MANDEEP SINGH REKHRAJ A/L KERTAR SINGH v Dato' Sukhdev Singh Randhawa (Beramal sebagai seorang Peguambela & Peguamcara di Tetuan Azlan Shah Sukhdev & Co) (WA-17D-37-10/2023)

The appellant appointed the respondent, an advocate and solicitor, to act for the two appellant’s companies, Sunmoon Aircond & Electrical Bhd and Sunmoon Ocean Sdn Bhd, in a civil suit at the Shah Alam Sessions Court No. BA-B52-42-05/2019.

After having received invoices for RM87,450 for legal fees, which the appellant thought to be excessive, the appellant lodged a complaint against the respondent at the Advocate & Solicitor Disciplinary Board (“DB”).

The complaint was dismissed by the DB on 22.9.2023 under s 100(3)(a) of the Legal Profession Act 1976 (“LPA”).

The Order states as follows: LEGAL PROFESSION ACT 1976 ORDER UNDER SECTION 100

if it is satisfied that there is no merit in the application or complaint, dismiss the application or complaint and notify the parties accordingly. [6] Aggrieved, the appellant filed an appeal against the decision of the DB by way of this Originating Summons (“OS”). [7] The OS was filed on 26.10.2023 and served on the same day. However, the affidavit in support of the OS, which is in Encl 4 (“AIS- 4”), was filed on 7.11.2023. It was also served on the respondent on the same day by way of an email. [8] The respondent’s complaint before this Court is that there was a delay of five days in filing and serving AIS-4. On 9.11.2023, the respondent, vide Messrs Azlan Shah Sukhdev & Co, had placed it on record that it objected to the appellant’s appeal in view of the appellant’s purported failure to comply with the mandatory provision of O 28 r 3C(1) of the Rules of Court 2012 (“ROC”). [9] The letter, which is addressed to Messrs Ras & Co, the appellant’s solicitors, inter alia states as follows: [4] We place on record that your Client has failed to comply with the mandatory provisions of Rule 28 Rule 3C(1) of Rules of Court 2012 as follows: “Unless otherwise provided in any written law, where the plaintiff intends to adduce evidence in support of an originating summons, he shall do so by affidavit and shall file the affidavit or affidavits and serve a copy thereof on every defendant not later than seven days after the service of the originating summons.” [5] In this regard, we wish to put your Client on notice that your Client’s appeal is defective as your Client’s said Affidavit-in-Support has been filed and served on us five (5) days late. [10] The hard copy of AIS-4 was served on the respondent by hand on 15.11.2023. [11] At the Case Management (“CM”) by way of an e-review before the Deputy Registrar on 23.11.2023, the appellant, despite having been made known of the respondent’s objection to the late filing of AIS-4, did not give any indication that he would file an application for an extension of time to regularise the filing of AIS-4. [12] At the same CM, counsel for the applicant informed the Court that: Peguam Perayu: Pihak kami telah menerima sesuatu emel daripada Lembaga discipline peguam (ASDB) pada hari semalam 22.11.2023. Emel tersebut terkandung dokumen-dokumen dari ASDB. This goes to show that by 22.11.2023, the appellant had all the material for him to file an appeal against the decision of the DB. The application for extension of time in Encl 9 [13] However, on 26.1.2024, the applicant this application in Encl 9 seeking inter alia for the following reliefs:

That AIS-4, which was filed on 7.11.2023, is valid and be treated as filed within the stipulated period;

An order that the appellant be granted leave to file the Record of Appeal;

An order that the Record of Appeal filed on 22.1.2024 through the affidavit in reply of the appellant in Encl 7 (“AIR-7”) is valid; and

An order that the appellant be granted leave to file the Record of Appeal through a separate affidavit. [14] The application is supported by the affidavit of the appellant in Encl 10 (“AIS-10”). [15] The grounds for the delay in filing AIS-4, as affirmed by the appellant in para 5 of AIS-10, are as follows. According to the appellant, the delay was due to unavoidable circumstances in that:

The appellant’s solicitors only received the certified true copies of the documents from the DB on 22.11.2023; and

The appellant and his solicitors had to wait for them to be supplied with the relevant documents from the DB. However, the DB could not supply the documents until 2.11.2023. The appellant further affirmed as follows: Walaubagaimanapun, LTTP tidak dapat menghantar dokumen-dokumen tersebut sebelum 02.11.2023 dan saya pula terpaksa memfailkan Afidavit Sokongan pada 7/11/2023 untuk mengelakkan kelewatan yang berlebihan. [16] In short, since the DB had failed to provide the documents before 2.11.2023, and to avoid further delay, the appellant had to file the AIS-4 on 7.11.2023. [17] The appellant subsequently filed AIS-7, where the Record of Appeal was duly exhibited. The timeline [18] At this stage, it is pertinent to identify the timeline for the appellant to file the affidavit in support - the AIS-4 - and the record of appeal. [19] First, the affidavit in support. O 28 r 3C(1) of the ROC provides as follows: Unless otherwise provided in any written law, where the plaintiff intends to adduce evidence in support of an originating summons, he shall do so by affidavit and shall file the affidavit or affidavits and serve a copy thereof on every defendant not later than seven days after the service of the originating summons. [20] In the instant case, since the OS was filed and served on 26.10.2023, the AIS of the OS should have been filed and served on 2.11.2023. However, as alluded to earlier, AIS-4 was only filed and served on 7.11.2023 – a delay of five days. [21] As to the record of appeal, r 5(1) of the Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994 (“the 1994 Rules”) provides that the appellant ought to have filed an affidavit which contains the appeal record in the High Court within six weeks from the date of receipt of the certified true copies of the documents from the Disciplinary Board. [22] As stated earlier, counsel for the appellant intimated to the Court at the CM on 23.11.2023 that his firm had received the documents from the DB on 22.11.2023. In view of r 5(1) of the 1994 Rules, the record of appeal should have been filed by way of an affidavit by 4.1.2024. [23] Unfortunately, the record of appeal was only filed through AIS-7 on 22.1.2024. [24] There was therefore a delay of 18 days. [25] It was only on 26.1.2024, another four more days, that the appellant filed this application for extension of time in Encl 9. Analysis [26] Let me begin by putting things into perspective. [27] It is trite that before the Court can exercise its discretion to grant an extension of time, the Court must have some material to do so. What, then, are the reasons proffered by the appellant in his affidavit in support in AIS-10? [28] As to the filing of the affidavit in support in AIS-4, the appellant conceded that there was a delay of five days. [29] Let me explain the procedure that ought to be undertaken by the appellant. It is governed by the LPA, ROC and the 1994 Rules.

The appeal is against the Order of the DB made under s 103(a) of the LPA. The appeal, which is made under s 103E(1)(b) of the LPA, shall be filed within one month of the receipt of the notification of that Order.

Under s 103E(4), the appeal is by way of an originating motion.

However, the mode of commencement by way of originating motion has been abolished with the coming into effect of the ROC, and parties aggrieved by the Order of the DB have filed the appeal by way of an OS.

The filing of the OS is governed by O 28 of the ROC.

Under O 28 r 3C(1) of the ROC, the affidavit in support of the OS shall be filed within seven days from the filing of the OS.

Within seven days of the filing of the OS, the appellant shall pay to the Director of the DB a sum of RM500 as a deposit for obtaining copy of documents required to be included in the record of appeal; r 4(1) of the 1994 Rules.

Under r 5(1) of the 1994 Rules, the appellant shall file the record of appeal containing documents specified in r 4(4) (“the Appeal Documents”) within six weeks of receipt of the same. [30] Having stated the law and procedure under the LPA, ROC and the 1994 Rules, the question that arises is, has the appellant complied with all of them? [31] It is not disputed that the OS, having been filed on 26.10.2023, was within the one-month period stipulated under s 103E(1)(b) of the LPA. Under s 103E(4), the appellant only needs to set out the grounds of the appeal supported by the affidavit. There is no need to include the Appeal Documents in the AIS since they are not yet available. The appellant has to pay the deposit of RM500 to the DB so that the DB can supply him with the Appeal Documents. This can only be done after the OS has been filed. [32] This is the reason why I cannot understand why the appellant stated in his AIS-10 that he has to wait for the Appeal Documents from the DB before filing AIS-4. The law does not require him to do that. The Appeal Documents can only be made available after the filing of the OS. It cannot be filed together with the filing of the OS. In short, the filing of the OS is the condition precedent before the appellant can apply to the DB for the Appeal Documents to be supplied to him. [33] In the circumstances, the 5-day delay in filing the AIS-4 is not properly explained by the appellant. In fact, there is no explanation at all. In short, the appellant has not complied with O 28 r 3C(1) of the ROC. [34] In Tokai Corporation v DKSH Malaysia Sdn Bhd [2016] MLJU 621, Wong Kian Kheong J (now JCA) made the following observation: Order 28 rule 3C(1) to (4) and Order 38 rule 2(2) RC are mandatory provisions by reason of the use of the imperative term "shall " in those provisions. Accordingly, the 2 SD's (which had only been exhibited in the Plaintiff's 2nd and 3rd Affidavits) are not admissible as evidence in this OS by reason of Order 28 rule 3C(1) and Order 38 rule 2(2) RC. With respect, I am in complete agreement with the said proposition. [35] I do not, with respect, accept that the delay, albeit five days, is “unavoidable”, as the appellant would like this Court to conclude. It is completely avoidable since the appellant does not have to wait for the Appeal Documents for him to file the affidavit in support of the OS. As I alluded to earlier, there is no legal or procedural requirement for him to do so. [36] In Abdul Hamid Mohd. Amin v Ramacon Corporation Sdn. Bhd. [2016] 3 CLJ 111, Gunalan Muniandy JC (later JCA) was of the view that: As rightly contended by the respondent, the appellant was then represented by solicitors, who should have been well aware of the relevant provisions of the ROC. Hence, the reason given for noncompliance premised on oversight wholly lacked credibility and was, instead, under the circumstances, a patently lame excuse that did not merit serious consideration. Since there is no valid reason proffered by the appellant, there is no material before this Court for me to grant the extension requested by the appellant. It is not the length of the delay per se but the ground that matters. [37] The appellant contended that the respondent “gladly accepted” the service of AIS-4 and had even filed an affidavit in reply in Encl 6. In short, the respondent should be estopped from raising it now. With respect, I cannot accept this line of argument. The respondent had made it clear that they objected to the delay in filing the AIS-4 in his letter to the appellant dated 9.11.2023, barely two days after being served with the same. The respondent even cited O 28 r 3C(1) of the ROC in the said letter. [38] The respondent’s position has been consistent all along. [39] As to the late filing of the record of appeal, there was no explanation given by the appellant as to what has he done from 4.1.2024, being the last date of filing the affidavit enclosing the Appeal Documents (“the appeal record”) and filing of AIS-7 on 22.1.2024. [40] It should be underlined that filing the affidavit in reply and filing the record of appeal are two separate things. The appellant cannot hide behind the Court’s directions to file his affidavit in reply by 22.1.2024 with the filing of the appeal record. They are different. Findings [41] For the reasons aforesaid, the application for extension of time is dismissed. [42] As a result of the dismissal, AIS-4 is not properly brought before this Court. It is disregarded, and this OS is not supported by the affidavit. The same applies to the delay in filing the appeal record in AIS-7. The appeal record is not properly brought before the Court either. It has no leg to stand on. [43] I am therefore making a consequential order for the OS to be dismissed with costs. Tarikh: 28 Oktober 2024 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. Pihak-pihak: Bagi Pihak Perayu : Raspreet Kaur Singh, Hemaleshwary & Ms Rasreet Kaur Simranjeet Kaur Sandhu A/P Daljit Singh Tetuan Ras & Co. Bagi Pihak Responden : Sukhdev Singh Randhawa (Acting in person),