Tan Gideon v Tey Por Yee (WA-17D-42-10/2024)

1.

OOI KOCK AUN ... RESPONDENTS AND MAJLIS PEGUAM MALAYSIA … INTERVENER

This was an appeal by the Applicant under s 103E of the Legal Profession Act 1976 (‘LPA 1976’) and O. 55A of the Rules of Court 2012 (‘RC 2012’) against the whole decision made by the

ordered to pay a fine of RM30,000.00 to the Discipline Fund within one month from the date of the Order and in default, sub-s 103(1) of the LPA 1976 shall apply; and S/N pT9cYsfixUKrd0tkijOq4A

suspended from practice as an advocate and solicitor of the High Court in Malaya for six months with effect 21 days from the date of the Order until 18.4.2025.

The Respondents were not present throughout the proceedings as the appeal mainly concerned the Applicant and the Intervener.

After having considered the cause papers and written submissions of the Applicant and the Intervener, I had on 29.4.2026 dismissed the appeal.

These are my full grounds of judgment.

The background facts as discerned from the Applicant’s affidavit and Written Submissions are as follows.

The Applicant is the Managing Partner of Messrs. Gideon Tan Razali Zaini (‘Firm’).

The Respondents lodged Complaint No. DC/15/0015 (‘Complaint’) against the Applicant on 11.2.2015. To understand the Complaint, it is necessary to trace the start of the solicitor-client relationship between the Applicant and the Respondents.

On 22.9.2014, Protasco Berhad (‘Protasco’) commenced an action against PT Anglo Slavic Utama (‘PT ASU’) and the S/N pT9cYsfixUKrd0tkijOq4A Respondents vide Kuala Lumpur High Court Suit No: 22NCC- 362-09/2014 (‘Suit 362’).

The 1st Respondent was the 2nd Defendant, and the 2nd Respondent was the 3rd Defendant in Suit 362. On 2.10.2014, they engaged the Firm to act as their solicitor in the Suit.

On 4.10.2014, the Respondents informed the Applicant that one Tjoe Yudhis Gathrie, the Director of PT ASU had affirmed several Statutory Declarations (‘SD’) and that Tjoe did not sign the SD voluntarily but was coerced or threatened to affirm the same.

The Respondents and the Applicant went to Jakarta between 15.10.2014 to 17.10.2014 to meet Tjoe in order to investigate the matter further.

The Respondents entered an appearance to Suit 362 on 15.10.2014 and filed their Defence on 28.10.2014.

On 13.11.2014, Protasco filed an Ex-Parte Notice of Application (‘NoA’) for leave to apply for an Order of Committal against the Respondents and the Applicant as a result of the meeting in Jakarta. Leave was granted on 18.11.2014 (‘18.11.2014 Order’). Protasco then filed an Inter Partes NoA on 19.11.2014 (‘Committal Proceedings’).

On 24.11.2014, the Firm filed a NoA to cease acting as solicitors for the Respondents in the Suit on grounds, among others, that the Firm’s professionalism was compromised as the S/N pT9cYsfixUKrd0tkijOq4A Respondents sought advice from a different set of lawyers without the Firm’s knowledge and adopted tactics or methods which the Applicant had advised against. The Respondents subsequently filed a Notice of Change of Solicitors appointing new solicitors to take over conduct of the Suit and consequently, the Firm withdrew the said NoA.

On 27.11.2014, the Applicant filed a NoA supported by an Affidavit in Support affirmed by the Applicant on even date (‘said AIS’) to set aside the 18.11.2014 Order (‘Setting Aside Application’).

The Respondents subsequently filed a NoA on 17.2.2015 to expunge (‘Expungement Application’) the statements deposed in paragraphs 13 - 20, 22, 40.1 and 40.2 of the said AIS and the documents marked and exhibited as “GT-5”, “GT- 7”and “GT-9” of the said AIS (hereinafter collectively referred to as the ‘Impugned Statements and Exhibits’).

The Respondents alleged, inter alia, that the Impugned Statements and Exhibits were made in breach of client-solicitor confidentiality.

On 5.8.2015, the High Court allowed the Expungement Application for the reason that it fell within the ambit of legal professional privilege (see Protasco Bhd v PT Anglo Slavic Utama & Ors [2015] 1 LNS 1052). S/N pT9cYsfixUKrd0tkijOq4A

The Applicant appealed to the Court of Appeal against the decision of the High Court. The Court of Appeal dismissed the appeal on 24.3.2016 (see Gideon Tan v Tey Por Yee & Another Appeal [2017] 1 CLJ 543).

On 2.8.2016, the Applicant obtained leave from the Federal Court to appeal against the decision of the Court of Appeal on the following questions of law: “(a) Whether the High Court’s decision in Cheah Cheng Hoc & Ors v Liew Yew Tiam & Ors (No. 2) [2000] 5 CLJ 475 remains good law in that there lies an exception to solicitor and client privilege which allows a solicitor to disclose otherwise privilege information in the event there is litigation between the solicitor and that client concerned; and

If the answer to Question (a) above is in the positive, whether the exception in Cheah Cheng Hoc & Ors v Liew Yew Tiam & Ors (No. 2) [2000] 5 CLJ 475 may be extended to a situation where there is a litigation (not between the solicitor and client directly but) involving the solicitor and client inter se.”.

The Federal Court dismissed the Applicant’s appeal on its merits on 10.4.2017. S/N pT9cYsfixUKrd0tkijOq4A

Apart from filing the court actions as outlined above, the Respondents also lodged the Complaint against the Applicant to the DB on 11.2.2015. The Complaint is similar to the Expungement Application relating to the making of the Impugned Statement and Exhibits by the Applicant in the said AIS.

The Complaint was finally fixed for hearing (‘Hearing’) before the following members of the Disciplinary Committee (‘DC’) on 20.3.2024:

Mr. Eric Yap Beng Ong as Chairman;

Miss Chong Lai Kwan as the 2nd member of the DC; and

Ir. Wong Khien Ngie as the 3rd member of the DC.

In the letter from the Chairman to all the parties dated 23.10.2023, it was stated that in the event any party is absent at the Hearing, the DC will proceed to hear and investigate the Complaint without further notice and will make its determination and recommendation to the DB accordingly.

The Respondents failed to attend the Hearing and hence, the Hearing commenced and concluded in the absence of the Respondents.

According to the Applicant, his counsel notified the DC at the start of the Hearing that the Record of Complaint received from the S/N pT9cYsfixUKrd0tkijOq4A DC was incomplete as the following documents, which were later identified in the Applicant’s Written Submission to the DC dated 4.4.2024, were not included in the said Record:

Writ and Statement of Claim (‘SoC’) for Suit 362 attached and marked as Enclosure 2 in the Letter of Complaint;

(b)

18.11.2014 Order attached and marked as Enclosure 3 in the Letter of Complaint; and

Setting Aside Application and the said AIS attached and marked as Enclosure 5 in the Letter of Complaint (hereinafter referred to as the ‘Alleged Omitted Documents’).

Upon hearing submissions in the absence of the Respondents, the DC made its findings as stated in the its Report dated 18.4.2024 (‘DC Report’) as follows: “We therefore find that the Respondent, Gideon Tan is guilty of misconduct under Section 94(3)(d) of the LPA 1976 in that he has breached rule 35(b) of the Legal Profession (Practice and Etiquette) Rules 1978. Reason(s): Reading the Respondent’s written explanation dated 17/6/2015, we find that the Respondent breached the solicitor-client professional privilege. S/N pT9cYsfixUKrd0tkijOq4A We also guided by the case law of Gideon Tan v Tey Por Yee & another [2017] 1 CLJ 543 in Tab L of the Respondent’s Bundle of Authorities as well as the Respondent’s candid admission that both the Federal Court and the Court of Appeal dismissed the Respondent’s appeal with no order as to costs and upheld the High Court’s decision that the Respondent did in fact breached the solicitor-client professional privilege. Recommendation: It is our recommendation under s 103C(1)(b) of the LPA 1976 that cause for disciplinary action exists but is not of sufficient gravity to warrant any punishment other than a reprimand against the Respondent Gideon Tan and we so recommend.”.

On 2.8.2024, the DB forwarded the Record of Complaint and the DC Report to the Applicant and informed him, among others, of his right to be heard and the three options which were available to him.

The Applicant opted to be heard by way of written submissions, which were duly forwarded to the DB on 30.8.2024.

On 7.10.2024, the Applicant received a letter from the DB dated 2.10.2024 attaching the Order dated 28.9.2024 whereby the DB had affirmed the DC’s finding of liability against the Applicant but rejected the DC’s recommendation on punishment for a S/N pT9cYsfixUKrd0tkijOq4A reprimand. Instead, the DB made the Order that the Respondent – “i) do pay a fine of Ringgit Malaysia Thirty Thousand (RM30,000.00) only payable to the Discipline Fund within one (1) month from the date of this Order AND IN DEFAULT THEREOF Section 103(1) of the Legal Profession Act, 1976 shall apply; and ii) be suspended from practice as an Advocate and Solicitor of the High Court of Malaya for a period of six (6) months. The Disciplinary Board HEREBY FURTHER ORDERED that the suspension is to take effect twenty-one (21) days from the date of this Order and is to expire on 18 April 2025.”.

The Order was the nub of the Applicant’s appeal to this Court.

Section 103E of the LPA 1976 provides that any party who is aggrieved by any final order or decision by the DB under s 103D shall have the right to appeal to the High Court within one month of the receipt of the notification of the order or decision. S/N pT9cYsfixUKrd0tkijOq4A

The procedure for the appeal is set out in the Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994 (see too, O. 55A of the RC 2012).

Both the Applicant and the Intervener relied on the following excerpt in the judgment of the Court of Appeal in Gana Muthusamy v Tetuan LM Ong & Co [1998] 4 CLJ 878 as a reminder that this Court should be slow in interfering in matters of professional discipline action against advocates and solicitors: “[5] It is primarily for members of the Bar to decide what amounts to conduct unbecoming of an advocate and solicitor in particular circumstances, according to standards established by members of that honourable profession. Courts must necessarily exercise caution when entertaining an appeal in which the central question is whether particular conduct is unprofessional and cases meriting curial interference will be rare. Otherwise it will be the court and not the profession that will determine the yardstick of professional behaviour. We would, in this context, express our agreement with the following passage in the Guide to the Professional Conduct of Solicitors issued by the Council of the Law Society in 1974, quoted by the learned judges of the High Court in their judgment: One of the hallmarks of a developed profession is that it should lay down and maintain standards of professional conduct for its members based upon S/N pT9cYsfixUKrd0tkijOq4A the best thinking of those members as to what constitutes proper conduct for a member of that profession. [6] In our judgment, a court will be entitled to interfere only if what has been found by a disciplinary committee to be unprofessional conduct will not be considered to be such by the best thinking members of the profession. The present case does not come within the reach of that test and accordingly this appeal fails.”.

The policy of non-intervention in matters concerning professional discipline was reiterated in Rosli Kamarudin v How Hock Sing @ Low Kim Chwee & Anor [2019] 6 MLRA 557.

The courts should only interfere with the finding of facts and recommendations of the DC in the following limited circumstances, namely, –

when the findings are manifestly perverse;

the DC or DB had failed as right thinking members of the Bar to give due consideration to the facts of the case and the conduct of the solicitor complained against; and

(iii) there had been breach of natural justice [see Dinesh Kanavaji Kanawagi & Anor v. Ragumaren N Gopal; Majlis Peguam (Intervener) [2018] 2 CLJ 1 (FC)]. S/N pT9cYsfixUKrd0tkijOq4A

Although the courts will not interfere with the decision of the DB, this general principle will not apply to issues related to sentencing. In Iszam Kamal Ismail v. Prestij Bestari Sdn Bhd (Bar Council Malaysia, intervener [2017] 10 CLJ 417, the Court of Appeal held as follows: “[8] The powers of sentencing empowered to DB is set out in s. 94 of the Legal Profession Act 1976 (LPA 1976). That section itself makes it clear that the DB has various options related to sentencing. It all depends on the nature and gravity of the misconduct. The Legislature, in the wisdom, directly or indirectly, incorporated the proportionality principle of sentencing by stating that an advocate and solicitor found guilty of any misconduct can be struck out from the Roll or suspended or ordered to pay a fine or be reprimanded or censored as the case may be. To put it crudely, the option to ‘struck out’ from the Roll must be based on grave misconduct which necessarily must relate to dishonesty or conduct for which other form of sentencing may not be appropriate. [9] It is often said that the courts will not interfere with the decision of DB but that general principle will not apply to issues related to sentencing, as sentencing attracts constitutional provisions and safeguards which stands as a cornerstone to S/N pT9cYsfixUKrd0tkijOq4A safeguard the interest of the public as well as professionals. (See Dinesh Kanavaji Kanawagi & Anor v. Ragumaren N. Gopal; Bar Council Malaysia (Intervener) [2016] 7 CLJ 667; [2016] 3 AMR 775). Advocates and solicitors are not an excluded species under the Federal Constitution. In consequence, the DB is obliged to consider the constitutional provisions and safeguards before deciding to strike off the advocate and solicitor from the Roll. The DB is not empowered to strike off an advocate and solicitor’s name from the Roll based on the whimsical reasons, and/or surmise or conjecture or taking into consideration material evidence which were not before the DC or brushing aside the sentencing recommended by the DC, without reasoned grounds or strike off based on in-house policy of the DB to strike off the advocate for misconduct.”.

In another judgment by the Court of Appeal i.e. Majlis Peguam Malaysia v Hari Krishnan Jeyapalan [2017] 4 CLJ 225 the Court said: “[20] In determining sentence to be imposed, the functions of the DB should as far as possible be insulated from judicial intervention as the peers of the respondent, senior members of the Bar would be the appropriate forum to meet out the S/N pT9cYsfixUKrd0tkijOq4A appropriate sentence as provided for under the LPA 1976. [21] However, we are of the view that the DB failed to take into account the principles of proportionality in coming to the decision that it did. Whilst we agree that the cheques dishonoured were issued directly from the respondent’s client’s account which by itself is a serious offence and that it is imperative that the operation of the client’s account must always be with honesty and integrity. The fact that the complainant withdrew his complaint must also be taken into account. We would take the approach that looking at the offence, for the purposes of sentencing the respondent, right thinking members of the disciplinary board should consider and deliberate on the mitigatory factors presented before it before it metes out the appropriate punishment. In a situation where punishment ranges from reprimand and/or ensure to striking out from the Rolls, it would be expected of right thinking members of the DB to consider:

the gravity of the offence;

the exculpatory conduct of the respondent;

the conduct of the complainant since lodging the complaint S/N pT9cYsfixUKrd0tkijOq4A before deciding the appropriate punishment meted out. By way of analogy, it is a question of where the pendulum of a clock swings ie, to the end of the range of its swing or at a very beginning of the swing. If the degree of the swing of the pendulum swings extremely to the left, then the maximum sentence should be imposed.”.

The Federal Court in Dinesh Kanavaji Kanawagi (supra) reminded that the DC and DB must consider the principle of proportionality in meting out sentences against an advocate and solicitor. In recommending the punishment to be handed down, the DC should give brief reasons as regards the particular punishment chosen, bearing in mind that the DC has several options available to it. The courts must be in a position to examine these reasons in order to decide on the proportionality of the punishment.

The Applicant accepted that the issue on whether the Impugned Statements and Exhibits fall under legal professional privilege or otherwise is academic as the same has been decided by the High Court and affirmed by both the Court of Appeal and the Federal Court. S/N pT9cYsfixUKrd0tkijOq4A

Moreover, the Committal Proceedings have been withdrawn by Protasco against the Respondents and the Applicant on 11.4.2018.

As mentioned earlier, the DC found the Applicant guilty of misconduct under s 94(3)(d) of the LPA 1976 by breaching Rule 35(b) of the Legal Profession (Practice and Etiquette) Rules 1978 (‘1978 Rules’) which read as follows: “94. Power of Disciplinary Board to strike off the Roll, suspend for misconduct, etc …

For the purposes of this Part, “misconduct” means conduct or omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety and includes – …

breach of any rule of practice and etiquette of the profession made by the Bar Council under this Act or otherwise; …”; and S/N pT9cYsfixUKrd0tkijOq4A “35. Advocate and solicitor not to abuse confidence reposed in him by client …

An advocate and solicitor shall preserve his client's confidence and this duty outlasts his employment.”.

10 grounds were put forth in the application for appeal (encl. 1). Based on the Applicant’s written submissions, the challenge against the Order is primarily on the following grounds:

there was a breach of natural justice as –

the DB failed to provide reasons for rejecting the recommendations made by the DC;

(ii) the DB failed to notify the Applicant of its intention to impose a punishment which is different from the DC’s recommendation; and

(iii) several documents were omitted from the DC Report contrary to Rule 19 of the Legal Profession (Disciplinary Proceedings) Rules 2017 (‘2017 Rules’) and therefore, the DB did not direct its mind when considering the DC Report; and S/N pT9cYsfixUKrd0tkijOq4A

the DB failed to consider the principles of proportionality in meting out the punishment. 1st Ground: Whether there was a breach of natural justice –

as the DB failed to provide reasons for rejecting the DC’s recommendations;

(ii) as the DB failed to notify the Applicant of its intention to impose a punishment which is different from the DC’s recommendation

Section 103D of the LPA 1976 reads as follows: “Consideration by the Disciplinary Board of the report of the Disciplinary Committee

(1) After consideration of the report of the Disciplinary Committee, the Disciplinary Board may make an order affirming or rejecting the finding or recommendation of the Disciplinary Committee and if the Disciplinary Board rejects the finding or recommendation of the Disciplinary Committee, the Disciplinary Board shall record the reason for the rejection. S/N pT9cYsfixUKrd0tkijOq4A

The Disciplinary Board may in appropriate cases impose a greater or lesser penalty or punishment than that recommended by the Disciplinary Committee.

Where the Disciplinary Board does not agree with the finding or recommendation of the Disciplinary Committee, the Disciplinary Board shall make such other order as it deems just.

Before the Disciplinary Board makes an order that is likely to be adverse against an advocate and solicitor under subsection (2) or (3), it shall notify the advocate and solicitor of its intention to do so and give him a reasonable opportunity to be heard. …”.

The Applicant submitted, on the strength of the case authorities of Majlis Peguam Malaysia v Rajehgopal a/l Velu & Anor [2017] 1 MLJ 596 (FC) and Bank Kerjasama Rakyat Malaysia v Zainul Rijal Bin Abu Bakar [2020] 5 MLJ 121 (CA) (see too, the case of Mohamad Hassan bin Zakaria v Universiti Teknologi Malaysia [2017] 6 MLJ 586 which was referred to by the CA) that, under sub-s 103D(1) of the LPA 1976, there is a mandatory requirement to provide reasons and the DB has failed to furnish any reason as to why it rejected the DC’s recommendation of a reprimand as punishment. Consequently, there was a breach of natural justice and the requirement in sub-s 103D(1) of the LPA

S/N pT9cYsfixUKrd0tkijOq4A

In this regard, the correspondence between the DB and the Applicant at the material time must be examined.

On 2.8.2024, the DB wrote to the Applicant as follows: “1. We write to inform you that the Disciplinary Board (‘the Board’) has at its meeting held on 28 July 2024 considered the Report of the Disciplinary Committee (‘DC’) on the complaint against you. The DC has found you liable for misconduct and has recommended that you be reprimanded.

A copy of the Record of Complaint and the Report of the DC are enclosed for your reference.

This letter serves to give you the right to be heard before the Board exercises its powers pursuant to Section 103D of the Legal Profession Act 1976. You may exercise your right in one of the following ways:  Option 1: You waive the right to be heard before the Board; or  Option 2: You would like to be heard by the Board by way of written submissions only; or S/N pT9cYsfixUKrd0tkijOq4A  Option 3: You would like to be heard by the Board by way of written and oral submissions. Kindly reply within fourteen (14) days of the date hereof by signing on and returning to us the attached RESPONDENT RESPONSE FORM (‘RRF’) indicating your preferred option. TAKE NOTE THAT if we do not hear from you within the prescribed time, the Board may proceed to deal with the matter without any further reference to you.”.

The Applicant replied on 12.8.2024 that he has opted to be heard by the DB by way of written submissions only.

The Applicant served his Written Submissions and Bundle of Authorities to the DB on 30.8.2024. In paragraphs 25 and 43 of the Written Submissions, the Applicant urged the DB to accept and affirm the imposition of a reprimand as per the DC’s recommendation.

On 7.10.2024, the Applicant was informed of the Order made by the DB.

From a perusal of the correspondence as exhibited in the AIS, it can be seen that – S/N pT9cYsfixUKrd0tkijOq4A

the DB had sent the letter dated 2.8.2024 to the Applicant and given him the right to be heard before the DB exercised its powers pursuant to s 103D of the LPA 1976;

the DB did not provide any reason or justification as to why it rejected the DC’s recommendation of a reprimand as punishment; and

the DB did not notify the Applicant of its intention to impose a punishment which was different from the DC’s recommendation.

In Bank Kerjasama Rakyat Malaysia (supra), the Court of Appeal held, among others, as follows: “[45] We were of the view that the DB had in fact failed to comply with the mandatory requirement of s 103D(1) of the LPA. We were also of the view that the purported reason provided by the DB in the letter dated 24 March 2017 was in fact a mere view, a preliminary one at best. To our minds, a view must be premised on some reasons and explanations or at the very least, a simple depiction of a thought-process of the DB as to how it arrived at such ‘view’. We were mindful that a finding devoid of reason and explanation was in fact no more than just a plain view. In the total absence of reason, justification or elaboration to support such view, the mandatory requirement under s103D(1) had not been complied with. Thus, the DB’s view/finding of gross S/N pT9cYsfixUKrd0tkijOq4A misrepresentation could not be accepted as a finding of guilt of misconduct under s 94(3) of the LPA nor constitute the reason for the order of the DB. The DB’s letter dated 21 August 2017 only amplified and confirmed its failure on this issue. [46] We therefore agreed with the learned High Court judge that there was no reason recorded for such rejection by the DB and such failure was a clear breach of s 103D(1) of the LPA. [47] In addition, we were also mindful of the fact that there was a serious breach of natural justice when the DB failed to furnish reason for its decision as required by the law.”.

In the light of the decision in Bank Kerjasama Rakyat Malaysia and the doctrine of stare decisis, the Intervener’s reliance on the decision by the High Court in Chan Yew Hock v Koh Hong Toong & Anor; Malis Peguam Malaysia (Intervener) [2010] 2 MLRH 705 for the proposition that “… from the legislative framework of s 103D LPA there is no requirement for the DB to give reasons for enhancing the punishment” was, with respect, erroneous.

However, the Intervener had drawn the attention of the Court to the broad grounds by the Court of Appeal on 16.7.2025 in the case of Ong Khan Lee (Mengamal Sebagai Peguamcara Dan Peuambela Di Bawah Tetuan Ong & Associates) v Loh Choon Wooi (Majlis Peguam Pencelah), Rayuan Sivil No.: P-02(A)-512- 03/2024 in submitting that, notwithstanding there is a breach of sub-s 103D(1), LPA 1976, this Court still has a duty to consider S/N pT9cYsfixUKrd0tkijOq4A the merits of the complaint in accordance with sub-s 103E(1) of the LPA 1976. The broad grounds are as follows: “Unanimous decision

The broad grounds for this appeal are as follows:

in respect of the conflicting Court of Appeal decisions in –

Bank Kerjasama Rakyat Malaysia v Zainul Rijal bin Abu Bakar & Anor [2020] 5 MLJ 121 (Zainul Rijal); and

Datuk Kanagalingam Velupillai v Majlis Peguam Malaysia [2022] 2 CLJ 858 - regarding the interpretation of s 103D(1) of the Legal Profession Act 1976 (LPA) we accept the submission by learned counsel for the respondent and Bar Council (BC) (this court had earlier invited BC as an “amicus curiae” to assist this court) that in accordance with Zainul Rijal, when the Disciplinary Board (DB) dismissed the respondent’s complaint (Complaint) against the appellant (DB’s Decision), the DB was mandatorily required by s 103D(1) LPA to S/N pT9cYsfixUKrd0tkijOq4A furnish to the appellant the reason(s) for

a purposive construction of s 103D(1) LPA is in consonance with s 17A of the Interpretation Acts 1948 and 1967;

neither the DB nor the appellant can rely on s 76(2) LPA because –

s 76(2) LPA is contained in Part V LPA with the heading “Malaysian Bar” and the sub-heading of “General”. Section 103D(1) LPA is a specific provision in the LPA. As such, by virtue of the canon of construction, generalia specialibus non derogant, the specific provision of s 103D(1) LPA shall prevail over the general provision of s 76(2) LPA; and/or

s 103D(1) LPA had been subsequently inserted by Parliament. By reason of the maxim of interpretation, lex posterior derogant non priori, the subsequent provision of s 103D(1) LPA should be preferred to the earlier provision of s 76(2) LPA; S/N pT9cYsfixUKrd0tkijOq4A

the DB had breached s 103D(1) LPA when the Reason(s) (DB’s Decision) were not provided to the appellant in this case;

in this case, the learned High Court Judge did not err in law by applying Zainul Rijal to set aside the DB’s Decision; and

notwithstanding the DB’s breach of s 103D(1) LPA, the High Court has a duty to consider the merits of the Complaint in accordance with s 103E(1) LPA.

In view of the above broad grounds –

this appeal is allowed;

the High Court’s decision is set aside;

this matter is remitted to the same learned High Court Judge to consider the appellant’s appeal on the merits of the Complaint in accordance with s 103E(1) LPA; and

there shall be no order as to costs here and below.”.

In rebutting the Intervener’s contentions, the Applicant had gone further than merely relying on the Notes of Proceedings on S/N pT9cYsfixUKrd0tkijOq4A

16.7.2025 for Ong Khan Lee’s case. The Applicant took pains to find, and include in his Bundle of Authorities (encl. 52) –

the DB Order for Complaint No. DC/17/2019 dated 11.2.2023;

the Penang High Court Originating Summons No. PA-17D- 1-03/2023 dated 16.3.2023 and the Grounds of Judgment dated 4.7.2024 for the same;

the Penang High Court Order dated 11.3.2024; and

Ong Khan Lee’s Written Submission dated 5.2.2025 for the appeal at the Court of Appeal to support his submission that the decision in Ong Khan Lee should be confined to the specific facts in that case and should not be applied as a general principle. The distinguishing features in Ong Khan Lee was submitted at length in paragraphs 5 and 6 of Applicant’s Submissions In Reply (encl. 51).

However, I was inclined to apply the decision by the Court of Appeal in Ong Khan Lee and to consider the merits of the Complaint in assessing whether there was misconduct.

Insofar as the merits of the Complaint are concerned, the Applicant’s arguments were as set out in paragraph 79 below. S/N pT9cYsfixUKrd0tkijOq4A

I have considered the juxtaposed submissions of the Applicant and the Intervener and I accept the latter’s submission that misconduct was beyond dispute. Both the Court of Appeal and the Federal Court have upheld that the communication and documents disclosed by the Applicant were indeed protected by solicitor-client privilege, and the Applicant had abused the trust and confidence by disclosing the same without obtaining express written consent from the Respondents. This constituted a clear breach of s 126 of the Evidence Act 1950 and Rule 35 of the 1978 Rules.

The Applicant had also admitted during the hearing before the DC that there is a breach of Rule 35 of the 1978 Rules.

For the above said reasons, the 1st ground of appeal (i) and (ii) was answered in the negative.

(iii) the Alleged Omitted Documents were not included in the DC Report contrary to Rule 19 of the 2017 Rules and therefore, the DB did not direct its mind when considering the DC Report

Rule 19 of the 2017 Rules provides that: “Record of proceedings before Disciplinary Committee S/N pT9cYsfixUKrd0tkijOq4A

The Disciplinary Committee shall compile a record of proceedings consisting of all evidence including documentary evidence tendered and shall submit the record of the proceeding together with its report under rule 21 to the Disciplinary Board.”.

The Applicant argued that it is a mandatory requirement pursuant to Rule 19 of the 2017 Rules for the DC to compile a complete record of proceedings, consisting of all documentary evidence tendered, and to submit the same to the DB, failing which, the question of whether the DB had the benefit of a full picture of the nature of the Applicant’s defence when it arrived at its decision would arise.

It was further submitted that the mandatory obligation applies irrespective of whether such evidence was deemed relevant, crucial or likely to affect the decision making of the DB as the DC’s recommendation was always subject to the DB’s independent review. Moreover, in view of the instant appeal, this Court must be able to ascertain how the DB arrived at its decision based on a full and complete record.

The Applicant claimed that Rule 19 of the 2017 Rules was breached as the DC failed to include the Alleged Omitted Documents in the DC Report and the Alleged Omitted Documents cannot be found in the Record of Complaint compiled by the DB. S/N pT9cYsfixUKrd0tkijOq4A

Consequently, the DB’s decision-making process was compromised and procedural unfairness occasioned to the Applicant (see Bar Council v Ong Keh Keong [2025] 1 MLJ 250), and the DC Report was defective and the Order was null and void.

The Intervener retorted that Rule 19 of the 2017 Rules was not breached because the Alleged Omitted Documents formed part of the Record of Complaint which was considered by the DB before making the Order. The Record of Complaint was compiled by the DB, and together with the DC Report, were enclosed to the DB’s letter dated 2.8.2024 to the Applicant.

I have scrutinised exhibit “GT-4” of the AIS which begins at printed p 87, encl. 2 and ends at printed p 322, encl. 4 and I find that the Alleged Omitted Documents are not in this exhibit.

According to the DB’s letter to the Applicant dated 2.8.2024, a copy of the Record of Complaint and the DC Report were enclosed therein (see printed pp 87 & 88, encl. 2).

The Record of Complaint starts at printed p 90, encl. 2 while the DC Report starts at printed p 11, encl.

4.

In Item 1 of the General Index to the Record of Complaint (printed p 91, encl. 2), the description of the document is stated as “Letter of Complaint & Statutory Declaration (With enclosures)” dated 11.2.2025. S/N pT9cYsfixUKrd0tkijOq4A

The Letter of Complaint starts at printed p 93, encl. 2 wherein only the Statutory Declaration can be seen at printed p 96, but not the Alleged Omitted Documents.

It is my finding that the Alleged Omitted Documents were raised in the Letter of Complaint. The Letter of Complaint formed part of the Record of Complaint which was considered by the DB before making the Order. The Record of Complaint was compiled by the DB, and together with the DC Report, were enclosed to the DB’s letter dated 2.8.2024 to the Applicant.

In paragraph 27 of the AIS, the Applicant did not make any specific affirmation as to how the Alleged Omitted Documents were relevant and important to his defence (this can be contrasted with the facts in Bar Council v Ong Keh Keong [2025]

The Writ and SoC for Suit 362 and the 18.11.2024 Order were thus not material documents while certain parts of the said AIS were held by the Federal Court to be protected by solicitor-client privilege. In fact, the Alleged Omitted Documents are the same documents which the apex court, in affirming the decision of the Court of Appeal, held to be protected by solicitor-client privilege.

No breach of the rules of natural justice was occasioned as the Alleged Omitted Documents were not new documents but were documents which were referred to in the Letter of Complaint and formed part of the Record of Complaint. All parties referred to the S/N pT9cYsfixUKrd0tkijOq4A Record of Complaint during the disciplinary proceedings and the

In the premises, there was no merit to the Applicant’s contention that Rule 19 of the 2017 Rules was breached and that the DB did not direct its mind when considering the DC Report. 2nd Ground: Whether the DB failed to consider the principles of proportionality in meting out the punishment

Sub-ss 94(1) and (2) of the LPA 1976 stipulate that: “94. (1) All advocates and solicitors shall be subject for the purposes of all disciplinary actions to the control of the Disciplinary Board.

Any advocate and solicitor who has been guilty of any misconduct shall be liable to one or more of the following penalties or punishments:

to be struck off the Roll;

to be suspended from practice for any period not exceeding five years;

to be ordered to pay a fine not exceeding fifty thousand ringgit; or S/N pT9cYsfixUKrd0tkijOq4A

to be reprimanded or censured.”.

The Applicant argued that the DB failed to consider the principles of proportionality in arriving at its decision to increase the punishment from what was recommended by the DC.

In particular, the Applicant advanced the following reasons in his attempt to convince the Court to either set aside the Order or to affirm the DC’s recommendation to impose a reprimand against him:

the Applicant was faced with committal proceedings which are criminal in nature and involving his liberty, therefore he opted to provide and disclose all material facts and raise all reasonable defences;

the Applicant is an officer of the court and has an overriding duty to disclose all relevant evidence and material facts which would assist the court in arriving at a fair and just decision;

the Applicant did not take advantage of the confidence reposed in him by the Respondents for his personal gain or benefit;

the Respondents failed to –

refer to any specific provision of the LPA 1976 or the 1978 Rules which is alleged to have been breached S/N pT9cYsfixUKrd0tkijOq4A by the Applicant in their Letter of Complaint. The Respondents merely stated in paragraph 9 of the Letter of Complaint that “We believe that Gideon has breached solicitor-client confidence and the privilege rule”; and

(ii) attend personally at the Hearing to explain how their interests were jeopardised by the Impugned Statements and Exhibits. In any event, the Impugned Statements and Exhibits were expunged by the High Court on 5.8.2015 and the committal proceedings were withdrawn by Protasco;

the Respondents did not accuse the Applicant of being dishonest or having misused the client’s funds or having cheated them; and

the Applicant has been in practice for 30 years since 14.10.1994 and is truly repentant over the entire episode. He faced difficulties as someone exposed to the committal and disciplinary proceedings where the latter spanned a period of 9 years and 7 months. The 6 months’ suspension will cause hardship and prejudice to the Firm and the existing clients who have retained the Applicant as the Managing Partner of the Firm to advise or act for them in litigation matters.

In Gideon Tan (supra), the Court of Appeal agreed with the findings of the High Court that the appellant’s right to defend S/N pT9cYsfixUKrd0tkijOq4A himself in the committal proceedings did not create an exception to the rule of solicitor-client privilege. The Court additionally remarked that the solicitor-client privilege is a privilege which the law has been most zealous to protect and most reluctant to water down by exceptions (supra at p 557).

This Court was guided by the guidelines as explicated in Majlis Peguam Malaysia v Hari Krishnan Jeyapalan (supra) and was persuaded by the Intervener’s submission that this case involves serious professional misconduct as the Applicant had breached the solicitor-client privilege by revealing confidential and privileged information, documents and communication without any waiver, permission or consent of the Respondents who were the Applicant’s client at the material time.

In the circumstances of this case, the sentence was appropriate and serves as a stern reminder to solicitors that the legal principle on solicitor-client privilege is of fundamental importance to the administration of justice and must be upheld and vigilantly observed at all times.

In the final analysis, I was satisfied that the punishment of a fine of RM30,000.00 and a suspension of six months which was imposed on the Applicant was in accordance with the power given to the DB under sub-s 94(2) of the LPA 1976 and that there was no failure by the DB in considering the principles of proportionality. S/N pT9cYsfixUKrd0tkijOq4A

Based on the foregoing reasons, the Applicant’s appeal was dismissed. No order was made as to costs as per the Applicant’s prayer in encl. 1. DATED: 22.5.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant: Michael Chow (Teo Qing Ying with him) Messrs. Gideon Tan Razali Zaini Solicitors for the Intervener: Harjinder Singh (Samantha Sam with him) Messrs. Sabarudin Othman & Ho S/N pT9cYsfixUKrd0tkijOq4A