatories to the Ambank CA’, since there is doubt with regards to his signature on exhibit R2W1D4, therefore the findings of the DC is not sustainable. Thus, the DB’s reliance on the same is clearly misplaced. In the premise, the application is allowed with no order as to costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 29 August 2018 For the Applicant : Adnan Seman Messrs Adnan Sharida & Associates Bandar Baru Bangi. For the 2nd Respondent: Jeremy Khalif / Olivia Lee Messrs Nadzarin Kuok Puthucheary & Tan Kuala Lumpur. Case referred:

Keith Sellar v. Lee Kwang Tennakoon V Lee Kwang [1980] 2 MLJ

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