Sithradevi A/P Nagalingam v Masdar Bin Darman (W-02(W)-560-04/2015)

SAMAUDIN BIN HAJI DARMAN …RESPONDENTS AND MAJLIS PEGUAM MALAYSIA …INTERVENER [In the High Court in Malaya at Kuala Lumpur, (Special and Appellate Powers Division) Originating Summons No. 17D-29-06/2014 In the matter of section 103E Legal Profession Act 1976 And In the matter of Rules of Court 2012 Between Sithradevi A/P Nagalingam … Appellant

And

Masdar bin Darman Samaudin bin Haji Darman … Respondents And Majlis Peguam Malaysia …Intervener] 2 CORAM : DAVID WONG DAK WAH, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA HASNAH BINTI MOHAMMED HASHIM, JCA GROUNDS OF JUDGMENT

The Appellant filed an appeal via Originating Summons dated 25 June 2014 (Enclosure 1) at the Kuala Lumpur High Court pursuant to section 103E of the Legal Profession Act 1976 (“LPA”), in the main, for the Order of the Disciplinary Board (“DB”) dated 17.5.2014 be set aside and for the Appellant’s name to be re-registered in the Roll of advocates and solicitors of the High Court (“Roll”). In this case, the DB agreed with the recommendations of the Disciplinary Committee (“DC”) that the Appellant be struck off the Roll.

The learned High Court Judge dismissed the appeal with costs of RM4,000.00 to be paid by the Appellant to the Respondents.

Not happy with the said decision of the learned High Court Judge, the Appellant then appealed against that decision. B.

The facts of the case can be garnered from the learned High 3 Court Judge’s Grounds of Judgment which are as follows:

4.1 the 1st Respondent, who was under the impression that the Appellant was the purchaser, had unknowingly entered into a Sale and Purchase Agreement dated 22.11.2007 to sell a piece of land identified as No. Hakmilik GM2251, Lot No. 17840, Mukim Kapar, Batu 7, Jalan Sungai Binjai, District of Klang, Selangor (“the Property”) situated at Mukim Klang, Selangor to one Jayasimman A/L Jayasingham (“the 1st purchaser”) for the price of RM400,000.00 (“SPA (1)”);

4.2 based on the Terms and Conditions of SPA (1) the Appellant acted as the 1st Respondent’s solicitor;

4.3

4.4 these cheques were Cheque no. 611554 dated 5.5.2008 for the sum of RM20,000.00, Cheque No. 611555 dated 30.5.2008 for the sum of RM20,000.00 and Cheque No. 611556 dated 17.6.2008 for the sum of RM360,000.00. However, the Appellant had stopped the payment of these cheques; 4

4.5 despite repeated demands, the 2nd Respondent, on behalf of the 1st Respondent, had only received the sum of RM100,500.00, leaving a balance sum of RM295,000.00 to be settled;

4.6 on 5.6.2008 and pursuant to a Sale and Purchase Agreement dated 19.2.2008 (SPA (2)), the Property was sold to one Mugan A/L Murugiah (“2nd purchaser”). The 1st Respondent denied having entered into this SPA (2) with Mugan A/L Murugiah/2nd purchaser;

4.7 the 1st Respondent had executed the SPA to sell the Property and the transaction with respect to the sale was handled by the Appellant as the 1st Respondent’s solicitor. The Respondents did not receive the full sum under SPA (1) and the 1st Respondent had lost the Property when it was transferred to 2nd purchaser;

4.8 the 1st Respondent then lodged his complaint with the Bar Council, Malaysia. When requested by the DC to explain the facts surrounding the SPA (1), the Appellant stated the following:

4.8.1 the 1st purchaser, one Jayasimman A/L Jayasingham was unable to secure the loan to finance the purchase of the Property so the SPA (1) was abandoned; 5

4.8.2 at the request of the 1st purchaser, the Appellant then prepared SPA (2) at the price of RM150, 000.00 to sell the Property to one, Mugan A/L Murugiah;

4.8.3 the 1st purchaser had since disappeared and could not be located;

4.8.4 the Appellant had prepared SPA (2) at the request of the 1st Respondent to sell the Property to a new purchaser, one Mugan A/L Murugiah/the 2nd purchaser for the sum of RM150,000.00;

4.8.5 after being harassed by the 2nd Respondent, the Appellant had requested Messrs S. Vinesh & Associates to issue a letter of undertaking dated 16.1.2009 to the 1st Respondent for the said Messrs S. Vinesh & Associates to undertake to release the sum of RM271,000.00 to the 1st Respondent upon the loan having been disbursed by Public Islamic Bank Berhad to one Ushadevi A/P P. Nagalingam of Messrs S. Vinesh & Associates;

4.8.6 the hearing before the DC was fixed on 28.5.2012 and subsequently adjourned to 19.7.2012 and 25.7.2012 respectively at the Appellant’s request;

4.8.7 despite having been notified of the next hearing date, the Appellant failed to be present and be heard at the proceedings;

4.8.8 in the view of the Appellant’s absence, and despite the Appellant being notified of the hearing date, the DC proceeded to hear the 6 complaint against the Appellant and recommended that the Appellant be struck off the Roll;

4.8.9 the DB agreed with the recommendations of the DC and on 17.5.2014 ordered that the Appellant be struck off the Roll. C.

The Appellant raised three (3) grounds of appeal against the decision of the DB in the Kuala Lumpur High Court. First, the Appellant was not informed of the hearing on 25.7.2019. Secondly, the Appellant was not given ample opportunity to provide her version at the inquiry. Thirdly, the DB was reckless and negligent in not informing the Appellant of its intention to impose the penalty under section 103D of the LPA.

The learned High Court Judge then held as follows in regard to the issues posed by the Appellant; “9.10 Upon my perusal of Rule 22 of the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994, I am satisfied that DC had adopted the correct procedure in handling the complaint against the Appellant. Rule 22 of the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994 provides: “Where on the date fixed for the hearing and investigation of the complaint or the advocate and solicitor concerned or both fails to 7 attend before the Disciplinary Committee, the Disciplinary Committee may, upon being satisfied that the notice of the hearing has been posted to the person or persons concerned, proceed to hear and investigate the complaint in the absence of such person or persons without further notice to such person or persons and make its determination and recommendations to the Disciplinary Board.” (emphasis added).

As for the argument that the Appellant was not given sufficient opportunity to provide her version at the inquiry, this is what the learned High Court Judge had to say – “9.12 With regard to the Appellants’s contention that she was not afforded a reasonable opportunity of being heard under Section 103D of the Legal Profession Act 1976, the Appellant had misunderstood the said provision of the law. A perusal of Section 103D would show that in the event the DB decided to impose a greater or lesser penalty than the one recommended by the DC or if the DB does not agree with the finding and the recommendation of the DC then in such circumstances, the advocate and solicitor whose conduct is being questioned must be afforded a reasonable opportunity to be heard.”

The learned High Court Judge then went on to consider the relevant provisions of section 103D, which provides as follows :

In view of the above provisions of the LPA, and the various case authorities pertaining to the Intervener’s and the DC’s and DB’s roles under the LPA, the learned High Court Judge held that the DB merely affirmed the recommendation of the DC and in that circumstance it is not a requirement under the LPA vis subsections 103D (1), (2), (3) and (4) to provide a reasonable opportunity to be heard to the advocate and solicitor.

The learned High Court Judge, in deciding in favour of the Respondents, then came to the following conclusions : 9 “9.18 In view of the above high authorities, I am of the view that it is entirely appropriate that an individual whose conduct is to be judged should be assessed by a group of his and her peers who are themselves subject to the rules and standard that are being enforced. This court therefore ought not to disturb the findings of the DC, which were affirmed by the DB.” D.

It would appear that the sole issue before us was whether the hearing which was conducted before the DC without the Appellant being present amounted to a serious breach of natural justice as she was not afforded a reasonable opportunity of being heard?

It was argued by the Appellant that the burden to prove a misconduct with elements of ‘deceit, fraud and dishonesty’ must be beyond reasonable doubt. However, without the presence of the Appellant at the hearing, the burden was not discharged. The Appellant’s right to be heard before the DB and her right to give full explanation was also deprived under section 103D of the LPA. There was also no clear proof that the Appellant had wrongly refused to release the balance of the purchase price to the 1st Respondent. 10

In order to follow the Appellant’s argument we reproduce the salient parts of the DC’s findings as contained in its Report at pages 183 to 184, Appeal Record, as follows: “FINDINGS OF DISCIPLINARY COMMITTEE

(a) There were two existing sale and purchase agreements for the same said Property;

(b) The 1st Complainant in his evidence denied the execution of the 2nd SPA and had no knowledge of the same;

(c) The purchase price of the 1st SPA was RM400,000.00 while the purchase price for the 2nd SPA was RM150,000.00.

(d) The 2nd SPA was dated 19/02/2008 with the purchase price of RM150,000.00, however the letter by the Respondent to the Complainant dated 28/4/2008 states that Respondent undertakes 11 to clear the Three Cheques which amount to RM400,000.00 in total. (see page 17 of the Record of Complaint). This clearly shows that the purchase price is RM400,000 in accordance with the 1st SPA. Further, the Respondent did not explain the existence of the 2nd SPA and the execution of it by the Vendor in her reply.

(e) The Memorandum of Transfer for the said Property to the Purchaser pursuant to the 2nd SPA was presented for the registration of the transfer on 5/6/2008 and hence the sale herein shall be deem completed. However, till to date the balance purchase price of RM295,000.00 has not been paid to the 1st Complainant.”

The Appellant explained that the 1st Respondent executed the SPA

The learned High Court Judge held that there were no valid grounds to disturb the findings of the DC. We were very mindful of the general rule of non-interference by the appellate court of the trial judge’s finding of facts “unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence” – see Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 C.A. at page 116,120.

With regard to whether the Court should interfere with the decision of the DC, we agreed with the learned Judge’s finding in paragraph 9.17 of her Grounds of Judgment as follows: ‘9.17 Since the law has entrusted the duty to safeguard and oversee the professional conduct of the profession to the DB can this Court interfere with the punishment meted out by the DB. It had been illustrated in the case laws which are often quoted in Court that it is a well entrenched principle of law that a Court should only interfere with the exercise of discretion of the DB in rare and exceptional circumstances. This principle had been reiterated in quite a recent case of the Court of Appeal vide Civil Appeal No. K02-2354-10/2012 (Bar Malaysia v. 1) Mohd Fadli Bin Shuib 2) Md Zaini bin Md Noor). The Court can disturb the findings of 13 the DB if it could be shown that the DB had erred in principle, or if the DB has overlooked, misconceived or disregarded some material matter of fact, or to have failed to act judicially. Only in the rarest of cases should the Court interfere with the findings of the body which is entrusted with the power to regulate the professional misconduct of its members. In Re A-Solicitor [1956] 3 All ER 516 the Court held: “The court is always, and always has been, very loath to interfere with the findings of the Disciplinary Committee either on the matter of fact because they understand these matters so well and/or with respect to penalty. If a matter is one, of professional misconduct, it would take a very strong case to induce this Court to interfere with the sentence passed by the Disciplinary Committee, because the Disciplinary Committee are the best possible people for weighing the seriousness of professional misconduct.” ’

Pertaining to the averment by the Appellant that she was not informed of the inquiry date, it was also stated in the DC’s Report, at paragraphs (1) to (3), page 181, Appeal Record, that the hearing date of the complaint was initially fixed on 28.5.2012. However, it was adjourned to 19.7.2012 upon the Appellant request vide her letter dated 24.5.2012. The Appellant again, via telephone call, requested for another adjournment as she was in a clinic. The hearing then adjourned to 25.7.2012. On 25.7.2012, the Appellant failed to attend the hearing which 14 was fixed at 2.00 p.m. and the DC having waited until 3.00 p.m. whereupon the DC decided to proceed with the hearing.

We generally agreed with the learned High Court Judge that the DC was well within its jurisdiction to proceed with the inquiry without the Appellant’s attendance. Section 109 of the LPA provides as follows:

“If Person inquired fails to attend If the person whose conduct is the subject of inquiry fails to attend before the Court, or the Disciplinary Committee, as the case may be, the inquiry or proceedings may be proceeded with without further notice to such person upon proof of service by affidavit or statutory declaration or in such other manner as the Court may direct.”

Further, the Intervener’s affidavit which was affirmed on 23.9.2014 by the Chairman of the DC (see pages 32-34, Exhibit “TTY-1” at pages 75-93, Record of Appeal) showed that the Appellant had been informed by way of letter and telephone call about the inquiry dates. The Appellant’ moreover, had not rebutted the averments made by Chairman of the DC that the Appellant had been reminded by the Chairman via telephone call on 25.7.2012 to attend the inquiry, whereupon the Appellant informed the Chairman to proceed with the inquiry in her absence based on the documents supplied by her (see paragraph 4.5 of the Chairman’s affidavit 15 at page 34 of the Record of Appeal). Therefore the Appellant was estopped from claiming that she had not been given a proper right and opportunity to be heard.

The learned High Court Judge stated as follows, of which we agree: “9.8 It is a well settled principle governing the evaluation of affidavit evidence, if one party makes a positive assertion upon a material issue, the failure of his opponent to rebut that assertion is usually treated as an admission by that person of the fact so asserted (see Dato’ Seri Anwar Ibrahim v Perdana Menteri Malaysia & anor [2010] 5 CLJ 369; Ng Hee Thong v Public Bank Berhad [1995] 1 MLJ 287). As the Appellant had not refuted this assertion by way of affidavit evidence, the Appellant was estopped from disputing it by way of her submission.”

We were of the view that if the Appellant’s contention was true (that the Appellant was not informed of the hearing date and was not given ample time to prepare her case), it could not explain the Appellant’s further actions of deliberately ignoring the notifications and reminders sent to her without any valid reasons. No efforts were made by the Appellant to attend the inquiry and in fact, as we have alluded to earlier, the Appellant told the Chairman of the DC to proceed with the hearing without her and just base the inquiry on the existing documents provided by the Appellant. We agreed with the learned High Court Judge that the DC had done its best 16 to afford the Appellant every opportunity to be present at the DC’s inquiry to enable the Appellant to provide her version of the events. E.

For all the above reasons and with respect, we were of the view that we should not intervene in the learned High Court Judge’s findings. We therefore unanimously dismissed the appeal by the Appellant with costs of RM5,000.00 payable by the Appellant to the 1st Respondent only subject to the payment of the allocatur’s fee. The deposit was ordered to be refunded to the Appellant. sgd (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated: 9.01.2020 Counsels/Solicitors For the Appellant : N. Kalyana Sundaran from Messrs. N. Kalyana Sundaram For the Respondents : Abdul Razak Abu Bakar from Messrs. Rafida Razak & Co. For the Intervener : Lee Tze Jiun from Messrs. Zairina Loh & Wong