P. Selvaraj a/l S.K.P. Palani v Penaarasy a/p Sivalingam (W-02(A)-1244-07/2017)

1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: W-02(A)-1244-07/2017 ANTARA P. SELVARAJ A/L S.K.P. PALANI … PERAYU DAN

1. PENAARASY A/P SIVALINGAM …

2. RESPONDEN PERTAMA MAJLIS PEGUAM MALAYSIA … RESPONDEN KEDUA [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur (Bahagian Rayuan dan Kuasa-Kuasa Khas) Usul Pemula No.: WA-17D-44-11/2016 Dalam perkara Seksyen 103D Akta Profesion Undang-Undang 1976; Dan Dalam perkara P. Selvaraj a/l S.K.P. Palani yang beramal di bawah nama dan gelaran Tetuan Raj & Co., No. 1-6- 23, Tingkat 6 (Blok C), Diamond Square Business Centre, Jalan Semarak Api (Jalan 1/50), Off Jalan Gombak, 53000 Kuala Lumpur; 2 Dan Dalam perkara mengenai Seksyen 103E Akta Profesion Undang-Undang 1976; Dan Dalam perkara mengenai Aduan No. DC/12/7769 yang dibuat oleh Penaarasy a/p Sivalingam terhadap P. Selvaraj a/l S.K.P. Palani; Dan Dalam perkara mengenai Perintah Lembaga Tatatertib Peguam-Peguam yang bertarikh 13/10/2016 di bawah Seksyen 103D Akta Profesion Undang-Undang 1976; Dan Dalam perkara mengenai Kaedah Profesion Undang-Undang (Prosiding Tatatertib)(Rayuan) 1994; Dan Dalam perkara mengenai bidangkuasa Mahkamah yang sedia ada. 3 Antara P. Selvaraj a/l S.K.P. Palani … Perayu Dan Penaarasy a/p Sivalingam … Responden Majlis Peguam Malaysia … Pencelah CORAM: ABANG ISKANDAR BIN ABANG HASHIM, JCA BADARIAH BINTI SAHAMID, JCA MARY LIM THIAM SUAN, JCA 4 JUDGMENT OF THE COURT [1] This is an appeal against the decision of the learned High Court Judge dated 20.06.2017, who dismissed the Appellant’s appeal against the decision of the Disciplinary Board (DB) pursuant to section 103D of the Legal Profession Act 1976 (LPA) dated 13.10.2016. The DB had ordered the Appellant to pay a penalty of RM5,000.00, payable to the Discipline fund within one (1) month from the date of the order, failing which the Appellant shall be suspended from practice as an Advocate and Solicitor, until payment of the aforesaid penalty. [2] For ease of reference, parties will be referred to as they were in proceedings before the High Court. Background Facts [3] The narration of salient facts is derived primarily from the learned Judge’s ‘Grounds of Judgment’ and the submissions of learned counsels. The Complaint [4] The gist of the Respondent’s complaint against the Appellant was that the Appellant had instituted a suit against Malayan Banking Bhd (‘MBB suit’) in the Sessions Court and subsequently withdrew the suit without her knowledge and instruction. The Sessions Court had struck out the MBB suit and ordered costs of RM2,000.00 against the Respondent. 5 [5] According to the Respondent, sometime in April 2010, the Respondent consulted the Appellant on possible legal action against Malayan Banking Bhd (MBB). [6] Since the Respondent had not heard from the Appellant for some time, the Respondent contacted the Appellant and informed him that she no longer required his services and arranged to collect her files from the Appellant’s office, which she did. [7] Subsequently, the Respondent received a copy of the summons filed on her behalf by the Appellant against MBB. The Respondent also found out from MBB that the Appellant had withdrawn the MBB suit resulting in an order of costs of RM2,000.00 which was made against the Respondent. The Appellant’s Response [8] The response of the Appellant to the Respondent’s complaint may be summarised as follows. The Respondent was introduced to the Appellant by one, Mr. Balakrishnan Devaraj (‘Mr. Devaraj’) sometime in March 2010, with the intention of taking up the Respondent’s case against MBB. [9] It was agreed between the Appellant and the Respondent that the initial payment fee was RM1,500.00 and subsequent fees to be quoted later. The Respondent was to furnish the Appellants with the relevant documents for the Appellant’s further action. 6 [10] The Appellant alleged that the Respondent’s subsequent conduct led him to believe that he was instructed to proceed with the filing of the civil suit against MBB on the Respondent’s behalf. [11] The Respondent had informed the Appellant that she did not have the money to pay the Appellant. However, Mr. Devaraj had volunteered to pay the Appellant on the Respondent’s behalf. [12] The Appellant sent out a notice to MBB on 6.4.2010 together with a sealed copy of the summons. A copy of the summons was also faxed to the Respondent. Phone calls were also made to the numbers provided by the Respondent to the Appellant. [13] Subsequently, the Appellant was forced to withdraw the MBB suit as he was unable to contact the Respondent. The Disciplinary Committee’s Findings [14] After hearing oral and documentary evidence, the DC made the following findings:

1. The Appellant’s action of filing the MBB suit on behalf of the Respondent in the absence of a written agreement and having been notified to cease acting on the Respondent’s behalf, was improper in the circumstances. As a result of the Appellant’s action, the Respondent was put to loss when the Court ordered her to pay 7 RM2,000.00 to MBB, and the suit was withdrawn without any liberty to file afresh.

2. In the alternative, since the Appellant undertook to represent the Respondent, the Appellant ought to have ensured that the Respondent was aware of the MBB suit and all the movements of the court proceedings and consequences of pursuing an action in court.

3. In light of the evidence, the Appellant has breached Rule 31 of the Legal Profession (Practice and Etiquette) Rules 1978.

4. The Appellant’s conduct is also unbefitting of an advocate and solicitor under section 94 (3)(o) of the LPA.

5. In this regard, the Appellant’s gross disregard of the Respondent’s interest, amounted to misconduct under section 94(3)(n) of the LPA.

6. There is therefore merit in the Respondent’s complaint and a fine of RM5,000 is imposed on the Appellant. [15] The findings of the DC were confirmed by the DB. 8 Appellant’s Submissions at the High Court [16] The Appellant filed an appeal to the High Court against the DB’s decision. The Appellant’s appeal was heard on 20.6.2017. The Bar Council was the Intervener in the appeal. [17] The crux of the Appellant’s submissions before the High Court may be summarised as follows:

1. The DC fell into error when it stated in its report that, “The Committee finds that the Respondent’s action of filing of a civil suit in court on behalf of the Complainant in the absence of a written agreement and having been notified to cease acting, was improper in the circumstances”, when the instruction to file an action by the Appellant need not be by an agreement in writing.

2. The DC had failed to appreciate that the law clearly states that a solicitor-client relationship need not be in writing and that it may be implied.

3. The defence of the Appellant ought to have been accepted by the DC on grounds that the original file/documents are still with the Appellant, which includes evidence of phone calls by the Respondent to the Appellant persuading him to proceed, faxing of the Summons of the MBB suit, followed by phone calls and a further fax to the Respondent. 9

4. The DC had failed to appreciate the facts in the light of the letter dated 15.3.2011 sent by the Respondent to the Appellant which includes the phone calls by the Respondent to the Appellant, persuading the Appellant to proceed with the MBB suit, faxing of the summons, followed by phone calls and another fax, the Respondent’s appearance at the Appellant’s office to collect a copy of the summons and several letters addressed to the Appellant before the withdrawal of the MBB suit.

5. Mr. Devaraj attended the hearing of the DC as the Appellant’s witness and gave evidence in support of the Appellant, which evidence was not rebutted. Findings and Decision of the High Court [18] The learned High Court Judge dismissed the Appellant’s application for judicial review against the decisions of the DC and DB. The findings of the High Court Judge may be summarised as follows:

1. The DC had considered all the documents referred to by the Appellant in the letter dated 15.3.2011 sent by the Respondent to the Appellant, but could not find clear evidence that there was ‘fresh instruction’ from the Respondent to the Appellant to proceed with the MBB suit. “Therefore, it is incorrect for the Appellant to say that the DC failed to appreciate the facts after the said letter dated 15.3.2011”. 10 (para 15 of the High Court Judge’s, “Grounds of Judgment”)

2. The Appellant’s letter to the Respondent dated 2.7.2010 had stated clearly that the Respondent has not paid the initial disbursement and the Appellant would close the file. Since the Appellant’s file has been closed and since there is no evidence that the Respondent had paid the initial disbursements, there was no ‘fresh instruction’ from the Respondent to the Appellant to proceed with the MBB suit.

3. The learned High Court Judge considered the submissions of both the Appellant and the Respondent, and decided the Respondent’s version to be more credible: “The Respondent’s letter dated 15.3.2011 to the Appellant says that she had waited since April 2010 for the Appellant to take an action and after no respond she went to collect her file from the Appellant and that she must take the necessary steps to resolve her damages as soon as possible. In the circumstances, it appears to me the Respondent’s version that the summons was file on 4.4.2011 without her knowledge and instruction is more credible.” (para 17 of the High Court Judge’s, “Grounds of Judgment”)

4. There is no evidence that the Appellant’s witness, Mr. Balakrishnan Devaraj had paid the RM1,000.00 to the Appellant on behalf of the Respondent: 11 “Balakrishnan Devaraj’s evidence in my view is full of contradiction and does not support the Appellant’s version. The payment which Balakrishnan Devaraj agreed to pay or claim to have paid on behalf of the Respondent, does not prove that the instruction comes from the Respondent.” (para 19 of the High Court Judge’s, “Grounds of Judgment”)

5. The learned High Court Judge agreed with the Appellant’s submission that the standard of proof applicable during the disciplinary proceedings is proof beyond reasonable doubt. However, the learned High Court Judge was of the view that while the DC had not mentioned the standard of proof applicable, it cannot be inferred that the DC had disregarded it: “In this case, the DC has carefully considered the oral and documentary evidence and made firm findings of facts based on the evidence presented before it. It cannot be said that the DC has reached a wrong decision simply because it has failed to mention the standard of proof in its finding. (para 29 of the High Court Judge’s, “Grounds of Judgment”) Memorandum of Appeal [19] The primary grounds of the appeal before us may be summarised as follows:

1. The learned High Court Judge had erred in law in finding that the appeal by the Appellant was by way of an application for judicial 12 review. The Appellant’s appeal to the High Court was pursuant to a specific section provided in the LPA i.e. section 103 E of the LPA which states as follows: “103 E. Appeal from the final order or decision of the Disciplinary Board.

(1) Any party aggrieved by any final order or decision made by the Disciplinary Board -

2. The learned High Court Judge failed to appreciate that the DC had erred in law in its findings when it expressly stated in its report that, “in the absence of a written agreement and having been notified to cease acting….” when the instruction to file an action by the Respondent to the Appellant need not be in writing.

3. The learned High Court Judge had failed to appreciate that the DC fell into error in fact and in law when it failed to appreciate the oral as well as contemporaneous documentary evidence that 13 supported the Appellant’s case. The Appellant had adduced overwhelming evidence that was unrebutted by the Respondent.

4. The required standard of proof to be applied in Disciplinary Proceedings in respect of an advocate and solicitor is beyond reasonable doubt. (See Keith Sellar v Lee Kwang (1990) 2 MLJ 191). The learned High Court Judge had failed to appreciate that on the oral and documentary evidence adduced, the Respondent had not discharged the standard of proof required to prove the Complaint. The learned High Court Judge had also failed to appreciate that the Appellant’s defence had raised a reasonable doubt. OUR DECISION [20] After careful consideration of learned counsels’ oral and written submissions as well as the Appeal Records, we were of the considered view that there were merits in the appeal that warrant appellate intervention. We therefore allowed the appeal with no order as to costs and set aside the decision of the High Court Judge as well as the order of the DB. We give our reasons below. [21] We have considered the Appellant’s assertion that the learned High Court Judge had erred in law when his Lordship had stated that the Appellant’s appeal pursuant to section 103 E of the LPA was by way of judicial review instead of by way of appeal as specifically provided under the LPA. However, while we concede that the learned High Court Judge 14 had mentioned the term ‘judicial review’ twice in his Lordship’s ‘Grounds of Judgment’ (at paras 9 and 30), the context in which the term ‘judicial review’ was used was in the nature of a passing reference and nothing more. We therefore do not attach any significance to the learned High Court Judge’s use of the term ‘judicial review’ so as to tantamount to an appealable error to warrant allowing this appeal on this sole ground. [22] We have perused the learned High Court Judge’s ‘Grounds of Judgment and we agree with the submission of the Intervenor that the learned High Court Judge was focused on the material facts and evidence before him and had demonstrated his lordship’s deliberations on the merits of the appeal before him, and did not merely review the manner in which the DC had arrived at its decision. [23] The learned High Court Judge had also considered authorities which are related to appeals against the DC/DB’s decisions. Therefore, the Appellant’s contention that the learned High Court Judge had erred in law in applying judicial review principles to the appeal before him is untenable. Standard of Proof in DC/DB Proceedings [24] The question that we had raised to learned counsels before us is this: What is the standard of proof in disciplinary proceedings under the LPA, in the light of the recent Federal Court decision in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584; whether the standard of proof is beyond reasonable doubt or on a balance of probabilities? Counsels were requested to submit and had submitted additional written 15 submissions on this particular issue. The arguments of learned counsels are summarised below. [25]The contention of the Appellant is that the applicable standard is beyond reasonable doubt as laid down by the Federal Court in Keith Sellar v Lee Kwang and Tennakoon [1980] 2 MLJ 191, and Au Kong Weng v Bar Committee, Pahang [1980] 2 MLJ 89, and supported by the English Court of Appeal in the case of R v Hampshire County Council, ex p Ellerton [1985] 1 All ER 599. [26] The Respondent, however is of the view that the standard of proof in disciplinary proceedings is uncertain because of the recent decisions of the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 and the Court of Appeal in the case of Ramasamy a/l Amaippan v Kwan Lee Pin (Majlis Peguam Malaysia, Intervener) [2017] MLJU 783, which established that the standard of proof is on the balance of probabilities. [27] After careful consideration of the authorities abovementioned, we agree with the submission of the Appellant that the standard of proof applicable in disciplinary proceedings is beyond reasonable doubt and the case of Sinnaiyah does not alter the legal position taken by the Federal Court in Keith Sellar v Lee Kwang and Tennakoon v Lee Kwang [1980] 2 MLJ 191, and Au Kong Weng v Bar Committee, Pahang [1980] 2 MLJ 89. In this respect, Sinnaiyah’s case can be distinguished. 16 [28] In Keith Sellar, one of the issues raised before the Federal Court was whether the DC had applied the required standard of proof in arriving at the finding that the Appellants were guilty of misconduct in their practice as advocates and solicitors. Hashim Yeop A. Sani J. (delivering the judgment of the Federal Court) had stated in clear and unambiguous terms that the standard of proof in Disciplinary Proceedings concerning an advocate and solicitor is beyond reasonable doubt. It was stated as follows (at p.194): “The second question is what burden of proof did the Disciplinary Committee only in arriving at its findings. Looking at the grounds given in its statement of findings, the Disciplinary Committee although it made very 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 a proceeding? Very recently, this court in Au Kong Weng v The Bar Committee, State of Pahang dealt with the same question and accepted the standard set by Bhandari’s case. Lord Tucker in that case approved the required standard established by the Court of Appeal in that in every 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 proceeding of this type is proof beyond reasonable doubt. In the judgment of this court in Au Kong Weng’s case, the Chief Justice said: 17 “It is a question for the committee to decide, first, whether the facts alleged in the charge 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”. [29] The standard of proof in disciplinary proceedings under the LPA is beyond reasonable doubt as laid down by the Federal Court in Keith Sellar, which has been followed in a number of cases, among them: Chong Chen Foh v Tan Lai Soon [2013] 2 CLJ 78; Batu Malay a/l Thandy v Saulinardi & Anor [2015] 1 AMR 143; Hoo Lin Coln v Wong Weng Woh & Anor [2007] 1 MLJ 56. [30] The contention of the Respondent is that the authorities which had applied the standard of beyond reasonable doubt in disciplinary proceedings is no longer the required standard as the Federal Court in Sinnaiyah had established the standard of balance of probabilities to be applicable in all civil proceedings. In support of the above proposition, the Respondent had referred to the Federal Court’s judgment (at para 49) which had stated as follows: “With respect, we are inclined to agree with learned counsel for the plaintiff that the correct principle to apply is as explained in In Re B (Children). It is this: that at law there are only two standards of proof, namely, beyond reasonable doubt for criminal cases while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. And ‘(N) either the seriousness of the allegation nor the 18 seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts’.” [31] The Respondent argued further that the issue of what is the required standard of proof in disciplinary proceedings post Sinnaiyah was clarified by the Court of Appeal in a recent decision of Ramasamy a/l Amalppan v Kwan Lee Pin (Majlis Peguam Malaysia, Intervener) [2017] MLJU

783. [32] Ramasamy’s case involved a complaint to the DB against an advocate and solicitor for the failure to return a client’s overpayment pursuant to a purchase of a piece of property. Both the DC and the DB found the Advocate and Solicitor liable, but differed on the amount of restitution recommended. The High Court affirmed the decision of the DB. On appeal, one of the questions raised was the omission of the DC to address the issue of dishonesty on the part of the Advocate and Solicitor which required a determination of the standard of proof. The Court of Appeal had stated as follows (at paras 41 and 44 of the judgment): “[41] Next would be the issue pertaining to the standard of proof, namely the level of certainty and degree of evidence necessary to establish proof in a civil or a criminal proceeding. Until very recently, what ought to be the standard of proof in a civil case in our country had not been as clear as could be. In fact, there had appeared to be two standards of proof for civil cases. While generally, the standard of proof for most civil claims was on proof on the balance of probabilities, however, where a claim is premised upon a perpetration of fraud upon the plaintiff it was required to be proved on the standard of beyond reasonable doubt. See the case of Au Kong 19 Weng case [supra] among the slew of authorities on this issue. But the apex Court had in August 2015 in the case of Sinnaiyah & Sons Bhd. v Damai Setia Sdn Bhd [2015] 7 CLJ 584 ruled that the correct standard of proof that applies in all civil cases, regardless of what is being pleaded by the plaintiff against the defendant, must be the standard of proof premised on the balance of probabilities, and the onus upon whom to prove such an allegation remains with the plaintiff. [44] At this appeal stage, since this case has not been finally resolved and disposed of, the applicable standard of proof to be applied is the correct standard of proof, as so determined by the apex Court in Sinnaiyah & Sons case (supra), which is one on the balance of probabilities. [See also, the case of Government of Malaysia v Zainal bin Hashim [1977] 1 LNS 86].” [33] Premised on Sinnaiyah as well as Ramasamy, the Respondent has submitted that currently the applicable standard of proof in respect of disciplinary proceedings under the LPA is the civil standard of a balance of probabilities. [34] We have carefully considered the Respondent’s submissions as well as the authorities referred to in support, in particular, the Federal Court’s decision in Sinnaiyah as well as the Court of Appeals’ decision in Ramasamy. We are however of the view that the standard of proof in disciplinary proceedings under the LPA is beyond reasonable doubt as laid down by the Federal Court in Keith Sellar, which has been followed in a number of cases, among them: Chong Chen Foh v Tan Lai Soon [2013] 2 CLJ 78; Batu Malay a/l Thandy v Saulinardi & Anor [2015] 1 AMR 143; Hoo Lin Coln v Wong Weng Woh & Anor [2007] 1 MLJ 56. 20 [35] On a careful reading of Sinnaiyah’s case, we find nothing to predispose us to the view that Sinnaiyah had altered the standard of proof laid down by the Federal Court in Keith Sellar. In our view, Sinnaiyah’s case must be read in the context of the particular facts of the case. The case concerned a dispute in relation to the payment of management fees and financial advances to a project manager in respect of a project to upgrade a Federal Road. The claim was disputed on the grounds that the project manager had fraudulently paid itself instead of one of its sub-contractors. [36] The Federal Court in Sinnaiyah’s case had stated that the real issue for determination is on the standard of proof required in civil claims when fraud is alleged. The Federal Court held that the standard of proof for fraud in a civil claim is on a balance of probabilities, which is a principle that is applied in other common law jurisdictions. [37] It is our considered view that Sinnaiyah’s case can easily be distinguished from Keith Sellar which had laid down the standard of proof to establish a complaint against an Advocate and Solicitor in disciplinary proceedings under the LPA. We are therefore bound by the Federal Court’s pronouncement in Keith Sellar that the standard of proof in disciplinary proceedings under the LPA is beyond reasonable doubt. [38] Thus, we respectfully disagree with the position taken by the Court in Ramasamy that the standard of proof applicable in disciplinary proceedings is currently on a balance of probabilities in the light of Sinnaiyah’s case. The facts of Ramasamy was that a complaint had 21 been made with the Advocates and Solicitors Disciplinary Board that Ramasamy had failed to return to a client an overpayment of RM51,500.00 pursuant to the purchase of a house in Nilai, Negeri Sembilan. It was not in the nature of a civil claim where fraud was alleged, as in Sinnaiyah’s case. Thus, we are of the view that the principle in Sinnaiyah’s case was not applicable to the facts of Ramasamy. The correct standard of proof is that laid down by the Federal Court in Keith Sellar, i.e. beyond reasonable doubt, which remains good law even post Sinnaiyah. Has the Appellant Raised A Reasonable Doubt? [39] One of the issues raised by the Appellant is that the learned High Court Judge had failed to appreciate that on the oral and documentary evidence adduced before the DC/DB, the Respondent had not discharged the standard of proof required to prove the Complaint. The learned High Court Judge had also failed to appreciate that the Appellant’s defence had raised a reasonable doubt. [40]We note that there was no specific reference to the standard of proof applied by the DC/DB in arriving at the decision that the Respondent had discharged its burden of proof and established the charge. In Keith Sellar where similar facts arose in that the DC had also omitted to mention the standard of proof, the Federal Court had observed that, “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”. 22 [41]In order to determine whether the Respondent had discharged his burden of proving the complaint beyond a reasonable doubt it is necessary to consider the oral and documentary evidence before the DC/DB. It is not disputed that there was no written retainer or warrant to authorise the Appellant to act on behalf of the Respondent, thus the conduct of parties as well as the contemporaneous documents are material to prove or disprove the complaint of the Respondent that the Appellant had acted without the knowledge of the Respondent or contrary to the Respondent’s instructions in first, filing the MBB suit and second, withdrawing the same. [42] The undisputed facts as adduced in proceedings before the DC/DB are as follows:

1. The Respondent had first met the Appellant at his firm in March 2010 to consult the Appellant on a possible legal action against MBB.

2. By a letter dated 22.3.2011 addressed to the Respondent, the Appellant had requested the payment of RM1,000.00 as “initial disbursements to proceed further”.

3. Subsequently, by a letter dated 2.7.2010, the Appellant informed the Respondent that since the Respondent has not paid the initial disbursements, the Appellant will not proceed with the MBB suit and the Respondent’s file was closed. 23

4. The Respondent, by a letter dated 15.03.2011 addressed to the Appellant had stated the following: “… I have waited since April 2010 for you to take an action and for what reason I yet to get my respond from you so I would like to collect my file as it has been too long and I must take the necessary steps to resolve my damages as soon as possible so kindly keep my file ready for me to collect on 16 March 2011. Just to inform you Mr. Bala will come to collect my file on my behalf.”

5. The MBB suit was filed by the Appellant on behalf of the Respondent on 4.4.2011. The Appellant subsequently withdrew the MBB suit.

6. By order of the Sessions Court dated 10.08.2011, the MBB suit was struck out with no liberty to file afresh and costs of RM2,000.00 was awarded to MBB. Was There A ‘Fresh Instruction’? [43] The pivotal issue that was raised is whether after the Respondent’s letter dated 15.03.2011, abovementioned, was there any evidence of a ‘fresh instruction’ by the Respondent to the Appellant to proceed with the MBB suit? The Respondent asserts there was no such fresh instruction. The Appellant has adduced the following evidence in support of his contention that the Appellant had acted with the knowledge and instruction of the Respondent. We will now refer to the conduct of the parties and the contemporaneous documents post 15.3.2011, culminating in the order of the Sessions Court to strike out the MBB suit with no liberty to file afresh 24 and costs of RM2,000.00 dated 10.08.2011. This covers the period between 15.3.2011 to 10.08.2011, which spans just under five months. [44]Sometime around end of March 2011, the Respondent had called the Appellant and persuaded and instructed him to proceed with the MBB suit and had agreed to pay a lesser amount of disbursements (RM1,000.00). Thus, by a letter dated 22.03.2011 addressed to the Respondent (at p. 286, Jil. 2B) the Appellant had responded as follows: “Re: LEGAL ACTION AGAINST MALAYAN BANKING BHD

1. We refer to the above matter.

2. We also refer to the telephone conversation between yourself and our Mr. Raj on even date. As agreed, please let us have the sum of RM1,000.00 as initial disbursements to proceed further.” [45] However, the Respondent failed to pay the disbursement of RM1,000.00 to the Appellant. The Appellant then contacted Mr. Devaraj who assured the Appellant that the Respondent would pay the Appellant and that in the event the Respondent failed to do so, Mr. Devaraj would pay the Appellant on the Respondent’s behalf. 25 [46] Mr. Devaraj gave evidence before the DC that corroborated the Appellant’s defence. Mr Devaraj testified that he had introduced the Respondent to the Appellant and that he had given an undertaking to the Appellant that in the event the Respondent did not pay the Appellant, Mr Devaraj would pay on her behalf. The Respondent did not challenge the role played by Mr. Devaraj and had in her letter to the Appellant dated 15.03.2011 specifically informed the Appellant that Mr. Bala (that is, Mr Devaraj) would collect her files from the Appellant on her behalf. [47]The Appellant filed the MBB suit on or about 04.04.2011 and faxed a copy of the summons to the Respondent. Calls were made to the Respondent to confirm that she had received the same. The Appellant furnished evidence of the fax transmission (at p. 295 Jil. 2B RR) and the phone bill of the calls made to the Respondent (at p. 302-304 Jil. 2B RR). [48] By a letter dated 06.04.2011, the Appellant wrote to the Respondent to inform her that the MBB suit was fixed for mention on 12.05.2011 at 2.00 pm and requested for the sum of RM1,000.00 as initial disbursement. Another letter was addressed to the Respondent dated 24.06.2011 in which the Respondent was informed that the matter was fixed for mention on 29.07.2011 and a reminder that the Appellant had yet to settle the “agreed initial disbursement of RM1,000.00. The letter was also faxed to the Respondent. [49] The Appellant was unable to contact the Respondent in spite of the abovementioned attempts. By a letter dated 03.08.2011, the Appellant had written to the Respondent and stated as follows: 26 “2. Kindly be informed that you have not contacted us nor we are unable to contact you at your number given, 017-3986673. We are informed that you have resign and has gone to Johor Bahru.

3. Kindly take note that the matter is fixed for Hearing on 10.08.2011 and if you do not contact us due to time constrain, we have no other alternative but to withdraw the matter accordingly and therefore leave it to the court for determination. We shall not be hold responsible for your actions.” [50] The Appellant also pointed out that the original documents in respect of the MBB suit remained in the Appellant’s possession and were never collected by the Respondent. At the DC Hearing, the DC were shown the said documents. The DC had made the following finding (at para 4.2 of the DC Report at p. 261 Jil. 2B), which states as follows: “The Complainant did meet the Respondent at his firm on or about the 1st week of April 2011. She claims to have collected her “file “but it appears that she only has copies of documents and the original file is still in the Respondent’s (Appellant) possession”. During cross examination at the DC Hearing, the Respondent confirmed that the original documents were still with the Appellant.” [51] At the DC proceedings, during cross examination, the Respondent admitted that a copy of the summons was faxed to the number provided to the Appellant. The numbers belonged to the Respondent’s brother who received the faxes. Phone calls were also received from the Appellant’s office at the numbers given by the Respondent to the Appellant. 27 [52] In respect of the issue of whether there was a ‘fresh instruction’ from the Respondent to the Appellant to proceed with the MBB suit, the DC made the following finding at para 4.10 of the Report of DC as follows: “In absence of clear evidence, we are not able to confirm the Respondent’s allegation that he considered receiving ‘fresh instructions’ from the Complainant to file her claim in court after her visit to his office in April 2011. The Complainant’s letter dated 15.3.2011 (exhibit P2) confirms her intention not to pursue the matter with the Respondent.” [53]We have carefully considered the oral and documentary evidence before the DC/DB and we are of the view that there are merits in this appeal which warrant appellate intervention. The learned High Court Judge had failed to appreciate that on the oral and contemporaneous evidence adduced before the DC/DB Hearing, the defence of the Appellant had raised a reasonable doubt that the Respondent had proved her Complaint. [54] While the Respondent’s letter of 15.3.2011 informing the Appellant that she did not wish to pursue with the suit is clear, the conduct of the Respondent and the contemporaneous documents after the letter of 15.3.2011 till the order of the Sessions Court which struck out the suit on 10.8.2011 had cast to our minds, a reasonable doubt that the Complaint of the Respondent had been proven beyond reasonable doubt. [55] The Respondent had admitted receipt of the fax of the summons of the MBB suit, but there was no evidence that the Respondent had 28 informed the Appellant of her earlier decision in her letter of 15.3.2011 that she was not pursuing the MBB suit. There were also other letters notifying the progress of the MBB suit addressed to the Respondent, to which there was no similar response. It would have been a simple matter for the Respondent to respond to the faxes and letters that she was not pursuing the suit, if such were the case. Neither did the Respondent call the Appellant to inform him of the same. In addition, the original documents of the Appellant were still in the Appellant’s possession, although the Respondent had claimed in her letter of 15.3.2011 that she would collect them from the Appellant’s office. While no payment had been made by the Respondent to the Appellant, Mr. Devaraj who had introduced the Respondent to the Appellant, had given evidence that he had undertaken to pay the Appellant on the Respondent’s failure to do so. This evidence before the DC was not refuted by the Respondent. [56] Premised on the matters aforesaid, we are of the considered opinion that the evidence adduced by the Complainant before the DC was insufficient to establish a case against the Appellant beyond reasonable doubt. We are of the view that the conduct of the Respondent after her letter of 15.3.2011 and the contemporaneous documents had successfully cast reasonable doubt on the Respondent’s Complaint that the Respondent had acted on the MBB suit without her instruction or knowledge. We therefore allowed the appeal with no order as to costs. We set aside the order of the learned High Court Judge and the order of 29 the DB. The fine, if paid, is ordered to be refunded to the Appellant. Deposit is refunded. Dated: 23 September 2019. (DATUK DR. BADARIAH SAHAMID) COURT OF APPEAL PUTRAJAYA For the Appellant: Mr. Keshvinjeet Singh (together with Mr. P. Selvaraj) Solicitors for the Appellant: Tetuan Raj & Co. Peguambela & Peguamcara No. 1-6-23, 6th Floor (Blok C) Diamond Square Business Centre Jalan 1/50 Off Jalan Gombak 53000 Kuala Lumpur For the 1st Respondent: Miss Penaarasy a/p Sivalingam (Self Represent) A-22-3, Menara City One Condo Jalan Munshi Abdullah 50100 Kuala Lumpur For the 2nd Respondent: Mr. Jamie Wong (together with Shugan Raman) Solicitors for the 2nd Respondent: Tetuan Jamie Wong Peguambela & Peguamcara D2-3A-8, Solaris Dutamas No. 1, Jalan Dutamas 1 Hartamas Height 50480 Kuala Lumpur