Reventharen A/L Suppiah v Majlis Peguam Malaysia (W-02(A)-1875-10/2021)

This is an appeal on reinstatement of an advocate and solicitor who had been struck off from the Roll of Advocates and Solicitors (“Roll”).

The Appellant is the advocate and solicitor concerned.

The Respondent is the Bar Council Malaysia constituted under the Legal Profession Act 1976 (“LPA”).

We heard the appeal on 18th September 2023 and thereafter unanimously ordered the Appellant be reinstated back to the Roll. The High Court order is set aside with no order as to costs.

We now provide below the grounds of our decision.

The Appellant was admitted as an advocate and solicitor of the High Court of Malaya on 9th February 1995 and practised as a sole proprietor under the firm name Messrs. Reventharen & Associates since 23rd February 1995. S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

By a sale and purchase agreement dated 10th July 2012 (“Agreement”), a V. Santhadevi a/p S. Velusamy (“Complainant”) who is the Appellant’s client purchased a property from a Syed Abdullah bin Syed Noh (“Vendor”).

On 8th October 2013, the Complainant lodged a complaint against the Appellant to the Disciplinary Board constituted under the LPA (“DB”) for his failure to transfer the balance sum of RM247,500.00 due under the Agreement to the Vendor’s solicitors (“Complaint”).

Consequently, the DB on 24th December 2013 forwarded a copy of the Complaint to the Appellant and requested for an explanation in accordance with s. 100(1)(b) LPA. The aforesaid DB’s letter is reproduced below: [This space is intentionally left blank] S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

There was no explanation given by the appellant to DB on the complaint lodged against him. As a result, the DB proceeded to consider the complaint lodged against the Appellant during the meeting on 25th April 2014 and prima facie found that there was merit in the Complaint. The DB further proposed to hear the Complaint on 22nd August 2014 without the need for further investigation by a Disciplinary Committee. As such, a letter dated 9th February 2014 was issued to the Appellant and the aforesaid letter is reproduced below: [This space is intentionally left blank] S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

The Appellant on 19th August 2014 wrote to the DB admitting to his wrongdoing and informing that he had already paid the sum of RM247,500.00 to the Vendor’s solicitor and completed the transfer of the Property to the Complainant. The Appellant’s letter is reproduced below: [This space is intentionally left blank] S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

As the result, the DB summarily determined and informed the Appellant on 28th August 2014 of their decision to strike the Appellant off the Roll with effect from 12th September 2014.

On 15th August 2017, the Appellant informed the Respondent and DB that he intends to apply to be reinstated as an advocate and solicitor and enquired whether that was any claim made against him from the bar Council compensation fund.

Since there was no claim made under the Bar Council compensation fund against him, the Appellant on 28th November 2017 applied to the High Court to restore and reinstate his name to the Roll (“First Reinstatement Application”).

However, the High Court on 12th April 2018 dismissed the First Reinstatement Application.

The Appellant on 7th May 2018 appealed to the Court of Appeal against the aforesaid decision of the High Court but he subsequently withdrew the appeal.

On 11th November 2019, the Appellant again applied to the High Court to restore and reinstate his name to the Roll (“Second Reinstatement Application”). S/N Y9qQLOogZkeCTjAx9khog **Note : Serial number will be used to verify the originality of this document via eFILING portal 11

The Appellant principally contended as follows as summarised by the learned High Court judge:

he has all the while admitted to his misconduct and did not appeal against the DB's decision;

(ii) he took all the necessary measures to ensure the complainant's matter was settled and no loss was suffered by the complainant;

(iii) after being unemployed and unable to secure any gainful employment due to his age and having to rely on savings and support from his family members, from August 2016 to July 2017, he assisted his friend in establishing and running a college named Kolej IEWM and was appointed as the Chief Operating Officer which was a temporary position where he left the college after it became fully operational;

(iv) he had obtained and provided testimonials and certificates of good conduct from senior members of the Bar and public persons known to him to confirm his past misconduct, regret and their support of his reinstatement to the Roll;

he is truly penitent and regretful of his misconduct;

(vi) he should be allowed to see out of his remaining years of his life as a person who had acknowledged his wrong doing and punished for it and be given a second chance for the remainder of his life. [19] However, the Respondent counter-contended that the Appellant’s application is not fair and reasonable pursuant to s. 107(1) LPA following Teoh Hooi Leng v. Bar Council [1991] 2 MLJ 190 (SC) wherein Hashim Yeop Sani (CJ (Malaya)) held as follows: “The word "fair" must necessarily mean that the decision must be fair firstly to the members of the public with whom the applicant will be renewing professional relations once readmitted because the law seeks to protect not only the profession but also the public from errant lawyers. … The word "fair" also requires that the decision must be fair to the Court itself because when readmitted the appellant will be an officer of the Court. Last but not least the decision must be fair to the appellant… … The duty of the Court in a case like this is to exercise its discretion having regard to the materials available before it and the particular facts of the case. The question should be seen as an exercise of discretion according to particular facts of the case. It should never be regarded as a principle laid down as a rule of law that an advocate and solicitor who has been struck off the Roll for dishonesty can never be reinstated. Section 107 of the Act requires that the decision should also be a reasonable decision. A reasonable decision is a decision which is based on reasonable grounds. A reasonable decision must first of all be supported by cogent evidence and not one based on conjecture or speculation.” S/N Y9qQLOogZkeCTjAx9khog [20] The learned High Court judge, after due consideration, dismissed the Second Reinstatement Application and stated, inter alia, as follows in the grounds of decision reported in [2022] 9 CLJ 538 (“Decision’’): “[15] In the instant matter, in expressing that he is ashamed for the misconduct that he has committed and that he has repented, the petitioner in his supporting affidavit avers that "despite minor issues of misconduct I have always been proper and tried hard to maintain and adhere to the high standard of integrity and trustworthiness expected of a lawyer." This court finds that at the very core of the matter, ie, the petitioner's breach of his client's trust where trust is the principle of which the legal profession is founded upon, such averment does not reflect remorse on the part of the petitioner. By making such averment, it is of the considered view that the petitioner is attempting to justify and trivialise a serious misconduct. The undertaking given by the petitioner to the court cannot be equated with the act of penitence or repentance when compared with such averment. It cannot be gainsaid that the petitioner is clearly remorseful and his undertaking that he will not repeat the same mistake and will do his utmost best to preserve the integrity of the legal profession is therefore doubted. [16] The respondent has divulged and this court takes cognisance of the fact that apart from the striking off, there are six complaints lodged against the petitioner involving gross disregard of client's interest, unbefitting conduct and monetary dishonesty. These complaints are either kept in abeyance, reprimand, fine or withdrawn. According to the report by the respondent's Secretary, in the event of the petitioner's restoration to the Roll, one of the complaints (Complaint Reference DB14 9542) will re-activate. It is of the considered view that the pending disciplinary complaint against the petitioner is relevant. There is therefore a pre-existing and/or fresh complaint after the striking off that has been held in abeyance against the petitioner. The complaints demonstrate the unbefitting conduct of the petitioner as an advocate and solicitor. It remains a question and grave concern whether the petitioner would not repeat the misconduct. [17] Although it is true that the petitioner's disbarment period has been more than five years, there is nothing in law to state that the length of time that has lapsed is the sole criteria in considering restoration to the Roll… S/N Y9qQLOogZkeCTjAx9khog [18] In the instant matter, the petitioner had breached the fundamental foundation of relationship between a lawyer and his client which is founded upon trust. Relating to the complaint herein, it took the petitioner four months and eight days and some 17 months later from the date the balance purchase price was first paid into the petitioner's clients' account before he made restitution to the complainant. Clearly, the restitution was an afterthought. The petitioner's misconduct was grave and having to scrutinise strictly such misconduct, this court cannot consider to restore the petitioner to the Roll solely on the amount of years that had lapsed or only on the weight of testimonials provided. The focus has to be on whether the petitioner has demonstrated remorse, repentance and rehabilitation. … [24] In finding that the petitioner has failed to show that he is remorseful, penitent and rehabilitated, the life expectancy of the petitioner is irrelevant where administration of justice, public interest and the interest of the legal profession are concerned. It must be borne in mind that reinstatement is an exception rather than a rule. The petitioner has been disbarred for more than eight years now. Due to the gravity of the offence committed by the petitioner and his stand that what he had committed was 'minor issue of misconduct', it follows that he is not fully rehabilitated and will continue to pose a threat to society and will cast a pall of doubt over the integrity and reputation of the legal profession (see Kalpanath Singh s/o Ram Raj Singh v. Law Society of Singapore [2009] 4 SLR 1018). The fact that the petitioner is 66 years old is not a paramount consideration but his worthiness and reliability for the future are supreme more so in the profession where the attribute of trustworthiness must be upheld in all circumstances. [25] In regard to the right to livelihood/restraint of trade, it must be emphasised of the well-entrenched principle that the ability to practice as an advocate and solicitor is not a right but a privilege afforded by the legislation specifically the LPA… … [27] Premised on the above, this court is of the view that the petitioner has failed to satisfy that he is a fit and proper person to be restored to the Roll. The misconduct of this nature is too prevalent and a strong message should be sent out to discourage potential offenders…” S/N Y9qQLOogZkeCTjAx9khog [21] The Appellant is dissatisfied with the Decision and had on 22nd September 2021 appealed to the Court of Appeal. FINDINGS OF THIS COURT [22] Before us, the Appellant focussed on four points wherein the learned High Court judge erred in fact and law in coming to the decision to dismiss the Second Reinstatement Application, viz:

failure to appreciate that the Appellant did not in his supporting affidavit aver that his misconduct was a minor issue;

(ii) failure to consider the Appellant’s penitence and rehabilitation throughout six years after his name was struck off from the Roll;

(iii) failure to appreciate that the previous disciplinary complaints made against the Appellant should have no bearing or little weight in the reinstatement proceedings; and

(iv) failure to appreciate that the certificates of good character and testimonials produced by the Appellant showed the Appellant’s penitence after his name was struck out. [23] In opposition, the Respondent counter-contended that the learned High Court judge rightly dismissed the Second Reinstatement Application in accordance with s. 107 LPA and trite case law. S/N Y9qQLOogZkeCTjAx9khog [24] The primary statutory provision is s. 107(1) LPA which reads:

High Court may restore an advocate and solicitor

The High Court may, if it thinks fair and reasonable, at any time order the Registrar to restore to the Roll the name of an advocate and solicitor which has been removed from, or struck off, the Roll. [25] In Chan Chow Wang v. Malaysian Bar [1986] 2 MLJ 159, Harun J (later SCJ) held as follows in interpreting s. 107(1) LPA: “In re-admitting applicants to the Bar, the Court has a duty to litigants and to the legal profession to ensure that such persons are of the highest integrity and honour. The Court must also be satisfied, in the public interest, that the Applicant is not likely to repeat these offences if he is re-admitted. The onus is therefore on the Applicant to show that:

there has been such a change in his character as to make him a fit and proper person to resume practice at the Bar;

he is truly penitent; and

he has made restitution.” [26] Since this reinstatement application involves the exercise of discretion as provided in s. 107(1) LPA, our duty here as an appellate court has been well explained by Gopal Sri Ram JCA (later FCJ) in Paya Terubong Estates Sdn Bhd v. Pusaka Warisan Sdn Bhd [1998] 2 CLJ 909 (CA) as follows: “Although the decision whether a caveat ought to remain on the register is a matter within the discretion of the judge, it is like all other discretionary matters one that is required to be exercised judicially. One can, of course, quite well appreciate an appellate court's reluctance to disturb the primary exercise of discretion. This is because a court of appeal in a matter such as the present does not possess an original discretion, its initial function being one of review S/N Y9qQLOogZkeCTjAx9khog only. However, where, as in the present instance, it is amply demonstrated that the judge in whom the primary discretion is vested has failed to take into account relevant considerations it is the duty of this court to say so and to intervene and set matters right by an exercise of its own discretion.” [27] We started off reminding ourselves that every reinstatement case is unique and must be decided based on its particular and peculiar facts without preconception. [28] Thus, in respect of the first point raised by the Appellant, we find on review that the learned High Court judge has in paragraph (15) of the grounds of Decision seriously erred in mistakenly finding that the Appellant stated in his affidavit in support of the Second Reinstatement Application that “his wrongdoings are minor issues of misconduct”; hence did not reflect remorse on the part of the Appellant. This phrase was in fact stated only in the Appellant’s earlier letter dated 19th August 2014 addressed to the DB. In the Appellant’s affidavit in support, he actually stated as follows: “12. Saya sedar bahawa apa yang saya telah lakukan adalah salah. Saya sesungguhnya menyesal dan meminta maaf keatas semua kesalahan saya. Saya menyesal kesukaran yang saya menyebabkan kepada pengadu sejauh mana beliau telah hilang kepercayaan kepada saya sambil melaporkan perkara ini kepada Majlis Peguam dan Majlis Peguam mengambil tindakan terhadap saya. Saya menyesal kesilapan saya yang telah menyebabkan banyak kebimbangan dan kesusahan kepada pengadu. Ini adalah salah laku saya sendiri dan tanggung jawab saya.” [29] Next as to the Appellant’s second point on his penitence and rehabilitation since he was struck off from the Roll, we see in paragraphs

and (18) of the grounds of Decision that the learned High Court judge has downplayed the consideration of length of period of disbarment by S/N Y9qQLOogZkeCTjAx9khog merely stating that the length of time of 5 years is not the sole criteria. We however noted that the Appellant has now been disbarred for some 8 years and we objectively find that this length of time of disbarment is adequate in light of the misconduct committed considering that the Appellant wholly paid the sum of RM247,500.00 to the Vendor’s solicitor and completed the transfer of the Property to the Complainant fairly soon after the complaint was lodged. That notwithstanding, the Appellant has also unreservedly tendered his penitence in his affidavit in support of the Second Reinstatement Application. [30] We are mindful of the Respondent’s contention that there is insufficient lapse of time between the dismissal of the Appellant’s First Reinstatement Application and the Second Reinstatement Application relying on the Singapore cases of Re Ram Kishan [1992] 1 SLR (R) 260 and Re Nirmal Singh s/o Fauja Singh [2001] 2 SLR (R) 494 but its our view that the LPA did not prescribe a mandatory requisite lapse of time as well as the facts of the Singapore cases are dissimilar. The provision in s. 94(2)(b) LPA relied by the Respondent is inapplicable to a reinstatement application after the advocate and solicitor has been struck off the roll pursuant to s. 94(2)(a) LPA. [31] Moreover, we find there were no criminal charges preferred against the Appellant; hence there was neither conviction nor sentence meted on the Appellant. This is unlike in the other cases where the disbarred advocate and solicitor also served jail sentence where that person absconded with client’s money and later caught and charged for criminal breach of trust as seen in the Singapore case Chiong Chin May Selena v. Attorney General and another [2021] SGHC 167 relied by the Respondent. S/N Y9qQLOogZkeCTjAx9khog [32] We also took into consideration that the Appellant is presently unemployed. He is 68 years old and may not have many more years left to practice. This has seemingly not been appreciated by the learned High Court judge in paragraph (24) of the grounds of Decision. [33] Moving on to the Appellant’s third point, we find that the learned High Court judge had in paragraphs (16) And (24) of the grounds of Decision given unduly excessive weight on the previous complaints made against the Appellant which have been suspended and kept in abeyance because of the Appellant having already been struck off from the Roll. We appreciated the learned High Court Judge was concerned that the Appellant would repeat his misconduct. Before us, the Appellant has unequivocally given his undertaking to this Court that should he be restored and reinstated to the Rolls, he undertakes not to be a signatory of any client’s account of the legal firm in which he will be practising. It is, in other words, plain to us that the Appellant cannot be a sole-proprietor but must work as a legal associate/assistant or otherwise as a partner without authority or power to sign any client’s account or office account of a legal firm. In the premises, we find the learned High Court judge’s concern as well as the Respondent’s public duty to maintain zero tolerance towards any risk of client’s money being wrongly used or unaccounted have been adequately addressed and safeguarded through his undertaking given to this Court. We heeded the Respondent’s caution that there must be no risk of repetition of the misconduct by the Appellant when he resumes law practice following Re Chin Swee Onn [1964] 30 MLJ 124. S/N Y9qQLOogZkeCTjAx9khog [34] We are also of the view that disciplinary charges based on complaints should not be preferred in instalments one after the other, especially to defer and then prefer another charge on a prior complaint after the reinstatement of the advocate and solicitor back to the Roll. We are aware of the Respondent’s contention that the Appellant suppressed in his Second Reinstatement Application the fact that the Complainant also made a complaint that she was “locked up” in the Appellant’s office in her pursuit to resolve the non-payment of the RM247,500.00 to the Vendor’s solicitors but we are of the view that this is interconnected with the principal complaint that resulted in him being struck off from the Roll. Thus, we find that the absence of disclosure of this fact is not fatal contrary to that in the Singapore case of Kalpanath Singh s/o Ram Raj Singh v. Law Society of Singapore [2009] 4 SLR 1018 relied by the Respondent. [35] Finally, with regard to the Appellant’s fourth point that the certificates of good character and testimonials tendered demonstrated his penitence, we find that the testimonials from the senior members of the Malaysian Bar are sufficient in the circumstances of the case where they have stated that they are convinced as to his penitence and commitment to uphold and maintain the high standards of the Malaysian Bar. We noted that there is no mandatory format for the certificate of good character/testimonial prescribed in the LPA or rules made thereunder for purposes of reinstatement; thus, the Appellant cannot be faulted in adducing them as so presented to the Court. We are also mindful of the findings of this Court in Majlis Peguam Malaysia v. Ahmad Rushdi Omar [2017] 9 CLJ 413 but we find the case facts and circumstances there that disclosed numerous serious misconducts are starkly different and distinguishable. S/N Y9qQLOogZkeCTjAx9khog CONCLUSION [36] For the foregoing reasons, we are of the considered view that this is a fit and proper case for appellate intervention to restore and reinstate of the Appellant back to the Roll. Put simply, we are satisfied that the Appellant has met the requirements of change of character, penitence and restitution set out in Chan Chow Wang (supra) and accordingly it is fair and reasonable to reinstate him in the circumstances of this case subject always to his undertaking and conditional upon him not to be a signatory of any client’s or office account of the legal firm in which he is practicing. [37] The appeal is therefore allowed as so ordered. Dated this 4th December, 2023 -Sgd-LIM CHONG FONG JUDGE OF THE COURT OF APPEAL S/N Y9qQLOogZkeCTjAx9khog LIST OF COUNSELS:

Counsels for Appellant

Ranjit Singh Prisilla Chong Solicitors for Appellant MESSRS. RANJIT SINGH & YEOH Advocates & Solicitors, D3-U5-12, Solaris Dutamas, No.1 Jalan Dutamas 50480 Kuala Lumpur.

Counsels for Respondent

Farez Jinnah Nadhirah Rahman Solicitors for Respondent MESSRS. FAREZ JINNAH Advocates & Solicitors, A-11-05, Plaza Taragon Kelana, No. 3, Jalan SS 6/6, 47301 Kelana Jaya, Selangor Darul Ehsan, STATUTE/LEGISLATION REFERRED TO: Section 107(1) Legal Profession Act 1976 CASES REFERRED TO: Teoh Hooi Leng v. Bar Council [1991] 2 MLJ 190; Chan Chow Wang v. Malaysian Bar [1986] 2 MLJ 159; S/N Y9qQLOogZkeCTjAx9khog Paya Terubong Estates Sdn Bhd v. Pusaka Warisan Sdn Bhd [1998] 2 CLJ 909; Re Ram Kishan [1992] 1 SLR (R) 260; Re Nirmal Singh s/o Fauja Singh [2001] 2 SLR (R) 494; Chiong Chin May Selena v. Attorney General and another [2021] SGHC 167; Kalpanath Singh s/o Ram Raj Singh v. Law Society of Singapore [2009] 4 SLR 1018; and Majlis Peguam Malaysia v. Ahmad Rushdi Omar [2017] 9 CLJ 413.