The expression of dissatisfaction; a letter of complaint.”. [33] The disciplinary process as provided by the statutory scheme requires the DC to inquire or to investigate and to make findings of facts. For there to be an inquiry by the DC into a complaint, there has to be an actual complaint or a positive assertion as to the facts as opposed to a mere request for an inquiry by the DC to find out if there is some basis for a complaint. [34] To recapitulate, the appellant’s letter dated 4.4.2013 as expressed in its heading, was a complaint. Indeed that was the evidence of Christopher Leong, i.e. that the letter was regarded as a complaint. However, from the contents of the said letter, we found no actual complaint or allegation or assertion of any facts pointing to any misconduct of the respondent as such, in relation to SD2. There were no facts stated as to what the respondent had done or had omitted to do which constituted misconduct. Rather, by the said letter, the appellant was in effect seeking to obtain information. In other words, by the said letter, the DC was “requested” to “formally investigate” whether there is any basis for a complaint against the respondent. [35] Understandably, no actual complaint or no specific assertion or allegation of misconduct could be made by the appellant against the respondent due to the very fact that the appellant itself had no knowledge of Civil Appeal No. W-02(A)-130-01/2017 15 the allegation that the respondent had anything to do with SD2. Hence, as stated by Christopher Leong, the letter was a request for the DC to inquire into the allegation or to discover a series of facts which the appellant itself could not verify or had not verified on the following matters, which was the real complaint of the appellant: “… that SD2 was affirmed under duress. Bala never met with the lawyer who drafted it. The lawyer therefore never advised Bala as to the consequences of recanting SD1. Whether he understood those consequences and so forth. That would have been the complaint.”. [36] We noted nonetheless that no questions were put to the respondent in cross-examination on the above matters. As such, those matters were taken to be abandoned by the appellant (see Aik Ming (M) Sdn Bhd v Chang Ching Chuen & Ors and another appeal [1995] 2 MLJ 770 which followed Browne v Dunn (1893) 6 R 67). What was left therefore, to borrow the words from the case of Owners of the Las Mercedes v Owners of the Abidin Daver [1984] AC 389, was more in the nature of a series of ‘tenuous innuendoes’ rather than a complaint. [37] We were thus not convinced that the letter dated 4.4.2013 and its appendices comprised a complaint within the meaning and purpose of section 99 read with sections 94 and 100 of the LPA and the relevant Disciplinary Rules. On that ground alone, the appeal could not be sustained as it is questionable whether there was a valid complaint. We will elaborate this point further below. [38] We observe that the DB’s powers to inquire into a written application or complaint under section 100 is necessarily confined to any complaint Civil Appeal No. W-02(A)-130-01/2017 16 made under section 99. This is because the disciplinary process under the LPA may only be initiated by way of a complaint under section 99. The reference to a written “application” in section 100 and the ensuing provisions are, for all intents and purposes, of no effect. It is both important and necessary that the jurisdiction and propriety of any disciplinary proceedings initiated under the LPA is properly reposed when examining whether a decision made by the DB in whom the LPA has entasked, may be upheld. We view this aspect of the matter before us with grave concern as part of the object of the discipline must be to ensure that the highest respect accorded to the legal profession is properly deserved. That may only be so where the DB has the necessary jurisdiction in the first place. These are our reasons for saying so. [39] The LPA consolidated the law relating to the legal profession in Malaysia and this included repealing the then applicable Advocates and Solicitors Ordinance 1947. Under Part III of the 1947 Ordinance dealing with “Control of Practitioners and Striking Off the Roll”, an advocate and solicitor may be struck off on application by or complaint to the Court. [40] With the advent of the LPA, the Courts no longer play a key role in matters of discipline of advocates and solicitors; it is now a matter of peer review. The Court’s role is confined to hearing appeals from any party aggrieved by the final order or decision of the DB – see section 103E. [41] Under section 95 of the original LPA, the disciplinary process started with a complaint, or in the case of the Court or Judge, with any information from the Court or Judge. In either case, the complaint or information may be Civil Appeal No. W-02(A)-130-01/2017 17 directly referred to the Bar Council or to the relevant State Bar Committee. The Bar Council or the relevant State Bar Committee will then set into motion its internal mechanism of inquiry, findings and recommendations on the complaint or information by a DC assisted by an Inquiry Committee. [42] Where the complaint is made to the State Bar Committee, the State Bar Committee is required to first determine whether a formal investigation by a DC is necessary, and notify the complainant of its decision. Where a complainant has not received such notice, the complainant may then apply to the Bar Council for the matter to be inquired into by the DC at the expense of and in place of the State Bar Committee concerned – see section 96(4). A complainant who has made such an application or complaint may then appeal to a Judge of the High Court where the Inquiry Committee has determined that a formal investigation is not necessary – see section 104(1). The term “application” therefore has a very limited meaning, that it relates to an application by a complainant for a DC to be set up and this application is made to the Bar Council after the State Bar Committee has decided that a formal investigation by a DC is not necessary. [43] Sections 100(2) and 101(1)(a) of the original LPA fortify this reading. Under section 100(2), “the applicant or person making the complaint and the advocate and solicitor to whom the application or complaint relates” is empowered to inter alia summon and examine witnesses for the hearing before the DC. [44] Hence, the term “application” relates to how the DC’s jurisdiction is first invoked, whether directly on a complaint, or following an application by the Civil Appeal No. W-02(A)-130-01/2017 18 complainant after the relevant State Bar Committee has made an adverse decision on the setting up of a DC. [45] Part VII of the LPA underwent several amendments: i. Act A367 with effect from 1.6.1977 ii. Act A567 with effect from 16.12.1983 iii. Act A812 with effect from 1.4.1992 iv. Act A861 with effect from 17.9.1993 v. Act A1269 with effect from 2.10.2006 vi. Act A1444 with effect from 3.6.2014. [46] Vide Amending Act A567 of 1983, all complaints went to the Bar Council. It is then for the Bar Council to refer every complaint and every information referred to the relevant State Bar Committee. And, it is for the latter to investigate or inquire and report to the Bar Council on whether the complaint or information should be referred to a DC for a formal inquiry. Where the State Bar Committee fails to report within 3 months from the complaint or information, the Bar Council is mandatorily required to refer to the Inquiry Committee. [47] This automatic process meant that the complainant is no longer required to apply to the Bar Council for the setting up of an Inquiry Committee, as was the case previously under the old section 96(4). Consistent with this new process, sections 100(2) and 101(a) were amended to cover only the circumstance of a “complaint” – see the new sections 100(2)(a) and 101(1)(a). Civil Appeal No. W-02(A)-130-01/2017 19 [48] Now, sections 93 to 103, 103A to 103G of the LPA were again amended in 1992 vide Amending Act A812. The Amending Act saw the establishment of a DB exercising the functions of discipline that was previously held by the Bar Council – section 93. The old provision on complaints (section 95), albeit in substantially same terms, was now rehoused in the new section 99. [49] When the DB receives a complaint, it is required to constitute an Investigating Tribunal – section 100. The functions of the Investigating Tribunal and the procedure it is required to follow are all spelt out in sections 101 and 102. Now, it is here at section 100 that the term “application or complaint” is used. Given the backdrop of the amendments thus far, it would appear that the term “application” serves no purpose let alone hold any meaning. Unfortunately, this incongruity was not picked up although the LPA underwent further amendments in 1993, 2006 and 2014. [50] Consequently, the retention of the term “application” in section 100 and the several provisions thereafter is misplaced. More so when there is section 99, upon which the whole disciplinary mechanism takes its force and where despite the numerous amendments, remains complaint based. [51] Since the DB in fact lacked jurisdiction to hear any application, which is the real intent of complaint of 4.4.2013, the DB ought to have dismissed the “complaint” in limine under section 100(1)(a) of the LPA. [52] On the assumption that there was a valid complaint, the question for our determination was whether the learned judge in hearing the appeal from Civil Appeal No. W-02(A)-130-01/2017 20 the decision of the DB failed to draw any conclusions from the circumstantial evidence adduced by the appellant. [53] The circumstantial evidence is contained in the letter of 4.4.2013 and its appendices. It is the chronology of events and evidence in support of the complaint (see pages 1073 – 1180 of the appeal record). Learned counsel for the appellant expended considerable time highlighting the pre-complaint correspondence between the respondent’s firm and the appellant, maintaining that the learned judge had not accorded sufficient weight to these letters. The thrust of these letters were direct queries from the appellant asking whether the respondent had any knowledge as to the preparation of SD2 and whether he was involved in the drafting or preparation of SD2. [54] The reply from the respondent was that he was unable to divulge this information as solicitor-client privilege applies. It was then submitted that at the DC hearing the respondent effectively altered his stance by denying any involvement in the preparation of SD2. It was submitted that this amounted to a departure and constituted strong circumstantial evidence warranting an irresistible inference that the respondent had in fact been involved in the preparation and/or drafting of SD2. [55] The learned Chairman of the DC found that the respondent’s reliance on solicitor-client privilege was puzzling until it was explained by the respondent in the course of the hearing that the respondent’s firm had given advice on SD2, which warranted invoking solicitor-client privilege. In short the explanation as to the apparent change in stance was explained and accepted by the DC. We found no reason to intervene. While we agreed with Civil Appeal No. W-02(A)-130-01/2017 21 the appellant that there may be no specific conclusions drawn on the circumstantial evidence by the High Court judge, we on our part, having examined the records found that the circumstantial evidence whether considered on its own or with the rest of the evidence, did not establish the misconduct complained of. [56] We had also considered all the direct evidence on record and were of the view that there was insufficient evidence to meet the burden of proving the complaint of misconduct, to our minds, even on a balance of probabilities, let alone beyond reasonable doubt, the standard of proof to be met by the appellant (see Lembaga Tatatertib Peguam-Peguam v Hoo Lin Coln & Anor [2008] 4 MLJ 1; Dinesh Kanavaji a/l Kanawagi & Anor v Ragumaren a/l N. Gopal [2018] 2 MLJ 265; Campbell v Hamlet [2005] 3 All ER 1116). [57] Christopher Leong and Richard Wee provided no relevant or material evidence to support the appellant’s complaint. They had no personal knowledge of the matter. Of significance however was the testimony of Christopher Leong where he said that “I can tell you that I feel that even in this the BC is being used …”. Christopher Leong further testified that (CB1: pg. 383): “A Mr. Chairman, my feeling, now this is my personal feeling. I can’t speak for the other members of the BC, my feeling is that I know that people who appear to have first hand knowledge of this, for example, Deepak or AS, they have not saw it fit themselves to file a complaint directly. In fact at the AGM and I am recalling this from memory, AS was specifically asked by someone from the floor that he should then proceed to file a police report and or a complaint. And AS addressed, took the microphone, and said no, that was not his intention that morning. His intention that morning was to reveal the client. That was what AS said. Therefore he categorically made Civil Appeal No. W-02(A)-130-01/2017 22 it clear that he would not be filing a police report or a complaint. So in my mind, what that means is that there are certain parties more interested in knowing who is the person who instructed the lawyer to draft the statutory declaration. And therefore the lawyer is therefore really caught in the cross fire. It does not mean that the lawyer was not involved. Really the main interest was not in the lawyer. The main interest was in this case, the allegation was Najib. That it was Najib that instructed the lawyer. Therefore, the fact that the lawyer is allegedly Tan Sri is just secondary to that objective. …”. [58] The appellant’s case rested essentially on the allegations made by Americk and the evidence of Tommy Thomas on the purported confession/admission made by the respondent that he drafted SD2. [59] In respect of the purported admission made by the respondent at the Renaissance Hotel, apart from Tommy Thomas, there were eight (8) other people present. Excluding the respondent, there were four (4) advocates and solicitors in active practice, namely Dato’ Johari Razak, Darryl Goon, Foo Yet Ngo and Lim Chee Wee. Granted, the appellant wrote to all of the advocates and solicitors present except Foo Yet Ngo. But none of the four were interviewed by the appellant nor called to testify before the DC. [60] Darryl Goon, Foo Yet Ngo and Lim Chee Wee testified for the respondent and all of them disputed Tommy Thomas’s version that the respondent admitted to the drafting of SD2. [61] In so far as Dato’ Johari Razak was concerned, in his letter dated 17.3.2014 to the appellant, he stated: Civil Appeal No. W-02(A)-130-01/2017 23 “I write to confirm that on 14 December 2012, I did have drinks with Tan Sri Cecil Abraham, Mr. Tommy Thomas, Mr. Darryl Goon, Mr. Lim Chee Wee and their respective spouses. I also confirm that there was no discussion on SD2 or Tan Sri Cecil Abraham being involved in the drafting of SD2.”. [62] The DC preferred the evidence of everyone else, including that of the respondent over the evidence of Tommy Thomas and Americk. We found no basis to intervene and no reason to depart. We certainly did not have the audio visual advantage that the DC enjoyed when deciding unanimously which witnesses’ testimony they preferred. The circumstantial evidence in the form of chronological events and evidence ultimately found its way back to Deepak, who was never called to testify. Americk himself was not interested to lodge a complaint against the respondent as revealed in the minutes of the AGM (CB1: pg. 123-124): “Americk Singh Sidhu clarified his real agenda in respect of the entire issue. He said that right from the beginning, he had been interested not in Cecil Abraham but in finding out who had instructed the two policemen to murder and blow up Altantuya Shaariibuu. He was also not interested in lodging a report to BC or ASDB about what Cecil Abraham had done, since he had already achieved his objective by way of first-hand information from Cecil Abraham as regards the identity of the person who had instructed Cecil Abraham to draft SD2. That was all Americk Singh Sidhu needed to know, as that was the agenda for which he had been engaged by Bala. …”. Civil Appeal No. W-02(A)-130-01/2017 24 Conclusion [63] To conclude, we found that the evidence against the respondent was inconclusive and largely hearsay and did not meet the required standard of proof. Given Christopher Leong’s evidence that the mere drafting of SD2 itself is not a misconduct under the LPA and that the appellant was being ‘used’, and in the light of the real agenda of Americk in revealing the issue of SD2, we found that the evidence was unsafe to warrant a finding of misconduct within section 94 of the LPA against the respondent, even assuming for a moment that the drafting of the SD may amount to misconduct. [64] We further found that this is not a rare case where the court is constrained to intervene to reverse the findings of the High Court which had affirmed the DB’s decision. In our judgment, this case is not an exception as was found by the Federal Court in the case of Dato’ Sri Muhammad Shafee (supra). [65] In Dato’ Sri Muhammad Shafee’s case, the DC found that the respondent had breached the Legal Profession (Publicity) Rules 2001 and recommended that a fine of RM5,000.00 be imposed on the respondent. The DB and the High Court affirmed the findings of the DC. The respondent’s appeal to this Court was allowed. In affirming the decision of this Court, the Federal Court through Raus Sharif, PCA (as the CJ then was) said that unless the DC in the exercise of its powers can be shown to have erred in principle, or to have overlooked, misconceived, or disregarded some material matter of fact, or to have failed to act judicially, the court ought not interfere, except in the rarest of cases. Civil Appeal No. W-02(A)-130-01/2017 25 [66] It must be borne in mind that in the instant case, 20 members cumulatively of the DC and the DB who are the respondent’s peers had found that no cause of disciplinary action exists against the respondent. [67] As stated by the Federal Court in Dinesh Kanavaji (supra), the Court can only intervene where the findings are manifestly perverse; where the DC/DB had failed as right-thinking members of the Bar to give due consideration to the facts of the case and the conduct of the solicitors concerned; and where there had been a breach of natural justice. None of the above grounds were present in the instant appeal, hence we were not satisfied that the learned judge was plainly wrong in affirming the decision of the DB. [68] In all these circumstances, we were unanimous in our view that the appeal should be, and was accordingly dismissed, with no order as to costs. Dated: 3rd July 2018 Signed (TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors: For the Appellant : Dato Bastian Vendargon (Lai Chee Hoe, Lim Soo Ching, Anne Verdargon with him) Messrs. Chee Hoe & Associates Civil Appeal No. W-02(A)-130-01/2017 26 For the Respondent : Rishwant Singh (Shahul Hameed Amirudin with him) Messrs. Cecil Abraham & Partners