Tan Lay Ean v Kenneth Yoong Ken Chinson St James (W-02(A)-1522-09/2023)

BAR COUNCIL MALAYSIA RESPONDEN-RESPONDEN ``````````````````````````````````````````````````` [Dalam perkara Saman Pemula No. WA-17D-30-12/2021 Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Kuasa-Kuasa Khas) Antara Tan Lay Ean Perayu Dan Kenneth Yoong Ken Chinson St. James Responden Dan Bar Council Malaysia Pencelah] ``````````````````````````````````` CORAM MARIANA BINTI HAJI YAHYA, JCA CHOO KAH SING, JCA FAIZAH BINTI JAMALUDIN, JCA (Decision delivered on 20.1.2025) Page 2 of 18 GROUNDS OF JUDGMENT Introduction [1] This is an appeal against the High Court decision dated 29.8.2023 wherein the learned High Court judge had dismissed the appellant’s Originating Summons which was filed pursuant to s. 103E of the Legal Profession Act, 1976 (“the LPA”). The appellant sought for the following orders as reproduced below: [2] On 20.1.2025, this Court, after having considered the oral and written submissions of the counsels for the respective parties, dismissed the appellant’s appeal and affirmed the High Court Order dated 29.8.2023. The reasons for the decision are set out as below. Salient Facts [3] The appellant’s complaint centers on the decision of the Disciplinary Board (“the DB”) dated 19.11.2021. The decision of the DB was the outcome of an investigation carried out by the Disciplinary Committee Page 3 of 18 (“the DC”) over seven (7) complaints which were filed by the 1st respondent complaining against the appellant and one Chew Swee Yoke for breach of the LPA and its Rules. The DB, after having considered the DC’s recommendations, made an order against the appellant in respect of the 7th complaint as follows: [4] With regards to the other six (6) complaints, no liability was found against the appellant and Chew Swee Yoke. The appellant was aggrieved by the decision of the DB, and thereby appealed to the High Court pursuant to s. 103E of the LPA. [5] Essentially, the 7th complaint is based on a letter dated 30.5.2014 which was written by the 1st respondent to the DB complaining that the appellant had breached ss. 94(3)(d), (k) and (o) of the LPA and Rules 18 and 31 of the Legal Profession (Practice and Etiquette) Rules 1978 (“the LPR”). [6] The complaint to the DB was that the appellant had on 16.12.2013 written a letter (“the impugned letter”) addressed directly to the High Court Judge complaining against the 1st respondent’s conduct, and alleging that there was “vexatious and frivolous use of the appeal procedure” by the 1st respondent and that the appellant and made libelous remarks against the 1st respondent as an opponent litigant. Page 4 of 18 At the High Court [7] The learned High Court judge (as he then was) found that the action taken by the appellant vis-à-vis writing the impugned letter addressed directly to the High Court judge (Justice Noraini Binti Abdul Rahman) who was the presiding judge on an on-going judicial separation proceeding involving the 1st respondent himself and one Michele Kythe Lim Beng Sze, was a wrong mode to urge the High Court judge to invoke para 17 of the Schedule (Additional Powers of the High Court) of the Courts of Judicature Act 1964 to declare that the 1st respondent as a vexatious litigant. [8] The learned High Court judge was of the opinion that there was no necessity for the DB to formulate a proper charge against the appellant after having examined the contents of the correspondences exchanged between the appellant and the DB which were sufficient for the appellant to know what the complaint against her was. The learned High Court judge also found that the members of the DC did not descend into the arena during the proceedings. [9] With regard to the question raised by the appellant as to whether the DB was under a duty to give the appellant an opportunity to be heard before making its decision to accept or reject the DC’s recommendation, the learned High Court judge was of the opinion that in the circumstances of the case, there was no requirement for the DB to give the appellant the right to be heard because the decision of the DB could not be said to be adverse against the appellant. The learned High Court judge stated that “the substitution of a lesser punishment could not, by any stretch of legal Page 5 of 18 imagination, be construed as is ‘likely to be adverse against’ the appellant for her to be accorded a reasonable opportunity to be heard.” [10] Based on the above findings, and among others, the learned High Court judge dismissed the appellant’s Originating Summons. The Findings of this Court [11] Before this Court, the appellant had confined her appeal to only two issues. First, was it a misconduct to describe an opponent litigant, who was also by profession an advocate and solicitor, as a frivolous and vexatious litigant? Secondly, whether the DB should accord the appellant a right to be heard before the DB made its decision. This Court will address the two issues in seriatim. The First Issue – Misconduct [12] The 1st respondent’s 7th complaint against the appellant was essentially captured in his letter (dated 30.5.2014), particularly in the following paragraphs as reproduced below: “13 On 16.12.2013, Tan issued a letter under the letterhead of Tan Law Practice to the High Court alleging inter alia that my Notice of Appeal to Judge in Chambers is a vexatious and frivolous use of the appeal procedure; that I was behaving like a vexatious litigant in instructing my solicitors to reply to their letter dated 7.12.2013 to the Learned Judge; and to further ask the Learned Judge to take cognizance of my unbecoming behaviour which was allegedly becoming intolerable.

This letter dated 16.12.2013 was copied to various persons listed after the contents namely the Petitioner, Chew and my firm Michael Chai & Co (now known as Michael Chai Ken). A copy of this letter dated 16.12.2013 from Tan is attached herewith as Annexure “KSJ-1”. Please refer to pages 3 and 4, in particular the highlighted portions.

Tan is resorting to libelling me in Tan’s letters to the High Court. Tan knows that I am a practicing Advocate and Solicitor of 22 years standing and that I frequently appear in all levels of the Courts, and that there is likelihood that I will appear before the Learned Judge for family law related cases. Further, I am a party in the Matter! The Learned Judge concerned is hearing and deciding on proceedings in the Matter. Despite knowing this, Tan deliberately wrote to the Learned Judge, making unnecessary, unjustified and defamatory statements about me.

Tan has failed to keep her opinion of me to herself but has instead cast terrible aspersions into the merits of the ongoing proceedings before the High Court that is presided over by the Learned Judge. I submit that this is an act laden with malice and it has caused damage to my good name and reputation as an Advocate and Solicitor.

Tan has ignored the usual dictates of legal decency and propriety.

I further submit that this conduct of Tan’s caused a grave impropriety; it tantamounted to conduct which was unbefitting of an Advocate and Solicitor. It was conduct that was not characterized by candour, courtesy and fairness. It was conduct which compromised the dignity and high standing of our profession. And it was conduct which brings our profession into disrepute.” [13] The appellant’s letter dated 16.12.2013 to the High court judge is reproduced as below (the English version): Page 7 of 18 Page 8 of 18 [14] The DC, after having heard the parties, made the following findings: Page 9 of 18 [15] On 18.9.2019, the DC, after hearing the parties, found there was sufficient merit in the complaint and recommended that the appellant (and Chew Swee Yoke) both should be subjected to an imposition of a fine of RM30,000.00 each. As mentioned earlier, the DB rejected the finding of liability by the DC against Chew Swee Yoke, but affirmed the finding of liability against the appellant in respect of the 7th complaint. The DB decided to censure the appellant, instead of imposing a fine. [16] The appellant’s counsel submitted that the DC found the appellant was in breach of s. 94(3)(o) and (d) of the LPA, and Rules 18 and 31 of the LPR. The appellant’s counsel submitted that DC was wrong to find Page 10 of 18 the impugned letter was a letter against the 1st respondent in his capacity as an advocate and solicitor. The impugned letter referred to the 1st respondent as a litigant in an on-going judicial separation proceeding, the appellant’s counsel submitted. Therefore, the DC got it wrong to find the appellant had misconducted herself as an advocate and solicitor against another advocate and solicitor, the appellant’s counsel further submitted. The appellant counsel also submitted that Rules 18 and 31 do not apply to a litigant. [17] Section 94(3)(d) and (o) of the LPA states as follows: “(3) 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; …;

being guilty of any conduct which is unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute.” [18] Rules 18 and 31 of the LPR read as follows: “18 Advocate and Solicitor to conduct with candour, courtesy and fairness Page 11 of 18 The conduct of an advocate and solicitor before the Court and in relation to other advocates and solicitors shall be characterized by candour, courtesy and fairness.” “31 Advocate and solicitor to uphold dignity of profession Every advocate and solicitor shall at all times uphold the dignity and high standing of his profession.” [19] This Court is of the view that there is no basis for this Court to interfere with the fact finding of the DC in that the act of writing to a presiding judge complaining of the conduct of the 1st respondent amounted to a misconduct under the law. Fact finding ought to be determined by the DC. The DC was of the opinion that the appellant had made defamatory remarks against the 1st respondent as an advocate and solicitor to the presiding judge, that such conduct was unacceptable. The DC also found that such conduct was unbefitting of an advocate and solicitor and had brought the legal profession into disrepute. In conclusion, the DC remarked that “after scrutinizing all documents and also listening to both the Respondents and taking into account the demeanor of the witness, we made a finding of fact that both Respondents had committed misconduct.” [20] However, this Court will address the legal issue raised by the appellant as to whether an advocate and solicitor’s action of describing an opponent litigant, who was also an advocate and solicitor, as frivolous and vexatious could amount to an act of misconduct. [21] This Court is of the considered view that in the circumstances of the peculiar facts of the case, the conduct of the appellant describing the Page 12 of 18 litigant (the 1st respondent) as frivolous and vexatious was in fact “unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute” and in breach of the specified Rules for the reasons below. [22] An advocate and solicitor, although required to act fearlessly to uphold the interest of his/her client, must first place the interest of justice and dignity of the profession above all else, even it could lead to an unpleasant consequence either to himself/herself or to any person, including to his or her client. This proposition is stated in Rule 16 of the LPR. [23] In the present case, the appellant had urged the presiding judge to take drastic measure against the 1st respondent and had accused the 1st respondent of “behaving like a vexatious litigant”. The appellant knew the 1st respondent was not just a litigant in the on-going judicial separation proceeding but was also an active practising advocate and solicitor. [24] The appellant further stated that “the problem is compounded by the fact that he is represented by his own legal firm and need not pay legal fees, and he is becoming very personal in his ‘war’” against the appellant, her solicitors and the counsel. In a way, the appellant had insinuated that the 1st respondent did not just behave as a very difficult litigant, but had also leveraged on his profession as an advocate and solicitor in the judicial separation proceeding. Therefore, the impugned letter had by extension complained against the 1st respondent not only in his capacity as a litigant, but also the fact that the 1st respondent was an advocate and solicitor. Page 13 of 18 [25] This Court is of the considered view that even if the 1st respondent was not an advocate and solicitor, the appellant’s action of making a written complaint directly to the presiding judge of an on-going litigation about the opponent litigant ought to be frowned upon. [26] The 1st respondent as an opponent litigant in the court case was represented by a firm of solicitors, if there is any complaint against any actions taken in the court case, the complaint ought to be made to the firm of solicitors representing him, as opposed to making a complaint directly to the presiding judge. If such practice is allowed, the ramification is that the court will be bombarded with complaint letters by lawyers complaining against their opponent litigants. Further, the complaints made against the opponent litigant would prejudice and influence the mind of the presiding judge. This could in a way amount to “obstructing” the court in administering fair justice to the litigants as well as breed an unhealthy practice in the legal profession. [27] In the present case, if the appellant in her professional view opined that the 1st respondent’s behavior was unreasonable, i.e., by filing multiple appeals, the appellant could have always advised her client to file an application in court to seek a declaration that the 1st respondent was a vexatious litigant. [28] There was no justification for the appellant to “suggest” to the presiding judge to consider taking necessary action vis-à-vis to declare the 1st respondent as a vexatious litigant so as to not to burden the presiding judge with further unnecessary vexatious applications. Whatever the reasons that motivated the appellant to do so, the appellant had crossed the lines of professional conduct as an advocate and solicitor Page 14 of 18 regardless whether the complaint was against the 1st respondent as a litigant or in his capacity as an advocate and solicitor. Second issue – Right to be heard before DB made its decision [29] This issue was not raised in the Memorandum of Appeal in the manner it was raised in the appellant’s submission. However, this Court will address the issue in accordance with the manner raised in the appellant’s submission because it is a question of law in relation to the interpretation of s.103D of the LPA. [30] Although the DB made its decision on 19.11.2021, but the 7th complaint was lodged on 30.5.2014, therefore the parties agreed that the governing provision that should apply in the present case was the pre-amendment provision of s.103D of the LPA. The pre-amendment provision of s.103D of the LPA reads as follows: “(2) The Disciplinary Board may in appropriate cases impose a greater 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 under subsection (2) or any order that is likely to be adverse against an advocate and solicitor under subsection (3), it shall notify the advocate and solicitor of its intention to do so and give him a reasonable opportunity to be heard.” Page 15 of 18 [31] At the High Court, the learned High Court judge referred to the decision of Dato’ Kanagalingam a/l Veluppillai v Majlis Peguam Malaysia [2022] 3 MLJ 699, CA, and concluded that since the punishment meted out by the DB was not greater than the punishment recommended by the DC, therefore the appellant was not adversely affected by the decision. As such, there is no statutory requirement for the DB to give the opportunity to be heard to the appellant. [32] Before this Court, the appellant’s counsel referred us to the recent Federal Court decision in Majlis Peguam Malaysia v Syed Ahmad Imdadz Said Abas & Anor [2024] 1 CLJ 353. The learned High Court judge did not have the benefit of this apex court decision at the time he made his decision. [33] The law applied by the apex court is the present provision of s. 103D of the LPA because the complaint was lodged on 4.10.2016, after the present s.103D of the LPA took effect or came into force on 3.6.2014. [34] In Syed Ahmad Imdadz, it was held that “even if the DB decides to impose what it may deem to be lighter penalty or punishment that is less harsh than that recommended by the DC, the decision in our view, qualifies as being adverse, triggering the necessity for a reasonable opportunity to be heard.” The appellant’s counsel urged this Court to apply the same proposition of the apex court to the present case, despite the fact that the apex court’s ruling was premised on the present amended s. 103D of the LPA. [35] This Court is mindful of the apex court’s ruling. However, the wording of the pre-amendment provision of S. 103D is not the same as Page 16 of 18 the present provision of s. 103D of the LPA. The apex court’s decision is based on the present law; whereas, in our present case, the provision that applied was the pre-amendment provision of s. 103D of the LPA. [36] We are of the view that although the wordings of the pre-amendment provision and the present provision of s.103D of the LPA are slightly different, the fact that the same words “that is likely to be adverse against an advocate and solicitor” are used in both pre and post s 103D(4) of the LPA would connote the same interpretation. Therefore, this Court could agree with the appellant’s counsel that a right to be heard ought to be accorded to the appellant before the DB meted out its decision for an adverse punishment to be imposed on the advocate and solicitor. [37] Notwithstanding what has been said above, this Court is of the considered view that the apex court’s ruling that the right to be heard to the advocate and solicitor must be understood in the context as a mitigation hearing, not a re-hearing of the finding of liability. [38] The apex court in paragraph [30] of its judgement held that “if the DB intends to impose any punishment, it must give the advocate and solicitor a reasonable opportunity to be heard irrespective if it is likely to be adverse or otherwise before imposing a greater or lesser punishment.” [39] In the present case, the DB had decided for the appellant to be censured, and had rejected the DC’s recommendation of a fine of RM30,000.00. The punishment of censure was a lesser punishment, not just lesser punishment but the least or the lowest punishment possible. Next to the lowest punishment would be no punishment, to wit, exoneration from liability. Therefore, it would make a mockery of the Page 17 of 18 procedure under s.103D(4) of the LPA (pre or post amendment) if a hearing must be held for mitigation on the intended lowest punishment. [40] In the present case, the effect of the DB’s decision was a favorable one to the appellant when viewed in the context of the DC’s recommendation. Therefore, whether the right to be heard was given or not, it would not make a difference because the DB’s decision was favorable to the appellant, and the punishment was the lowest punishment that the appellant could have asked for. No matter how one looks at it, it could not be said the breach of natural justice (if any) in the circumstances of the peculiar facts of this case had any real impact. A mere breach of right to be heard is in itself insufficient for this Court to set aside the entire decision of the DB or overturn the High Court’s decision when the breach was of no significance or was not serious such as to have impact on the outcome of the DB’s final decision (see the legal principle enunciated in the Federal Court decision in Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 9 CLJ 213). Conclusion [41] For the above reasons, this Court dismissed the appellant’s appeal and affirmed the High Court order dated 29.8.2023. This Court ordered no order as to costs. -sgd- (CHOO KAH SING) Judge Court of Appeal Malaysia Date:

3.4.2025 Page 18 of 18 Counsel(s) for the appellant: K.Shanmuga (Natalie Jong Ling Li with him) Messrs. Kanesalingam & Co. Counsel(s) for the 1st respondent: Jonathan Gerard (Jessica Chew with him) Messrs. Louis Ambrose & Partners Counsel(s) for the 2nd respondent: Arthur Wang Ming Way (Nurufarhina binti Ab Rahim with him) Messrs. Arthur Wang, Lian & Associates