Mohd Hisham Bin Haji Abd Samad v Majlis Peguam Malaysia (WA-24NCvC-3346-09/2024)

The Plaintiff applied for the certificate issued by the Defendant under section 88(1) of the Legal Profession Act 1976 (“the Act”) be set aside. Section 88(1) of the Act states as follows: “(1) The Bar Council may if it has reasonable cause to believe that an advocate and solicitor, or a clerk or servant of an advocate and solicitor, has been guilty of dishonesty in connection with that advocate and solicitor's practice as an advocate and solicitor or in connection with any trust of which that advocate and solicitor is a trustee, issue a certificate to that effect and thereupon the Schedule, except paragraph 7 thereof, shall apply in relation to that advocate and solicitor.”

The Plaintiff also applied for the firm of Tetuan Azam Idham Azman & Partners (“the firm”) be reinstated into the Roll of Advocate and Solicitors and the freeze on the firms account be lifted. The brief facts

The Plaintiff in his affidavit in support stated that he was a partner in the firm. The firm was registered with the Defendant since 2/5/2000. The firm had 5 branches in Peninsular Malaysia.

Upon the seizing of files and document from the firm’s branch in Setiawangsa , Kuala Lumpur by a representative of the Defendant, the Defendant found that the firm had committed deception and issued the certificate section 88(1) of the Act.

The Plaintiff contends that the action of the Defendant in issuing the notice under section 88(1) of the Act contravened section 85(1) of the Act by not issuing a prior certificate prior to removing the firm’s name from the Roll.

The Plaintiff also alleged that the Defendant had flouted the 3rd schedule of section 88 of the Act of not giving a prior notice before seizing the files and documents from the firm’s office,

Finally, the Plaintiff contended the Defendant by their action had breached his fundamental tights under Article 5 of the Federal Constitution. The issues

The Court decided this case based on the 2 issues stipulated below. Locus of the Plaintiff in filing this case in individual capacity

The Court agrees with the Defendant that the Plaintiff lacks capacity in bringing the case individually on behalf of the firm when there is no letter authorizing him to do so. 2 other partners of the firm namely are Norazam bin Sulaiman and Azman Bin Mohamed as stated in the Board of Partner’s Resolution of the firm. Both this named persons are conspicuous in their absence in taking part in these proceedings. Reasonable cause

Under section 88(1) of the Act the Defendant must show reasonable cause before issuing the certificate. In this case the Defendant’s reasonable cause was based on 2 grounds.

The 1st ground was a complaint lodged by Anita Premkumari a/p Senayah alleging the firm had failed to pay her the balance purchase price paid by the buyer of the property sold by her. The failure to pay the balance price was admitted to by Norazam bin Sulaiman a partner of the firm who had undertaken in writing to pay the balance sum.

The 2nd ground was a civil action brought against the firm for negligence and dishonesty in the Sessions Court, Kuala Lumpur. The firm had entered into a consent judgement to pay a sum of RM196,400 to the Plaintiff in that case.

In the Court’s view the Defendant had a reasonable cause to issue the certificate under section 88(1) of the Act and therefore had acted within the realms of the law and had not breached the personal liberty of the Plaintiff.

In the upshot the Court to dismissed the Plaintiff’s Originating Summons with a cost of RM3, 000. Dated: 27.1.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Nabilah Jasmine Tetuan Lope Maizura. B-1-08 Oasis Square, Ara Damansara, Jalan PJU 1A/7A, 47301 Petaling Jaya, Selangor. For the Defendant: Nama Peguamcara: K N Geetha / Lheela Tetuan GK Ganesan D6-1-3A, Bangunan Perdagangan D6, 801, Jalan Sentul, 51000 Kuala Lumpur.