Dehias Holdings Sdn Bhd v K. Gengadaran A/L Kurup (WA-17D-17-08/2018)

That the DB and/or the Disciplinary Committee (“DC”) had erred by failing to consider that the respondent had breached the principles of ethics and advocacy pursuant to the LPA 1976;

(ii) That the DB and/or DB had erred by failing to consider that the respondent had breached the Letter of Undertaking given by the appellant;

(iii) That the DB and/or DC had erred by failing to consider that the respondent had failed to act as a responsible stakeholder for the appellant; and

(iv) That the DB and/or DC had erred by failing to consider that the validity of the authorization letter dated 12.10.2014 and 29.1.2015. [3] Having considered the application and the submission of the parties, this Court has dismissed the appeal with no order as to costs. 4 The Salient Facts [4] The appellant as the vendor, had entered into a Sale and Purchase Agreement (“SPA”) dated 4.8.2014 with the purchaser, PW Nutrieggs Sdn Bhd, for the purchase of 8 pieces of land valued at RM7,148,954.00. On 4.8.2014, the respondent received payment of 10% deposit of RM714,895.00 from Messrs Gan Tek Chee & Company, on behalf of the buyer. The respondent was appointed to act for the appellant. [5] Upon the request and a letter of authorization dated 5.8.2014 issued by the appellant company, the deposit of RM714,895.00 was released to Ma Meng Aun, one of the directors of the appellant company. The appellant had issued a receipt no. 1800 as proof of receipt of the said amount. [6]

Ong Teik Beng (RM714,894.00)

(ii) Messrs Koay & Co (RM400,000.00)

(iii) Loo Choo Wai (RM70,000.00)

(iv) Appellant (RM3,248,298.00) [10] On 29.1.2015, the appellant had issued a letter of indemnity to indemnify the respondent for the sum of RM4,434,192.00 received from the purchaser’s lawyer, in the event that the sale and purchase could not be finalised. [11] Based on the instructions of the appellant, the respondent had released the monies in accordance with the appellant’s instruction. [12] On 10.5.2015, the respondent was informed that a Registrar’s caveat was entered on the said lands. Enquiries with the land office revealed that the transfer of the said lands to the name of the appellant from the previous owner did not comply with section 8 of the Malay Reserve Enactment. 6 [13] On 14.10.2015, the respondent wrote to the appellant requesting for the refund of the full purchase price of RM7,148,087.00. [14] Subsequently, the appellant had filed a Complaint with the DB pursuant to section 99 of the LPA 1976. The Findings of the Court [15] Where a complaint has been made with the DB, the duty of the DB is to inquire the complaint based on section 100 of the LPA 1976, which reads as follows: “100. Inquiry into application or complaint

Where a written application or complaint is made or referred to the Disciplinary Board, the Disciplinary Board shall, if it is satisfied that-

there is no merit in the application or complaint, dismiss the application or complaint and notify the complainant and the advocate and solicitor of its decision; or

there is merit in the application or complaint-

post or deliver to the advocate and solicitor concerned a copy of the application or complaint together with all 7 supporting documents, if any, furnished to the Disciplinary Board; and

(ii) request the advocate and solicitor to furnish his written explanation in quadruplicate together with supporting documents, if any, within fourteen days of the request or within such longer time as the Disciplinary Board may allow.” [16] In the present case, after considering the complaint lodged by the appellant, the DB had issued a decision dated 13.7.2018 dismissing the appellant’s complaint pursuant to Section 100(3)(a) of the LPA 1976, on the ground that there is no merit in the complaint. Hence, the appellant filed this appeal against the decision of the DB. [17] In S Santhi v Deivigarani Krishna; Majlis Peguam Malaysia (Intervener) [2018] 7 CLJ 263, Justice Asmabi had outlined the following principles to be followed in dealing with an appeal under the LPA 1976: “The Law [7] In hearing this appeal, I was guided with the following well-established principles of law: 8

In dealing with the appeal involving the decision of the Disciplinary Board of the Bar Council against a member of its own profession, the court had always held that, it is best for the legal profession entrusted with the supervision of advocates and solicitors to decide on the fate of its own members as members of the same profession ought to know and appraise better the conduct and the standard required of their members in the legal profession in the discharge of their duties and function as an advocate and solicitor; (see Trikkon Sdn Bhd v. Mahinder Singh Dulku [2010] 5 CLJ 850; Keith Sellar v. Lee Kwang Tennakoon [1980] 1 LNS 36; [1980] 2 MLJ 191; Gana Muthusamy v. Tetuan LM Ong & Co [1998] 4 CLJ 878; [1998] 3 MLJ 341).

It is only in rare and exceptional circumstances that the court would interfere with the discretion exercised by DB in a disciplinary decision involving an advocate and solicitor. Unless there were compelling reasons for the court to do so, the decision of the Disciplinary Board should not be interfered with. Otherwise, it would be the court and not the profession that would determine the yardstick of professional behaviour. (see Trikkon Sdn Bhd v. Mahinder Singh Dulku [2010] 5 CLJ 850; Bar Malaysia v. Mohd Fadli Shuib & Anor [2014] 9 1 LNS 1934; Gana Muthusamy v. Tetuan L M Ong & Co [1998] 4 CLJ 878; [1998] 3 MLJ 341).

It is well settled that the duty and responsibility to discipline members of the profession for conduct unbecoming is rooted in the public interest and it is the legal profession's duty to protect the public. (see Bar Malaysia v. Mohd Fadli Shuib & Anor [2014] 1 LNS 1934)” (emphasis added) [18] The appellant’s complaint with the DB was that the respondent had committed breach of trust, as the respondent had paid the proceeds from the SPA to Ma Meng Aun (RM714,895.00), Lu Choo Wai (RM70,000.00), Ong Teik Beng (RM814,894.00) and Messrs Koay & Co (RM400,000.00), leaving a balance sum of RM3,248,298.00 with the appellant. [19] However, the DB had dismissed the appellant’s complaint, on the basis that all these payments were made by the respondent on the instructions of the appellant. These instructions were documented and the appellant had even issued a letter of indemnity to indemnify the respondent dated 29.1.2015. [20] Therefore, the documentary evidence before the DB clearly shows that the respondent had acted on the instructions of the appellant. In the premise, I am of the considered opinion that the DB had not 10 made any gross error that justifies the intervention of this Court. The application is dismissed with no order as to costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 26 June 2019 For the Appellant : Dato’ Joshua Kevin/Damien Chan/Margaret Tan Messrs Kevin & Co Kuala Lumpur. For the Respondent : T. Gunaseelan/Keshrinjeet Singh Messrs Gunaseelan & Associates Kuala Lumpur. Case referred:

S Santhi v Deivigarani Krishna; Majlis Peguam Malaysia (Intervener) [2018] 7 CLJ 263.