Tan Eng Hong Paper & Stationery Sdn Bhd v 1. ) Karin Lim Ai Ching (PA-17D-1-01/2022)

KARIN LIM AI CHING

SUPPIAH A/L ARUMUGAM (NO. K/P: 530403-01-5353) .... RESPONDEN-RESPONDEN GROUND OF JUDGEMENT A. INTRODUCTION [1] The Appellant’s Originating Summons (Enclosure 1) is an appeal against the Order dated 4.12.2021 by the Advocates & Solicitors Disciplinary Board pursuant to Section 100(1)(a) of Legal Profession Act 1976 which summarily dismissed the complaint under Complaint No. DB/21/0010 by the Appellant against the Respondents be set aside forthwith. The Appellant also seek an Order that the Advocates & Solicitors Disciplinary Board to proceed with the complaint against the Respondents and Messrs Presgraves & Matthews pursuant to the provisions of Legal Profession Act 1976, including but not limited to Sections 99 (4) and 100 of the Act. [2] The Respondents then through the Notice of Application dated 29.3.3022 (Enclosure 6) applied is to strike out the Appellant’s Originating Summons (Enclosure 1) under Order 18 Rule 19(1) of the Rules of Court 2012 (“ROC 2012”) and/or inherent powers of the Court under Order 92 Rule 4 of ROC 2012. S/N caWt25rFkyGe2u5jHwOHw B. BACKGROUND [3] The Respondents acted as solicitors for Tan Kean Keong who was the Petitioner in winding up Petition No. 28-68-2009 against the Appellant and 2 other Companies. The said Petition was allowed by the High Court and was affirmed by the Court of Appeal. However, the Federal Court allowed the appeal by the Appellant and set aside the Winding-up Order of the Court of Appeal. [4] Thereafter, the Appellant and the 2 other companies (the parties to the said winding-up petition) commenced an action in Penang High Court Civil Suit No: PA-22NCVC-74-04/2021 against the Respondents and 6 others for damages for alleged wrong doings in commencing and maintaining the said winding-up proceeding against them. [5] The Appellant then filed a complaint No. DB/21/0010 dated 13.4.2021 against the Respondents to the ASDB. Pursuant to S. 100(1)(a) of the Legal Profession Act 1976, Disciplinary Board dismissed the said complaint on 4.12.2021. Being dissatisfied, the Appellant lodge an appeal to this court under the Originating Summons No. PA-17D-1-01/2022. [6] Now, via enclosure 6, the Respondents applied to strike the appeal for the following reasons: - [a] Wrong mode of commencement of the Appeal; and [b] Limitation under S.99(3A) of the Legal Profession Act 1976 S/N caWt25rFkyGe2u5jHwOHw C. RESPONDENTS’ SUBMISSION [7] The Appellant was wrong in filing this appeal by Originating Summons instead of commencing the appeal by Originating Motion. The Respondents refer to S103E (4) of the Legal Profession Act, 1976 (“LPA 1976”) which provides that – “The appeal shall be by way of originating motion setting out the ground of appeal supported by affidavit”. [8] Rule 3(1) of the Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994 also provides that the appeal must be brought by Originating Motion. [9] The Amended Practice Direction 7 of 2012 provides for filing of Originating Motion under the filing code of 25. Hence, there is no practical difficulty for the Appellant to file the appeal vide an Origination Motion. As the statute, i.e S103 E(4) of LPA 1976 provides clearly for the commencement of the appeal by Originating Motion, the said mode of commencement of the appeal shall be complied with and cannot be overridden by O.94 R.2(3) of the ROC 2012. In summary, the purported appeal commenced by the Appellant in Enclosure 1 is incompetent and ought to be struck out. [10] The Appellant’s appeal should also be struck out because the Appellant’s complaint is barred by limitation under S.99(3A) of LPA 1976 which provides that no complaint concerning the conduct of any advocate and solicitor should be made after the expiration of six years from the date when the right of action to bring the complaint accrued. S/N caWt25rFkyGe2u5jHwOHw [11] The Respondent submitted that all the facts necessary for the Appellant to lodge a complaint with DB were known to the Appellant at the time when the winding-up petition was filed by Tan Kean Keong on 27.5.2009. Through a recorded conversation within Tan Kean Keong, Tan Seng Kow and his son, Kenny Tan, Tan Kean Keong is alleged that he was unable to withdraw the winding-up petition filed against the Appellant because his cousin, Choo Leong do not allow him to do so. After the conversation took place on 25.5.2010 and 27.6.2010, the Appellant made application to recuse the Respondents’ firm from acting for the Petitioner, Tan Kan Keong but was dismissed on 8.10.2010. [12] Based on the above facts, the Respondent submitted that all their allegations of misconduct occurred at the time when the winding up petition against the Appellant was filed on 27.5.2009, when the conversation on 24.5.2010 and 27.6.2010 took place and at the latest when the Appellant’s application to recuse the Respondents’ firm was dismissed on 8.10.2010. [13] S. 99(3A) of LPA 1976 came into effect on 3.6.2014 with six years limitation period. Therefore, time started to run in the Appellant’s complaint against the Respondents from 3.6.2014. As the Appellant lodge the complaint on 13.4.2021 – 6 years 10 months and 10 days from 3.6.2014, the complaint is barred by the limitation period. D. APPELLANT’S SUBMISSION [14] On the filing of Originating Summon, the Appellant submitted that it is the proper mode as the Appellant could not file originating motion under the current e-filing system. The Rules of Court 2012 have repealed the S/N caWt25rFkyGe2u5jHwOHw Rules of the High Court 1980. Under Order 5 of the Rules of Court 2012, there are only two modes of the originating process for court proceedings: by Originating Summons or by Writ. [15] Under the new e-filing system and pursuant to “Arahan Amalan Bil. 6 Tahun 2013”, the appeal under Section 103E(1) of the LPA (and under rule 3 of the Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994) is given the code of “17D” which is under the mode of Originating Summons. It is also inappropriate of the Respondents to suggest that the appeal herein be filed under the filing code 25, which provides only for a Judicial Review proceeding. In filing under code 25 amounts cause unnecessary confusion on the court and its registry. [16] Based on the above reason, the Originating summon is the proper mode to commence this appeal and shall not be struck out and must be heard accordingly. [17] On the issue of limitation, the complaint to the Disciplinary Board is not barred by limitation under Section 99(3A) of the LPA 1976 which came into operation only on 3.6.2014. The misconduct was continuous right up to the Federal Court when it was finally terminated in the Appellant’s favour. Furthermore, given the seriousness of the misconduct, it is in the public interest to take the Respondents to task for their professional misconduct despite the time-lapse. S/N caWt25rFkyGe2u5jHwOHw [18] In any event, the DB had erred in law and fact when it summarily dismissed the complaint, which comprises a cause of action of unreasonable and malicious presentation of the 3 Winding-up Petitions, which time only starts to run after upon the decision of the Federal Court on 17.12.2020 in allowing the appeal and setting aside the Winding-up Order dated 24.7.2015. E. ANALYSIS AND FINDINGS [19] The principle of striking out is under O.18, R.19(1)(a),(b),(c) and (d) of ROC 2012 which laid down as follows:- “The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that: - [a] it discloses no reasonable cause of action or defence, as the case may be; [b] it is scandalous, frivolous or vexatious; [c] it may prejudice, embarrass or delay the fair trial of the action; or [d] it is otherwise an abuse of the process of the court. [20] The Appellant has filed a Notice of Application under Enclosure 11 for the Originating Summon (Enclosure 1) to be deemed as an Originating Motion and for this appeal to be proceeded for hearing as if the same had been begun by Originating Motion. Upon hearing the submission of both parties, I allowed Enclosure 11 with no order as to cost. S/N caWt25rFkyGe2u5jHwOHw [21] As for the limitation period, I refer to S.99 (3A) of the LPA 1967 which provides as follows: - “No complaint concerning the conduct of any advocate and solicitor or of any pupil shall be inquired into by the Disciplinary Board after the expiration of six years from the date when the right of action to bring the complaint accrued”. [22] There is no dispute by the parties on the limitation rule as provided above. However, the parties are of different opinion on the time the limitation sets in. The Respondents submitted that the Appellant’s right/cause of action to bring the complaint existed before S.99(3A) of LPA 1976 came into force. But, as the provision only came into force on 3.6.2014, the time shall start to run from that date. On the contrary, the Appellant submitted that the time only starts to run after upon the decision of the Federal Court on 17.12.2020. [23] Having heard from both parties, I am satisfied that the time of limitation starts to run from the coming of S.99(3A) of LPA 1976 on 3.6.2014. I am of opinion that the Appellant’s cause of action to bring the complaint existed the moment the winding-up petition was filed against the Appellant. In addition, the Appellant had even applied to recused the Respondents’ firm from acting for the petitioner in the winding-up proceeding which was dismissed on 8.10.2010. Therefore, I find that there is no justification for the Appellant to filed the complaint on 13.4.2021. S/N caWt25rFkyGe2u5jHwOHw [24] In the case Vista Specialist Eye Centre Sdn Bhd v Dato’ Loo Son Yong and another appeal [2016] 5 MLJ 832, the Court of Appeal has decided the following: - “According to s6(1)(a) of the Act, it is clear that the computation of six years limitation must run from the date the cause of action arose and not from the time the alleged negligence was discovered. The respondent’s claim was barred by limitation, hence plainly unsustainable and was suitable to be struck out under O 18 R 19 of the ROC 2012. [25] Following the abovementioned case, as the Appellant’s complaint to the ASDB is barred by limitation under S. 99(3A) of the LPA 1967, this appeal is therefore frivolous and vexatious and/or an abuse of the process of court and ought to be struck out and dismissed on this ground. [26] Based on the above reasons, I allow the Respondents’ application under Enclosure 6 with cost RM5,000.00 to be paid by the Appellant to the Respondents. SGD (ROZANA BINTI ALI YUSOFF) Judge High Court of Penang Dated on 22nd July 2024 S/N caWt25rFkyGe2u5jHwOHw Counsel Daphen Choy & Tam Xim Shun (Messrs Choy & Associates) for the Appellants. Ranjit Singh & Navaratnam Ponnampalan (Messrs Nava & Associates) for the Respondent. S/N caWt25rFkyGe2u5jHwOHw