Harikrishnan A/L Kanapathy v Ding LI Hon (WA-17D-27-07/2023)

On 23.6.2023, the Disciplinary Board affirmed the findings of the Disciplinary Committee made in respect of a complaint received against the Appellant. It also agreed with the recommendation of the Disciplinary Committee that the Appellant be imposed a fine of RM 5,000.00 for his misconduct.

2.

The facts upon which this appeal arises are not in dispute.

On 4.11.2019, the Respondent made a complaint to the Disciplinary Board (“DB”) premised on the following facts:

On 9.7.2017, Syarikat Infinity Multi Communication Sdn Bhd (“Infinity”) held a launch of an automatic “Pay n Go” machine. The Respondent was interested to purchase the said machine and made a payment of RM 48,800.00 to Infinity. She was promised delivery of the machine within 2 months;

(ii) However, the machine failed to arrive after 4 months. On 22.11.2017, she went to Infinity’s office to enquire about the delivery. She met the Appellant who gave her an undertaking to refund her the sum of RM 48,800.00. She was also given a cheque issued by OCBC Bank for RM 48,800.00;

(iii) The OCBC Bank cheque was dishonoured. The Respondent was informed that the account of Infinity had been closed for 6 months; and

(iv) The Respondent’s husband then went to the office of Infinity to ask for information pertaining to the refund. He met the Appellant. The Appellant had asked members of kongsi gelap to threaten her and her husband with physical harm; and

The Appellant prepared a letter on behalf of Infinity dated 9.3.2018 to the Respondent, titled Settlement in respect of Agreement on 9.7.2017 for ‘Pay and Go’ machine stating that she had agreed to resolve the matter with Infinity by agreeing to accept a sum of RM 17,000.00 as full and final settlement. A sum of RM 3,000.00 as part payment was enclosed with the letter. The receipt of the letter was acknowledged on the same day by one Mohd Zulkarnain bin Zulek (“Zulkarnain”), as the Respondent’s representative. However, Zulkarnain was not her representative and she did not receive any payment.

The DB appointed a Disciplinary Committee (“DC”) to hear the complaint of the Respondent. Premised on the complaint, the DC considered the following questions:

Whether the Respondent had received any monies from the

(ii) Whether there was an undertaking given by the Respondent to repay the Complainant RM 48,800.00; and

(iii) Whether the Respondent had sent or asked kongsi gelap to threaten the Complainant and her husband.

At the conclusion of its deliberations, the DC found the allegations above were not made out. In other words, the three questions were answered in favour of the Appellant.

However, the DC proceeded to consider another aspect of the Respondent’s complaint that she lost the right to claim any part of the RM 48,800.00 as a result of the Appellant’s conduct. The conduct referred to was the Applicant’s issuance of four letters which were addressed to the Respondent, including that of 9.3.2018.

Subsequent to the letter of 9.3.2018, three more letters were prepared by the Appellant on behalf of Infinity his client, dated 13.3.2018, 6.4.2018 and 20.4.2018. The contents stated that the amounts of RM 2,000.00, RM 1,000.00 and RM 1,000.00 respectively were enclosed as part payments towards the settlement. Although the four letters (including that dated 9.3.2018) were addressed to the Respondent, it was given to Infinity as instructed. It was not sent to the Respondent.

The DC proceeded to consider if the Appellant’s action in issuing the four letters amounted to a misconduct. The specific findings were stated in its report as follows: “We find it disturbing that by handing the 4 letters addressed to the Complainant, not to the Complainant but to his client, Infinity, the Respondent had allowed Infinity to advance the narrative that various sums (RM 7,000.00) had been paid to a third party without either the knowledge or consent of the Complainant. Worse, the Respondent had told us that he had no knowledge whether the alleged payments of the total sum of RM 7,000.00 to Mohd. Zulkarnain ever occurred because he was not present when the alleged payments took place. Even more egregious was the fact that the Respondent confirmed before us that it is part of his firm’s practice to give template of Letters of Demand on his firm letterhead to his clients for the clients to send them directly to the client’s defaulting customers.

The DC then concluded that it was satisfied beyond reasonable doubt of the following misconduct on the part of the Appellant:

acted in breach of Rule 14.02(i) of the Bar Council Rulings (section 94(3)(k) of the Legal Profession Act 1976;

(ii) acted in breach of Rule 14.03 of the Bar Council Rulings (section 94(3)(k) of the Legal Profession Act 1976; and

(iii) guilty of conduct which is unbefitting of an Advocate and Solicitor and which brings or is calculated to bring the legal profession into disrepute (s. 94(3)(o) of the Legal Profession Act 1976.

Consequent upon the above findings, the DC then recommended that a fine of RM 5,000.00 be imposed against the Appellant for his misconduct.

The findings of the DC were reported to the DB. On 23.6.2023

The Appellant advances the following grounds in his appeal. Firstly, the DC erred in finding the Appellant guilty of misconduct when he issued letters under the firm’s letterhead and giving to his client to deal with the letters. However, this finding did not arise from the complaint of the Respondent.

Secondly, the Respondent was not his client. He had no obligation to send the letters to the Respondent. He was appointed by Infinity to prepare the four letters addressed to the Respondent. In issuing the four letters, he was merely acting as instructed by Infinity. He was not instructed to deliver or send the letters to the Respondent.

Finally, the Appellant contends that he did not owe a duty to the Respondent as she was not his client. He was never appointed to handle the refund of monies to her. The contention of the Bar Council (intervener)

The Bar Council concedes that the DC erred in finding that there was a violation of Rule 14.02(1) and Rule 14.03 of the Bar Council Rulings in issuing the four letters. The Rules referred to are not applicable to the factual matrix of the complaint.

Nevertheless, the Bar Council contends that the findings of the DC on the issuance of the four letters was within the scope of the Respondent’s complaint, for which it was entitled to deliberate upon.

Additionally, the act of issuing letters under the Appellant’s firm letterhead and not sending them to the addressee, but gave them to his client Infinity constituted conduct inexcusable and unacceptable by the legal profession. The contention of the Respondent

The Respondent contends that the findings of the DC were neither manifestly perverse nor constituted a breach of natural justice. This court ought to be slow to interfere with the DC’s findings. Analysis and findings

The concession of the Bar Council that the Rule 14.02(1) and Rule 14.03 have no application to the complaint against the Appellant is significant. I commend the candid concession made. The finding of the DC that the breach of these Rules was misconceived. Consequently, the DB was wrong to affirm the findings.

The recommendation on the punishment was upon consideration of the three acts taken cumulatively as mentioned in paragraph 10

(i)-(iii) above. In view of the fact that (i) and (ii) was wrongly decided, the decision of the DB in accepting the finding and recommendation of the DC premised on the breach of the Rules, must invite the intervention of this court.

Apart from breach of the Rules, the DC also found the Appellant guilty of conduct unbefitting of an Advocate & Solicitor and which brings or is calculated to bring the legal profession into disrepute as provided for under section 94(3)(o) of the LPA.

It would appear from the report of the DC that it considered the conduct of the Appellant who issued the four letters and gave them to Infinity without sending to the Complainant, unacceptable.

To my mind, this conduct must be viewed in the context of the Appellant’s relationship with Infinity. The DC accepted that the Appellant was acting for Infinity when he issued the letters. However, the DC viewed that the failure of the Appellant to send the letters to the Respondent was not acceptable. It was of the view that having issued the four letters, he ought to have given the copies to the Respondent contemporaneously.

I am of the view that the findings of the DC are not justified. The Appellant had no duty to give copies of the four letters to the Respondent as she was not his client. He owed no duty to the Respondent to do so. He was only required to act in accordance to his client’s instruction.

The principle that as a general rule, a solicitor owes no duty of care to third parties is well settled by decided authorities. (See: Tetuan Abdul Aziz & Associates v Sunshine Haven Sdn Bhd [2016] 4 MLJ 439, Rajamani a/p Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors [2016] 3 MLJ 660).

In the light of the principle laid down by these cases, the DC was not justified in its decision that the non-delivery of the four letters to the Respondent was tantamount to misconduct.

In any event, the Respondent’s complaint from the complaint form was, “Saya mengadu firma guaman K. Harikrishnan & Co. tidak mengurus pembayaran balik wang yang telah dijamin.” In respect of this complaint, the DC made a specific finding on the evidence, that the Appellant did not give any undertaking to refund the Respondent.

Having arrived at this conclusion, the DC proceeded to find the Appellant guilty of misconduct in issuing the four letters. I find this supposed act of misconduct to be outside the scope of the original complaint.

Several cases were cited by the Appellant in support of the contention that the DC is not allowed to consider a ground which was unrelated and not the subject of the original complaint. I shall refer to one which provide valuable guidance on the matter.

In R Sivabalan a/l A Ramiah v Neoh Lay Cheng (Malaysian Bar Council, intervener) [2017] 7 MLJ 587, the High Court held, [46] It is evident that the two charges levelled against the appellant was totally different in nature from each other. In the case of Lembaga Tatatertib Peguam-Peguam v Hoo Lin Coln & Anor [2008] 4 MLJ 1, the apex court speaking through Abdul Aziz Mohamad FCJ held the following: [33] That is essentially true. Subsection (1) of s 93 does state in effect that the DB is established for ‘the purposes of disciplinary proceedings’ under Part VII of the LPA. Subsection (1) of s 94 subjects all advocates and solicitors to the control of the DB, but ‘for the purposes of all disciplinary actions’. It is clear from s 99 that the DB only acts on a complaint that is made or referred to it, which it is required to deal with in accordance with rules made under Part VII. [34] But what may be understood from those provisions to be the function of the DB, of great importance though it undoubtedly is, does not, in my opinion, make the DB the person, to quote the words in the Indian’s case again, who ‘represents the collective conscience of the standards of professional conduct and etiquette’ of advocates and solicitors or ‘acts as protector of the purity and dignity of the profession’. The person who meets that description is, in my view, the Bar Council, which, under sub-s (1) of s 47 of the LPA, is responsible for the proper performance of the functions of the Malaysian Bar, one of whose functions is, under para (b) of sub-s (1) of s 42, ‘to maintain and improve the standards of conduct and learning of the legal profession of Malaysia’. In addition, under paras (b) and (c) of s 57, the Bar Council has specific powers ‘to answer questions affecting the practice and etiquette of the profession and the conduct of members’, ‘to take cognizance of matters affecting … the professional conduct’ of members of the Malaysian Bar, and to ‘take any action as it considers fit’ in relation to ‘the interests of the profession’. (Emphasis added.) [47] It is clear from the above pronouncement that the DB only acts on a complaint that is made or referred to it. Therefore it was not the function of the DB to investigate upon matters and deliberate or decide upon charges unrelated to the complaint. Section 99 of the LPA reads as follows: …. [48] It is clear that the DB may only deal with complaints in accordance with such rules as prescribed and cannot arrogate to themselves powers they do not have. [52] If the DB felt that the findings of the DC was lacking in detail, it was open to them to request the DC to submit more detailed findings. However, it overstepped its boundaries when it took upon itself the task of effectively preferring fresh charges against the appellant which were not the subject of the original complaint. It had therefore acted ultra vires its powers and on this ground alone, this appeal ought to be allowed.

The acts which the DC found misconduct on the Appellant bore no nexus to the Respondent’s complaint. As such, I find it to be outside the scope of the complaint. The finding of misconduct and the recommendation of punishment arising therefrom was ultra vires the DC’s function under the LPA.

In the premises, I allow the appeal of the Appellant. The order of the DB is hereby set aside. I make no order as to costs. Dated: 27th July 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Appellant: En. K.S Devanathan (En. Baljit Singh & En. Suren Rajah together with him) Tetuan K. Harikrishnan & Co. Counsel for Respondent: Tn. Syed Azharul Asiq (Pn. Fong Lip Jeen together with him) Tetuan Wong & Ting Counsels for Intervener: En. Yudistra Darma Dorai (Pn. Melody Tham Chang Yee & Pn. Chelsea Shalynn Johnical together with him) Tetuan Raj, Ong & Yudistra