Datuk Dr. Yunus Gul Bin Alif Gul v Sim Kuan Yee (J-02(A)-125-01/2022)

LAM SIEW WAN, NORA ... RESPONDENTS [In the High Court of Malaya at Johor Bahru Between Civil Suit No.: JA-17D-1-05/2021 Datuk Dr. Yunus Gul Bin Alif Gul ... Plaintiff and

Sim Kuan Yee

Lam Siew Wan, Nora ... Defendants] CORAM: AZHAHARI KAMAL BIN RAMLI, JCA AHMAD KAMAL BIN MD. SHAHID, JCA NADZARIN BIN WOK NORDIN, JCA JUDGMENT Introduction

This is an appeal by Datuk Dr. Yunus Gul bin Alif Gul (the Plaintiff) against the decision of the High Court in dismissing the Plaintiff's Originating Summons (OS), an appeal under Order 55A of the Rules of Court 2012 (ROC), which sought a review of the decision of the Advocates and Solicitors Disciplinary Board (the ASDB), which had dismissed the Plaintiff's complaint of misconduct against Sim Kuan Yee (the 1 $ ^{st} $ Defendant) and Lam Siew Wan, Nora (the 2 $ ^{nd} $ Defendant) (collectively referred to as the Defendants), for an alleged breach of section 103 of the Legal Profession Act 1976 (the LPA).

The Defendants were partners in a legal firm known as Messrs Nora S.W. Lam & Associates (the Firm).

The Firm was acting for the Plaintiff to prepare a Sale and Purchase Agreement (the SPA) for the Plaintiff to purchase a double-storey semi-detached house in the district of Kota Tinggi, Johor, in which the land is a Malay Reserved Lot land (the Property) for a purchase price of RM540,800.00.

According to the Defendants, the SPA was prepared by one of the Firm's legal assistants, by the name of Noorfaetty Salina binti Md Sharum (Noorfaetty), based on the Sales Form provided by the developer of the Property, Wijaya Realty Sdn Bhd (the Developer).

The SPA was signed by the Plaintiff, the Developer, and one Jefri bin Kasman, the proprietor of the land (the Proprietor), on 9 June 2014. Noorfaetty resigned from the Firm on 11 July 2015.

Vide a letter dated 25 January 2016, the Firm requested the Plaintiff to provide his birth certificate to prove his Malay status.

Vide a letter dated 9 May 2016, the Developer informed the Plaintiff the following: a. The Property is ready for delivery of vacant possession; b. The Plaintiff is reminded to make payment of the outstanding billings; and c. The Plaintiff is to provide his identity card for verification.

On 22 January 2017, upon taking vacant possession and upon inspection of the Property, the Plaintiff discovered that the Property had lots of defects.

As a result, on 5 June 2017, the Plaintiff appointed a new solicitor to advise the Plaintiff on his grievances. Only then did the Plaintiff learn that: a. The SPA was not in accordance with Schedule G of the Housing Development (Control and Licensing) Act 1966 (HDA) and Housing Development (Control and Licensing) Regulations 1989 (HDR); and b. The Developer was not a licensed developer.

On 31 October 2018, the Plaintiff filed a complaint with the ASDB against the Firm for the alleged misconduct in performing its duties in relation to the purchase of the Property by the Plaintiff (the complaint).

Vide the ASDB's letter dated 21 March 2019, the ASDB has requested the $ ^{1 s f} $ Defendant to give a written explanation on the alleged complaint lodged by the Plaintiff.

On 27 March 2019, the $ 1^{\mathrm{st}} $ Defendant provided a written explanation to the ASDB.

Vide a letter dated 18 December 2019, the ASDB informed the Plaintiff and the $ ^{1st} $ Defendant that the ASDB had considered the complaint, the written explanation dated 27 March 2019 from the $ ^{1st} $ Defendant, and the written reply dated 6 May 2019 from the Plaintiff. The ASDB decided to appoint a disciplinary committee (DC) pursuant to sections 100(3)(b) and 103A(1)(a) of the LPA for a formal inquiry to be conducted.

Subsequently, on 3 July 2020, the ASDB informed the Plaintiff that the other partners of the Firm, Rajeswary Girupai and Gauri a/p Ramalingam, would also be joined as the respondents in the complaint.

Despite having made the decision to appoint a DC, the ASDB had proceeded to summarily dismiss the complaint without appointing a DC. This was done vide its letter dated 13 April 2021 (See Encl. 5, PDF page 172), which attached its Order dated 9 April 2021 (the Order) (See Encl. 5, PDF page 173).

Aggrieved with the decision, on 21 May 2021, the Plaintiff filed an appeal by way of an OS in the High Court against the Defendants only. Findings of the High Court

The learned Judicial Commissioner (JC) dismissed the Plaintiff's appeal with costs on the following grounds: a. On the $ 1^{\mathrm{st}} $ issue relating to the Property, which the Plaintiff believes was not built in a satisfactory condition with physical defects and non-compliance with the building descriptions and layout plan in the SPA, the Plaintiff should get the remedy through a civil suit against the developer, which the Plaintiff did. b. To impose on the solicitor any duty to ascertain that the Property is constructed in accordance with the specifications set out on the SPA would indeed place an onerous duty on the solicitor. It was an express term of the SPA that the Developer has to construct the Property in a good and workmanlike manner in accordance with the descriptions and plans set out in the SPA. Thus, there was no legal duty on the Defendants to visit the site to ensure the Developer's compliance. Neither were the Defendants competent to do so. The Defendants' duty was merely to prepare the terms and conditions in the SPA and nothing more. c. The Plaintiff's allegation that the Defendants had been negligent and/or reckless in ensuring the Property was constructed in accordance with the specifications set out in the SPA is tantamount to putting an unreasonable duty on the Defendant. d. On the issue that the Developer was not licensed under the HDA, the Developer was not required to get a license from the Housing Ministry when the Developer built not more than four (4) houses. The Property purchased by the Plaintiff was one of the Impiana Sea View Residences in Pengerang, Johor, which the Developer constructed only four (4) units. There is no doubt that the HDA prohibits any housing development without a valid license. However, section 3 of the HDA defines the term "housing development" as to develop or construct or cause to be constructed in any manner whatsoever more than four (4) units of housing accommodation. Therefore, the HDA is not automatically applicable to the Developer. There is no requirement for the Developer to adopt and use the standard sale and purchase agreement set out in Schedule G to the HDR. e. On the issue of the status of the Malay Reservation of the land, the Firm has sent a letter dated 25 January 2016 to the Plaintiff requesting him to provide his birth certificate for his Malay status. The Developer also, vide a letter dated 9 May 2016, sent to the Plaintiff, requested the same. Nevertheless, the Plaintiff failed to respond to those letters. f. The Firm has done all the necessary to ascertain the Plaintiff's Malay status, in which the Plaintiff himself failed to reply to the same, and therefore no misconduct was committed by the Defendants in this issue. g. On the issue of the Firm's action of sending the SPA to the Plaintiff for signature without the presence of any solicitor from the Firm, the Plaintiff's signature was attested by Noorfaetty, who has resigned from the Firm on 11 July 2015. Therefore, it is a lack of ingenuity to hold both Defendants liable for misconduct when such action was clearly not committed by them. h. The findings of the ASDB were manifestly not perverse. There is no element of breach of natural justice as the ASDB gave all the relevant parties ample opportunity to explain their cases. i. The wording of the ASDB's 9 April 2021 Order stated that the ASDB had taken all explanations from the Plaintiff and the Defendants before arriving at its decision dismissing the Plaintiff's complaint. Therefore, the ASDB has rightly dismissed the Plaintiff's complaint, and there is no compelling ground for the court to interfere with its findings and decision.

The High Court's decision led to this present appeal by the Plaintiff.

Before us, the Plaintiff submitted the following issues: a. The learned JC has erred in failing to appreciate that once the ASDB had decided to appoint a DC, it was required by law to proceed to do so. b. The learned JC has erred in failing to appreciate that once the ASDB had decided to appoint a DC, it was functus to review its own decision and that by operation of the rules of natural justice, the Plaintiff had a legitimate expectation that an inquiry would be conducted by the DC. c. The learned JC has erred in failing to appreciate that, in view of the fact that the other two (2) partners of the Defendants' Firm expressly confirmed that the $ 1^{\mathrm{st}} $ Defendant was the managing partner in charge of the Plaintiff's matter, an inquiry by a DC should have taken place. d. The learned JC has erred in failing to appreciate that the evidence of material misconduct by the Defendants that they had knowledge that the development was for 18 and not four (4) units. Therefore, the Developer ought to have a license, and the SPA ought to conform to Schedule G, and the Plaintiff and other purchasers had been stripped of the protection intended by Parliament. e. The learned JC has erred in failing to appreciate that there was evidence of material misconduct by the Defendants, for failing to have the SPA witnessed and instead perpetrating a sham by allowing a legal assistant to falsely attach her signature as a witness and that the Defendants were either conflicted by representing both the Plaintiff and the developer, or in breach of section 84 of the LPA for failing to obtain the requisite certificate. Our Findings

Although the Plaintiff had advanced numerous grounds of appeal, we were of the considered view that this appeal ultimately turned on one determinative issue, namely, whether the ASDB's dismissal of the Plaintiff's complaint without following through on its earlier decision to appoint a DC, despite already having found merit to the Plaintiff's complaint, is a breach of the statutory provision under the LPA.

In the present case, the ASDB, upon receiving the Plaintiff's complaint, the written explanation from the $ 1^{\mathrm{st}} $ Defendant, and the written reply from the Plaintiff, had decided to appoint a DC pursuant to sections 100(3)(b) and 103A(1)(a) of the LPA for a formal inquiry to be conducted.

Vide a letter dated 18 December 2019, the ASDB informed the Plaintiff of its decision to appoint a DC under sections 100(3)(b) and 103A (1)(a) of the LPA.

The letter dated 18 December 2019 reads as follows: - "Date 18 Dec 2019

Datuk Dr. Yunus Gul Bin Alif Gul 32A, Jalan Mutiara 1 Mutiara Seputeh 58000 Kuala Lumpur (The Complainant) By Certificate of Posting

Mr. Sim Kuan Yee c/o Messrs S C Teh & Azura Advoates & Solicitors Suite 33.3A, Level 33 Johor Bahru City Square (Office Tower) No.106-108, Jalan Wong Ah Fook 80000 Johor Bahru, Johor (The Respondent) By Certificate of Posting Dear Datuk Dr./Sir, Re: Complaint No. : DB/18/0928 Complainant : Yunus Gul Bin Alif Gul Respondent : Sim Kuan Yee of Messrs S C Teh & Azura (Previously practicing at Messrs Nora S W Lam & Associates) We write to inform you that the Disciplinary Board had considered the complaint and the written explanation from the Respondent dated 27 March 2019 and the written reply from the Complainant dated 06 May 2019 pursuant to Section 100(3) of the Legal Profession Act 1976 ('the Act'). The Disciplinary Board had at its meeting held on 13 December 2019 decided to appoint a Disciplinary Committee pursuant to Section 100(3)(b) and Section 103A(1)(a) of the Act for a formal inquiry to be conducted. You will be notified of the date, time and venue of the inquiry in due course by the Disciplinary Committee Chairman. Thank you. Yours faithfully, (Nurulyazmine binti Razali) Director Complaints Secretariat" (emphasis added)

For ease of reference, the provision of sections 100(3)(b) and 103A (1)(a) of the LPA is reproduced below: "Inquiry into application or complaint 100 (3) Where the advocate and solicitor has furnished his written explanation to the Disciplinary Board under subparagraph (1)(b)(ii), the Disciplinary Board shall review the matter anda) 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 b) if it is still of the view that there is merit in the application or complaint, proceed to appoint a Disciplinary Committee. Appointment of Disciplinary Committee

(1) Where-

(a) the Disciplinary Board determines that a Disciplinary Committee ought to be appointed;

(b) an advocate and solicitor has been convicted of an offence of criminal breach of trust under section 409 of the Penal Code [Act 574] or any other offence involving fraud or dishonesty; or

(c) the advocate and solicitor has been suspended under subsection 94(4), the Disciplinary Board shall, as soon as may be practicable, appoint a Disciplinary Committee." (emphasis added)

Despite having already made the decision to appoint a DC, the ASDB proceeded to summarily dismiss the Plaintiff's complaint without appointing a DC.

The said decision was conveyed to the Plaintiff vide a letter dated 13 April 2021 which reads as follows: - "Date 13 Apr 2021 Mr. Yunus Gul Bin Alif Gul 32A, Jalan Mutiara Seputeh 1 Mutiara Seputeh 58000 Kuala Lumpur (The Complainant) By A.R Registered & Certificate of Posting Re: Complaint No. : DB/18/0928 Complainant : Yunus Gul Bin Alif Gul Respondents : 1. Sim Kuan Yee of Messrs S C The & Azura

Lam Siew Wan, Nora of Messrs Nora S W Lam & Associates

Rajeswary a/p Girupai of Messrs Rajeswary Girupai & Associates

Gauri a/p M Ramalingam (previously practicing at Messrs Nora S W Lam & Associates) We write to inform you that the Disciplinary Board ('the Board') had considered your complaint against the Respondents at its meeting held on 09 April 2021. Please find enclosed herewith the Order dated 09 April 2021 by way of service on you. Kindly be informed that pursuant to Section 103E of the Legal Profession Act 1976, any party aggrieved by any final Order or decision made by the Board shall have the right to appeal to the High Court within one (1) month of the receipt of the notification of that Order or decision. Yours faithfully, Ariani Irda Bakri Director Complaints Secretariat" (emphasis added)

The Order of the ASDB dated 9 April 2021 reads as follows: - "LEGAL PROFESSION ACT 1976 ORDER UNDER SECTION 100

The Defendants submitted that since the ASDB has given the Order to dismiss the Plaintiff's complaint, the court ought not to interfere with the decision of the ASDB, as the court only interferes with the decision of the legal profession body in the rarest of cases.

The Defendants further submitted that the statutory framework under the LPA grants the ASDB broad discretion at every stage of the disciplinary process.

According to the Defendants, the key phrase of section 100(3)(b) of the LPA is "if it is still of the view that there is merit". This clearly contemplates that the ASDB may change its view upon receiving additional information or further consideration.

It was submitted that the ASDB is not functus officio merely because it initially indicated a DC would be appointed. The statute expressly grants continuing discretion to review the matter.

After considering all this additional information, the ASDB properly exercised its discretion under section 100(3)(a) of the LPA to conclude that there was insufficient merit to proceed with a DC.

Further, the Defendants submit that the ASDB's letter of 18 December 2019 was a preliminary indication, not a final determination. The ASDB expressly reserved the right to consider further information and ultimately determined that a DC should not be appointed.

The Defendants further submitted that the ASDB has the power to dismiss the complaint at any stage. This power is expressly stated in Section 100(15) of the LPA, which reads: "（15) Nothing in this section shall preclude the Disciplinary Board from dismissing an application or complaint at any stage."

According to the Defendants, having examined the relevant provisions in section 100(3)(a), (b), section 100(15) and section 103A(1)(a) of the LPA, it is clear that the appointment of the DC under section 100(3)(b) and section 103A(1)(a) of the LPA is not mandatory but it is a power conferred to the ASDB under the statute.

With respect, we disagree. We are of the view that such a view is misconceived, and if we were to agree with the Defendants, then the term 'shall' will lose its mandatory nature and go against a plethora of cases that form the precedent of the same.

Further, we find that adopting the Defendant's construction would dilute the legal meaning of the word "shall", rendering it indistinguishable from "may" and thereby undermining the mandatory character and enforceable duty imposed by the provision.

We are of the view that section 100(15) of the LPA must be read subject to section 100(3) of the LPA (and also sections 100(4) and (5), which will be dealt with later), which we find the ASDB had infringed the mandatory provision of section 100(3) of the LPA.

We are of the considered view that the ASDB's dismissal of the Plaintiff's complaint without following through with its earlier decision to appoint a DC, despite already having found merit to the Plaintiff's complaint, is in breach of the mandatory requirement of section 100(3)(b) and section 103A(1)(a) of the LPA.

Upon perusal of section 100(3)(b) of the LPA, we are of the view that the ASDB can only make the decision to appoint the DC to conduct a formal inquiry if there was merit to the Plaintiff's complaint.

Vide a letter dated 18 December 2019, the ASDB informed the Plaintiff of its decision to appoint a DC under sections 100(3)(b) and 103A(1)(a) of the LPA for a formal inquiry to be conducted, which by virtue of section 100(3)(b) of the LPA, there is merit in the Plaintiff's complaint.

It is our view that once the ASDB has come to a decision that there was merit to the Plaintiff's complaint and notified the Plaintiff that a DC is to be appointed, natural justice and legitimate expectation render the ASDB functus to then review and reverse its decision.

We find support for our view when we refer to section 103A (1) of the LPA, which uses the mandatory term "shall" and not "may" when it requires that "the Disciplinary Board shall, as soon as may be practicable, appoint a Disciplinary Committee."

It is not disputed that the ASDB has the power to handle a complaint and may dismiss the complaint, yet there is a mandatory process that must be adhered to, which, without adhering to this process, will result in a breach of natural justice.

In the instant case, we find that the fact that the ASDB had decided to appoint a DC upon finding merit in the complaint by virtue of section 100(3)(b) of the LPA, but later had proceeded to summarily dismiss the complaint without appointing a DC, is a clear breach of the mandatory requirement of sections 100(3)(b) and 103A(1)(a) of the LPA and a breach of natural justice.

Before we conclude, as mentioned before, it also caught our attention that sections 100(4) and 100(5) of the LPA were not raised by any party in this case, particularly in relation to the issue of the summary disposal of the complaint by the ASDB. For a clear picture, it is apt for us to reproduce sections 100(4) and 100(5) as follows: "(4) Notwithstanding subsection (2) and paragraph (3)(b), if the Disciplinary Board considers that the application or complaint may be dealt with summarily, it shall give a written notice to the advocate and solicitor to determine whether the advocate and solicitor agrees that the application or complaint be dealt with summarily.

On this score, even if we accept the Defendants' submission that the ASDB has the power to dismiss a complaint at any stage by virtue of section 100(15) of the LPA, we are nevertheless of the view that such power must not only be read together with section 100(3) of the LPA, but it must also be read together with section 100(4), which requires the ASDB to give written notice to the advocate and solicitor to determine whether he or she agrees to the application being dealt with summarily. In this regard, the mandatory nature of the word "shall" in this subsection, again, must be treated accordingly.

In this case, we do not find any single evidence that the ASDB had given written notice to the Defendants to determine whether the Defendants agree that the application be dealt with summarily. Neither is there any evidence that the Defendants had responded to it, if any, within 14 days from the date of the notice, which triggered section 100(5) to kick in and led to the mandatory appointment of the DC.

Having found so, we are of the view that the ASDB had not only breached section 100(3)(b), but the ASDB was also in breach of sections 100(4) and 100(5) of the LPA, thereby warranting an appellate intervention. Summary and Conclusion

To recapitulate, we find that: - a) the learned JC (as he then was) has erred in failing to appreciate that once the ASDB had decided to appoint a DC, it was required by law to proceed to do so; b) the learned JC (as he then was) has erred in failing to appreciate that once the ASDB had decided to appoint a DC, it was functus to review its own decision and that by operation of rules of natural justice the Plaintiff had a legitimate expectation that an inquiry would be conducted by the DC; c) the ASDB's dismissal of the Plaintiff's complaint without following through with its earlier decision to appoint a DC, despite already having found merit to the Plaintiff's complaint, is a breach of the statutory provision under the LPA, i.e., sections 100(3)(b) and 103A(1)(a) of the LPA; and d) The learned JC (as he then was) and the ASDB had also failed to consider the mandatory nature of the word "shall" in sections 100(4) and 100(5) of the LPA before summarily dismissing the Plaintiff's complaint.

In light of the above reasons, we find merit in the Plaintiff's appeal. We are of the view that the learned JC (as he then was) was wrong in dismissing the Plaintiff's OS.

There is an appealable error warranting our appellate intervention. Hence, the appeal is allowed, and we set aside the decision of the learned JC (as he then was). We also order that the matter be remitted to the ASDB for the appointment of the DC and to hear the merits of the complaints against the Defendants.

On the issue of costs, we have agreed to grant costs in respect of the Notice Motion filed earlier. For Notice of Motion Enclosure 30, we award costs of RM 5,000.00 to the Plaintiff to be jointly paid by the Defendants. Likewise, for Notice of Motion in Enclosure 84, we also award costs of RM 5,000.00 to be jointly paid by the Defendants. All costs are subject to allocator. Dated: April 2026 Ahmad Kamal Bin Md Shahid Judge Court of Appeal Malaysia Counsel appearing: For the Appellant: Mr. Lim Meng Guan (together with Mr. Sreether A/L Shanmuga Sundaram [Messrs Zi & Associates] or the 1 $ ^{st} $ Respondent: Mr. Pang Kong Seng (together with Mr. Low Song Kuan [Messrs K. S. Pang & Co] For the 2nd Respondent: Mr. Kunasegaran A/L Nadasen [Messrs Baharudin, Wan & Kuna]