Ching Suet Yeen v Mageswaran A/L Rajangom (W-02(IM)-2378-12/2021)

MAGESWARAN A/L RAJANGOM (No. K/P: 780621-14-5449)

SUJATA A/P MOHANADAS (No. K/P: 790519-04-5010)

HARGOPAL SINGH A/L INDAR SINGH GILL …RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Negeri Wilayah Persekutuan, Malaysia Saman Pemula No.: Wa-17d-1-01/2021] Dalam perkara mengenai rayuan (Selepas Perbicaraan Penuh bertarikh 10.10.2020 10 haribulan Oktober 2020 dengan Pengadu Tidak Ketidakhadiran) dalam Lembaga Tatatertib Peguambela & Peguamcara Di Kuala Lumpur Malaysia Complaint No: DB/19/0970) ANTARA …PLAINTIF

MAGESWARAN A/L RAJANGOM (No. K/P: 780621-14-5449)

SUJATA A/P MOHANADAS (No. K/P: 790519-04-5010)

HARGOPAL SINGH A/L INDAR SINGH GILL … DEFENDAN-DEFENDAN] CORAM LEE SWEE SENG JCA AZIMAH BINTI OMAR JCA WAN AHMAD FARID BIN WAN SALLEH JUDGMENT The Factual Background [1] The appeal before us emanates from the decision of the Kuala Lumpur High Court in dismissing the appellant’s Originating Summons (“OS”). The OS was purportedly filed under O 7 r (2) of the Rules of Court 2012 (“ROC”). For context, the relevant part of the OS is reproduced here: ... atas pendengaran suatu permohonan oleh plaintif yang dalam perkara mengenai Rayuan (SELEPAS PERBICARAAN 10 haribulan Oktober 2020 dengan Pengadu Tidak Kehadiran) DALAM LEMBAGA TATATERTIB PEGUAM BELA & PEGUAM CARA DI KUALA LUMPUR MALAYSIA COMPLAINT NO: DB/9/0970. [2] Although the appellant did say it expressly in the body of the OS, the learned High Court Judge comprehended that the appellant was challenging the order made by the Advocates and Solicitors Disciplinary Board (“DB”) under s 100(3)(a) of the Legal Profession Act 1976 (“LPA”) dated 10.10.2020. The DB Order was, in essence, a dismissal of the appellant’s complaint against the respondents who are practicing advocates and solicitors in the name and style of Messrs M Sujata & Associates (“the Firm”). The Appellant’s Complaint to the DB [3] The appellant’s complaint against the respondents, as can be distilled from the “Borang Aduan”, is as follows: M Sujata & Associates melaksanakan kebanyakan kesalahan di Malaysia semua perceraian yang menyebabkan orang bukan beragama Islam hendaklah dilakukan mengikut peruntukan di bawah Akta Memperbaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 [Akta 164]. The details of the Complaint against the Firm can be summarised as follows:

The Firm committed several errors relating to divorce proceedings.

The Firm acted for both the developer and the house owner.

In civil suit No. BA-23NCVC-36-12/2017 (“the Defamation Suit”), the Firm acted for both parties.

The Firm failed to give advice as to why all the appellant’s suits at the Small Claims Court were dismissed. The Firm had purportedly failed to pay the appellant a sum of RM1,000 and RM400 for each claim at the Small Claims Court.

The Firm received cheques as payment for the defects from the developer, in respect of the property owned by Encik Lim (“the said property”), but did not forward the same to the appellant. The respondents’ response under s 100(1)(b) of the LPA [4] Pursuant to the Complaint, the DB wrote to the respondents on 19.2.2020 requesting them to furnish their written explanation as provided under s 100(1)(b) of the LPA. [5] In their written explanation, the respondents stated the following: On the commission of errors in the divorce proceedings [6] According to the respondents, the Firm had never acted for the appellant. On the contrary, it was the appellant’s former husband, Encik Lee Hock Teong, who engaged the Firm in filing a petition to divorce the appellant. The appellant failed to attend the hearing of the divorce petition fixed on 24.6.2019. The hearing proceeded in the absence of the appellant and decree nisi was granted by the Court. On the same day, the decree was made absolute. [7] Aggrieved by the said orders made by the Shah Alam High Court, the appellant appealed to the Court of Appeal. According to the respondents, the appellant had also lodged a police report against her solicitors and the trial Judge having conduct of the matter. [8] The respondents’ written explanation was that the appellant should have let the appeal take its own course. Whether the Firm was acting for both the developer and purchaser [9] As to this Complaint, the respondents could not respond to the allegation made by the appellant since there were no particulars of any specific transaction that had been provided by the appellant in the Borang Aduan. [10] The respondents were unaware of the case where the Firm had allegedly acted for both the developer and house owner. Whether the Firm was acting for both parties in the Defamation Suit [11] The Firm acted for KEB Properties Sdn Bhd (“KEB”) and Datuk Lim Kim Chong in the Defamation Suit against the appellant. The appellant was represented by her counsel, Encik Ho Hon Keong of Messrs Ho & Ho. According to the respondents, the complaint has nothing to do with them. Encik Mageswaran, the 1st respondent, assisted Encik Hargopal in representing Datuk Lim and KEB. [12] The Firm was not acting for both parties in the Defamation Suit. On the Small Claims Court [13] In her complaint, the appellant alleged that the Firm had purportedly failed to pay the appellant a sum of RM1,000 and RM400 for each claim at the Small Claims Court. [14] In response to the allegation, the Firm contended that it did not and could not act for any party at the Small Claims Court. Payments in respect of the defects [15] The issue involved the purchase of a property made between Encik Lim Hock Teong and the developer (“the property”) pursuant to a sale and purchase agreement (“SPA”) between the parties. According to the respondents, the appellant was a stranger to the sale and purchase of the said property since it belongs to Encik Lim. [16] In any event, the Firm did not receive any cheques as alleged by the appellant. The DB Order [17] Under s 100(3) of the LPA, where the advocates and solicitors, as in the instant appeal, had furnished their written explanation to the DB, the DB shall review the matter and either:

if it is satisfied that there is no merit in the application or complaint, dismiss the application or complaint and notify the parties accordingly; or

if it is still of the view that there is merit in the application or complaint, proceed to appoint a Disciplinary Committee. [18] After having reviewed the Complaint made and the explanation furnished by the respondents, the DB had, on 10.10.2020, made the following Order: In the exercise of powers conferred by Section 100 of the Legal Profession Act 1976 (the Act), the Disciplinary Board having on 10 October 2020 considered the complaint against the 1st, 2nd and 3rd Respondents, the written explanation of the from the 1st, 2nd and 3rd Respondents dated 02 March 2020 and the written reply from the Complainant dated 01 July 2020, IT IS HEREBY ORDERED that the complaint be dismissed pursuant to Section 100(3)(a) of the Act. [19] In other words, the DB was of the view that there was no merit in the Complaint to warrant the appointment of a Disciplinary Committee (“DC”) for the purpose of making an inquiry under s 103B of the LPA. The Originating Summons [20] As alluded to earlier, aggrieved with the DB Order, the appellant filed the OS. Aware that she could be out of time to challenge the DB Order, the appellant filed an application in Encl 5 to seek leave from the High Court to grant an extension of time to file the OS. [21] Before us, learned counsel for the respondents intimated that he has no objection to the application for the extension of time to file the OS, which we duly recorded. [22] What is left to be decided at this appeal is whether the learned Judge was correct in dismissing the OS. At the High Court [23] In dismissing the OS, the learned Judge took cognisance that the OS was not properly brought before the Court. According to her Ladyship, the OS did not state any order of the ROC or any provisions of the written law under which the Court was being moved. [24] O 7 r 2(1A) of the ROC provides as follows: Every originating summons shall state in its intitulement any provision of these Rules and any provision of any written law under which the Court is being moved. For the aforesaid reason, the learned Judge was of the view that since the OS did not contain sufficient particulars so as to show what the cause of action of the appellant was, it was defective and ought to have been dismissed. [25] The learned Judge also ruled that the appellant was a vexatious litigant. There were numerous suits filed by the appellant against Encik Lim Hock Teong, her former husband and persons closely connected to him. The defendants in the respective suits include Lim Seng Gee, See Hui Lin, a chartered accountant firm practising in the name of Messrs KK Loh & Co, a company by the name of Kar Soon Aluminium & Glass Supply and even Persatuan Penganut Agama Buddha Kadhampa Malaysia. [26] In her grounds of judgment, the learned Judge remarked as follows: It can be garnered from the numerous suits filed by the Plaintiff and her submission in this Court where she kept on repeating that the Defendants had caused her separation with her former husband, the Plaintiff is indeed a vexatious litigant as she has no basis in law in filing the unmeritorious OS but only to subject the Defendants to inconvenience. Before this Court, the Plaintiff had brought along voluminous documents consisting of cause papers relating to the numerous suits which she submitted to be evidence of the Defendants being dishonest and had caused her divorce from her former husband. It is clear that the OS is brought for improper reasons and causing unnecessary clog to the court dockets. At the Court of Appeal [27] As alluded to earlier, what is left to be determined in this appeal is the substantive OS, which was dismissed by the High Court. The question of the extension of time to file the OS no longer arises since learned counsel for the respondents had no objection to the application. [28] Let me begin with the mode of commencement to be undertaken when one is aggrieved by a DB Order made under s 100(3)(a) of the LPA as follows:

S 103(1) of the LPA provides that any party aggrieved by the shall have the right to appeal to the High Court within one month of the receipt of the notification of that order or decision.

Under s 103E(4), the appeal is by way of an originating motion.

However, the mode of commencement by way of originating motion has been abolished with the coming into effect of the ROC, and parties aggrieved by the Order of the DB have filed the appeal by way of an OS.

The commencement of the OS is governed by O 7 of the ROC.

In the OS, an aggrieved party must state clearly that it is moving the Court for an order to set aside the DB Order made in s 100(3)(a) in that the DB had erred in arriving at the conclusion that there is no merit in the complaint.

The aggrieved party must also seek a consequential order for the DB to proceed with the appointment of a DC for the purpose of an inquiry under s 103B of the LPA. [29] Was the OS properly brought before the Court? The learned Judge was of the view that it was not. First, her Ladyship cited O 7 r 3(1) of the ROC which states: Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy. [30] In short, applying O 7 r 3(1) and read together with O 7 r (2)(1A), the following requirements must be fulfilled:

The appellant shall include in the OS either a statement of the questions which the appellant seeks a determination of the court or a concise statement of the relief claimed;

(ii) The statement must be accompanied with “sufficient particulars to identify the cause of action” in respect of which the appellant sought that remedy.

(iii) The OS shall state in its intitulement any provision of the ROC and any provision of any written law, in this case, the LPA, under which the court is being moved. [31] Unfortunately, as found by the learned Judge, the appellant in the OS did not cite s 103E of the LPA that the OS was an appeal against the decision of the DB dated 10.10.2020. There was no such intitulement. The appellant also did not seek a consequential relief for the DB Order to be set aside and for the DB to appoint a DC for the purpose of an inquiry under s 103B of the LPA. [32] We therefore agree with the learned Judge that the OS was defective. It was not properly brought before the High Court. In Saraswathy Devi a/p Nadchatiram v Vijayalakshmi Devi a/p Nadchatiram [1998] 1 MLJ 89 CA, the matters for which the orders were sought which were not referred to in the heading of the originating summons did not appear to have any connection with the cases referred to in the heading. NH Chan JCA, in delivering the judgment of the Court of Appeal, remarked as follows: The instant originating summons does not contain any details of the questions on which Vijayalakshmi is seeking the court's determination or direction nor does it contain sufficient particulars so as to show what her cause of action is in respect of which she is asking relief or remedy. Merely asking the court for an injunction against Saraswathy and her firm from acting in the four remaining civil suits under the Legal Profession Act 1976 or under its Rules is not enough. The originating summons must show why she or her firm should not act in the proceedings. Since this is not shown, no cause of action is disclosed in the originating summons against Saraswathy. On this ground alone, the originating summons ought to have been dismissed. [33] The same proposition can be seen in an earlier judgment of the Court of Appeal in Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457 CA. Gopal Sri Ram JCA (later FCJ), in delivering his judgment at the Court of Appeal, made the following observation: The summons does not, as I observed very early in this judgment, state any particular rule of court in its intitulement. Now, I think that that is not only wrong but plainly embarrassing. How, might one ask, is a defendant or the court to determine which rule of court the plaintiff is invoking unless he explicitly specifies it? If a defendant and the court should have to conduct a close examination of the supporting affidavit in each case in order to determine the particular jurisdiction or power that is being invoked by an originating summons or other originating process that requires an intitulement, then a plaintiff will be at liberty to shift from one rule to another or indeed from one statute to another as it pleases him without any warning whatsoever to his opponent or the court. It would make a mockery of the principle that there must be no surprise in civil litigation. If the submission of counsel be the law, then it is wrong. But I am firmly of the view that it is not. [34] Applying the said propositions to the facts of the instant appeal and since the appellant has failed to disclose any cause of action in the OS, it must fail in limine. In any event, the OS also failed to state sufficient particulars to identify the cause of action. [35] We therefore agree with the learned Judge that the appellant has failed to comply with O 7 r 2(1A) and O 7 r 3(1) of the ROC. Issues on merits [36] For the sake of completeness, we will, however, briefly address the issues raised by the appellant on the merits of this appeal. [37] We find that there are no merits in the argument that the Firm had purportedly failed to pay the appellant a sum of RM1,000 and RM400 for each claim at the Small Claims Court. In the first place, solicitors are not allowed to appear at the Small Claims Courts. O 93 r 7 of the ROC provides that any party to any suit in the Small Claim Court shall not be represented by a solicitor, except where the defendant is required by law to be represented by an authorised person. [38] Since the respondents could not have possibly represented any parties at the Small Claims Court, the question of them having any obligation to pay the judgment sum to the appellant if at all, does not arise. There was therefore, no breach of professional duty on the part of the respondents. [39] As to the settlement made on the defects of the said property between the developer and Encik Lim, the appellant’s former husband, that is between the parties in the SPA. The appellant is a stranger to the SPA. She could not possibly derive any benefit from a contract to which she is not a signatory. In any event, the payments made by the developer were not through the Firm. [40] As to the divorce proceedings and the defamation suit, the appellant was duly represented in those proceedings. If at all the appellant was aggrieved by the decree absolute or the consent judgment in the defamation suit, the proper course of action is to take the matter to appeal. The appellant was never the client of the Firm. There was no solicitors-client relationship between the appellant and the respondents or the Firm. [41] On the remaining issues raised by the appellant in her Complaint, we find that the respondents had sufficiently explained them in their written explanation dated 19.2.2020. Conclusion [42] For the reasons aforesaid, we therefore find no merits in the appeal. [43] The appeal is dismissed with costs of RM10,000 to the respondents, subject to allocatur. Dated: 23 January 2025 WAN AHMAD FARID BIN WAN SALLEH Judge Court of Appeal For the appellant: (MEWAKILI DIRI SENDIRI) For the respondent:

HARGOPAL SINGH A/L INDAR SINGH GILL