Shri @ Indran Ram A/l Ramasamy v MAJLIS PEGUAM MALAYSIA (WA-17D-4-02/2022)

The applicant was a former advocate and solicitor practising as a sole proprietor in a legal firm known as Messrs Azman Ahmad & Co (“the applicant’s Firm”). He was in possession of the Sijil Annual and Practising Certificate for 2008.

One Jeya Murugan a/l Manirajoo (“the Complainant”) appointed the applicant as a stakeholder for the purchase of a property. He paid the applicant’s Firm a sum of RM33,644 (“the deposit sum”) on 21.7.2007 vide a banker’s cheque payable to the applicant’s Firm’s Clients’ Account.

The complainant contacted the applicant’s office to cancel the sale and purchase transaction and to refund him the deposit sum. The applicant issued a cheque for the sum of RM33,644 dated 1.5.2008, made payable to the Complainant. Unfortunately, in issuing the cheque, the applicant failed to notice that it was issued under the applicant’s firm’s Office Account instead of the Clients’ Account.

Needless to say, the cheque was bounced.

Due to his illness, the applicant decided to cease practice. The applicant told his staff to resign and seek employment elsewhere. As his health deteriorated, the applicant went to the Pejabat Kesihatan Daerah Gombak for a check-up. He was diagnosed with hypertension with vertigo.

The applicant was certified as unfit to work for one year by Dr Gobi Ram Ramasamy from Pejabat Kesihatan Daerah Gombak.

After the diagnosis, the applicant returned to Port Dickson, Negeri Sembilan, to place himself under the care of his parents.

The basis of the complaint by the Complainant was that he had not received the said sum of RM33,644 from the applicant. However, the applicant was unaware of the complaint as he was residing in Port Dickson under the care of his parents though he maintained the Kuala Lumpur registered address.

Upon being made aware of the complaint, the applicant appointed Messrs The Chambers of Edwin (“Messrs Edwin”) to represent him.

Unfortunately, the applicant failed to attend the hearing before the Disciplinary Committee (“DC”) due to his health condition. The DC recommended that the applicant be suspended from practice for five years. There was a further order for restitution for the said sum of RM33,644 to be made to the Complainant (“the restitution order”).

When the matter came up before the Disciplinary Board (“DB”), the applicant was subsequently struck off by an Order 22.10.2010 (“DB Order”). According to the DB Order, the striking-off order was to take effect from 12.11.2010. The DB also affirmed the restitution order.

As his health improved, the applicant met up with the Complainant sometime in February 2013 and refunded him the said sum of RM33,644. This was over and above the sum of RM5,000 paid by the applicant to the complainant earlier in 2010. According to the applicant, he explained to the Complainant that he could not refund the money earlier due to his illness.

The Complainant accepted the refund and the applicant’s explanation.

In his letter addressed to the Bar Council, dated 20.2.2013, the Complainant asserted the complaint was made due to a misunderstanding of facts pertaining to his claim. He said he was unaware of the applicant’s illness at the material time. After having acknowledged receipt of the said sum, the Complainant said: I also withdraw all claims or complaints to the Bar Council, the Disciplinary Board that I had initiated before based on my misunderstanding of the facts and also my claim has been honoured.

In this Originating Summons (“OS”), the applicant applied to be restored to the Roll of Advocates and Solicitors of the High Court of Malaya under s 107 of the Legal Profession Act 1976 (“LPA”). S 107(1) states as follows: 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. The OS is supported by the affidavit of the applicant in Encl 2 (“AIS- 2”).

The Bar Council objects to this application.

In response to AIS-2, the Bar Council filed an affidavit in reply in Encl 6 (“AIR-6”) through Shahareen Begum binti Abdul Subhan, the then Honorary Secretary to the Bar Council. In compliance with s 107(3) of the LPA, the Bar Council has placed before the Court a report (“the Report”) on the statement of any facts which have occurred since the name of the advocate and solicitor was struck off the Roll and which in the opinion of the Bar Council relevant to be considered in connection with the application.

In the Report, which is in Eksh SB-1, the Bar Council listed eight other complaints made against the applicant, of which six were either fined or the complaints withdrawn. The applicant paid all the fines.

The remaining two complaints are DB/10/5634 and DB/11/6440, both on alleged dishonest and fraudulent conduct, which are now kept in abeyance.

The applicant had also made good of the monies paid out of the Bar Council Compensation Fund in 2011 to two other complainants totalling RM1,810.21.

On the complaint made by the Complainant, the Bar Council took note of the gravity of the offence that involved wrongful detention of the client’s monies and the issuance of the cheque that was dishonoured. According to the Report, the applicant should undergo rehabilitation for a longer period.

The applicant filed a further affidavit in Encl 7 (“AIS-7”) to respond to AIR-6.

As to complaint DB/10/5634, the complainant was one Sumathi a/p Silvarajoo (“Sumathi”). In a letter dated 17.4.2019, Ms Sumathi wrote to the DB and acknowledged that the applicant had refunded the legal fees of RM2,000. According to the letter, Ms Sumathi asserted that she was made to understand by her brother that the 7 applicant had a medical condition at the material time and that the sale and purchase agreement could not be completed due to the applicant’s illness.

The complainant in DB/11/6440, one Sukumaran a/l Rajoo, could not be traced, although the applicant had made the necessary search at the National Registration Department to locate him. In para 39 of AIS-7, the applicant affirmed as follows: Saya menyatakan bahawa saya telah pun menyelesaikan kesemua aduan terhadap saya melainkan Aduan No. 9 di mana saya telah membuat beberapa percubaan untuk mencari Pengadu berkenaan untuk tujuan menyelesaikan perkara ini tetapi sehingga kini beliau tidak dapat dikesan di alamat terakhir yang diketahui.

Before me, learned counsel for the Bar Council’s main concern is whether the applicant has successfully demonstrated that he is unlikely to repeat the offence if he is readmitted.

The concern is anchored on the belief that the applicant is in a state of denial. According to learned counsel, the applicant in his AIS-2 and AIS-7 blamed his employee for the issuance of the dishonoured cheque. This, learned counsel contended, has given rise to the question of whether the applicant appreciated that what he did was wrong in law.

Under such circumstances, learned counsel further submitted that the question lingers whether the applicant will repeat the same offence if this application is allowed.

I have gone through both the applicant’s affidavits. While it is true that he faulted his employee for giving him the wrong cheque from the wrong Bank account, he has no qualms in admitting liability. The applicant readily conceded that he was vicariously liable for the complaint. In para 44 of AIS-7, the applicant admitted that although it was a mistake committed by his former employee, he took full responsibility for the misconduct levelled against him in the complaint: Walau bagaimanapun, salah faham masalah perkeranian yang dilakukan oleh bekas pekerja saya yang mana saya menerima tanggungjawab ke atas salah laku saya tersebut dengan sepenuhnya dan masalah kesihatan saya telah dijelaskan kepada Pengadu dan beliau telah menerima penjelasan saya itu ...

It is clear from the affirmation that the applicant employed the word salah laku, which means misconduct. Since the applicant readily referred to the matter as misconduct and took full responsibility for the same, I cannot, with respect, agree with the suggestion of learned counsel for the Bar Council that the applicant was in a state of denial of his wrongdoing.

The applicant asserted that he was initially unaware of the decision of the DB to strike him off the Roll. But upon having cognisance of the DB Order in January 2010, the applicant appointed Messrs Edwin to represent him. Despite having appointed the said firm of solicitors, there is no evidence before the Court that the applicant had instructed the firm to file an extension of time to appeal against the DB Order dated 22.10.2010.

By not making any attempt to appeal against the DB Order under s 103E of the LPA, the applicant is deemed to have accepted the correctness of the same. I believe the law is trite that failure to appeal against a decision means that the aggrieved party accepts the correctness of the said decision; Syed Omar Syed Mohamed v. Perbadanan Nasional Bhd [2012] 9 CLJ 557 FC.

In Frankey Leong Pit Fui v Foong Da Realty Sdn Bhd [2021] 4 MLJ 418 CA, Nantha Balan JCA, in delivering the judgment of the Court of Appeal, remarked as follows: It has been adjudged to be a case where a bare trust exists in respect of the land. And the Court of Appeal has upheld the judgment of the High Court. In our view, rightly so. And by not going further to the Federal Court, Frankey is deemed to have accepted the correctness of the Court of Appeal’s decision and by extension, the High Court’s decision in Suit 92.

Since the applicant is deemed to have accepted the correctness of the DB Order and took full responsibility for his misconduct, it cannot be said that the applicant has failed to appreciate the grave nature of his misconduct as found by the DC and affirmed by the DB.

For the aforesaid reasons, the finding of facts of the DC as affirmed by the DB stay.

In Majlis Peguam Malaysia v Krishnasamy a/l Bhaktavatsalu [2020] 12 MLJ 438 CA, the Court of Appeal took into account the following factors:

There was a lapse of 15 years from the defining moment when the respondent was struck off the Roll.

The respondent had made restitution for his failure to pay the debt of RM16,000 to his client, which was the subject matter of the complaint against him for which he was struck off the Roll.

The respondent had not been subjected to other complaints or acts unbecoming since he was struck off the Roll.

The passage of time that had passed, though passive it may be, had to be taken into account as part of the punishment he had suffered and the price he had paid in the atonement for his misconduct and shortcomings.

During this period of abstinence from the practice, the respondent had stayed free from any infraction of the law and had generally earned his keep the decent way. [36] Applying the law to the facts of the case, there has been a lapse of almost 12 years since the applicant was struck off from the Roll. In the meantime, the applicant had made restitution as per the DB Order to the complainant, which was the subject matter of the complaint against him. [37] The applicant abided by the DB Order and accepted the correctness of the decision. Save for complaint DB/11/6440, the other remaining complaints against the applicant were resolved by him paying the fine imposed or settling the matter with the complainants. As to DB/11/6440, the applicant could not trace the complainant but asserted that he was prepared to resolve the matter. [38] In the period from his striking off the roll and after his health condition improved, the applicant has stayed away from legal practice as an advocate and solicitor. The applicant also furthered his studies for the Master’s degree in Law at the University of Malaya, specialising in subjects that include international trade law and marine insurance. [39] The applicant has worked as an Asset Portfolio Manager at Berkshire & Warwick Realty Sdn Bhd since 2014 until to-date. He is not an undischarged bankrupt and there are no known criminal proceedings against him. [40] In the meantime, the applicant also engaged in voluntary and social works, including the Society for the Deaf in Selangor and Federal Territory. The applicant was instrumental in the formation of Persatuan Dyslexia Selangor. [41] It is apparent that the applicant was serious about rehabilitating himself and improving his academic standing and qualification. The Supreme Court in Teoh Hooi Leong v Bar Council, Malaysia [1991] 2 MLJ 190 SC held that if there is evidence that the advocate and solicitor has rehabilitated himself generally and there are members of the profession who can vouch for this change, that may overcome the initial misconduct. The applicant’s application is supported by some senior members of the Bar who vouched for his good character, as seen in Eksh SR-9. The indication, according to the respective statutory declarations, is that the applicant has since repented for his misconduct. Is it fair for the applicant to be readmitted? [42] Lee Swee Seng JCA in Krishnasamy referred to Teoh Hooi Leong and held that while everyone should be allowed a second chance, the public needs to be protected against any relapse of trust to their detriment. His Lordship then went on to say: By ‘fair’ is meant not just fairness to the lawyer applying for restoration but also ‘fairness’ to the public, the profession and the court as a whole. Fairness means this decision must be fair to the members of the public with whom the applicant will be renewing professional relations once re-admitted because the law seems to protect not only the profession but also the public from errant lawyers. The applicant has shown this Court his interaction with the members of the public and social workers. [43] The decision must also be fair to the profession and his colleagues in the profession. Based on the statutory declarations in Eksh SR- 9, I can only conclude that the applicant is welcomed by his former colleagues at the Bar to be readmitted. The Bar Council's concern is only on whether the applicant understood what he did was wrong in law or whether the applicant is going to repeat the same offence, which I have addressed in the earlier part of this judgment. [44] Finally, the word ‘fair’ also requires that the decision must be fair to the Court itself because when re-admitted, the appellant will be an officer of the court. Taking into consideration and weighing all the relevant factors of the lapse of time since the striking off from the Roll and having satisfied myself that the applicant has shown fruits of repentance consistent with his rehabilitation and that due restitution has in all probabilities been made as in Krishnasamy, I am of the view that the applicant should be given a second chance. Findings [45] The applicant is 53 this year. I am giving this second chance, to borrow the words of Lee Swee Seng JCA, to redeem what he had lost, but I must caution that “he must be fully committed to finish well the remaining race left for him”. [46] For the reasons stated herein, this OS is allowed and I hereby order for the restoration of the applicant to the Roll of Advocates and Solicitors of the High Court of Malaya. [47] I however, make an order for the applicant to pay RM5,000 to the Bar Council as costs. Tarikh: 24 November 2022 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. Pihak-pihak: Bagi Pihak Pemohon : Manoharan Malayalam, Nur Syamimi Adriana Shaharim, Anis Salihah binti Abdul Malek Tetuan M Manoharan & Co. Bagi Pihak Responden :