Chow LI Kian v Hsl Plastics Sdn. Bhd. (BA-17D-2-03/2023)

that Messrs. Josephine, L K Chow & Co, the firm acting for the Appellant in the present Appeal (“JLKC”) be disqualified and/or prevented from representing the Appellant in these proceedings;

(ii) that the partners and also any lawyers from JLKC be prevented from handling these proceedings on behalf of the Appellant and/or from advising the Appellant legally and from doing any legal works in the capacity of the solicitors of the Appellant until the disposal of these proceedings; and

(iii) other reliefs such as interim stay of the instant Appeal pending disposal of the above interlocutory application and costs to be borne by the Appellant. [2] This interlocutory application stemmed out of an Appeal filed by the Appellant by way of originating summons, against the Orders of the Advocates and Solicitors Disciplinary Board (“DB”) as follows:

(iv) Order under section 103D of the Legal Profession Act 1976 dated 11.02.2023 in respect of Complaint No.: DC/19/0002 (“Complaint No. 0002”) that the Appellant be imposed a fine of RM3,000.00; and

Order under section 103D of the Legal Profession Act 1976 dated 11.02.2023 in respect of Complaint No.: DC/19/0037 (“Complaint No. 0037”) that the Appellant be imposed a fine of RM5,000.00. (collectively “DB Orders”) Factual Background [3] In 2017, the Respondent with Ho Shen Lee (M) Sdn. Bhd. (“HSLSB”) and TNL Plastic Manufacturer Sdn. Bhd. (“TNLSB”) initiated legal proceedings against two defendants, namely Lim Kai Meng (“LKM”) and KM Plastics Technology Sdn. Bhd. (“KMPTSB”) in the Kuala Lumpur High Court (“KL Suit”); wherein the Respondent together with HSLSB and TNLSB be referred to as “KL Suit Plaintiffs” collectively, whereas LKM and KMPTSB will be referred to as “KL Suit Defendants” collectively). [4] The Appellant had represented the KL Suit Plaintiffs in the KL Suit. On 05.09.2018, the Kuala Lumpur High Court found in favour of the KL Suit Plaintiffs. The KL Suit Defendants appealed against the findings of the Kuala Lumpur High Court (“KL Suit Appeal”). The Court of Appeal on 11.11.2019 dismissed the KL Suit Appeal. [5] During the interim, on 17.12.2018, the Respondent issued a letter to JLKC where the Respondent claimed that JLKC did not have any authority to act for the Respondent in the KL Suit Appeal, and JLKC was demanded to cease acting for the Respondent in the KL Suit Appeal. [6] On 21.12.2018, the Respondent issued a second letter to demand JLKC to immediately stop acting for the Respondent in all of the Respondent’s legal proceedings. [7] Subsequently, the Respondent lodged Complaint No. 0002 against the Appellant and one Ms. Jolene (who was practicing as legal associate in JLKC at the material time) with the DB. [8] In January 2019, the Respondent’s former director, one Tan Ken Meng (“Former Director”) filed an oppression petition (“Oppression Petition”) against the Respondent and its directors, LKM (one of the defendants in the KL Suit) and one Lim Shen Lee (“LSL”). This time, JLKC represented the Former Director. The Oppression Petition of the Former Director was however unfruitful. [9] Nonetheless, the incident of JLKC representing the Former Director in the Oppression Petition formed the basis of Complaint No. 0037 by the Respondent against the Appellant and the said Ms. Jolene. [10] Both Complaint No. 0002 and Complaint No. 0037 were heard simultaneously by the same panel of Disciplinary Committee. On 11.02.2023, the DB affirmed the Disciplinary Committee’s findings of liability and its recommendation on punishment for both the complaints against the Appellant. Enclosure 20 Application [11] In this application to disqualify JLKC as a whole in representing the Appellant in this instant Appeal, the Respondent raised the following grounds:

that the Appellant is one of the partners in JLKC (JLKC is the firm acting for the Applicant in the present Appeal);

(ii) there is a serious conflict of interest and it is unwarranted that the Appellant to engage her own firm to represent herself and to file the instant Appeal, that JLKC is unable to act objectively or with reasonable professionalism;

(iii) that the Appellant together with other partners in JLKC are the witnesses to the facts of the instant Appeal;

(iv) that the further handling of the instant proceedings by JLKC will be prejudicial to the Respondent and/or cause serious injustice including to affect the interest of administration of justice;

that the lawyers in JLKC in having close relation with the Appellant and/or acting on the instruction of the Appellant (who is a partner in JLKC) will find themselves to be unable to preserve their professional independence; and

(vi) that it will be difficult for JLKC to maintain their position and/or to assist this Court to uphold justice in the instant Appeal. Analysis [12] For the purpose of Enclosure 20, the Respondent relied on rules 3, 4, 5, 27(a) and 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978 (“LPPER”) which is reproduced below: “3 Advocate and solicitor not to accept brief if embarrassed

An advocate and solicitor shall not accept a brief if he is or would be embarrassed.

An embarrassment arises-

where the advocate and solicitor finds he is in possession of confidential information as a result of having previously advised another person in regard to the same matter;

(ii) where there is some personal relationship between him and a party or a witness in the proceedings. 4 No advocate and solicitor to accept brief if professional conduct likely to be impugned No advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned. 5 No advocate and solicitor to accept brief if difficult to maintain professional independence

No advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for him to maintain his professional independence or is incompatible with the best interest of the administration of justice.

(b)

An advocate and solicitor who has at any time advised or drawn pleadings or acted for a party in connection with the institution or prosecution or defence of any suit, appeal of other proceedings shall not act, appear or plead for the opposite party in that suit, appeal or other proceedings.

(ii) An advocate and solicitor shall not act unless the consent of the first party for whom the advocate and solicitor acted is obtained in writing and the advocate and solicitor is not embarrassed by so acting. … 27 Advocate and solicitor not to appear where pecuniarily interested

An advocate and solicitor shall not appear in any matter in which he is directly pecuniarily interested.

… 28 Advocate and solicitor not to appear in a case where he is a witness

An advocate and solicitor shall not appear in Court or in chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardising his client's interests.

…

…” [13] In this application, the Respondent relied on rule 27(a) of the LPPER which provides that an advocate and solicitor shall not appear in any matter where has a direct pecuniary interest in it. Based on the affidavit and written submissions filed on behalf of the Respondent, there is nothing to indicate that the Appellant and JLKC had a direct pecuniary interest for the purpose of the Appeal. At best, the pecuniary interest JLKC as a whole had would be the outstanding legal fees payable by the Respondent, if any. Such interest would not run afoul of rule 27(a) of the LPPER [see Tetuan Kumar Jaspal Quah & Aishah v Far Legion Sdn Bhd & Anor [2007] 3 CLJ 230]. Therefore, this court is of the considered view that Respondent’s reliance of the on the sub-rule is with respect, misconceived. [14] The Respondent further argued that the lawyers appearing for the Appellant in the instant Appeal would find themselves embarrassed because they could be the potential witness in respect of the proceedings leading up to the lodgement of the two Complaint No. 0002 and Complaint No. 0037. It is common ground that the instant Appeal is in respect of an appeal against the decision of the DB of the two said complaints, and since this is the case, the question of witness no longer arise. [15] In this regard, reference could be made to the case of PP v Dato’ Seri Anwar Ibrahim [2014] 1 CLJ 354 where Rohana Yusof JCA (as her Ladyship then was) stated: “[31] Returning to the facts of the present application, we are mindful that the appeal to be prosecuted in the present case would purely be deliberated on the appeal records before the court. No witness would any longer be required. … … [33] … If he had been a material witness to the defence, it is somewhat odd that the trial had gone passed, without his evidence been adduced. [34] The fact that the trial is now over and neither the prosecution nor the defence had adduced his evidence, would dispel any thought of him being a material witness. …” [16] As it is not incumbent upon this Court to substitute the findings of fact at this stage of the instant Appeal, it is therefore not necessary for this Court to consider at this juncture whether there is any possibility of any potential witness. [17] Enclosure 20 pertains to the disqualification of the whole of JLKC in representing the Appellant in the instant Appeal. The disqualification of the whole legal firm was discussed in the case of Sykt Pengangkutan Sakti Sdn Bhd v Tan Joo Khing T/A Bengkel Sen Tak [1997] 3 CLJ 754, where Abdul Mallik Ishak J (as His Lordship then was) found that the relationship between the individual solicitor and the legal firm, such that that individual solicitor is the owner of that legal firm, would be sufficient for the whole legal firm to be disqualified from representing a particular client. His Lordship stated: “… Looking at the letter head of the law firm, it carries the names of two individuals both qualified in law and they can be described as the legal assistants to Mr. Gana Muthusamy. In fact, Mr. R. Paramanandan described himself as a legal assistant. A retainer by the plaintiff of Mr. Gana Muthusamy must necessarily mean a retainer of M/s. Gana Muthusamy & Co., as solicitors for the plaintiff. The two cannot be separated. They are one and the same. They are indivisible. As an example, when Mr. Gana Muthusamy filed the writ of summons indorsed with the statement of claim together with the summons-in-chambers in Encl. 6 and the affidavits attached thereto he signed onto a letter head bearing the name of the law firm M/s. Gana Muthusamy & Co., as can be seen in Encl. 1. In short, Mr. Gana Muthusamy practised law under the name and style of M/s. Gana Muthusamy & Co. Thus, whatever confidential information that was relayed by the plaintiff to Mr. Gana Muthusamy must be kept by him and it necessarily follows that it would also be kept by the law firm of M/s. Gana Muthusamy & Co. …” [18] Although the case of Sykt Pengangkutan Sakti (supra) could be distinguished in that the solicitor concerned is a sole proprietor of that particular legal firm, the Court has the inherent jurisdiction to prevent a particular solicitors if the circumstances of the case so warrants. His Lordship stated: “… To allow Mr. Gana Muthusamy or his legal assistants to appear in chambers or in open Court when the former would be a witness in the case would simply mean flying in the face of the clear words in s. 94(3)

and (o) of the Legal Profession Act 1976 (Act 166). As advocates and solicitors they should have due regard to their client's interests and must conduct themselves with decorum so as not to bring the legal profession into disrepute. The law firm of Messrs Gana Muthusamy & Co., would equally be infected and should not remain on record as solicitors for the plaintiff for the simple reason that Mr. Gana Muthusamy owns that law firm.” [19] To oppose this application in Enclosure 20, the Appellant attempted to draw a distinction between the JLKC HQ and JLKC KL Branch. It was argued that both the firms are of separate operation. In this regard, the Respondent relied on section 7 of the Partnership Act 1961 which reads: “7 Power of partner to bind firm Every partners is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority or does not know or believe him to be a partner.” [20] Learned counsel for the Respondent further relied on Ruling 7.01 of the Rules and Rulings of the Bar Council and rule 59 of the LPPER which reads respectively: “7.01. Requirements for maintaining an office The following requirements must be complied with in respect of every office maintained by an Advocate and Solicitor or a firm of Advocates and Solicitors:

Partners Every partner of a firm shall be a partner of all the offices of that firm. …

Opening a new branch office No Advocate and Solicitor shall open a branch office without first having provided the Bar Council with full particulars in writing in compliance with Rule 59 of the Etiquette Rules and without obtaining the prior written approval of the Bar Council.” “59 No branch office without advocate and solicitor

No advocate and solicitor shall maintain a branch office unless the same is.

in the name of his firm; and

continuously manned by the advocate and solicitor himself or one of the partners in his firm or by an advocate and solicitor wholly employed by him or his firm.” [21] In this regard, Alice Loke Yee Ching JC (as Her Ladyship then was) in Nagarajan Periasamy v Mahendran Chelladorai [2021] 1 LNS 1148 stated that the Rules and Rulings of Bar Council does not have the force of law. The requirement of Ruling 7.01 indicates the standard required that of the Bar Council Malaysia in order for a branch office to be operated. [22] In Southern Empire Development Sdn Bhd v Tetuan Shainuddin & Ranjit & Ors [2008] MLJU 60, Mohd Hishamudin Mohd Yunus J (as His Lordship then was) stated: “In my judgment, because in law the liability of the firm is distinct from that of the partners, therefore, the liability of the firm is not affected by any partner ceasing to be a partner of the firm. Although the particular errant partner has long left the partnership, the liability of the firm still continues – subject only to any law pertaining to limitation of actions.” [23] In the considered view of this court, the nature of the partnership within JLKC is such that it could not be simply severed or separated on the pretext that a certain partner is practicing in a different address. There are two types of liabilities in respect of a partnership, and in light that the law recognises the liability of a partnership as a whole, it is untenable for the Appellant to argue that the Appellant and the JLKC KL Branch are of separate entity. [24] Moreover, as argued by the Respondent, the website of JLKC as well as the letters issued by JLKC KL Branch did not indicate that the JLKC KL Branch and JLKC HQ are of separate and distinct entity, since the names of the counsels purportedly to be practicing in JLKC KL Branch are being mentioned together with the counsels practicing in JLKC HQ. [25] Therefore, this court finds the Appellant’s argument that there will be no instances of conflict of interest or prejudice or other complains by the Respondent raised in Enclosure 20 on the ground that the Appellant is represented by a separate entity (the JLKC KL Branch) to be untenable. [26] Furthermore, the JLKC KL Branch is similar to JLKC HQ, in the form of name and style of Messrs. Josephine, L K Chow & Co. This would lead to the conclusion that it complies with rule 59(1)(a) of the LPPER. The registration of JLKC KL Branch, in the view of this court, would not be sanction by the Bar Council of Malaysia if not for the partnership [see section 85 of the Legal Profession Act 1976]. [27] Hence, unless there is evidence demonstrating that the Appellant does not actually have the authority to act for the whole of the JLKC, section 7 of the Partnership Act 1961, in the view of this court, would apply against the Appellant and JLKC as a whole. [28] Pertaining to the application in Enclosure 20, the Appellant argued that the Respondent had since ceased to be the client of JLKC. The only duty that is left of the JLKC is to “preserve the confidentiality of information imparted during its subsistence”. [29] This is based on the ground that once the solicitor-client relationship ceased, the solicitor has “no obligation to advance and defend the interests of his former client”, other than the duty which is left as aforementioned i.e. to duty to confidence [see Mirza Mohamed Tariq Beg Mirza HH Beg v Margaret Low Saw Lui & Ors [2009] 4 CLJ 303]. [30] To succeed in this application, the Respondent must demonstrate that:

there must be a solicitor-client or some other fiduciary relationship; and

(ii) there must be disclosure of the relevant confidential information that was conveyed to the solicitor or fiduciary. [31] The Appellant argued that as the JLKC KL Branch is not the one which was retained and/or was involved in the Oppression Petition, there is no fiduciary relationship and therefore this Enclosure 20 has nothing to do with the Appellant. In support of this contention, the Appellant cited the case of Dato’ Azizan Abdul Rahman & Ors v Pinerains Sdn Bhd [2021] 8 CLJ 839. [32] Based on the facts of the instant Appeal, it is apparent that that the Appellant, being a partner in JLKC as a whole, is attempting to set aside the DB Orders. In doing so, the Appellant engaged the service of another branch of JLKC. As stated earlier, it makes no difference as to which branch of JLKC is representing the Appellant. [33] The JLKC which had purportedly been retained to act for the Respondent and had subsequently acted for the Former Director against the Respondent. It wears a third hat now; the JLKC as a whole in acting for the Appellant in the instant Appeal, is essentially attempting to defend the acts or purportedly misconduct of the Appellant, which formed the subject of the two complaints. In this regard, this court made reference to the case of Ng Yee Hong v Malaysian Institute of Accountants [2021] 1 CLJ 666. [34] It was argued for the Appellant that there is no personal relationship between JLKC KL Branch and the Appellant. This court respectfully disagrees. The Appellant is a partner within the whole JLKC. It is not merely solicitor-client relationship whereupon the relationship ceases upon JLKC being discharged. The relationship between the Appellant and the whole of JLKC is a personal one. [35] Ruling 6.04 of the Rules and Rulings of the Bar Council stipulates that a law firm may act for one of its partners as follows: “6.04. Advocate and Solicitor acting for another Advocate and Solicitor in same firm A law firm may act for one of its partners, consultants or legal assistants in respect of a personal claim by or against that partner, consultant or legal assistant.” [36] However, this court is of the view that the above rule does not apply to the instant case as the matter at hand is not a personal claim, but rather a hearing of an appeal against the decision of the DB on one of the partners of the law firm vis-à-vis a purported misconduct. [37] Counsel for the Malaysian Bar Council brought to the attention of this Court an interesting case decided by Varghese George JC (as His Lordship then was) in Berjaya Land Bhd v Wong Chee Hie & Ors [2012] 8 MLJ 129 where His Lordship took the position that it is not necessary for the whole firm to be disqualified for the mere fact that a solicitor in a legal firm (who is not involved in prosecuting the claim) having advised a party to the suit previously. [38] The case of Berjaya Land (supra) can be distinguished in that it is not pertaining to a firm representing a particular litigant with few hats as is the position in the instant Appeal. In this Appeal, it is to set aside the DB Orders so that the Appellant would be free from misconduct. In so doing it is an attempt to preserve the reputation of the JLKC as a whole. Conclusion [39] In conclusion, for the aforementioned reasons, this court is satisfied this application in Enclosure 20 ought to be allowed. Costs in the cause. Date: 15 January 2025 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya Shah Alam Counsels: For the Appellant: Woo Jin Leang, Yip Huen Weng Tetuan Josephine, L K Chow & Co. Advocates & Solicitors B-03-06, 6th Floor, 3 Two Square, No. 2, Jalan 19/1, 46300 Petaling Jaya, Selangor Darul Ehsan lawyerspj@josephinelkchow.com +603 7960 9030 For the Respondent: Kathy Wong Ker Sing Tetuan Lee & Lim Advocates & Solicitors C4, Bangunan Khas, Lorong 8/1E, Section 8, 46050 Petaling Jaya, Selangor Darul Ehsan leelimlawyers@gmail.com +603 7954 4168 For the Interverner: Jeffrey John Wakil Majlis Peguam Malaysia Tetuan Jeffrey John 23, PJ 8, Block D-28-06, Jalan Barat, Section 8, 46300 Petaling Jaya, Selangor Darul Ehsan