R2 be struck off under section 94(2) of the Legal Profession Act 1976 …” 6 [11] The DB affirmed the findings and accepted the recommendations of the DC. On 13.1.2012, the DB ordered the name of the respondent before us, to be struck off from the Rolls of the Advocates & Solicitors. [12] Aggrieved, the respondent filed an Originating Summons seeking to set aside that decision of the DB. Decision of the High Court [13] At the High Court, the appellant submitted that based on contemporaneous documents and certain undisputed facts, the respondent was involved in the misappropriation of the original complainant’s monies in the Firm’s Client’s Account. The undisputed facts that were highlighted and relied on were as follows: i. Vide a letter dated 1.7.2013 issued by the Firm, the Firm admitted that it had decided to appropriate and apply the original complainant’s monies towards discharging the Firm’s debt to Permodalan Kemajuan Negeri Selangor [PKNS]; ii. The original complainant’s money was taken out from the Firm’s Client’s Account No. 023-202-200112-0 maintained at AmBank’s branch at Medan Pasar, Kuala Lumpur; iii. Up to 26.5.2014, the sole signatories to the Firm’s Client’s Account were the respondent and one Nor Azril bin Roselan, with the condition that both were to sign; 7 iv. Both the respondent and Nor Azril bin Roselan had signed the Remittance Form. Their signatures were verified and there was verbal confirmation by one Rosnani and one JC from AmBank at 11.25 a.m. on 18.6.2013. Both Rosnani and JC did not attend the DC proceedings as witnesses. [14] In response, the respondent submitted that he was not guilty of the alleged misconduct because the DC had failed to appreciate that the alleged facts had not been proven beyond reasonable doubt. The DC recorded the following to be the “crux” of his testimony: i. that he had ceased to be a partner of the Firm with effect from 1.5.2011; ii. denied any responsibility for the remittance of RM75,837.67 out of the AmBank CA to PKNS; iii. denied that the signature on the application remittance form for the said sum of RM75,837.67 out of the AmBank CA to PKNS was his signature; iv. alleged that the signature on the remittance form was forged without pin pointing who had committed the alleged forgery; v. in support, he relied on evidence of William Pang who testified that there were differences between the signature on the application remittance form and the specimen signature provided. 8 [15] At the same time, the DC noted that although the respondent had ceased to be a partner with the Firm, he remained as one of two signatories as far as the AmBank CA was concerned. Further, it is noted that William Pang was “frank enough to admit that this was his opinion and that he cannot testify conclusively that it is not R2’s signature on the Application Remittance Form (Appendix 10) and that at most what he can say is that there appeared to be some difference between R2’s specimen signature in the Remittance Form.” [16] After examining the records and having regard to the standard of proof that had to be met, the learned Judge agreed with the respondent. It was the finding of the learned Judge that the core issue pertained to the respondent’s signature on the Remittance Form for the sum of RM75,837.67, marked as exhibit R2W1D4 before the DC proceedings. This remittance form was for payment out of the AmBank client’s account to PKNS. The respondent had denied signing the remittance form, and had claimed that the signature on the form was forged. The evidence of one William Pang, an expert who the respondent called to testify at the DC hearing, was relied on as proof of this forgery. William Pang testified that based on his analysis of the signatures of the respondent, he noted that there were differences between the signatures on the Application Remittance Form, exhibit R2W1D4, and the respondent’s specimen signatures given to him. [17] The learned Judge did not find merit in the appellant’s argument that although the respondent had only challenged his signature on exhibit R2W1D4, there were signatures on other remittance forms, for instance, one for the sum of RM65,000.00, which stood unchallenged. 9 [18] The learned Judge also did not find merit in the argument that the DC had compared the signatures on both forms and had concluded that it “show beyond doubt that they are the same” or the undisputed fact that vide letter dated 1.7.2013, issued by the Firm, the Firm had decided to appropriate the Original Complainant’s monies and apply it towards discharging the Firm’s debt to PKNS.” Instead, the learned Judge was of the view that since the finding of misconduct centred around the admission to the misappropriation of RM76,000.00, it is therefore not unreasonable for the applicant to only challenge the Remittance Form for the sum of RM76,000.00.” [19] As for the dispute on the authenticity of the respondent’s signatures, the learned Judge did not find anything in the DC’s Report of Investigation Proceedings to the effect that William Pang “cannot say conclusively that the applicant’s signatures had been forged. What is before the Court is the DC’s summary of Mr. William Pang’s evidence, not his oral testimony.” Since the expert report prepared by Mr. William Pang was also before the Court, Her Ladyship proceeded to examine its contents and found that “supports the applicant’s contention that he did not sign the Remittance form, exhibit R2W1D4.” [20] It was the specific finding of the learned Judge that since the standard of proof required is beyond reasonable doubt, the expert report had created a doubt with regards to the respondent’s signature on exhibit R2W1D4. Given that the DC’s finding on the culpability of the respondent was based “on the fact that he continued to be one of the signatories to the AmBank CA”, with the creation of “doubt with regards 10 to this signature on exhibit R2W1D4”, the learned Judge concluded that the “findings of the DC is not sustainable.” The DB’s reliance on the DC’s findings was therefore misplaced. [21] For those reasons, the appeal was allowed by the learned Judge. Our deliberations and findings [22] We are in full agreement with the learned Judge. We, too, find that a doubt had been cast in the manner found by the learned Judge leaving the case against the respondent not one that was proved on a standard which is beyond reasonable doubt. [23] In coming to our decision, we are fully aware that when it comes to matters of discipline and what may or may not amount to misconduct or conduct that is not becoming of an advocate and solicitor in particular circumstances, it is “primarily for the members of the Bar to decide … according to standards established by members of that honourable profession. Courts must necessarily exercise caution when entertaining an appeal in which the central question is whether particular conduct is unprofessional and cases meriting curial interference will be rare. Otherwise it will be the court and not the profession that will determine the yardstick of professional behaviour”; per Gopal Sri Ram JCA in Gana Muthusamy v Tetuan LM Ong & Co [1998] 4 CLJ 878. His Lordship had cited with agreement the following passage in the Guide to the Professional Conduct of Solicitors that was issued by the Council of the Law Society as far back as 1974 and which reads as follows: 11 “One of the hallmarks of a developed profession is that it should lay down and maintain standards of professional conduct for its members based upon the best thinking of those members as to what constitutes proper conduct for a member of that profession.” [24] His Lordship added: “In our judgment, a Court will be entitled to interfere only if what has been found by a Disciplinary Committee to be unprofessional conduct will not be considered to be such by the best thinking members of the profession.” [25] Lest it be misconstrued that the Courts have abdicated all judgment to the profession itself, the contrary is the true position. In Keith Sellar v Lee Kwang Tennakoon [1980] 2 MLJ 191, where the second of two questions posed for determination pertained to the correct burden of proof required in disciplinary proceedings, this was the answer of the Federal Court to that question: “… Looking at the grounds given in its statement of findings, the Disciplinary Committee although it made firm findings unfortunately did not say expressly what standard of proof it adopted in arriving at its decision. First, what is the standard of proof required in such proceeding very recently, this Court in Au Kong Weng v The Bar Committee, State of Pahang [1980] 2 MLJ 89 dealt with the same question and accepted the standard set by Bhandari’s case [1956] 3 All ER 742. Lord Tucker in that case approved the required standard established by the Court of Appeal in that in every 12 allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for. The Court of Appeal also expressed the view that any body of professional men sitting in judgment on a colleague should not be content to condemn on a mere balance of probabilities. The standard of proof required in a proceedings of this type is proof beyond reasonable doubt. In the judgment of this Court in Au Kong Weng’s case, the Chief Justice said: “It is a question for the committee to decide, first, whether the facts alleged in the charged had been proved beyond reasonable doubt and secondly whether the appellant in relation to those facts, was guilty of such conduct. The absence in the Committee’s determination of any mention of the standard of proof does not justify an inference that it had failed to have regard to it.” [26] This standard of proof beyond reasonable doubt was reiterated and followed in Majlis Peguam Malaysia v Cecil Wilbert Mohanaraj Abraham [2018] CLJ 123; Dinesh Kanavaji a/l Kanawagi & Anor v Ragumaren a/l N Gopal [2018] 2 MLJ 265; Rosli Kamaruddin v How Hock Seng @ Low Kim Chwee & Bar Council of Malaysia [2019] 1 CLJ 478; Lembaga Tatatertib Peguam-Peguam v Hoo Lin Coln & Anor [2008] 4 MLJ 1. [27] Although the DC did not specifically expressed that it was subjecting the evidence before it to the standard of beyond reasonable doubt, it must nevertheless be shown that it had that standard in mind and was adhering to that standard. The learned Judge subjected the decision and findings of the DC to that standard and found that it had 13 fallen short. Her Ladyship gave her reasons at paragraphs 15 to 23 of her grounds of decision, and as highlighted above. [28] We have no reason to disagree with Her Ladyship and in fact agree with the approach taken and the decision reached. Nik Suhaidi’s complaint ultimately was that Asmadi of Messrs Aziz & Associates had, without his consent, used a part of his monies to settle its own debts. The amount that was involved was a sum of RM76,000.00 which was admitted by Asmadi/the Firm. This can be seen from the letter of complaint, the statutory declaration as well as the letter of claim. [29] In his letter of complaint, Nik Suhaidi said that Asmadi/the Firm “telah menggunakan sebahagian wang baki pembelian rumah berkenaan untuk menyelesaikan hutang mereka TANPA persetujuan daripada pihak kami… Bagi kami perbuatan pihak firma adalah sangat tidak professional dan beretika kerana telah melanggar amanah yang telah diberikan kepada mereka. Perbuatan mereka telah memberi banyak kesusahan kepada pihak kami dan juga kepada pihak pembeli.” [30] In the statutory declaration, Nik Suhaidi elaborated that Asmadi had misconducted himself as follows: i. Tidak membayar wang jualbeli rumah kepada saya mengikut tempoh yang ditetapkan. ii. Menggunakan wang berkenaan untuk tujuan peribadi TANPA persetujuan saya. iii. Kelewatan proses jualbeli rumah diselesaikan sangat melampau, 14 iv. Mengabaikan tuntutan saya melalui surat, panggilan telefon dan secara bersemuka. [31] At paragraph 3 of his letter issued to the Firm, Nik Suhaidi set out that the Firm had admitted to using the sum of RM76,000.00 for the purpose of settling its debt to PKNS: 3) Pihak Tuan telah mengakui menggunaan sebahagian dari jumlah wang tersebut sebanyak RM76,000.00 untuk melangsaikan hutang pihak tuan kepada pihak PKNS tanpa terlebih dahulu menghubungi pihak kami bagi tujuan tersebut. [32] Asmadi in his reply had sought to explain that the sum was “borrowed” [“meminjam”]. [33] These were the findings and recommendations of the DC as gleaned from its report, which findings and recommendations were accepted and confirmed by the DB: THE COMMITTEE’S FINDINGS OF LIABILITY The DC considers it appropriate to deal with allegation by R2 & R3 that they did not sign the AMBANK Remittance form [Appendix 10](R2W1D4) and that their signatures had been forged. In the DC’s view the following fact and circumstances need to be taken into account in considering whether DC can give any credence to the assertion by R2 & R3 that their signatures had been forged. 15 The DC’s view is as follow:-