Court DecisionMY-COA

W-02(A)-60-01/2023

How Chee Hong v Kan Weng Hin (W-02(A)-60-01/2023)

Court of Appeal of Malaysia8 Jan 2026

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Jawatankuasa Tatatertib bertarikh 1.4.2022 Dan 35 Di dalam Perkara Seksyen 99(1), 99(3A), 100(3)(a), 103A, 103B(2)(a), 103B(4) dan 103EA (1) Akta Profession Undang-Undang 1976 40 Dan 13/02/2026 17:51:18 Kand. 58 Di dalam Perkara Aduan No: DC/17/0125 Oleh Majlis Peguam kepada Lembaga Tatatertib Peguam-Peguam 45 Dan Di dalam Perkara Seksyen 43 Akta Keterangan 1950 50 Dan Di dalam Perkara Mengenai Seksyen 25(2) dan Peranggan 1 & 8 Jadual Kepada Akta 55 Mahkamah Kehakiman 1964 Dan Di dalam Perkara Mengenai Seksyen 41 Akta 60 Relief Spesifik 1950 Dan Di dalam Perkara Mengenai Aturan 7, 15 65 Kaedah 16, 28, dan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 ANTARA 70 HOW CHEE HONG (NO KP: 680728-10-6345) … PLAINTIF DAN 75 1 KAN WENG HIN 2 MELVIN SELVAM A/L THAMBIRAJAH 3 YIP BENG FATT (Kesemuanya didakwa sebagai Ahli-Ahli Jawatankuasa Tatatertib Aduan: DC/17/0125) 80 4 LEMBAGA TATATERTIB PEGUAMBELA & PEGUAMCARA DEFENDAN-DEFENDAN) KORUM 85 HASHIM BIN HAMZAH, HMR AZMI BIN ARIFFIN, HMR HAYATUL AKMAL BINTI ABDUL AZIZ, HMR 90 JUDGMENT INTRODUCTION [1] This appeal concerns the Appellant/Plaintiff, an advocate and 95 solicitor, for an alleged misconduct related to a judgment sum of RM35,087,135.06 paid into the client account of Messrs Kumar Jaspal Quah & Aishah (Messrs Kumar) in 2011. THE FACTS 100 [2] In a nutshell:
Background Facts:
The judgment sum was paid to George Lim, a client of Messrs Kumar, following a court judgment in 2010.
A Trust Deed was created between George Lim and 105 Manharlal Bhaichand Gathani Jain (Manharlal), appointing Manharlal as Trustee to manage the supposed Trust Fund for the beneficiaries.
Messrs Kumar issued a bill for professional fees of RM7,600,000 to George Lim, which was paid in full.
Subsequently, on 6 July 2012:
Several parties (Rozali, Hairi, and WWE Holdings Berhad) filed a suit against Chua Lay Kim, Dato Vijaya Kumar Natarajan, Messrs Kumar, including the Plaintiff herein, for the return of the judgment sum.
The High Court dismissed the suit.
The Court of Appeal however, disagreed and overturned the decision.
Grounded on critical observation of impropriety concerning 120 the impugned money by the Court of Appeal, on 30 November 2016, the Bar Council requested a written explanation from the plaintiff regarding alleged breaches of the Legal Profession Act 1976 (LPA): sections 94(3)(c), (o), and 94(4)(a):
It was said that all the defendants were engaged in the dissipation of the funds.
The legal firm, which was both the second and fourth defendants, was instrumental in the sham trust deed and the impugned bill.
Both documents had expedited the movement of funds.
The Bar Council took the position that it concerned the purported dishonest or fraudulent conduct of an advocate and solicitor in the discharge of his duties. 135
The Bar Council Complaint:
On 2 March 2017, the Bar Council, in the exercise of its statutory duties, formally complained against the Plaintiff with the Disciplinary Board (DB), citing alleged breaches of the LPA related to dishonest or fraudulent conduct.
The DB subsequently requested a written explanation from the Plaintiff, which he provided on 30 June 2017, denying the allegations and asserting that they were too broad and vague.
On 2 October 2018, after 1 ½ years from the Bar Council’s 145 formal complaint:
The DB decided to appoint a Disciplinary Committee
to investigate the complaint.
However, the appointment of the DC members was delayed until 16 March 2020.
The Disciplinary Board (DB) Actions:
The DB appointed the Disciplinary Committee (DC) in March 2020 to investigate the complaint.
The Plaintiff raised objections during the DC hearing: 155
Citing non-compliance with sections 103A and 103B of the LPA regarding the timing and procedures of the DC's appointment and investigation.
The DC dismissed the objections and proceeded with the hearing.
The DC Hearing:
The DC requested a written explanation from the Plaintiff on 5 May 2020 on the alleged infringement. During the investigation, one of the DC members, Mr Lim Cheong Kiat, 165 was replaced by another member (Encl.4, PDF 150-151).
At the DC hearing on 15 April 2021, the plaintiff raised objections, including:
Non-compliance with Section 103A of the LPA regarding the timing of the DC's appointment.
Non-compliance with Section 103B of the LPA regarding the investigation and hearing process.
The DC dismissed the objections and proceeded with the hearing. The plaintiff submitted a written objection on 15 175 April 2022, which was also denied on 3 June 2022. [3] The Originating Summons:
Dissatisfied:
The Plaintiff filed an Originating Summons (OS) seeking a 180 declaration that the DB's appointment of the DC members was out of time in accordance with section 103A of the LPA.
The Plaintiff argued that the time limits stipulated in the LPA are mandatory and non-compliance renders the proceedings invalid. 185
The Plaintiff also contended that the DB's delay in appointing the DC and the DC's failure to comply with procedural requirements prejudiced the Plaintiff's case.
The DB argued that the disciplinary proceedings were conducted as soon as practicable, given the circumstances.
The plaintiff contended that the time limits stipulated in the LPA should be considered mandatory, citing the Supreme Court case of Majlis Peguam Malaysia & 3 Ors v. Joseph Au Kong Weng [1993] 2 MLJ 57, [1993] 2 CLJ 417, SC:
The Supreme Court decision addressed the interpretation of the time 195 provisions related to disciplinary proceedings under the Legal Profession Act 1976. The case involved a complaint made against Joseph Au Kong Weng, an advocate and solicitor, regarding the alleged misuse of his firm's Trust Account. The Disciplinary Committee was appointed following this complaint, but outside the 200 statutory time frame (emphasis added).
The central question for determination was whether the time limits prescribed in sections 98 and 99 of the Legal Profession Act 1976 (before a 1992 amendment) for appointing a Disciplinary Committee were mandatory or merely directory (emphasis added).
The Supreme Court ruled that the time provisions were mandatory. The court found that failure to adhere to these strict timelines rendered the subsequent appointment of the Disciplinary Committee invalid, null, and void.
Strict compliance with procedural timelines was essential to the 210 validity of disciplinary actions against lawyers.
It underscored the importance of procedural fairness and the proper administration of the disciplinary process by the Bar Council and the relevant committees. 215
The High Court disagreed and found that the said OS was premature, as the DB made no final decision or finding to act upon (emphasis added). It was observed that:
The Plaintiff must comply with the procedures set out in the LPA and exhaust all remedies within the disciplinary 220 framework before seeking judicial intervention.
The High Court emphasised that the Plaintiff's attempt to bypass the DB's mechanism was premature and constituted an abuse of process.
The High Court noted that the DC commenced its inquiry 225 within the one-month period stipulated in Section 103B (1) of the LPA:
The impugned section requires that the DC commence an inquiry within one month of its appointment.
It was observed that the DC was appointed on 13.7.2020.
However, the DB via letter (13.07.2020) informed all parties that one of the DC members could not sit in the inquiry of the existing DC.
Therefore, the DB, in the exercise of its powers, dissolved the said DC and appointed the present DC to carry out the inquiry 235 of the Plaintiff.
The present DC issued a notice of hearing dated 24.07.2020, which is twelve days after it was appointed.
Therefore, the notice of hearing was within the one-month period as stipulated in section 103B(1) of the LPA.
The High Court held that the DC's dismissal of the plaintiff's objections was not a final decision, as the DB could still affirm or reverse the DC's recommendation (section 103EA LPA).
It is the decision of the DB that is appealable under section 103E LPA.
The finding by the DC is not a final decision (section 103C LPA) as opposed to a decision by the DB (section 103D LPA) arising from the recommendation from the DC.
The High Court concluded that the plaintiff was not prejudiced by the DC's ruling, as objections could still be raised during the appeal stage under Section 103E(8) of the LPA, as the Plaintiff is not precluded from raising any objection under this section as grounds of appeal that he 255 may file under Section 103E LPA.
The issue of alleged lack of jurisdiction, if any, can be argued at the appeal stage if the decision of the DC or the DB does not favour the Plaintiff.
On 5.3.2023, the High Court dismissed the OS with costs of 260 RM3,000.00.
The Plaintiff/Appellant appealed to the Court of Appeal. THE LEGAL PROFESSION ACT 1976 (LPA as at 2018) [4] In a nutshell:
Section 99 LPA: Complaint Against an Advocate and Solicitor or Pupil:
Any complaint concerning the conduct of any advocate and solicitor or of any pupil shall be in writing and shall, in the first place, be made or referred to the Disciplinary Board, which shall deal with such 270 complaint in accordance with such rules as may from time to time be made under this Part.
Any court, including the Industrial Court and a Syariah Court, Judge, Sessions Court Judge, Magistrate or the Attorney General, may at 275 any time refer to the Disciplinary Board any complaint against an advocate and solicitor or a pupil.
Nothing in this section shall be taken to preclude the Bar Council or a State Bar Committee from making any complaint of its own motion 280 to the Disciplinary Board against an advocate and solicitor or a pupil.
No complaint concerning the conduct of any advocate and solicitor or of any pupil shall be inquired into by the Disciplinary Board after the expiration of six years from the date when the right of action to 285 bring the complaint accrued: Provided that where—
The complaint is based upon the fraud of the advocate and solicitor or his agent or of any person through whom he or his agent claims; or 290
The right of action to bring the complaint is concealed by the fraud of the advocate and solicitor or of his agent or any person through whom he or his agent claims. The period of limitation shall not begin to run until the complainant has discovered the fraud or could with reasonable diligence have 295 discovered it.
Where a complaint is made against a legal firm, it shall be deemed to be a complaint made—
In the case of a sole proprietorship, against the advocate and 300 solicitor who was at the material time the sole proprietor of the legal firm; or
In the case of a partnership, against all the advocates and solicitors who were at the material time partners of the legal firm, unless the legal firm satisfies the Disciplinary Board of the 305 identity of the advocate and solicitor in the legal firm against whom the complaint has arisen.
Where, at any stage of the proceedings, the Disciplinary Board is satisfied that a complaint made against a legal firm should be 310 directed against a particular advocate and solicitor, the Disciplinary Board shall forthwith replace the name of the legal firm with the name of the advocate and solicitor concerned.
For the purpose of this section, “legal firm” includes an international 315 partnership or a qualified foreign law firm licensed under Part IVA. In a nutshell:
Section 99 LPA governs the process for handling complaints against advocates and solicitors or pupils. Such written 320 complaints must first go to the DB, which handles them per established rules, and also allowing courts, judges, the Attorney-General, or the Bar Council itself to refer complaints or initiate them, ensuring a formal channel for professional misconduct issues.
All complaints must be in writing and are first made or referred to the DB.
Parties making the formal complaint include the public, any Court, Sessions Court Judge, Magistrate, or the Attorney-General (referring to the Board), the Bar Council or a State Bar 330 Committee (making complaints on its own motion).
The Disciplinary Board manages the complaints according to its rules. In 2021, the Federal Court in Tan Sri Dr Muhammad Shafee Abdullah v. Tommy Thomas & Anor [2021] 6 MLJ 563 held that failing to refer complaints to the Disciplinary Board first, 335 as required by Section 99(1), constitutes a procedural error.
Section 99(3A) of the LPA imposes a time limit of six years from the date of the right to bring an action for lodging a complaint of misconduct against an advocate and solicitor or a pupil. However:
Where the complaint is based upon the fraud of the advocate and solicitor, his agent, or any person through whom he or his agent claims.
Where the fraud of any such person has concealed the right of action to bring the complaint. 345 In these exceptional cases involving fraud, the period of limitation begins to run from the time the complainant first became aware of the act, or from the time the last of the acts complained of occurred. 350
Section 103A LPA: Appointment of Disciplinary Committee:
Where—
The Disciplinary Board determines that a Disciplinary Committee ought to be appointed.
An advocate and solicitor have 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
The advocate and solicitor have been suspended under subsection 94(4), the Disciplinary Board shall, as soon as may 360 be practicable, appoint a Disciplinary Committee. The Disciplinary Board shall, as soon as may be practicable, appoint a Disciplinary Committee (emphasis added)
A Disciplinary Committee shall consist of three members, of whom 365 shall be—
Two advocates and solicitors; and
One lay person, appointed from the Disciplinary Committee Panel.
The Disciplinary Board shall, at the time of appointment of a 370 Disciplinary Committee, appoint a member from paragraph (2)(a) to be the chairman of the Disciplinary Committee. In a nutshell:
Section 103A LPA outlines the specific circumstances under 375 which the Disciplinary Board shall appoint a Disciplinary Committee to investigate a complaint against an advocate and solicitor formally.
The Disciplinary Board is mandated to appoint a Disciplinary Committee when any of the following conditions are met:
The Disciplinary Board determines that a formal investigation is necessary.
The advocate and solicitor have been convicted of an offence of criminal breach of trust under section 409 of the Penal Code or any other offence involving fraud or dishonesty.
The advocate and solicitor have been suspended under section 94(4) of the Act (which relates to interim suspension in certain serious circumstances).
The Disciplinary Committee, once appointed, comprises three 390 members: two advocates and solicitors, and one lay person. Their role is to hear and investigate the matter, record their findings, and recommend disciplinary action to the Disciplinary Board.
The term “as soon as may be practicable” has been 395 addressed in: (emphasis added)
Black’s Law Dictionary 10th Edition to mean: ...of a thing capable of being accomplished; feasible in a particular situation, a practicable plan, capable of being used.
District of Columbia Court of Appeals in Greenway v Selected 400 Risks Ins Co., D.C. App., 307 A 2d 753, 755, observed: “As soon as practicable means a reasonable time.” These words are not synonymous with” as soon as possible”; they mean ordinarily as soon as reasonably can be expected in the circumstances, or in due time…The words as soon as practicable within the liability policy 405 requirement that the insured will notify the insurer of an occurrence as soon as practicable means within a reasonable time in view of all the facts and circumstances of each particular case. (emphasis added) 410
Section 103B LPA: Inquiry by the Disciplinary Committee.
The Disciplinary Committee shall, within one month of its appointment, commence its inquiry into the written application or complaint and shall make its findings expeditiously (underlined and 415 emphasis added)
The Disciplinary Committee shall keep a note of the proceedings of the inquiry and submit the findings and the notes of the proceedings to the Disciplinary Board.
For the purposes of any inquiry under subsection (1), the Disciplinary 420 Committee may—
require the production for inspection by the Disciplinary Committee of any book, document or paper which may relate to or be connected with the subject matter of the inquiry and may require any person to give information in relation to such book, 425 document or paper.
require such person concerned to give all information in relation to any such book, document or paper which may be reasonably required by the Disciplinary Committee; and
require any person whom it considers necessary to appear 430 before it to give oral evidence relating to or connected with the subject matter of the inquiry.
Any—
Advocate and solicitor or any other person who, without reasonable excuse, refuses or fails to produce to the 435 Disciplinary Committee for inquiry any book, document or paper or fails to give any such information relating thereto under paragraph (2)(a) or (b); and
A person who, without reasonable excuse, refuses or fails to appear to give oral evidence under paragraph 2(c) 440 Shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to a term of imprisonment not exceeding three months or to both.
Before the Disciplinary Committee commences its hearing in respect of any matter, the Disciplinary Committee shall post or deliver to the 445 advocate and solicitor concerned—
a copy of any written application or complaint and of any statutory declaration or affidavit that has been made in support of the written application or complaint; and
a notice inviting the advocate and solicitor concerned, within 450 such period being not less than fourteen days as may be specified in the notice—
to give to the Disciplinary Committee any written explanation he may wish to offer which may be additional to any previous written explanation he may have proffered 455 under section 100; and
to advise the Disciplinary Committee if he wishes to be heard by the Disciplinary Committee.
The Disciplinary Committee shall allow the time specified in the notice to elapse and give the advocate and solicitor concerned a 460 reasonable opportunity to be heard if he so desires and shall give due consideration to any explanation he may make. In a nutshell:
Section 103B of the LPA outlines the composition and functions 465 of the Disciplinary Committee, which investigates complaints of misconduct against advocates and solicitors.
Key Provisions of Section 103B LPA
The Disciplinary Committee is appointed by the Disciplinary Board to consider reports from an Investigating Tribunal, or 470 to investigate and make recommendations regarding cases referred to it under section 103A (which includes formal investigations, convictions of serious offences, or cases of suspension pending investigation).
A Disciplinary Committee consists of three members 475 appointed from the Disciplinary Committee Panel:
Two advocates and solicitors.
One lay person (a non-lawyer).
The Disciplinary Board appoints a member who is an advocate and solicitor to act as the chairman of the committee.
The committee's role is to hold hearings, investigate the matter, record its findings of fact, and determine what, if any, disciplinary action it will recommend to the Disciplinary Board (e.g., fine, suspension, or striking off the Roll).
The Disciplinary Board then reviews the report and issues 485 a final order that is appealable under section 103E LPA.
The DC:
Within one month of its appointment, shall commence its inquiry into the written application or complaint.
The inquiry must lead to a finding and recommendation to the DB expeditiously: Re Knight Glenn Jeyasingam [1994] 3 SLR 531, observed that a two-year interval from the time of conviction of a criminal offence and commencement of disciplinary proceedings based 495 on the conviction was not an inordinate delay; Ajaib Singh v Jeffery Fernandes [1971] 1 MLJ 139 held that where an advocate and solicitor applies to the Court for an order for stay of proceedings because the inquiry has not been proceeded with, such an application should be made promptly and must 500 satisfy the Court that serious or irreparable injury would result if the stay were not granted. The burden lies on the applicant to establish the prejudice.
Section 103E LPA: 505 Appeal from the final order or decision of the DB:
Any party aggrieved by any final order or decision made by the Disciplinary Board —
pursuant to subsection 94(4).
under paragraph 100(1)(a), (3)(a) or subsection 100(7), (8) or 510
(15); or
under section 103D, Shall have the right to appeal to the High Court within one month of the receipt of the notification of that order or decision.
(Deleted by Act A1444).
(Deleted by Act A1444).
The appeal shall be by way of an originating motion setting out the ground of appeal supported by an affidavit.
Any appeal against the decision of the High Court shall lie to the Court of Appeal and thereafter to the Federal Court.
The Bar Council may, in its discretion, intervene at any stage of any appeal under this section.
The Disciplinary Board shall not be cited as a party in any appeal under this section.
(Deleted by Act A1444). 525 In a nutshell:
Section 103E of the LPA governs the appeal process from decisions made by the DB against advocates and solicitors, allowing an aggrieved party (complainant or lawyer) to appeal 530 to the High Court within one month of the decision, establishing a key judicial oversight.
Any party (advocate, solicitor, or complainant) unhappy with a final decision from the DB can appeal (emphasis added).
The appeal must be filed within one month of receiving the High 535 Court's decision.
The appeal is initiated via an originating motion, in compliance with the Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994.
The Disciplinary Board itself cannot be the respondent in the 540 appeal, as it's the adjudicating body.
A further appeal to the Court of Appeal and the Federal Court is possible for parties aggrieved by the High Court's decision.
Section 103E LPA provides the statutory pathway for judicial review and challenge against disciplinary findings concerning 545 legal practitioners in Malaysia.
Section 103EA LPA: Objection to any decision, etc, other than the final order or decision made by the DB 550
Where a party is aggrieved by any decision, order, ruling or direction of the Disciplinary Committee or the Disciplinary Board, other than a final order or decision made by the Disciplinary Board referred to in section 103E, the aggrieved party may file an objection in writing in respect of any such decision, order, ruling or direction with the 555 Disciplinary Committee or Disciplinary Board, as the case may be, within fourteen days of being duly notified of the decision, order, ruling or direction.
Where the objection raised is in respect of the composition or participation of any member of the Disciplinary Committee or the 560 Disciplinary Board, as the case may be, in meetings, proceedings or inquiries before the Disciplinary Committee or Disciplinary Board, the procedures to deal with the objection shall be as set out in the rules made under this Part.
After the objection referred to in subsection (2) has been dealt with, 565 the Disciplinary Committee or the Disciplinary Board, as the case may be, shall proceed with the inquiry or proceeding until its completion.
Where the objection raised is not related to matters referred to in subsection (2), the Disciplinary Committee or Disciplinary Board, as 570 the case may be—
Shall make such a decision, order, ruling or direction on the objection as it deems just; and
Shall proceed with the inquiry or proceeding until its completion. 575
Where the inquiry or proceeding referred to in subsection (3) and paragraph (4)(b)—
Is before the Disciplinary Committee, after the completion of the inquiry or proceeding, the Disciplinary Committee shall make its recommendation to the Disciplinary Board pursuant to section 580 103C; or
Before the Disciplinary Board, after the completion of the inquiry or proceeding, the Disciplinary Board shall make its order or decision pursuant to section 103D. 585
The order or decision of the Disciplinary Board under paragraph
(5)(b) shall be suspended from coming into effect for thirty days from the date of the order or decision or to such further time as the Court may allow to enable an aggrieved party to apply to the Court for a review.
If an aggrieved party does not apply for review, the order or decision of the Disciplinary Board shall take effect immediately upon the expiration of the period of thirty days.
Nothing in this section shall preclude an aggrieved party from raising any objections under this section as grounds of appeal in any appeal 595 he may file under section 103E. In a nutshell:
Section 103EA of the LPA deals with objections to decisions by the DC or DB, allowing an aggrieved party to file a written 600 objection within 14 days, with specific rules for handling objections related to certain procedural matters versus substantive ones, guiding the DB's subsequent actions and decision-making process in a lawyer’s disciplinary issues.
A party dissatisfied with a DB or DC decision is entitled to lodge 605 a formal written objection.
This objection must be filed within 14 days of the decision:
If the objection isn't about specific procedural issues (mentioned in subsection (2)), the Board decides, orders, or directs as it sees fit and continues the inquiry.
The Board shall proceed with the hearing until it's finished, even when an objection is raised, if it's not about the specific matters in subsection (2) (emphasis added).
This section falls under the disciplinary framework for advocates 615 and solicitors, working alongside other sections like section 103D LPA (Board's consideration of reports) and section 103E LPA (Appeals from Board decisions). THE PARTIES ARGUMENTS 620 [5] The parties argued as follows:
5.1 The Appellant/Plaintiff:
The Appellant clarifies that the appeal is not against the final decision of the DB under Section 103E LPA but addresses decisions of the DB and DC outside Section 103E LPA, for 625 which no appeal remedy is provided under the LPA.
It was argued that:
The Respondents allegedly misread Sections 103EA(1) LPA and 103E LPA, which only allow appeals against final orders or decisions of the DB, not the DC. 630
The DC failed to commence its investigation within one month of its appointment, as required by Section 103B(1) of the LPA, making its conduct legally invalid.
The Appellant argues that the DB lacked authority to dissolve the existing DC and appoint a new DC, as the LPA 635 only allows the appointment of one DC under Sections 100(3)(b) and 103A (1) LPA.
The subsequent DC failed to comply with Section 103B (4) of the LPA, which requires delivering a copy of the complaint record and issuing a fresh notice to the Appellant 640 after appointing new members.
The Appellant contends that challenging the DC's jurisdiction before the Court is legally valid and does not constitute an abuse of process.
The DC's inquiry was out of time, breaching Section 103B of the 645 LPA. The DB's reappointment of a new DC was procedurally improper and lacked legal basis. The Appellant challenges the Respondents' non-compliance with statutory provisions under the LPA, particularly Section 103A, which mandates the timely appointment of a DC by the DB.
The Appellant argues that the DB delayed the appointment of the DC by one and a half years, which violates the "as soon as practicable" requirement under Section 103A of the LPA. It was further argued that the delay in appointing the DC constitutes a fundamental breach of Section 103A of the LPA. The DB failed 655 to provide a satisfactory explanation for the delay, thereby violating the principles of natural justice and the duty to give reasons for decisions. The High Court allegedly failed to address the contravention of Section 103A LPA in its judgment.
The Appellant seeks a declaration on the DC's jurisdiction 660 before proceeding with the hearing to avoid risking an adverse finding.
The Appellant requests the Court to allow the appeal with costs, emphasising the alleged procedural transgressions and jurisdictional issues under the LPA.
5.2 The Respondents:
The Appellant seeks several declarations, including:
Invalidity of the Respondents' investigation and hearing due to time limitations under Section 103A LPA.
Invalidity of the DB's decision to appoint the DC members.
Non-compliance with procedural requirements, such as allowing the Appellant to submit a letter of explanation under Section 103B(4) LPA.
Exemption from appearing before the DC.
The Respondents argue that the appeal is misconceived in law as it does not challenge a final order or decision, which is a requirement under Section 103EA(1) LPA.
The Respondents highlight that the Appellant's claims are an 680 attempt to bypass the statutory provisions of the LPA, which only allow appeals against final orders or decisions of the DB. The Respondents cited Majlis Peguam Malaysia & Ors v Joseph Au Kong Weng (supra), which emphasises strict adherence to statutory time limits and procedures under the 685 LPA.
The High Court noted that the DC was reconstituted within the stipulated time frame under Section 103B (1) LPA.
The High Court held that the Appellant's OS was not an appeal against a final order but rather an attempt to seek declaratory 690 orders to circumvent the LPA's provisions.
The High Court concluded that the Appellant's actions constituted an abuse of process.
The Respondents submit that the High Court judge did not err in dismissing the Appellant's appeal and that appellate 695 intervention is not warranted. OUR ANALYSIS AND FINDINGS [6] In considering this appeal, we unanimously determine:
Grounded on all the materials before us, the respective 700 arguments of the parties, the learned High Court Judge (HCJ)’s findings, and the relevant provisions of the LPA, which include the one seen in paragraph [4] above, clearly show that there is no appealable error before us as submitted by the Appellant/Plaintiff that would warrant an appellate intervention.
We agree with the decision of the learned HCJ:
The issue of the inquiry being out of time is unsustainable. The Appellant's counterargument is far-fetched to be believed. We find that the present DC has been duly reconstituted by the DB, which commenced its inquiry into 710 the complaint in compliance with the time stipulated under Section 103B (1) of the LPA. We find no issue with the chronological facts set out (paragraph [3] [4] above) by the learned HCJ.
We find section 103EA LPA clearly sets out that a party 715 dissatisfied with a DB or DC decision is entitled to lodge a formal written objection within 14 days of the impugned decision. The DB, however, is empowered to proceed with the hearing until it's finished, even when an objection is raised. This section falls within the disciplinary framework 720 for advocates and solicitors, alongside other sections, including section 103D LPA (Board's consideration of reports) and section 103E LPA (Appeals from Board decisions). The Appellant must comply with the procedures set out in the LPA and exhaust all remedies within the 725 disciplinary framework before seeking judicial intervention.
The learned HCJ was correct in holding that the DC's dismissal of the plaintiff's objections was not a final decision, as the DB could still affirm or reverse the DC's recommendation (section 103EA LPA). It was rightly 730 concluded that the finding by the DC is not a final decision (section 103C LPA) as opposed to a determination by the DB (section 103D LPA) arising from the recommendation of the DC after the conclusion of the inquiry.
We find no compelling evidence of any prejudice suffered 735 by the Appellant/Plaintiff as claimed. Claiming to be adversely affected is one thing; the burden of establishing the claim is another. We find that the Appellant failed to discharge that burden as was appropriately alluded to by the learned HCJ, whatever objections that the Appellant 740 has could always be raised during the appeal stage under Section 103E(8) of the LPA, as the Appellant is not precluded from raising any objection under this section as grounds of appeal that he may file under Section 103E LPA:
The legal sentiment that cases should be resolved on 745 their substantial merits rather than technicalities is a recognised and applied principle in Malaysian legal jurisprudence.
Courts have moved toward a more pragmatic approach to ensure substantive justice, though 750 procedural compliance remains essential.
The Court of Appeal in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413, CA emphasised that applications should not be dismissed purely on technical or procedural grounds. Justice 755 Gopal Sri Ram (as he then was) stated that in the performance of their duty, judges must remember their duty to "do justice according to law and the substantial merits of each case: “For myself, I must add a final word. I must be forgiven for 760 expressing my amazement and equal disappointment that in this day and age, applications and suits are disposed of on purely technical and procedural grounds without even the slightest attempt to ensure that justice according to the merits of a particular case is done. I cannot help but feel that, in the 765 performance of our duty as judges to decide according to law, we have forgotten our duty to do justice according to law and to the substantial merits of each case. My own feelings are so well expressed by Saville LJ (now Lord Saville) in British Steel plc v Customs & Excise Commissioners [1997] 2 All ER 366, at 770 p 379
The Malaysian Courts aim to avoid hyper-technical interpretations that would prevent a claim from being heard on its actual substance, favouring an approach that ensures justice is served according to the actual 775 merits of the case.
The appellate and apex courts generally do not interfere with a trial judge’s findings of fact unless they are plainly wrong, focusing on whether the original decision was reasonably grounded on the evidence 780 and merits.
In light of the foregoing, we concur with the learned HCJ observation that Appellant’s attempt to bypass the DB's mechanism was premature and constituted an abuse of process.
The Appellant cited the Court of Appeal in Tania Scivetti v Majlis Peguam & Ors [2023] 6 MLJ 77, CA, which focuses on procedural objections raised by the appellant in that case against the DC inquiry.
It was argued in that case:
The DC's inquiry was conducted four years and one month after its appointment.
It violates the mandatory time limit under Section 103B (1) of the Legal Profession Act 1976 (LPA).
The appellant sought declaratory relief to declare the inquiry 795 illegal and void. The High Court judge dismissed the OS, finding the application premature, that the appellant's reliance on Section 99(3A) of the LPA was misplaced, and that the 800 court should not interfere with the DC's adjudicative functions. The learned HCJ acknowledged the DC's breach of Section 103B LPA but refused to grant relief (emphasis added). 805
The Court of Appeal (CA) addressed three key issues:
Prematurity of the OS: The CA found that the appellant's request for declaratory relief was not premature, as the appellant was not seeking to determine the merits of the complaint but rather to address the 810 DC's jurisdiction due to its statutory breach. The court ruled that the HCJ erred in refusing the declaratory relief.
Application of Section 99(3A) LPA: The CA agreed with the High Court judge that Section 99(3A) LPA was a non-issue, as the DB's inquiry in 2016 was 815 conducted within the six-year limitation period. The DC's inquiry in 2021 was separate and distinct from the DB's inquiry.
DC's Breach of Section 103B LPA: The CA distinguished the present case from Koh Mui Tee, emphasising the inordinate delay of 49 months in the DC's 820 inquiry, which was unexplained and far exceeded the statutory time limit. The court ruled that the DC's inquiry was unlawful due to the breach of Section 103B LPA.
The CA allowed the appeal:
Set aside the High Court's decision, and grant the declaratory reliefs sought by the appellant, specifically to the unique circumstances or facts of that case (emphasis added).
It declared the DC's inquiry and the disciplinary proceedings against the appellant illegal, null, and void. No order as to costs 830 was made.
It was also observed that the CA did not intend to override the general rule that a litigant must necessarily exhaust a statutory remedy or mechanism before presenting his grievances to the Court, finding that:
The DB had already decided on the DC’s jurisdiction.
It was the DC that had allegedly relinquished its jurisdiction by not complying with section 130B (1) LPA (within one month to commence the inquiry after its appointment) that had allowed this legal challenge.
The DB rightly acted within the 6-year limitation period (section 99(3A) LPA).
We find that the foregoing CA’s determination, which was specifically unique to the circumstances or facts of that 845 case, provides no assistance to the Appellant in the present appeal (emphasis added):
On the nature of the BC’s complaints, the proviso to section 99 (3A) LPA applies, rendering the issue of limitation a non-starter.
Section 103B(1) LPA was not breached when the present reconstituted DC commenced its inquiry within one month after its appointment.
The DB had explained the reason for reconstituting the DC in its letter dated 13.7.2020, informing all parties that one 855 of the DC members could not sit in the inquiry of the DC, necessitating the DB, in the exercise of its powers, to dissolve that said DC and appoint the present DC to carry out the inquiry of the BC’s complaint against the Plaintiff for the alleged impropriety of the impugned funds. 860 CONCLUSION [7] Having considered all issues presented before this Court, we unanimously find no appealable error in the learned HCJ's decision. In the circumstances, we affirmed the findings of the learned HCJ. The appeal is 865 hereby dismissed with no order as to costs. Dated 8 January 2026 870 HAYATUL AKMAL ABDUL AZIZ Judge Court of Appeal 875 Counsels: For the Appellant: Datuk Vignesh Kumar together with Yasinthra a/p Dorairaju 880 Messrs Kumar Jaspal Quah & Aishah For the Respondents: Keshvinjeet Singh Messrs Gunaseelan & Associates 885

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1 IN THE COURT OF APPEAL OF MALAYSIA IN PUTRAJAYA (APPELLATE JURISDICTION) APPEAL NO: W-02(A)-60-01/2023 BETWEEN 5 HOW CHEE HONG (NO KP: 680728-10-6345) … APPELLANT AND 10

1. Kan Weng Hin

2. Melvin Selvam A/L Thambirajah

YIP BENG FATT (Kesemuanya didakwa sebagai Ahli-Ahli 15

Jawatankuasa Tatatertib Aduan: DC/17/0125) LEMBAGA TATATERTIB PEGUAMBELA & PEGUAMCARA …RESPONDENTS 20 (Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Kuala Lumpur Di Dalam Wilayah Persekutuan Kuala Lumpur (Bahagian Rayuan & Kuasa-Kuasa Khas) Saman Pemula: WA-17D-19-06/2022 25 Di dalam Keputusan Lembaga Tatatertib Peguam-Peguam bertarikh 2.10.2018 Dan 30 Di dalam Perkara Suatu

Perintah

para

Jawatankuasa Tatatertib bertarikh 1.4.2022 Dan 35 Di dalam Perkara Seksyen 99(1), 99(3A), 100(3)(a), 103A, 103B(2)(a), 103B(4) dan 103EA (1) Akta Profession Undang-Undang 1976 40 Dan 13/02/2026 17:51:18 Kand. 58 Di dalam Perkara Aduan No: DC/17/0125 Oleh Majlis Peguam kepada Lembaga Tatatertib Peguam-Peguam 45 Dan Di dalam Perkara Seksyen 43 Akta Keterangan 1950 50 Dan Di dalam Perkara Mengenai Seksyen 25(2) dan Peranggan 1 & 8 Jadual Kepada Akta 55 Mahkamah Kehakiman 1964 Dan Di dalam Perkara Mengenai Seksyen 41 Akta 60 Relief Spesifik 1950 Dan Di dalam Perkara Mengenai Aturan 7, 15 65 Kaedah 16, 28, dan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 ANTARA 70 HOW CHEE HONG (NO KP: 680728-10-6345) … PLAINTIF DAN 75 1 KAN WENG HIN 2 MELVIN SELVAM A/L THAMBIRAJAH 3 YIP BENG FATT (Kesemuanya didakwa sebagai Ahli-Ahli Jawatankuasa Tatatertib Aduan: DC/17/0125) 80 4 LEMBAGA TATATERTIB PEGUAMBELA & PEGUAMCARA DEFENDAN-DEFENDAN) KORUM 85 HASHIM BIN HAMZAH, HMR AZMI BIN ARIFFIN, HMR HAYATUL AKMAL BINTI ABDUL AZIZ, HMR 90 JUDGMENT INTRODUCTION [1] This appeal concerns the Appellant/Plaintiff, an advocate and 95 solicitor, for an alleged misconduct related to a judgment sum of RM35,087,135.06 paid into the client account of Messrs Kumar Jaspal Quah & Aishah (Messrs Kumar) in 2011. THE FACTS 100 [2] In a nutshell:

Background Facts:

The judgment sum was paid to George Lim, a client of Messrs Kumar, following a court judgment in 2010.

A Trust Deed was created between George Lim and 105 Manharlal Bhaichand Gathani Jain (Manharlal), appointing Manharlal as Trustee to manage the supposed Trust Fund for the beneficiaries.

Messrs Kumar issued a bill for professional fees of RM7,600,000 to George Lim, which was paid in full.

Subsequently, on 6 July 2012:

Several parties (Rozali, Hairi, and WWE Holdings Berhad) filed a suit against Chua Lay Kim, Dato Vijaya Kumar Natarajan, Messrs Kumar, including the Plaintiff herein, for the return of the judgment sum.

(ii) The High Court dismissed the suit.

III

(iii) The Court of Appeal however, disagreed and overturned the decision.

Grounded on critical observation of impropriety concerning 120 the impugned money by the Court of Appeal, on 30 November 2016, the Bar Council requested a written explanation from the plaintiff regarding alleged breaches of the Legal Profession Act 1976 (LPA): sections 94(3)(c), (o), and 94(4)(a):

It was said that all the defendants were engaged in the dissipation of the funds.

III

(iii) The legal firm, which was both the second and fourth defendants, was instrumental in the sham trust deed and the impugned bill.

(iv) Both documents had expedited the movement of funds.

The Bar Council took the position that it concerned the purported dishonest or fraudulent conduct of an advocate and solicitor in the discharge of his duties. 135

The Bar Council Complaint:

On 2 March 2017, the Bar Council, in the exercise of its statutory duties, formally complained against the Plaintiff with the Disciplinary Board (DB), citing alleged breaches of the LPA related to dishonest or fraudulent conduct.

The DB subsequently requested a written explanation from the Plaintiff, which he provided on 30 June 2017, denying the allegations and asserting that they were too broad and vague.

On 2 October 2018, after 1 ½ years from the Bar Council’s 145 formal complaint:

The DB decided to appoint a Disciplinary Committee

to investigate the complaint.

(ii) However, the appointment of the DC members was delayed until 16 March 2020.

The Disciplinary Board (DB) Actions:

The DB appointed the Disciplinary Committee (DC) in March 2020 to investigate the complaint.

The Plaintiff raised objections during the DC hearing: 155

Citing non-compliance with sections 103A and 103B of the LPA regarding the timing and procedures of the DC's appointment and investigation.

(ii) The DC dismissed the objections and proceeded with the hearing.

The DC Hearing:

The DC requested a written explanation from the Plaintiff on 5 May 2020 on the alleged infringement. During the investigation, one of the DC members, Mr Lim Cheong Kiat, 165 was replaced by another member (Encl.4, PDF 150-151).

At the DC hearing on 15 April 2021, the plaintiff raised objections, including:

Non-compliance with Section 103A of the LPA regarding the timing of the DC's appointment.

(ii) Non-compliance with Section 103B of the LPA regarding the investigation and hearing process.

The DC dismissed the objections and proceeded with the hearing. The plaintiff submitted a written objection on 15 175 April 2022, which was also denied on 3 June 2022. [3] The Originating Summons:

Dissatisfied:

The Plaintiff filed an Originating Summons (OS) seeking a 180 declaration that the DB's appointment of the DC members was out of time in accordance with section 103A of the LPA.

The Plaintiff argued that the time limits stipulated in the LPA are mandatory and non-compliance renders the proceedings invalid. 185

The Plaintiff also contended that the DB's delay in appointing the DC and the DC's failure to comply with procedural requirements prejudiced the Plaintiff's case.

The DB argued that the disciplinary proceedings were conducted as soon as practicable, given the circumstances.

The plaintiff contended that the time limits stipulated in the LPA should be considered mandatory, citing the Supreme Court case of Majlis Peguam Malaysia & 3 Ors v. Joseph Au Kong Weng [1993] 2 MLJ 57, [1993] 2 CLJ 417, SC:

The Supreme Court decision addressed the interpretation of the time 195 provisions related to disciplinary proceedings under the Legal Profession Act 1976. The case involved a complaint made against Joseph Au Kong Weng, an advocate and solicitor, regarding the alleged misuse of his firm's Trust Account. The Disciplinary Committee was appointed following this complaint, but outside the 200 statutory time frame (emphasis added).

(ii) The central question for determination was whether the time limits prescribed in sections 98 and 99 of the Legal Profession Act 1976 (before a 1992 amendment) for appointing a Disciplinary Committee were mandatory or merely directory (emphasis added).

III

(iii) The Supreme Court ruled that the time provisions were mandatory. The court found that failure to adhere to these strict timelines rendered the subsequent appointment of the Disciplinary Committee invalid, null, and void.

(iv) Strict compliance with procedural timelines was essential to the 210 validity of disciplinary actions against lawyers.

It underscored the importance of procedural fairness and the proper administration of the disciplinary process by the Bar Council and the relevant committees. 215

The High Court disagreed and found that the said OS was premature, as the DB made no final decision or finding to act upon (emphasis added). It was observed that:

The Plaintiff must comply with the procedures set out in the LPA and exhaust all remedies within the disciplinary 220 framework before seeking judicial intervention.

The High Court emphasised that the Plaintiff's attempt to bypass the DB's mechanism was premature and constituted an abuse of process.

The High Court noted that the DC commenced its inquiry 225 within the one-month period stipulated in Section 103B (1) of the LPA:

The impugned section requires that the DC commence an inquiry within one month of its appointment.

(ii) It was observed that the DC was appointed on 13.7.2020.

III

(iii) However, the DB via letter (13.07.2020) informed all parties that one of the DC members could not sit in the inquiry of the existing DC.

(iv) Therefore, the DB, in the exercise of its powers, dissolved the said DC and appointed the present DC to carry out the inquiry 235 of the Plaintiff.

The present DC issued a notice of hearing dated 24.07.2020, which is twelve days after it was appointed.

(vi) Therefore, the notice of hearing was within the one-month period as stipulated in section 103B(1) of the LPA.

The High Court held that the DC's dismissal of the plaintiff's objections was not a final decision, as the DB could still affirm or reverse the DC's recommendation (section 103EA LPA).

It is the decision of the DB that is appealable under section 103E LPA.

The finding by the DC is not a final decision (section 103C LPA) as opposed to a decision by the DB (section 103D LPA) arising from the recommendation from the DC.

The High Court concluded that the plaintiff was not prejudiced by the DC's ruling, as objections could still be raised during the appeal stage under Section 103E(8) of the LPA, as the Plaintiff is not precluded from raising any objection under this section as grounds of appeal that he 255 may file under Section 103E LPA.

The issue of alleged lack of jurisdiction, if any, can be argued at the appeal stage if the decision of the DC or the DB does not favour the Plaintiff.

On 5.3.2023, the High Court dismissed the OS with costs of 260 RM3,000.00.

The Plaintiff/Appellant appealed to the Court of Appeal. THE LEGAL PROFESSION ACT 1976 (LPA as at 2018) [4] In a nutshell:

Section 99 LPA: Complaint Against an Advocate and Solicitor or Pupil:

Any complaint concerning the conduct of any advocate and solicitor or of any pupil shall be in writing and shall, in the first place, be made or referred to the Disciplinary Board, which shall deal with such 270 complaint in accordance with such rules as may from time to time be made under this Part.

Any court, including the Industrial Court and a Syariah Court, Judge, Sessions Court Judge, Magistrate or the Attorney General, may at 275 any time refer to the Disciplinary Board any complaint against an advocate and solicitor or a pupil.

Nothing in this section shall be taken to preclude the Bar Council or a State Bar Committee from making any complaint of its own motion 280 to the Disciplinary Board against an advocate and solicitor or a pupil.

No complaint concerning the conduct of any advocate and solicitor or of any pupil shall be inquired into by the Disciplinary Board after the expiration of six years from the date when the right of action to 285 bring the complaint accrued: Provided that where—

The complaint is based upon the fraud of the advocate and solicitor or his agent or of any person through whom he or his agent claims; or 290

The right of action to bring the complaint is concealed by the fraud of the advocate and solicitor or of his agent or any person through whom he or his agent claims. The period of limitation shall not begin to run until the complainant has discovered the fraud or could with reasonable diligence have 295 discovered it.

Where a complaint is made against a legal firm, it shall be deemed to be a complaint made—

In the case of a sole proprietorship, against the advocate and 300 solicitor who was at the material time the sole proprietor of the legal firm; or

In the case of a partnership, against all the advocates and solicitors who were at the material time partners of the legal firm, unless the legal firm satisfies the Disciplinary Board of the 305 identity of the advocate and solicitor in the legal firm against whom the complaint has arisen.

Where, at any stage of the proceedings, the Disciplinary Board is satisfied that a complaint made against a legal firm should be 310 directed against a particular advocate and solicitor, the Disciplinary Board shall forthwith replace the name of the legal firm with the name of the advocate and solicitor concerned.

For the purpose of this section, “legal firm” includes an international 315 partnership or a qualified foreign law firm licensed under Part IVA. In a nutshell:

Section 99 LPA governs the process for handling complaints against advocates and solicitors or pupils. Such written 320 complaints must first go to the DB, which handles them per established rules, and also allowing courts, judges, the Attorney-General, or the Bar Council itself to refer complaints or initiate them, ensuring a formal channel for professional misconduct issues.

All complaints must be in writing and are first made or referred to the DB.

Parties making the formal complaint include the public, any Court, Sessions Court Judge, Magistrate, or the Attorney-General (referring to the Board), the Bar Council or a State Bar 330 Committee (making complaints on its own motion).

The Disciplinary Board manages the complaints according to its rules. In 2021, the Federal Court in Tan Sri Dr Muhammad Shafee Abdullah v. Tommy Thomas & Anor [2021] 6 MLJ 563 held that failing to refer complaints to the Disciplinary Board first, 335 as required by Section 99(1), constitutes a procedural error.

Section 99(3A) of the LPA imposes a time limit of six years from the date of the right to bring an action for lodging a complaint of misconduct against an advocate and solicitor or a pupil. However:

Where the complaint is based upon the fraud of the advocate and solicitor, his agent, or any person through whom he or his agent claims.

(ii) Where the fraud of any such person has concealed the right of action to bring the complaint. 345 In these exceptional cases involving fraud, the period of limitation begins to run from the time the complainant first became aware of the act, or from the time the last of the acts complained of occurred. 350

Section 103A LPA: Appointment of Disciplinary Committee:

Where—

The Disciplinary Board determines that a Disciplinary Committee ought to be appointed.

An advocate and solicitor have 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

The advocate and solicitor have been suspended under subsection 94(4), the Disciplinary Board shall, as soon as may 360 be practicable, appoint a Disciplinary Committee. The Disciplinary Board shall, as soon as may be practicable, appoint a Disciplinary Committee (emphasis added)

A Disciplinary Committee shall consist of three members, of whom 365 shall be—

Two advocates and solicitors; and

One lay person, appointed from the Disciplinary Committee Panel.

The Disciplinary Board shall, at the time of appointment of a 370 Disciplinary Committee, appoint a member from paragraph (2)(a) to be the chairman of the Disciplinary Committee. In a nutshell:

Section 103A LPA outlines the specific circumstances under 375 which the Disciplinary Board shall appoint a Disciplinary Committee to investigate a complaint against an advocate and solicitor formally.

The Disciplinary Board is mandated to appoint a Disciplinary Committee when any of the following conditions are met:

The Disciplinary Board determines that a formal investigation is necessary.

(ii) The advocate and solicitor have been convicted of an offence of criminal breach of trust under section 409 of the Penal Code or any other offence involving fraud or dishonesty.

III

(iii) The advocate and solicitor have been suspended under section 94(4) of the Act (which relates to interim suspension in certain serious circumstances).

The Disciplinary Committee, once appointed, comprises three 390 members: two advocates and solicitors, and one lay person. Their role is to hear and investigate the matter, record their findings, and recommend disciplinary action to the Disciplinary Board.

The term “as soon as may be practicable” has been 395 addressed in: (emphasis added)

Black’s Law Dictionary 10th Edition to mean: ...of a thing capable of being accomplished; feasible in a particular situation, a practicable plan, capable of being used.

(ii) District of Columbia Court of Appeals in Greenway v Selected 400 Risks Ins Co., D.C. App., 307 A 2d 753, 755, observed: “As soon as practicable means a reasonable time.” These words are not synonymous with” as soon as possible”; they mean ordinarily as soon as reasonably can be expected in the circumstances, or in due time…The words as soon as practicable within the liability policy 405 requirement that the insured will notify the insurer of an occurrence as soon as practicable means within a reasonable time in view of all the facts and circumstances of each particular case. (emphasis added) 410

Section 103B LPA: Inquiry by the Disciplinary Committee.

The Disciplinary Committee shall, within one month of its appointment, commence its inquiry into the written application or complaint and shall make its findings expeditiously (underlined and 415 emphasis added)

The Disciplinary Committee shall keep a note of the proceedings of the inquiry and submit the findings and the notes of the proceedings to the Disciplinary Board.

For the purposes of any inquiry under subsection (1), the Disciplinary 420 Committee may—

require the production for inspection by the Disciplinary Committee of any book, document or paper which may relate to or be connected with the subject matter of the inquiry and may require any person to give information in relation to such book, 425 document or paper.

require such person concerned to give all information in relation to any such book, document or paper which may be reasonably required by the Disciplinary Committee; and

require any person whom it considers necessary to appear 430 before it to give oral evidence relating to or connected with the subject matter of the inquiry.

Any—

Advocate and solicitor or any other person who, without reasonable excuse, refuses or fails to produce to the 435 Disciplinary Committee for inquiry any book, document or paper or fails to give any such information relating thereto under paragraph (2)(a) or (b); and

A person who, without reasonable excuse, refuses or fails to appear to give oral evidence under paragraph 2(c) 440 Shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to a term of imprisonment not exceeding three months or to both.

Before the Disciplinary Committee commences its hearing in respect of any matter, the Disciplinary Committee shall post or deliver to the 445 advocate and solicitor concerned—

a copy of any written application or complaint and of any statutory declaration or affidavit that has been made in support of the written application or complaint; and

a notice inviting the advocate and solicitor concerned, within 450 such period being not less than fourteen days as may be specified in the notice—

to give to the Disciplinary Committee any written explanation he may wish to offer which may be additional to any previous written explanation he may have proffered 455 under section 100; and

(ii) to advise the Disciplinary Committee if he wishes to be heard by the Disciplinary Committee.

The Disciplinary Committee shall allow the time specified in the notice to elapse and give the advocate and solicitor concerned a 460 reasonable opportunity to be heard if he so desires and shall give due consideration to any explanation he may make. In a nutshell:

Section 103B of the LPA outlines the composition and functions 465 of the Disciplinary Committee, which investigates complaints of misconduct against advocates and solicitors.

Key Provisions of Section 103B LPA

The Disciplinary Committee is appointed by the Disciplinary Board to consider reports from an Investigating Tribunal, or 470 to investigate and make recommendations regarding cases referred to it under section 103A (which includes formal investigations, convictions of serious offences, or cases of suspension pending investigation).

A Disciplinary Committee consists of three members 475 appointed from the Disciplinary Committee Panel:

Two advocates and solicitors.

(ii) One lay person (a non-lawyer).

III

(iii) The Disciplinary Board appoints a member who is an advocate and solicitor to act as the chairman of the committee.

The committee's role is to hold hearings, investigate the matter, record its findings of fact, and determine what, if any, disciplinary action it will recommend to the Disciplinary Board (e.g., fine, suspension, or striking off the Roll).

The Disciplinary Board then reviews the report and issues 485 a final order that is appealable under section 103E LPA.

The DC:

Within one month of its appointment, shall commence its inquiry into the written application or complaint.

The inquiry must lead to a finding and recommendation to the DB expeditiously: Re Knight Glenn Jeyasingam [1994] 3 SLR 531, observed that a two-year interval from the time of conviction of a criminal offence and commencement of disciplinary proceedings based 495 on the conviction was not an inordinate delay; Ajaib Singh v Jeffery Fernandes [1971] 1 MLJ 139 held that where an advocate and solicitor applies to the Court for an order for stay of proceedings because the inquiry has not been proceeded with, such an application should be made promptly and must 500 satisfy the Court that serious or irreparable injury would result if the stay were not granted. The burden lies on the applicant to establish the prejudice.

Section 103E LPA: 505 Appeal from the final order or decision of the DB:

Any party aggrieved by any final order or decision made by the Disciplinary Board —

pursuant to subsection 94(4).

under paragraph 100(1)(a), (3)(a) or subsection 100(7), (8) or 510

(15); or

under section 103D, Shall have the right to appeal to the High Court within one month of the receipt of the notification of that order or decision.

(Deleted by Act A1444).

The appeal shall be by way of an originating motion setting out the ground of appeal supported by an affidavit.

Any appeal against the decision of the High Court shall lie to the Court of Appeal and thereafter to the Federal Court.

The Bar Council may, in its discretion, intervene at any stage of any appeal under this section.

The Disciplinary Board shall not be cited as a party in any appeal under this section.

(Deleted by Act A1444). 525 In a nutshell:

Section 103E of the LPA governs the appeal process from decisions made by the DB against advocates and solicitors, allowing an aggrieved party (complainant or lawyer) to appeal 530 to the High Court within one month of the decision, establishing a key judicial oversight.

Any party (advocate, solicitor, or complainant) unhappy with a final decision from the DB can appeal (emphasis added).

The appeal must be filed within one month of receiving the High 535 Court's decision.

The appeal is initiated via an originating motion, in compliance with the Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994.

The Disciplinary Board itself cannot be the respondent in the 540 appeal, as it's the adjudicating body.

A further appeal to the Court of Appeal and the Federal Court is possible for parties aggrieved by the High Court's decision.

Section 103E LPA provides the statutory pathway for judicial review and challenge against disciplinary findings concerning 545 legal practitioners in Malaysia.

Section 103EA LPA: Objection to any decision, etc, other than the final order or decision made by the DB 550

Where a party is aggrieved by any decision, order, ruling or direction of the Disciplinary Committee or the Disciplinary Board, other than a final order or decision made by the Disciplinary Board referred to in section 103E, the aggrieved party may file an objection in writing in respect of any such decision, order, ruling or direction with the 555 Disciplinary Committee or Disciplinary Board, as the case may be, within fourteen days of being duly notified of the decision, order, ruling or direction.

Where the objection raised is in respect of the composition or participation of any member of the Disciplinary Committee or the 560 Disciplinary Board, as the case may be, in meetings, proceedings or inquiries before the Disciplinary Committee or Disciplinary Board, the procedures to deal with the objection shall be as set out in the rules made under this Part.

After the objection referred to in subsection (2) has been dealt with, 565 the Disciplinary Committee or the Disciplinary Board, as the case may be, shall proceed with the inquiry or proceeding until its completion.

Where the objection raised is not related to matters referred to in subsection (2), the Disciplinary Committee or Disciplinary Board, as 570 the case may be—

Shall make such a decision, order, ruling or direction on the objection as it deems just; and

Shall proceed with the inquiry or proceeding until its completion. 575

Where the inquiry or proceeding referred to in subsection (3) and paragraph (4)(b)—

Is before the Disciplinary Committee, after the completion of the inquiry or proceeding, the Disciplinary Committee shall make its recommendation to the Disciplinary Board pursuant to section 580 103C; or

Before the Disciplinary Board, after the completion of the inquiry or proceeding, the Disciplinary Board shall make its order or decision pursuant to section 103D. 585

The order or decision of the Disciplinary Board under paragraph

(5)(b) shall be suspended from coming into effect for thirty days from the date of the order or decision or to such further time as the Court may allow to enable an aggrieved party to apply to the Court for a review.

If an aggrieved party does not apply for review, the order or decision of the Disciplinary Board shall take effect immediately upon the expiration of the period of thirty days.

Nothing in this section shall preclude an aggrieved party from raising any objections under this section as grounds of appeal in any appeal 595 he may file under section 103E. In a nutshell:

Section 103EA of the LPA deals with objections to decisions by the DC or DB, allowing an aggrieved party to file a written 600 objection within 14 days, with specific rules for handling objections related to certain procedural matters versus substantive ones, guiding the DB's subsequent actions and decision-making process in a lawyer’s disciplinary issues.

A party dissatisfied with a DB or DC decision is entitled to lodge 605 a formal written objection.

This objection must be filed within 14 days of the decision:

If the objection isn't about specific procedural issues (mentioned in subsection (2)), the Board decides, orders, or directs as it sees fit and continues the inquiry.

(ii) The Board shall proceed with the hearing until it's finished, even when an objection is raised, if it's not about the specific matters in subsection (2) (emphasis added).

This section falls under the disciplinary framework for advocates 615 and solicitors, working alongside other sections like section 103D LPA (Board's consideration of reports) and section 103E LPA (Appeals from Board decisions). THE PARTIES ARGUMENTS 620 [5] The parties argued as follows:

5.1 The Appellant/Plaintiff:

The Appellant clarifies that the appeal is not against the final decision of the DB under Section 103E LPA but addresses decisions of the DB and DC outside Section 103E LPA, for 625 which no appeal remedy is provided under the LPA.

It was argued that:

The Respondents allegedly misread Sections 103EA(1) LPA and 103E LPA, which only allow appeals against final orders or decisions of the DB, not the DC. 630

The DC failed to commence its investigation within one month of its appointment, as required by Section 103B(1) of the LPA, making its conduct legally invalid.

The Appellant argues that the DB lacked authority to dissolve the existing DC and appoint a new DC, as the LPA 635 only allows the appointment of one DC under Sections 100(3)(b) and 103A (1) LPA.

The subsequent DC failed to comply with Section 103B (4) of the LPA, which requires delivering a copy of the complaint record and issuing a fresh notice to the Appellant 640 after appointing new members.

The Appellant contends that challenging the DC's jurisdiction before the Court is legally valid and does not constitute an abuse of process.

The DC's inquiry was out of time, breaching Section 103B of the 645 LPA. The DB's reappointment of a new DC was procedurally improper and lacked legal basis. The Appellant challenges the Respondents' non-compliance with statutory provisions under the LPA, particularly Section 103A, which mandates the timely appointment of a DC by the DB.

The Appellant argues that the DB delayed the appointment of the DC by one and a half years, which violates the "as soon as practicable" requirement under Section 103A of the LPA. It was further argued that the delay in appointing the DC constitutes a fundamental breach of Section 103A of the LPA. The DB failed 655 to provide a satisfactory explanation for the delay, thereby violating the principles of natural justice and the duty to give reasons for decisions. The High Court allegedly failed to address the contravention of Section 103A LPA in its judgment.

The Appellant seeks a declaration on the DC's jurisdiction 660 before proceeding with the hearing to avoid risking an adverse finding.

The Appellant requests the Court to allow the appeal with costs, emphasising the alleged procedural transgressions and jurisdictional issues under the LPA.

5.2 The Respondents:

The Appellant seeks several declarations, including:

Invalidity of the Respondents' investigation and hearing due to time limitations under Section 103A LPA.

Invalidity of the DB's decision to appoint the DC members.

Non-compliance with procedural requirements, such as allowing the Appellant to submit a letter of explanation under Section 103B(4) LPA.

Exemption from appearing before the DC.

The Respondents argue that the appeal is misconceived in law as it does not challenge a final order or decision, which is a requirement under Section 103EA(1) LPA.

The Respondents highlight that the Appellant's claims are an 680 attempt to bypass the statutory provisions of the LPA, which only allow appeals against final orders or decisions of the DB. The Respondents cited Majlis Peguam Malaysia & Ors v Joseph Au Kong Weng (supra), which emphasises strict adherence to statutory time limits and procedures under the 685 LPA.

The High Court noted that the DC was reconstituted within the stipulated time frame under Section 103B (1) LPA.

The High Court held that the Appellant's OS was not an appeal against a final order but rather an attempt to seek declaratory 690 orders to circumvent the LPA's provisions.

The High Court concluded that the Appellant's actions constituted an abuse of process.

The Respondents submit that the High Court judge did not err in dismissing the Appellant's appeal and that appellate 695 intervention is not warranted. OUR ANALYSIS AND FINDINGS [6] In considering this appeal, we unanimously determine:

Grounded on all the materials before us, the respective 700 arguments of the parties, the learned High Court Judge (HCJ)’s findings, and the relevant provisions of the LPA, which include the one seen in paragraph [4] above, clearly show that there is no appealable error before us as submitted by the Appellant/Plaintiff that would warrant an appellate intervention.

We agree with the decision of the learned HCJ:

The issue of the inquiry being out of time is unsustainable. The Appellant's counterargument is far-fetched to be believed. We find that the present DC has been duly reconstituted by the DB, which commenced its inquiry into 710 the complaint in compliance with the time stipulated under Section 103B (1) of the LPA. We find no issue with the chronological facts set out (paragraph [3] [4] above) by the learned HCJ.

We find section 103EA LPA clearly sets out that a party 715 dissatisfied with a DB or DC decision is entitled to lodge a formal written objection within 14 days of the impugned decision. The DB, however, is empowered to proceed with the hearing until it's finished, even when an objection is raised. This section falls within the disciplinary framework 720 for advocates and solicitors, alongside other sections, including section 103D LPA (Board's consideration of reports) and section 103E LPA (Appeals from Board decisions). The Appellant must comply with the procedures set out in the LPA and exhaust all remedies within the 725 disciplinary framework before seeking judicial intervention.

The learned HCJ was correct in holding that the DC's dismissal of the plaintiff's objections was not a final decision, as the DB could still affirm or reverse the DC's recommendation (section 103EA LPA). It was rightly 730 concluded that the finding by the DC is not a final decision (section 103C LPA) as opposed to a determination by the DB (section 103D LPA) arising from the recommendation of the DC after the conclusion of the inquiry.

We find no compelling evidence of any prejudice suffered 735 by the Appellant/Plaintiff as claimed. Claiming to be adversely affected is one thing; the burden of establishing the claim is another. We find that the Appellant failed to discharge that burden as was appropriately alluded to by the learned HCJ, whatever objections that the Appellant 740 has could always be raised during the appeal stage under Section 103E(8) of the LPA, as the Appellant is not precluded from raising any objection under this section as grounds of appeal that he may file under Section 103E LPA:

The legal sentiment that cases should be resolved on 745 their substantial merits rather than technicalities is a recognised and applied principle in Malaysian legal jurisprudence.

(ii) Courts have moved toward a more pragmatic approach to ensure substantive justice, though 750 procedural compliance remains essential.

(ii) The Court of Appeal in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413, CA emphasised that applications should not be dismissed purely on technical or procedural grounds. Justice 755 Gopal Sri Ram (as he then was) stated that in the performance of their duty, judges must remember their duty to "do justice according to law and the substantial merits of each case: “For myself, I must add a final word. I must be forgiven for 760 expressing my amazement and equal disappointment that in this day and age, applications and suits are disposed of on purely technical and procedural grounds without even the slightest attempt to ensure that justice according to the merits of a particular case is done. I cannot help but feel that, in the 765 performance of our duty as judges to decide according to law, we have forgotten our duty to do justice according to law and to the substantial merits of each case. My own feelings are so well expressed by Saville LJ (now Lord Saville) in British Steel plc v Customs & Excise Commissioners [1997] 2 All ER 366, at 770 p 379

III

(iii) The Malaysian Courts aim to avoid hyper-technical interpretations that would prevent a claim from being heard on its actual substance, favouring an approach that ensures justice is served according to the actual 775 merits of the case.

(iv) The appellate and apex courts generally do not interfere with a trial judge’s findings of fact unless they are plainly wrong, focusing on whether the original decision was reasonably grounded on the evidence 780 and merits.

In light of the foregoing, we concur with the learned HCJ observation that Appellant’s attempt to bypass the DB's mechanism was premature and constituted an abuse of process.

The Appellant cited the Court of Appeal in Tania Scivetti v Majlis Peguam & Ors [2023] 6 MLJ 77, CA, which focuses on procedural objections raised by the appellant in that case against the DC inquiry.

It was argued in that case:

The DC's inquiry was conducted four years and one month after its appointment.

(ii) It violates the mandatory time limit under Section 103B (1) of the Legal Profession Act 1976 (LPA).

III

(iii) The appellant sought declaratory relief to declare the inquiry 795 illegal and void. The High Court judge dismissed the OS, finding the application premature, that the appellant's reliance on Section 99(3A) of the LPA was misplaced, and that the 800 court should not interfere with the DC's adjudicative functions. The learned HCJ acknowledged the DC's breach of Section 103B LPA but refused to grant relief (emphasis added). 805

The Court of Appeal (CA) addressed three key issues:

Prematurity of the OS: The CA found that the appellant's request for declaratory relief was not premature, as the appellant was not seeking to determine the merits of the complaint but rather to address the 810 DC's jurisdiction due to its statutory breach. The court ruled that the HCJ erred in refusing the declaratory relief.

(ii) Application of Section 99(3A) LPA: The CA agreed with the High Court judge that Section 99(3A) LPA was a non-issue, as the DB's inquiry in 2016 was 815 conducted within the six-year limitation period. The DC's inquiry in 2021 was separate and distinct from the DB's inquiry.

III

(iii) DC's Breach of Section 103B LPA: The CA distinguished the present case from Koh Mui Tee, emphasising the inordinate delay of 49 months in the DC's 820 inquiry, which was unexplained and far exceeded the statutory time limit. The court ruled that the DC's inquiry was unlawful due to the breach of Section 103B LPA.

The CA allowed the appeal:

Set aside the High Court's decision, and grant the declaratory reliefs sought by the appellant, specifically to the unique circumstances or facts of that case (emphasis added).

(ii) It declared the DC's inquiry and the disciplinary proceedings against the appellant illegal, null, and void. No order as to costs 830 was made.

III

(iii) It was also observed that the CA did not intend to override the general rule that a litigant must necessarily exhaust a statutory remedy or mechanism before presenting his grievances to the Court, finding that:

The DB had already decided on the DC’s jurisdiction.

It was the DC that had allegedly relinquished its jurisdiction by not complying with section 130B (1) LPA (within one month to commence the inquiry after its appointment) that had allowed this legal challenge.

The DB rightly acted within the 6-year limitation period (section 99(3A) LPA).

We find that the foregoing CA’s determination, which was specifically unique to the circumstances or facts of that 845 case, provides no assistance to the Appellant in the present appeal (emphasis added):

On the nature of the BC’s complaints, the proviso to section 99 (3A) LPA applies, rendering the issue of limitation a non-starter.

Section 103B(1) LPA was not breached when the present reconstituted DC commenced its inquiry within one month after its appointment.

The DB had explained the reason for reconstituting the DC in its letter dated 13.7.2020, informing all parties that one 855 of the DC members could not sit in the inquiry of the DC, necessitating the DB, in the exercise of its powers, to dissolve that said DC and appoint the present DC to carry out the inquiry of the BC’s complaint against the Plaintiff for the alleged impropriety of the impugned funds. 860 CONCLUSION [7] Having considered all issues presented before this Court, we unanimously find no appealable error in the learned HCJ's decision. In the circumstances, we affirmed the findings of the learned HCJ. The appeal is 865 hereby dismissed with no order as to costs. Dated 8 January 2026 870 HAYATUL AKMAL ABDUL AZIZ Judge Court of Appeal 875 Counsels: For the Appellant: Datuk Vignesh Kumar together with Yasinthra a/p Dorairaju 880 Messrs Kumar Jaspal Quah & Aishah For the Respondents: Keshvinjeet Singh Messrs Gunaseelan & Associates 885

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Malaysian judgment

Case metadata

Court: Court of Appeal of Malaysia
Decision date: 8 Jan 2026
Case number: W-02(A)-60-01/2023
Coram: YAA Datuk Seri Hashim Bin Hamzah; YA Dato' Azmi Bin Ariffin; YA Datuk Hayatul Akmal binti Abdul Aziz
Practice area: Legal Profession - Disciplinary Committee - Inquiry by the Disciplinary Committee — Appointment of Disciplinary Committee was delayed - Appellant filed originating summons seeking a declaration that the Disciplinary Board's appointment of the Disciplinary Committee members was out of time in accordance with section 103A of the Legal Profession Act (LPA) – time stipulated in the LPA is mandatory - non-compliance renders the proceedings invalid - Whether High Court judge’s refusal to grant declaratory reliefs on basis of originating summons being premature was correct in law
Version: Alasan Penghakiman 1
Published: 13 Feb 2026
Source ID: 8df54e5d-5501-4b96-8f61-9169cbcff8b4

Catchwords

Legal Profession - Disciplinary Committee - Inquiry by the Disciplinary Committee — Appointment of Disciplinary Committee was delayed - Appellant filed originating summons seeking a declaration that the Disciplinary Board's appointment of the Disciplinary Committee members was out of time in accordance with section 103A of the Legal Profession Act (LPA) – time stipulated in the LPA is mandatory - non-compliance renders the proceedings invalid - Whether High Court judge’s refusal to grant declaratory reliefs on basis of originating summons being premature was correct in law

Parties

HOW CHEE HONG - appellant - ejudgment_parties
1. ) KAN WENG HIN - respondent - ejudgment_parties
2. ) MELVIN SELVAM A/L THAMBIRAJAH - respondent - ejudgment_parties
3. ) YIP BENG FATT - respondent - ejudgment_parties
4. ) LEMBAGA TATATERTIB PEGUAM BELA & PEGUAM CARA - respondent - ejudgment_parties

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How Chee Hong v Kan Weng Hin (W-02(A)-60-01/2023)

Court of Appeal of Malaysia8 Jan 2026

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Jawatankuasa Tatatertib bertarikh 1.4.2022 Dan 35 Di dalam Perkara Seksyen 99(1), 99(3A), 100(3)(a), 103A, 103B(2)(a), 103B(4) dan 103EA (1) Akta Profession Undang-Undang 1976 40 Dan 13/02/2026 17:51:18 Kand. 58 Di dalam Perkara Aduan No: DC/17/0125 Oleh Majlis Peguam kepada Lembaga Tatatertib Peguam-Peguam 45 Dan Di dalam Perkara Seksyen 43 Akta Keterangan 1950 50 Dan Di dalam Perkara Mengenai Seksyen 25(2) dan Peranggan 1 & 8 Jadual Kepada Akta 55 Mahkamah Kehakiman 1964 Dan Di dalam Perkara Mengenai Seksyen 41 Akta 60 Relief Spesifik 1950 Dan Di dalam Perkara Mengenai Aturan 7, 15 65 Kaedah 16, 28, dan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 ANTARA 70 HOW CHEE HONG (NO KP: 680728-10-6345) … PLAINTIF DAN 75 1 KAN WENG HIN 2 MELVIN SELVAM A/L THAMBIRAJAH 3 YIP BENG FATT (Kesemuanya didakwa sebagai Ahli-Ahli Jawatankuasa Tatatertib Aduan: DC/17/0125) 80 4 LEMBAGA TATATERTIB PEGUAMBELA & PEGUAMCARA DEFENDAN-DEFENDAN) KORUM 85 HASHIM BIN HAMZAH, HMR AZMI BIN ARIFFIN, HMR HAYATUL AKMAL BINTI ABDUL AZIZ, HMR 90 JUDGMENT INTRODUCTION [1] This appeal concerns the Appellant/Plaintiff, an advocate and 95 solicitor, for an alleged misconduct related to a judgment sum of RM35,087,135.06 paid into the client account of Messrs Kumar Jaspal Quah & Aishah (Messrs Kumar) in 2011. THE FACTS 100 [2] In a nutshell:
Background Facts:
The judgment sum was paid to George Lim, a client of Messrs Kumar, following a court judgment in 2010.
A Trust Deed was created between George Lim and 105 Manharlal Bhaichand Gathani Jain (Manharlal), appointing Manharlal as Trustee to manage the supposed Trust Fund for the beneficiaries.
Messrs Kumar issued a bill for professional fees of RM7,600,000 to George Lim, which was paid in full.
Subsequently, on 6 July 2012:
Several parties (Rozali, Hairi, and WWE Holdings Berhad) filed a suit against Chua Lay Kim, Dato Vijaya Kumar Natarajan, Messrs Kumar, including the Plaintiff herein, for the return of the judgment sum.
The High Court dismissed the suit.
The Court of Appeal however, disagreed and overturned the decision.
Grounded on critical observation of impropriety concerning 120 the impugned money by the Court of Appeal, on 30 November 2016, the Bar Council requested a written explanation from the plaintiff regarding alleged breaches of the Legal Profession Act 1976 (LPA): sections 94(3)(c), (o), and 94(4)(a):
It was said that all the defendants were engaged in the dissipation of the funds.
The legal firm, which was both the second and fourth defendants, was instrumental in the sham trust deed and the impugned bill.
Both documents had expedited the movement of funds.
The Bar Council took the position that it concerned the purported dishonest or fraudulent conduct of an advocate and solicitor in the discharge of his duties. 135
The Bar Council Complaint:
On 2 March 2017, the Bar Council, in the exercise of its statutory duties, formally complained against the Plaintiff with the Disciplinary Board (DB), citing alleged breaches of the LPA related to dishonest or fraudulent conduct.
The DB subsequently requested a written explanation from the Plaintiff, which he provided on 30 June 2017, denying the allegations and asserting that they were too broad and vague.
On 2 October 2018, after 1 ½ years from the Bar Council’s 145 formal complaint:
The DB decided to appoint a Disciplinary Committee
to investigate the complaint.
However, the appointment of the DC members was delayed until 16 March 2020.
The Disciplinary Board (DB) Actions:
The DB appointed the Disciplinary Committee (DC) in March 2020 to investigate the complaint.
The Plaintiff raised objections during the DC hearing: 155
Citing non-compliance with sections 103A and 103B of the LPA regarding the timing and procedures of the DC's appointment and investigation.
The DC dismissed the objections and proceeded with the hearing.
The DC Hearing:
The DC requested a written explanation from the Plaintiff on 5 May 2020 on the alleged infringement. During the investigation, one of the DC members, Mr Lim Cheong Kiat, 165 was replaced by another member (Encl.4, PDF 150-151).
At the DC hearing on 15 April 2021, the plaintiff raised objections, including:
Non-compliance with Section 103A of the LPA regarding the timing of the DC's appointment.
Non-compliance with Section 103B of the LPA regarding the investigation and hearing process.
The DC dismissed the objections and proceeded with the hearing. The plaintiff submitted a written objection on 15 175 April 2022, which was also denied on 3 June 2022. [3] The Originating Summons:
Dissatisfied:
The Plaintiff filed an Originating Summons (OS) seeking a 180 declaration that the DB's appointment of the DC members was out of time in accordance with section 103A of the LPA.
The Plaintiff argued that the time limits stipulated in the LPA are mandatory and non-compliance renders the proceedings invalid. 185
The Plaintiff also contended that the DB's delay in appointing the DC and the DC's failure to comply with procedural requirements prejudiced the Plaintiff's case.
The DB argued that the disciplinary proceedings were conducted as soon as practicable, given the circumstances.
The plaintiff contended that the time limits stipulated in the LPA should be considered mandatory, citing the Supreme Court case of Majlis Peguam Malaysia & 3 Ors v. Joseph Au Kong Weng [1993] 2 MLJ 57, [1993] 2 CLJ 417, SC:
The Supreme Court decision addressed the interpretation of the time 195 provisions related to disciplinary proceedings under the Legal Profession Act 1976. The case involved a complaint made against Joseph Au Kong Weng, an advocate and solicitor, regarding the alleged misuse of his firm's Trust Account. The Disciplinary Committee was appointed following this complaint, but outside the 200 statutory time frame (emphasis added).
The central question for determination was whether the time limits prescribed in sections 98 and 99 of the Legal Profession Act 1976 (before a 1992 amendment) for appointing a Disciplinary Committee were mandatory or merely directory (emphasis added).
The Supreme Court ruled that the time provisions were mandatory. The court found that failure to adhere to these strict timelines rendered the subsequent appointment of the Disciplinary Committee invalid, null, and void.
Strict compliance with procedural timelines was essential to the 210 validity of disciplinary actions against lawyers.
It underscored the importance of procedural fairness and the proper administration of the disciplinary process by the Bar Council and the relevant committees. 215
The High Court disagreed and found that the said OS was premature, as the DB made no final decision or finding to act upon (emphasis added). It was observed that:
The Plaintiff must comply with the procedures set out in the LPA and exhaust all remedies within the disciplinary 220 framework before seeking judicial intervention.
The High Court emphasised that the Plaintiff's attempt to bypass the DB's mechanism was premature and constituted an abuse of process.
The High Court noted that the DC commenced its inquiry 225 within the one-month period stipulated in Section 103B (1) of the LPA:
The impugned section requires that the DC commence an inquiry within one month of its appointment.
It was observed that the DC was appointed on 13.7.2020.
However, the DB via letter (13.07.2020) informed all parties that one of the DC members could not sit in the inquiry of the existing DC.
Therefore, the DB, in the exercise of its powers, dissolved the said DC and appointed the present DC to carry out the inquiry 235 of the Plaintiff.
The present DC issued a notice of hearing dated 24.07.2020, which is twelve days after it was appointed.
Therefore, the notice of hearing was within the one-month period as stipulated in section 103B(1) of the LPA.
The High Court held that the DC's dismissal of the plaintiff's objections was not a final decision, as the DB could still affirm or reverse the DC's recommendation (section 103EA LPA).
It is the decision of the DB that is appealable under section 103E LPA.
The finding by the DC is not a final decision (section 103C LPA) as opposed to a decision by the DB (section 103D LPA) arising from the recommendation from the DC.
The High Court concluded that the plaintiff was not prejudiced by the DC's ruling, as objections could still be raised during the appeal stage under Section 103E(8) of the LPA, as the Plaintiff is not precluded from raising any objection under this section as grounds of appeal that he 255 may file under Section 103E LPA.
The issue of alleged lack of jurisdiction, if any, can be argued at the appeal stage if the decision of the DC or the DB does not favour the Plaintiff.
On 5.3.2023, the High Court dismissed the OS with costs of 260 RM3,000.00.
The Plaintiff/Appellant appealed to the Court of Appeal. THE LEGAL PROFESSION ACT 1976 (LPA as at 2018) [4] In a nutshell:
Section 99 LPA: Complaint Against an Advocate and Solicitor or Pupil:
Any complaint concerning the conduct of any advocate and solicitor or of any pupil shall be in writing and shall, in the first place, be made or referred to the Disciplinary Board, which shall deal with such 270 complaint in accordance with such rules as may from time to time be made under this Part.
Any court, including the Industrial Court and a Syariah Court, Judge, Sessions Court Judge, Magistrate or the Attorney General, may at 275 any time refer to the Disciplinary Board any complaint against an advocate and solicitor or a pupil.
Nothing in this section shall be taken to preclude the Bar Council or a State Bar Committee from making any complaint of its own motion 280 to the Disciplinary Board against an advocate and solicitor or a pupil.
No complaint concerning the conduct of any advocate and solicitor or of any pupil shall be inquired into by the Disciplinary Board after the expiration of six years from the date when the right of action to 285 bring the complaint accrued: Provided that where—
The complaint is based upon the fraud of the advocate and solicitor or his agent or of any person through whom he or his agent claims; or 290
The right of action to bring the complaint is concealed by the fraud of the advocate and solicitor or of his agent or any person through whom he or his agent claims. The period of limitation shall not begin to run until the complainant has discovered the fraud or could with reasonable diligence have 295 discovered it.
Where a complaint is made against a legal firm, it shall be deemed to be a complaint made—
In the case of a sole proprietorship, against the advocate and 300 solicitor who was at the material time the sole proprietor of the legal firm; or
In the case of a partnership, against all the advocates and solicitors who were at the material time partners of the legal firm, unless the legal firm satisfies the Disciplinary Board of the 305 identity of the advocate and solicitor in the legal firm against whom the complaint has arisen.
Where, at any stage of the proceedings, the Disciplinary Board is satisfied that a complaint made against a legal firm should be 310 directed against a particular advocate and solicitor, the Disciplinary Board shall forthwith replace the name of the legal firm with the name of the advocate and solicitor concerned.
For the purpose of this section, “legal firm” includes an international 315 partnership or a qualified foreign law firm licensed under Part IVA. In a nutshell:
Section 99 LPA governs the process for handling complaints against advocates and solicitors or pupils. Such written 320 complaints must first go to the DB, which handles them per established rules, and also allowing courts, judges, the Attorney-General, or the Bar Council itself to refer complaints or initiate them, ensuring a formal channel for professional misconduct issues.
All complaints must be in writing and are first made or referred to the DB.
Parties making the formal complaint include the public, any Court, Sessions Court Judge, Magistrate, or the Attorney-General (referring to the Board), the Bar Council or a State Bar 330 Committee (making complaints on its own motion).
The Disciplinary Board manages the complaints according to its rules. In 2021, the Federal Court in Tan Sri Dr Muhammad Shafee Abdullah v. Tommy Thomas & Anor [2021] 6 MLJ 563 held that failing to refer complaints to the Disciplinary Board first, 335 as required by Section 99(1), constitutes a procedural error.
Section 99(3A) of the LPA imposes a time limit of six years from the date of the right to bring an action for lodging a complaint of misconduct against an advocate and solicitor or a pupil. However:
Where the complaint is based upon the fraud of the advocate and solicitor, his agent, or any person through whom he or his agent claims.
Where the fraud of any such person has concealed the right of action to bring the complaint. 345 In these exceptional cases involving fraud, the period of limitation begins to run from the time the complainant first became aware of the act, or from the time the last of the acts complained of occurred. 350
Section 103A LPA: Appointment of Disciplinary Committee:
Where—
The Disciplinary Board determines that a Disciplinary Committee ought to be appointed.
An advocate and solicitor have 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
The advocate and solicitor have been suspended under subsection 94(4), the Disciplinary Board shall, as soon as may 360 be practicable, appoint a Disciplinary Committee. The Disciplinary Board shall, as soon as may be practicable, appoint a Disciplinary Committee (emphasis added)
A Disciplinary Committee shall consist of three members, of whom 365 shall be—
Two advocates and solicitors; and
One lay person, appointed from the Disciplinary Committee Panel.
The Disciplinary Board shall, at the time of appointment of a 370 Disciplinary Committee, appoint a member from paragraph (2)(a) to be the chairman of the Disciplinary Committee. In a nutshell:
Section 103A LPA outlines the specific circumstances under 375 which the Disciplinary Board shall appoint a Disciplinary Committee to investigate a complaint against an advocate and solicitor formally.
The Disciplinary Board is mandated to appoint a Disciplinary Committee when any of the following conditions are met:
The Disciplinary Board determines that a formal investigation is necessary.
The advocate and solicitor have been convicted of an offence of criminal breach of trust under section 409 of the Penal Code or any other offence involving fraud or dishonesty.
The advocate and solicitor have been suspended under section 94(4) of the Act (which relates to interim suspension in certain serious circumstances).
The Disciplinary Committee, once appointed, comprises three 390 members: two advocates and solicitors, and one lay person. Their role is to hear and investigate the matter, record their findings, and recommend disciplinary action to the Disciplinary Board.
The term “as soon as may be practicable” has been 395 addressed in: (emphasis added)
Black’s Law Dictionary 10th Edition to mean: ...of a thing capable of being accomplished; feasible in a particular situation, a practicable plan, capable of being used.
District of Columbia Court of Appeals in Greenway v Selected 400 Risks Ins Co., D.C. App., 307 A 2d 753, 755, observed: “As soon as practicable means a reasonable time.” These words are not synonymous with” as soon as possible”; they mean ordinarily as soon as reasonably can be expected in the circumstances, or in due time…The words as soon as practicable within the liability policy 405 requirement that the insured will notify the insurer of an occurrence as soon as practicable means within a reasonable time in view of all the facts and circumstances of each particular case. (emphasis added) 410
Section 103B LPA: Inquiry by the Disciplinary Committee.
The Disciplinary Committee shall, within one month of its appointment, commence its inquiry into the written application or complaint and shall make its findings expeditiously (underlined and 415 emphasis added)
The Disciplinary Committee shall keep a note of the proceedings of the inquiry and submit the findings and the notes of the proceedings to the Disciplinary Board.
For the purposes of any inquiry under subsection (1), the Disciplinary 420 Committee may—
require the production for inspection by the Disciplinary Committee of any book, document or paper which may relate to or be connected with the subject matter of the inquiry and may require any person to give information in relation to such book, 425 document or paper.
require such person concerned to give all information in relation to any such book, document or paper which may be reasonably required by the Disciplinary Committee; and
require any person whom it considers necessary to appear 430 before it to give oral evidence relating to or connected with the subject matter of the inquiry.
Any—
Advocate and solicitor or any other person who, without reasonable excuse, refuses or fails to produce to the 435 Disciplinary Committee for inquiry any book, document or paper or fails to give any such information relating thereto under paragraph (2)(a) or (b); and
A person who, without reasonable excuse, refuses or fails to appear to give oral evidence under paragraph 2(c) 440 Shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to a term of imprisonment not exceeding three months or to both.
Before the Disciplinary Committee commences its hearing in respect of any matter, the Disciplinary Committee shall post or deliver to the 445 advocate and solicitor concerned—
a copy of any written application or complaint and of any statutory declaration or affidavit that has been made in support of the written application or complaint; and
a notice inviting the advocate and solicitor concerned, within 450 such period being not less than fourteen days as may be specified in the notice—
to give to the Disciplinary Committee any written explanation he may wish to offer which may be additional to any previous written explanation he may have proffered 455 under section 100; and
to advise the Disciplinary Committee if he wishes to be heard by the Disciplinary Committee.
The Disciplinary Committee shall allow the time specified in the notice to elapse and give the advocate and solicitor concerned a 460 reasonable opportunity to be heard if he so desires and shall give due consideration to any explanation he may make. In a nutshell:
Section 103B of the LPA outlines the composition and functions 465 of the Disciplinary Committee, which investigates complaints of misconduct against advocates and solicitors.
Key Provisions of Section 103B LPA
The Disciplinary Committee is appointed by the Disciplinary Board to consider reports from an Investigating Tribunal, or 470 to investigate and make recommendations regarding cases referred to it under section 103A (which includes formal investigations, convictions of serious offences, or cases of suspension pending investigation).
A Disciplinary Committee consists of three members 475 appointed from the Disciplinary Committee Panel:
Two advocates and solicitors.
One lay person (a non-lawyer).
The Disciplinary Board appoints a member who is an advocate and solicitor to act as the chairman of the committee.
The committee's role is to hold hearings, investigate the matter, record its findings of fact, and determine what, if any, disciplinary action it will recommend to the Disciplinary Board (e.g., fine, suspension, or striking off the Roll).
The Disciplinary Board then reviews the report and issues 485 a final order that is appealable under section 103E LPA.
The DC:
Within one month of its appointment, shall commence its inquiry into the written application or complaint.
The inquiry must lead to a finding and recommendation to the DB expeditiously: Re Knight Glenn Jeyasingam [1994] 3 SLR 531, observed that a two-year interval from the time of conviction of a criminal offence and commencement of disciplinary proceedings based 495 on the conviction was not an inordinate delay; Ajaib Singh v Jeffery Fernandes [1971] 1 MLJ 139 held that where an advocate and solicitor applies to the Court for an order for stay of proceedings because the inquiry has not been proceeded with, such an application should be made promptly and must 500 satisfy the Court that serious or irreparable injury would result if the stay were not granted. The burden lies on the applicant to establish the prejudice.
Section 103E LPA: 505 Appeal from the final order or decision of the DB:
Any party aggrieved by any final order or decision made by the Disciplinary Board —
pursuant to subsection 94(4).
under paragraph 100(1)(a), (3)(a) or subsection 100(7), (8) or 510
(15); or
under section 103D, Shall have the right to appeal to the High Court within one month of the receipt of the notification of that order or decision.
(Deleted by Act A1444).
(Deleted by Act A1444).
The appeal shall be by way of an originating motion setting out the ground of appeal supported by an affidavit.
Any appeal against the decision of the High Court shall lie to the Court of Appeal and thereafter to the Federal Court.
The Bar Council may, in its discretion, intervene at any stage of any appeal under this section.
The Disciplinary Board shall not be cited as a party in any appeal under this section.
(Deleted by Act A1444). 525 In a nutshell:
Section 103E of the LPA governs the appeal process from decisions made by the DB against advocates and solicitors, allowing an aggrieved party (complainant or lawyer) to appeal 530 to the High Court within one month of the decision, establishing a key judicial oversight.
Any party (advocate, solicitor, or complainant) unhappy with a final decision from the DB can appeal (emphasis added).
The appeal must be filed within one month of receiving the High 535 Court's decision.
The appeal is initiated via an originating motion, in compliance with the Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994.
The Disciplinary Board itself cannot be the respondent in the 540 appeal, as it's the adjudicating body.
A further appeal to the Court of Appeal and the Federal Court is possible for parties aggrieved by the High Court's decision.
Section 103E LPA provides the statutory pathway for judicial review and challenge against disciplinary findings concerning 545 legal practitioners in Malaysia.
Section 103EA LPA: Objection to any decision, etc, other than the final order or decision made by the DB 550
Where a party is aggrieved by any decision, order, ruling or direction of the Disciplinary Committee or the Disciplinary Board, other than a final order or decision made by the Disciplinary Board referred to in section 103E, the aggrieved party may file an objection in writing in respect of any such decision, order, ruling or direction with the 555 Disciplinary Committee or Disciplinary Board, as the case may be, within fourteen days of being duly notified of the decision, order, ruling or direction.
Where the objection raised is in respect of the composition or participation of any member of the Disciplinary Committee or the 560 Disciplinary Board, as the case may be, in meetings, proceedings or inquiries before the Disciplinary Committee or Disciplinary Board, the procedures to deal with the objection shall be as set out in the rules made under this Part.
After the objection referred to in subsection (2) has been dealt with, 565 the Disciplinary Committee or the Disciplinary Board, as the case may be, shall proceed with the inquiry or proceeding until its completion.
Where the objection raised is not related to matters referred to in subsection (2), the Disciplinary Committee or Disciplinary Board, as 570 the case may be—
Shall make such a decision, order, ruling or direction on the objection as it deems just; and
Shall proceed with the inquiry or proceeding until its completion. 575
Where the inquiry or proceeding referred to in subsection (3) and paragraph (4)(b)—
Is before the Disciplinary Committee, after the completion of the inquiry or proceeding, the Disciplinary Committee shall make its recommendation to the Disciplinary Board pursuant to section 580 103C; or
Before the Disciplinary Board, after the completion of the inquiry or proceeding, the Disciplinary Board shall make its order or decision pursuant to section 103D. 585
The order or decision of the Disciplinary Board under paragraph
(5)(b) shall be suspended from coming into effect for thirty days from the date of the order or decision or to such further time as the Court may allow to enable an aggrieved party to apply to the Court for a review.
If an aggrieved party does not apply for review, the order or decision of the Disciplinary Board shall take effect immediately upon the expiration of the period of thirty days.
Nothing in this section shall preclude an aggrieved party from raising any objections under this section as grounds of appeal in any appeal 595 he may file under section 103E. In a nutshell:
Section 103EA of the LPA deals with objections to decisions by the DC or DB, allowing an aggrieved party to file a written 600 objection within 14 days, with specific rules for handling objections related to certain procedural matters versus substantive ones, guiding the DB's subsequent actions and decision-making process in a lawyer’s disciplinary issues.
A party dissatisfied with a DB or DC decision is entitled to lodge 605 a formal written objection.
This objection must be filed within 14 days of the decision:
If the objection isn't about specific procedural issues (mentioned in subsection (2)), the Board decides, orders, or directs as it sees fit and continues the inquiry.
The Board shall proceed with the hearing until it's finished, even when an objection is raised, if it's not about the specific matters in subsection (2) (emphasis added).
This section falls under the disciplinary framework for advocates 615 and solicitors, working alongside other sections like section 103D LPA (Board's consideration of reports) and section 103E LPA (Appeals from Board decisions). THE PARTIES ARGUMENTS 620 [5] The parties argued as follows:
5.1 The Appellant/Plaintiff:
The Appellant clarifies that the appeal is not against the final decision of the DB under Section 103E LPA but addresses decisions of the DB and DC outside Section 103E LPA, for 625 which no appeal remedy is provided under the LPA.
It was argued that:
The Respondents allegedly misread Sections 103EA(1) LPA and 103E LPA, which only allow appeals against final orders or decisions of the DB, not the DC. 630
The DC failed to commence its investigation within one month of its appointment, as required by Section 103B(1) of the LPA, making its conduct legally invalid.
The Appellant argues that the DB lacked authority to dissolve the existing DC and appoint a new DC, as the LPA 635 only allows the appointment of one DC under Sections 100(3)(b) and 103A (1) LPA.
The subsequent DC failed to comply with Section 103B (4) of the LPA, which requires delivering a copy of the complaint record and issuing a fresh notice to the Appellant 640 after appointing new members.
The Appellant contends that challenging the DC's jurisdiction before the Court is legally valid and does not constitute an abuse of process.
The DC's inquiry was out of time, breaching Section 103B of the 645 LPA. The DB's reappointment of a new DC was procedurally improper and lacked legal basis. The Appellant challenges the Respondents' non-compliance with statutory provisions under the LPA, particularly Section 103A, which mandates the timely appointment of a DC by the DB.
The Appellant argues that the DB delayed the appointment of the DC by one and a half years, which violates the "as soon as practicable" requirement under Section 103A of the LPA. It was further argued that the delay in appointing the DC constitutes a fundamental breach of Section 103A of the LPA. The DB failed 655 to provide a satisfactory explanation for the delay, thereby violating the principles of natural justice and the duty to give reasons for decisions. The High Court allegedly failed to address the contravention of Section 103A LPA in its judgment.
The Appellant seeks a declaration on the DC's jurisdiction 660 before proceeding with the hearing to avoid risking an adverse finding.
The Appellant requests the Court to allow the appeal with costs, emphasising the alleged procedural transgressions and jurisdictional issues under the LPA.
5.2 The Respondents:
The Appellant seeks several declarations, including:
Invalidity of the Respondents' investigation and hearing due to time limitations under Section 103A LPA.
Invalidity of the DB's decision to appoint the DC members.
Non-compliance with procedural requirements, such as allowing the Appellant to submit a letter of explanation under Section 103B(4) LPA.
Exemption from appearing before the DC.
The Respondents argue that the appeal is misconceived in law as it does not challenge a final order or decision, which is a requirement under Section 103EA(1) LPA.
The Respondents highlight that the Appellant's claims are an 680 attempt to bypass the statutory provisions of the LPA, which only allow appeals against final orders or decisions of the DB. The Respondents cited Majlis Peguam Malaysia & Ors v Joseph Au Kong Weng (supra), which emphasises strict adherence to statutory time limits and procedures under the 685 LPA.
The High Court noted that the DC was reconstituted within the stipulated time frame under Section 103B (1) LPA.
The High Court held that the Appellant's OS was not an appeal against a final order but rather an attempt to seek declaratory 690 orders to circumvent the LPA's provisions.
The High Court concluded that the Appellant's actions constituted an abuse of process.
The Respondents submit that the High Court judge did not err in dismissing the Appellant's appeal and that appellate 695 intervention is not warranted. OUR ANALYSIS AND FINDINGS [6] In considering this appeal, we unanimously determine:
Grounded on all the materials before us, the respective 700 arguments of the parties, the learned High Court Judge (HCJ)’s findings, and the relevant provisions of the LPA, which include the one seen in paragraph [4] above, clearly show that there is no appealable error before us as submitted by the Appellant/Plaintiff that would warrant an appellate intervention.
We agree with the decision of the learned HCJ:
The issue of the inquiry being out of time is unsustainable. The Appellant's counterargument is far-fetched to be believed. We find that the present DC has been duly reconstituted by the DB, which commenced its inquiry into 710 the complaint in compliance with the time stipulated under Section 103B (1) of the LPA. We find no issue with the chronological facts set out (paragraph [3] [4] above) by the learned HCJ.
We find section 103EA LPA clearly sets out that a party 715 dissatisfied with a DB or DC decision is entitled to lodge a formal written objection within 14 days of the impugned decision. The DB, however, is empowered to proceed with the hearing until it's finished, even when an objection is raised. This section falls within the disciplinary framework 720 for advocates and solicitors, alongside other sections, including section 103D LPA (Board's consideration of reports) and section 103E LPA (Appeals from Board decisions). The Appellant must comply with the procedures set out in the LPA and exhaust all remedies within the 725 disciplinary framework before seeking judicial intervention.
The learned HCJ was correct in holding that the DC's dismissal of the plaintiff's objections was not a final decision, as the DB could still affirm or reverse the DC's recommendation (section 103EA LPA). It was rightly 730 concluded that the finding by the DC is not a final decision (section 103C LPA) as opposed to a determination by the DB (section 103D LPA) arising from the recommendation of the DC after the conclusion of the inquiry.
We find no compelling evidence of any prejudice suffered 735 by the Appellant/Plaintiff as claimed. Claiming to be adversely affected is one thing; the burden of establishing the claim is another. We find that the Appellant failed to discharge that burden as was appropriately alluded to by the learned HCJ, whatever objections that the Appellant 740 has could always be raised during the appeal stage under Section 103E(8) of the LPA, as the Appellant is not precluded from raising any objection under this section as grounds of appeal that he may file under Section 103E LPA:
The legal sentiment that cases should be resolved on 745 their substantial merits rather than technicalities is a recognised and applied principle in Malaysian legal jurisprudence.
Courts have moved toward a more pragmatic approach to ensure substantive justice, though 750 procedural compliance remains essential.
The Court of Appeal in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413, CA emphasised that applications should not be dismissed purely on technical or procedural grounds. Justice 755 Gopal Sri Ram (as he then was) stated that in the performance of their duty, judges must remember their duty to "do justice according to law and the substantial merits of each case: “For myself, I must add a final word. I must be forgiven for 760 expressing my amazement and equal disappointment that in this day and age, applications and suits are disposed of on purely technical and procedural grounds without even the slightest attempt to ensure that justice according to the merits of a particular case is done. I cannot help but feel that, in the 765 performance of our duty as judges to decide according to law, we have forgotten our duty to do justice according to law and to the substantial merits of each case. My own feelings are so well expressed by Saville LJ (now Lord Saville) in British Steel plc v Customs & Excise Commissioners [1997] 2 All ER 366, at 770 p 379
The Malaysian Courts aim to avoid hyper-technical interpretations that would prevent a claim from being heard on its actual substance, favouring an approach that ensures justice is served according to the actual 775 merits of the case.
The appellate and apex courts generally do not interfere with a trial judge’s findings of fact unless they are plainly wrong, focusing on whether the original decision was reasonably grounded on the evidence 780 and merits.
In light of the foregoing, we concur with the learned HCJ observation that Appellant’s attempt to bypass the DB's mechanism was premature and constituted an abuse of process.
The Appellant cited the Court of Appeal in Tania Scivetti v Majlis Peguam & Ors [2023] 6 MLJ 77, CA, which focuses on procedural objections raised by the appellant in that case against the DC inquiry.
It was argued in that case:
The DC's inquiry was conducted four years and one month after its appointment.
It violates the mandatory time limit under Section 103B (1) of the Legal Profession Act 1976 (LPA).
The appellant sought declaratory relief to declare the inquiry 795 illegal and void. The High Court judge dismissed the OS, finding the application premature, that the appellant's reliance on Section 99(3A) of the LPA was misplaced, and that the 800 court should not interfere with the DC's adjudicative functions. The learned HCJ acknowledged the DC's breach of Section 103B LPA but refused to grant relief (emphasis added). 805
The Court of Appeal (CA) addressed three key issues:
Prematurity of the OS: The CA found that the appellant's request for declaratory relief was not premature, as the appellant was not seeking to determine the merits of the complaint but rather to address the 810 DC's jurisdiction due to its statutory breach. The court ruled that the HCJ erred in refusing the declaratory relief.
Application of Section 99(3A) LPA: The CA agreed with the High Court judge that Section 99(3A) LPA was a non-issue, as the DB's inquiry in 2016 was 815 conducted within the six-year limitation period. The DC's inquiry in 2021 was separate and distinct from the DB's inquiry.
DC's Breach of Section 103B LPA: The CA distinguished the present case from Koh Mui Tee, emphasising the inordinate delay of 49 months in the DC's 820 inquiry, which was unexplained and far exceeded the statutory time limit. The court ruled that the DC's inquiry was unlawful due to the breach of Section 103B LPA.
The CA allowed the appeal:
Set aside the High Court's decision, and grant the declaratory reliefs sought by the appellant, specifically to the unique circumstances or facts of that case (emphasis added).
It declared the DC's inquiry and the disciplinary proceedings against the appellant illegal, null, and void. No order as to costs 830 was made.
It was also observed that the CA did not intend to override the general rule that a litigant must necessarily exhaust a statutory remedy or mechanism before presenting his grievances to the Court, finding that:
The DB had already decided on the DC’s jurisdiction.
It was the DC that had allegedly relinquished its jurisdiction by not complying with section 130B (1) LPA (within one month to commence the inquiry after its appointment) that had allowed this legal challenge.
The DB rightly acted within the 6-year limitation period (section 99(3A) LPA).
We find that the foregoing CA’s determination, which was specifically unique to the circumstances or facts of that 845 case, provides no assistance to the Appellant in the present appeal (emphasis added):
On the nature of the BC’s complaints, the proviso to section 99 (3A) LPA applies, rendering the issue of limitation a non-starter.
Section 103B(1) LPA was not breached when the present reconstituted DC commenced its inquiry within one month after its appointment.
The DB had explained the reason for reconstituting the DC in its letter dated 13.7.2020, informing all parties that one 855 of the DC members could not sit in the inquiry of the DC, necessitating the DB, in the exercise of its powers, to dissolve that said DC and appoint the present DC to carry out the inquiry of the BC’s complaint against the Plaintiff for the alleged impropriety of the impugned funds. 860 CONCLUSION [7] Having considered all issues presented before this Court, we unanimously find no appealable error in the learned HCJ's decision. In the circumstances, we affirmed the findings of the learned HCJ. The appeal is 865 hereby dismissed with no order as to costs. Dated 8 January 2026 870 HAYATUL AKMAL ABDUL AZIZ Judge Court of Appeal 875 Counsels: For the Appellant: Datuk Vignesh Kumar together with Yasinthra a/p Dorairaju 880 Messrs Kumar Jaspal Quah & Aishah For the Respondents: Keshvinjeet Singh Messrs Gunaseelan & Associates 885

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How Chee Hong v Kan Weng Hin (W-02(A)-60-01/2023)

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1. Kan Weng Hin

2. Melvin Selvam A/L Thambirajah

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How Chee Hong v Kan Weng Hin (W-02(A)-60-01/2023)

Outcome

How this case connects

Cited by

Authorities cited

1. Kan Weng Hin

2. Melvin Selvam A/L Thambirajah

Perintah

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