Tania Scivetti v Majlis Peguam (W-02(A)-2280-12/2021)

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LEMBAGA TATATERTIB PEGUAM-PEGUAM MALAYSIA JAWATANKUASA TATATERTIB PEGUAM-PEGUAM MALAYSIA ... RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Di Dalam Wilayah Persekutuan, Kuala Lumpur (Bahagian Kuasa-Kuasa Khas) Saman Pemula No.: WA-17D-10-04/2021 Antara Tania Scivetti (pemilik tunggal, Messrs Scivetti & Associates) ... Plaintif dan S/N jdpda40BGkGBhNcNRvgpPw

Majlis Peguam

Lembaga Tatatertib Peguam-Peguam

Malaysia Jawatankuasa Tatatertib Peguam-Peguam Malaysia CORUM YAACOB BIN HAJI SAM, JCA GUNALAN A/L MUNIANDY, JCA AZIMAH BINTI OMAR, JCA ... Defendan-Defendan] A. BACKGROUND FACTS [1] The Appeal before us concerns the Appellant-Plaintiff’s Originating Summons for an injunction and declaratory reliefs to restrain the Respondents (particularly the 3rd Respondent) from proceeding with a further disciplinary inquiry primarily in reliance of section 103B (1) and section 99 (3A) of the Legal Profession Act 1976 (“LPA”). [2] The Appellant contended that the 3rd Respondent was at least four (4) years and one (1) month out of time (since the appointment of the 3rd Respondent by the 2nd Respondent in 2016) to commence a further inquiry into a complaint lodged against the Appellant. [3] Nonetheless, during the Appeal Hearing before us on 29.3.2023. the Appellant-Plaintiff only proceeded to seek the Declaratory Reliefs sought vide the Originating Summons. Thus, we are minded to address and deliberate upon the present Appeal only to the extent of the propriety of the Declarations applied for, and not the injunctive relief S/N jdpda40BGkGBhNcNRvgpPw previously applied for to restrain the adjudicative functions of the 3rd Respondent. [4] We are also minded to note that the present Appeal does not at all deal with the actual merits of the alleged misconduct complained against the Appellant. Instead, the present Appeal only revolves around the Appellant’s procedural objection against the 3rd Respondent’s inquiry which the Appellant contended to have been made out of time in contravention of section 103B (1) and section 99 (3A) of the LPA. Thus, we are also minded to not delve into the substantive merits of the complaint and limit our Appellate intervention to the scope of the curial or procedural law involved in the Appellant’s objections. In any case, it is apt for us to briefly lay down the background facts which led to the Appellant’s objections under its Originating Summons. [5] Tania Scivetti (“the Plaintiff / Appellant”) is an advocate and solicitor of the High Court of Malaya and the sole proprietor of the firm, Messrs Scivetti & Associates. The Plaintiff is also a member of the Bar Council (“the 1st Defendant / 1st Respondent”). [6] As mentioned in the above paragraph, the 1st Respondent is the Bar Council. The 1st Respondent is the Bar Council of Malaysia established under section 47 of the LPA for the primary purpose of managing the affairs of the Malaysian Bar and performance of the functions of the Malaysian Bar under the LPA. [7] The 2nd Respondent is the Disciplinary Board (“2nd Respondent / DB”) established under section 93 of the LPA to S/N jdpda40BGkGBhNcNRvgpPw exercise the functions of the Bar Council for the purposes of disciplinary proceedings primarily under Part VII of the LPA. [8] The 3rd Respondent is the Disciplinary Committee (“3rd Respondent / DC”) which from time to time will be appointed by the 2nd Respondent under section 103A of the LPA in circumstances where the DB deems that a DC is necessary to be appointed to further inquire into a complaint lodged against a solicitor. [9] Succinctly, a complaint was lodged against the Appellant alleging that the firm had wrongfully instructed the firm’s legal clerk (not a registered solicitor with the Bar Council), one Muhammad Akbar bin Abdul Gafoor (“En. Akbar”) to represent its client, one Azman Bin Bahari (“the client”), in a Hearing on 4.11.2014 under Dangerous Drugs (Special Prevention Measures) Act 1985 at the Pusat Pemulihan Akhlak Batu Gajah, Perak (“the impugned Hearing”). [10] The Appellant however, contended that En. Akbar was in attendance with another two solicitors from the firm (Syazwani Binti Mohd Zawawi and Nor Rabiatul Binti Bahari) only in the capacity to assist these two solicitors who were actually instructed to represent the client and take conduct of the proceedings during the impugned Hearing. [11] A concise chronology of the series of correspondences of the events had astutely been prepared by the learned High Court Judge (“Learned Judge”) who disposed of the Appellant’s Originating Summons. We reproduced the same here for ease of reference: Paragraph 78 of the Learned Judge’s Grounds of Judgment. S/N jdpda40BGkGBhNcNRvgpPw S/N jdpda40BGkGBhNcNRvgpPw [12] The DB then had via a letter dated 27.12.2016 informed the Appellant that a DC had been appointed to further inquire into the complaint lodged against the Appellant. [13] Thereafter, four (4) years and one (1) month then had passed without any development since the DB informed the Appellant of the appointment of the DC to further inquire into the complaint lodged against the Appellant. Only after a whopping 4 years and 1 month that the chairperson of the DC had embarked on the DC’s inquiry into the complaint against the Appellant via a letter dated 21.1.2021 seeking for a written explanation from the Appellant. [14] In view of the years of alleged inordinate delay in the DC’s inquiry, the Appellant via its letter dated 29.1.2021 has raised a preliminary objection under section 103EA of the LPA regarding the time S/N jdpda40BGkGBhNcNRvgpPw limitations under section 103B (1) and section 99 (3A) of the LPA. The DB on 4.3.2021 had dismissed the Appellant’s preliminary objections and directed the DC to proceed with further inquiry. Notwithstanding the Appellant’s preliminary objections, the DC remained insistent to proceed with its inquiry and notified that a Hearing before the DC shall be conducted on 19.4.2021. [15] It was the DC’s insistence to proceed with the DC inquiry out of time that had led the Appellant to file an Originating Summons on 6.4.2021 for injunctive and declaratory reliefs to declare the DC’s inquiry to be unlawful and to also restrain the DC from proceeding with the inquiry (including the Hearing slated to be conducted on 19.4.2021) (“the OS”). [16] Pending the full disposal of the OS at the High Court, the Learned Judge on 13.4.2021 had granted an interim stay on the DC Hearing. B. THE HIGH COURT’S FINDINGS [17] Upon hearing the OS, the Learned Judge had dismissed the OS on the following grounds: a. The Appellant’s OS was premature and it was improper for the Court to grant extensive injunctive relief to interfere with the adjudicative authority and function of the DC ahead of the DC Hearing: S/N jdpda40BGkGBhNcNRvgpPw Paragraphs [59], [60], [62], [63], [66] and [67] of the Learned Judge’s Grounds of Judgment. [59] In Cheah Foong Chiew v. Lembaga Jurutera Malaysia [1999] 3 MLJ 110; [1999] 1 MLRA 316; [1999] 3 CLJ 242; [1999] 2 AMR 2421, the Appellant was charged under the Registration of Engineers Rules 1972. Before the disciplinary proceedings could commence, the Appellant applied to the court to challenge the jurisdiction of the Respondent to bring the charge against him. The issue was whether, on the facts, the court ought to intervene. [60] Shaik Daud JCA (as he then was) stated that the Appellant’s application to the court, in the circumstances of the case, is premature. His Lordship stated that it would be wrong for the courts to intervene at this stage as it would be tantamount to restraining the Respondent from hearing the charge against the Appellant, and would pre-empt the Respondent’s right under the law to adjudicate the matter. His Lordship was also of the view that the learned judge was right when he said that it was premature for the court to injunct the Respondent in exercising their powers. … [62] The principle in Cheah Foong Chiew (supra) is followed in the case of Tetuan Choong & Co & Ors v. Lembaga Tatatertib Peguam-Peguam [2003] 3 MLRH 703; [2004] 1 CLJ 574; [2004] 1 AMR 575 where the S/N jdpda40BGkGBhNcNRvgpPw Plaintiffs filed an application to restrain the Disciplinary Committee from hearing a complaint made against them by the Bar Council of Malaysia. Raus Shariff J (as he then was) with clear and succinct wordings stated that: “I am of the view in an application of this nature, the court must consider not only the interests of the advocates and solicitors, but also that of the legal profession as a whole, and above all public interest. It is in the public interest that there be an ethical and disciplined legal profession and indeed the privileged position which the legal profession enjoys by law can only be justified on those grounds. It is for this reason, to ensure that public interest in having a legal profession of the highest possible standard is upheld, Parliament has, in his wisdom set up the scheme of disciplinary proceedings under the Act for the proper discipline of advocates and solicitors. Thus, taking into consideration the scheme of disciplinary proceedings under the Act, I am of the view that this court must not entertain this type of action. To me, the plaintiffs must exhaust their domestic remedies before coming to this court. All of the plaintiffs’ arguments as to the validity of the complaint can and should be raised before the Disciplinary Committee at the hearing of the said complaint. There is an appeal process. The plaintiffs have the right to appeal to the High Court and have a further right to appeal to the Federal Court.” S/N jdpda40BGkGBhNcNRvgpPw (emphasis added) … [63] In Manggai v. Government of Sarawak & Anor [1970] 1LNS 80; [1970] 1 MLRA 344; [1970] 2 MLJ 41, the Federal Court affirmed the legal principle that where a statute creates a right and gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others. … [66] It is therefore my considered opinion that the court must deal with the application in hand at this juncture with caution as I do not want to be perceived as prematurely interfering with the adjudicative function of Second and Third Defendants. [67] Following the decided case laws on this issue, I am of the view that the court must not entertain this type of action for a reason the Plaintiff must first exhaust domestic remedies before coming to this Court. b. The Appellant’s reliance on section 99(3A) of the LPA was misplaced and a non-issue as the requisite inquiry under the provision was specifically referring to the DB’s (not DC’s) inquiry under section 100 of the LPA (which the DB has already complied with within time via the DB’s inquiry vide the DB letter dated 14.12.2015): S/N jdpda40BGkGBhNcNRvgpPw Paragraphs [85] and [86] of the Learned Judge’s Grounds of Judgment. [85] The inquiry required under section 99 (3A) of the LPA was already embarked on by the Second Defendant on or before its letter dated 16 March 2016 when it requested the Plaintiff to provide a written explanation to the complaint by the First Defendant dated 14 December 2015. [86] Therefore, I am of the opinion that the issue on the six-year limitation under section 99 (3A) of the LPA is indeed a non-issue in this instant case”; and c. Although there is clear contravention of section 103B of the LPA, it remains improper for the Court to permanently injunct the DC from performing its adjudicative function: Paragraphs [94], [95] and [96] of the Learned Judge’s Grounds of Judgment. [94] Hence, on the issue of time lapse under section 103B (1) of the LPA, I found that there is a very strong and cogent ground for the Plaintiff as there is no explanation given by the Second and Third Defendants for the inordinate delay. As justice delayed is justice denied, the Second and Third Defendants must make their findings expeditiously. S/N jdpda40BGkGBhNcNRvgpPw [95] Nevertheless, I take note that the hearing of disciplinary proceedings has yet to take place. A more important question for me to ask is this: is it justifiable for this Court at this juncture to grant the extensive prayers merely on the issue of time lapse under section 103B of the LPA is more favorable to the Plaintiff? … [96] Again, I wish to say that the hearing of disciplinary proceedings has not even started. The Plaintiff has prematurely filed this application to injunct the Second and Third Defendants from performing its adjudicative duty under the legislation. The court must deal with the application in hand at this juncture with caution as I do not want to be perceived as prematurely interfering with the adjudicative function of Second and Third Defendants. C. THE APPEAL BEFORE US [18] Dissatisfied with the Learned Judge’s decision, the Plaintiff appealed against the Learned Judge’s decision to the Court of Appeal. The Appellant’s Appeal was primarily leveraged on the following grounds: a. The Learned Judge’s finding that the Appellant’s OS was premature was wrong in law and had ignored the prevailing rule that existence or availability of statutory S/N jdpda40BGkGBhNcNRvgpPw remedy is not a bar against the granting of declaratory relief; b. The Learned Judge has erred in law and in finding that the Appellant’s reliance on the six years’ time limitation under section 99(3A) of the LPA was a non-issue; and c. The Learned Judge has erred in refusing to declare the unlawfulness of the DC’s inquiry out of time although clearly agreeing with the Appellant that the DC had clearly contravened section 103B of the LPA. [19] We have perused the Learned Judge’s Grounds of Judgment, both parties’ written submissions, as well as the Appellant’s Memorandum of Appeal and found that the Appeal before us can be determined by answering the following 3 issues: a. Issue 1: Whether or not the Learned Judge’s refusal to grant the Declaratory reliefs on the basis of the OS being premature was correct in law; b. Issue 2: Whether or not the Learned Judge’s finding that section 99(3A) of the LPA was a non-issue was correct in law; and c. Issue 3: Whether or not the Learned Judge’s refusal to grant declarations despite his finding of DC’s breach of Section 103B of the LPA was correct in law. S/N jdpda40BGkGBhNcNRvgpPw D. ISSUE 1: WHETHER OR NOT THE LEARNED JUDGE’S REFUSAL TO GRANT THE DECLARATORY RELIEFS ON THE BASIS OF THE OS BEING PREMATURE WAS CORRECT IN LAW [20] As we have intimated earlier, during the hearing of the present Appeal before us, the Appellant has conceded on its prayers for permanent injunction and now only seeks for the Declaratory Reliefs in prayers 1 (g) and (j) of the OS: g) That the act of convening an inquiry by the Third Defendant on the appointment by the Second at this juncture is illegal, void, and of no effect as there has been a breach of mandatory provision of Section 103B (1) of the LPA; … j) That the disciplinary proceedings instituted by the Second Defendant against the Plaintiff were therefore illegal, null, and void. [21] Considering the concession above, it stands to reason that the main reason the Learned Judge’s cautiousness (which is certainly understandable) is by and large no longer warranted as the Appellant-Plaintiff here is no longer seeking to permanently injunct the Respondents but only maintains its Application for the two Declarations in prayers 1 (g) and (j) of the OS. It is certainly trite that the threshold of an injunction is altogether different and much higher than that of a Declaration. S/N jdpda40BGkGBhNcNRvgpPw [22] It is clear to us that the Learned Judge’s cautiousness as to not intervene with the Respondents’ adjudicative function was premised on the ground that the Learned Judge was mindful not to decide on the merits of the complaint before the DC’s Hearing and Decision. [23] On the contrary, we find that the Learned Judge was unfortunately in error as the Learned Judge had failed to consider these three following salient facts in the OS: a. Firstly, the remedy that the Appellant was seeking was not to intervene the adjudicative function of the DC to decide on the merits of the complaint. In fact, the entirety of the Appellant’s OS was exclusively pertaining to curial laws as to the propriety of the procedural transgressions of the Respondents under the LPA. The Appellant was not asking the High Court to decide the merit of the complaint ahead of the DB or DC. Thus, the Learned Judge’s reliance on the excerpt of the decision in Tetuan Choong & Co & Ors v. Lembaga Tatatertib Peguam-Peguam [2003] 3 MLRH 703; [2004] 1 CLJ 574; [2004] 1 AMR 575 is unfortunately misplaced. Raus Shariff J (as His Lordship then was) in that case stated that, “the plaintiffs must exhaust their domestic remedies before coming to this court. All of the plaintiffs’ arguments as to the validity of the complaint can and should be raised before the Disciplinary Committee at the hearing of the said complaint.” On the other hand, what the Appellant is seeking for is a determination on the jurisdiction of the DC considering the S/N jdpda40BGkGBhNcNRvgpPw DC’s inquiry being way out of time (in breach of section 103B of the LPA); b. Furthermore, the Appellant indeed had gone through the proper statutory channel to voice its preliminary objection to the DB (which the DB had in fact already decided upon). Thus, although the Learned Judge has considered a correct rule of law, the Learned Judge has incorrectly applied the rule of law onto the OS as the Appellant is not asking the Court to decide on the merits of the complaint ahead of the DC Hearing; c. Secondly, the Declaration sought by the Appellant was not a Declaration which would be ahead of the determination of the DB or the DC. We reiterate that the preliminary objection had already been raised before and was decided by the DB. The DB had dismissed the Appellant’s preliminary objection and already found that the DC still maintained jurisdiction to proceed with the Hearing although the inquiry was well out of time. So, the parallel the Learned Judge drew with the case of Cheah Foong Chiew v. Lembaga Jurutera Malaysia [1999] 3 MLJ 110; [1999] 1 MLRA 316; [1999] 3 CLJ 242; [1999] 2 AMR 2421 (“Cheah Fong Chiew”) is unfortunately misplaced. d. This is because, in the case of Cheah Foong Chiew, the challenge upon the jurisdiction of the Board of Engineers was never even heard and was never decided upon. In stark contrast with the OS, the Appellant’s challenge upon jurisdiction had already been determined and dismissed by the DB. So, there was already a level of commencement of disciplinary S/N jdpda40BGkGBhNcNRvgpPw proceedings which led to the DB finding that the contraventions of the LPA did not oust the jurisdiction of the DC to proceed for further inquiry; e. Thirdly, the Learned Judge’s insistence that the Appellant should (as a general rule) first exhaust all the statutory mechanisms under the LPA was ignoring the equally pertinent issue of the DC’s loss of jurisdiction when the DC had failed to commence its inquiry within the limitation period. We do not intend to contra, and are in fact in agreement with the general rule referred to by the Learned Judge. As a general rule, if a statute provides statutory mechanisms or remedies, parties should abide by the same and see the matter to the full extent of the same statutory mechanism or remedies. However, we cannot rigidly apply the general rule when the statutory bodies conducted themselves in direct contravention of the very statute that clothed them with statutory jurisdiction. f. This is especially so considering the statutory procedures under the LPA which provide separate levels of inquiries between the DB and the DC. Alike in the present Appeal, the question arises, should the Appellant be expected to see to the end of the DC Hearing, when in between the DB inquiry and the DC inquiry, the DC had conducted itself in a manner that has relinquished the DC’s jurisdiction over the matter? [24] To answer the above question, we are inclined to agree with the position adopted by the Appellant. We agree that a Declaration as to S/N jdpda40BGkGBhNcNRvgpPw the jurisdiction of the DC can appropriately be sought before the Court to determine the correctness of the DB’s findings regarding the DC’s jurisdiction before the DC Hearing. A Declaration regarding the DB’s decision would be flexible enough and not so intrusive to disturb the adjudicative functions of either the DB or the DC. [25] In normal circumstances of a determination of merit of a complaint, of course the Courts ought not to interfere with the full realization of the statutory mechanisms of the LPA. But when the DC had conducted itself in a manner that relinquishes its jurisdiction over the matter, it would be entirely more practicable for parties to seek for a Declaration from the Court instead of wasting resources just so that the DC would have to decide on its jurisdiction in a full-fledged hearing when the DB has already decided on the same matter of jurisdiction. [26] There is validity in the point raised by the learned counsel for the Appellant in the futility of such exercise considering the fact that the ‘umbrella’ body (being the DB) had already decided on the DC’s jurisdiction prior to the DC Hearing. [27] Considering the DB had already affirmed the DC’s jurisdiction, it is highly unlikely that the DC would depart from the DB’s determination considering the DC itself also was already insisting on its jurisdiction to proceed with the DC Hearing. Thus, rather than proceeding with months of DC Hearing while risking a negative finding of jurisdiction, it is far more practical that the Court determines the validity of the DB’s decision as to the DC’s jurisdiction. S/N jdpda40BGkGBhNcNRvgpPw [28] The Declaration would shed much needed clarity and certainty on how parties ought to conduct the matter moving forward. In this manner, the Court would not be interfering with the adjudicative functions of the DB and DC by way of injunction but the Court would be able to make practical and meaningful Declarations as to the jurisdiction of the DC in view of the DC’s statutory breaches. [29] We agree with the Appellant’s reliance on the principle that the availability of a statutory mechanism is no bar to a Declaration. We refer to the salutary words of Suffian LP (as His Lordship then was) in the case of Datuk Syed Kechik b Syed Mohamed [1979] 2 MLJ 101: In Ruislip-Northwood UDC v Lee (1931) 145 LT 208 214plaintiff sought the ruling of the court on a definite, concrete and existing dispute. The fact that the declaration was sought before the statutory powers were exercised was not a consideration weighing against the grant of that declaration. Nowadays, the courts seldom refuse to make orders on ground that it is premature to consider the question. As Greer L.J. pointed out that it had been for years the practice to know and determine claims for declaration of rights where there was a real and not a fictitious or academic question involved in order that the parties might know what course to take without running the risk of finding themselves liable to damages. Indeed, we consider that a court should make it possible to settle real disputes immediately they arose, so that the parties may act with certainty and not be under the threat of legal uncertainty and should be able to discount the future. (Emphasis added.) S/N jdpda40BGkGBhNcNRvgpPw [30] We also draw guidance from the Federal Court decision in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 (“Sri Lempah”) which had held the following: “In the first place it must be made clear that the existence of a statutory remedy is no bar to an action for a declaration. This case falls within the general principle that the jurisdiction of the High Court is not to be taken away without express words; and this applies to an action for a declaration.” (Emphasis added.) [31] The decision in Sri Lempah was recently upheld and restated in another Federal Court decision in the case of Sumbangan Aneka v KNK Development Sdn Bhd & Ors [2021] 7 CLJ 694. [32] It must be highlighted that it is never our intention to override the general rule that a litigant must necessarily exhaust a statutory remedy or mechanism before presenting his disgruntlement before the Court. The Court should always tread carefully and lightly so as to not usurp any statutory body which was clothed with jurisdiction under a statute. Nonetheless, at least specifically to the unique circumstances of the present Appeal, (considering the fact that the DB had already made a decision on the DC’s jurisdiction and that the DC allegedly had relinquished its jurisdiction due to its statutory breaches), it is only appropriate for the Appellant to seek a Declaration from the Court not to determine the complaint on its merit, but to identify the appropriate position and rights of the parties in view of the DC’s statutory breach. S/N jdpda40BGkGBhNcNRvgpPw [33] As the DB decision on the DC’s alleged breaches had already existed prior to the filing of the OS, it cannot be said that the Court would have decided ahead of the statutory mechanism. It cannot also be said that the Court have usurped the adjudicative function of the DB or DC as the Court had never descended from the bench to determine the complaint on its merit. [34] Considering the above precedents and deliberation we hereby answer issue 1 in the NEGATIVE. The Learned Judge’s refusal to grant the Declaratory reliefs on the basis of the OS being premature was unfortunately misguided. Although the Learned Judge had in his mind the appropriate caution, the Learned Judge had unfortunately failed to consider other prevailing principles in the granting of Declaratory relief and other salient facts of the OS which would put the OS within the realm of the exception to the general rule of non-intervention. E. ISSUE 2: WHETHER OR NOT THE LEARNED JUDGE’S FINDING THAT SECTION 99(3A) OF THE LPA WAS A NON-ISSUE WAS CORRECT IN LAW [35] The Appellant and Respondents are thoroughly at odds regarding the proper interpretation of the six years’ time limitation prescribed under section 99(3A) of the LPA. Intriguingly, the Appellant and the Respondents are all relying on the same provision to prove their own contrasting arguments. We reproduce the provision here for ease of reference: “(3A) No complaint concerning the conduct of any advocate and solicitor or of any pupil SHALL BE INQUIRED INTO by the S/N jdpda40BGkGBhNcNRvgpPw Disciplinary Board after the expiration of six years from the date when the right of action to bring the complaint accrued…” (Emphasis added) [36] The Appellant posited that section 99(3A) of the LPA should be applied even against inquiry by the DC and that the inquiry by the DC should be read as the inquiry by the DB. Thus, the Appellant argued that the right of action accrues from the date of the impugned Hearing and lapses 6 years from 4.11.2014 (last date being 3.11.2020). On that pretext, the Appellant sought to prove that the inquiry called by the DC in the year 2021 was well beyond the six years’ limitation period under section 99(3A) of the LPA. [37] On the contrary, the Respondents argued that the provision if read in tandem with Rule 6 of the Legal Profession (Disciplinary Proceedings) Rules 2017 would stipulate that the provision does not bar an inquiry by the DC to be made beyond six years after the accrual of right to action. Instead, the provision allegedly is more focused on the conduct of ‘complaint’ rather than ‘inquiry’. Therefore, the Respondents argued that the statutory time limitation is instead that a complainant would have six years from the right to action to lodge a complaint to the Bar Council and the DB inquiry can proceed even beyond the 6 years’ time limitation so long as the complaint was lodged within 6 years from the right to action. [38] The touted Rule 6 of the Legal Profession (Disciplinary Proceedings) Rules 2017 (“DP Rules”) reads as follows: S/N jdpda40BGkGBhNcNRvgpPw “NO COMPLAINT relating to the alleged misconduct of any advocate and solicitor concerned or the legal firm shall be lodged by the complainant after the expiration of six years from the time when the right to bring the complaint accrued or when the complainant first became aware of the act or the last of the acts complained of had occurred entitling him to lodge a complaint. [39] Now, even before we begin to address the substance of the parties’ arguments, it is most prudent for us to first reconcile the contrasting interpretations that the parties had contended. To our analysis, it is plain and obvious that Section 99(3A) of the LPA specifically refers to and limits the ACT OF INQUIRY by the DB, and not the act of lodging complaints. The provision expressly states that the DB shall not inquire into any complaints if six years have already passed since the accrual of the right to action. Thus, any supposition that goes against the clear pronouncement in the Provision should be in contravention of the provision. Therefore, the provision clearly anticipates that BOTH the complaint and the inquiry must be done within the 6 years’ time limitation. [40] To argue that the provision would allow 6 years for complaint to be lodged, and further undetermined time beyond that 6 years for the DB inquiry would run contrary to the very essence as well as the purpose of the provision, and the mischief (as in delays) which the provision is designed to avoid. [41] The Respondents’ reliance of Rule 6 of the DP Rules only lends further credence to the Appellant’s interpretation of Section 99(3A) S/N jdpda40BGkGBhNcNRvgpPw of the LPA. Rule 6 of the DP rules stipulates that a complainant must lodge his complaint within 6 years from the accrual of the right to complain. This ties in properly with Section 99(3A) of the LPA as lodging a complaint beyond the 6 years stipulated under Rule 6 of the DP Rules, would lead to a futile exercise as Section 99(3A) of the LPA would bar any inquiry to be made into such a complaint made out of time. The Respondents’ interpretation of both provisions would defeat the very same time limitation under Section 99(3A) of the LPA to bar inquiry out of time embedded within the provision. If we were to subscribe to the Respondents’ interpretation, then the 6 years’ time limitation under Section 99(3A) would be meaningless. [42] Thus, we preliminarily find that the proper interpretation of the six years’ time limitation under both provisions should mean that the DB inquiry must be made within six years from the accrual of the right to action. It is the legal duty of the complainant to observe and timeously act on his right so that that both the complaint and the DB inquiry can be done within six years from the accrual of the right to action. It is also the DB’s statutory duty to timeously perform its functions within the time stipulations prescribed under the provision. [43] Notwithstanding, our agreement with the Appellant’s interpretation is only to the above extent regarding the calculation of six years’ limitation period. However, the the Appellant’s contention to assume or infer that the inquiry by the DC is by extension the inquiry by the DB is unfortunately erroneous. The legislators have appropriately arranged and charted the procession of investigations or inquiries to be done by separate bodies (being the DB and DC) in accordance with the distinct levels of investigation a particular complaint is currently at. If the S/N jdpda40BGkGBhNcNRvgpPw legislators have intended that the two inquiries be the same single inquiry, then the legislators would not have made a clear contra distinction between the inquiry by the DB and the inquiry by the DC in totally separate and distinct provisions and levels of investigation. [44] Since the appointment of the DC in any given complaint is made upon the provisos under section 103A of the LPA, then it can be clearly gleaned from the holistic reading of the LPA that the DB would have to embark on its own inquiry (prior to the appointment of the DC) before making a decision whether or not the appointment of the DC is necessary or otherwise. This inquiry by the DC is clearly separate and distinct than that of the inquiry of the DB. Thus, to assume that the DC’s call for inquiry in 2021 is the DB’s inquiry under section 99(3A) of the LPA is plainly wrong. This is especially telling considering that the LPA provides a specific provision under section 100 of the LPA on the procedures the DB (not DC) should follow when dealing with a complaint made to the DB (not DC). It must clearly be minded that a written complaint does not at all go directly to the DC. A written complaint can only reach to the DC’s investigation, only upon the DB’s initial inquiry into the written complaint, and subsequent decision by the DB to embark on further investigation via the DC. [45] Following our finding above, it naturally follows that we agree with the Learned Judge’s finding that section 99(3A) of the LPA was a non-issue as the DB’s request to seek for written explanation under section 100 of the LPA, in the year 2016 was well within the limitation period of the provision. The Learned Judge has astutely found that the DB inquiry under the provision is separate and distinct to the DC inquiry which the DC had called for in 2021. S/N jdpda40BGkGBhNcNRvgpPw [46] All of the above considered, we answer issue 2 in the POSITIVE. The Learned Judge was correct to find that section 99(3A) of the LPA was a non-issue to begin with as the DB inquiry in 2016 was conducted well within the 6 years’ limitation period under section 99(3A) of the LPA. F. ISSUE 3: WHETHER OR NOT THE LEARNED JUDGE’S REFUSAL TO GRANT DECLARATIONS DESPITE HIS FINDING OF DC’S BREACH OF SECTION 103B OF THE LPA WAS CORRECT IN LAW [47] We are minded that the factum of the 4 years and 1 month’s delay was readily admitted by the Respondents. The disputation then is on the proper treatment that should be given against the present Appeal’s instance of delay. [48] The Respondents were adamant that although the provision seeks to promote expediency in the Respondents’ functions under the LPA, the provision cannot be strictly or rigidly imposed against the Respondents. The Respondents vehemently relied upon the Court of Appeal case of Koh Mui Tee (practising under the name and style of Koh & Assoc) v Chin Lee & Ors and another appeal (the administrators of the estate of Chin Kah Tan @ Tukan Chan, deceased) [2015] 1 MLJ 388 in which the Court of Appeal had dealt with an 8 months’ delay by the DC to furnish its report under section 103F of the LPA to the DB partly caused by the many objections raised by the solicitor complained against (“Koh Mui Tee”). S/N jdpda40BGkGBhNcNRvgpPw [49] In Koh Mui Tee, the Court of Appeal was lenient and amenable to absolve the delay primarily because of the following facts in Koh Mui Tee: a. The provision itself allows for statutory extension of time that could be applied for by the DC if a report could not be furnished within the two months’ time frame under the provision; and b. The delay was not inordinate and was explained by the DC. The DC explained that part of the delay was also caused by the hands of the solicitor due to the many objections raised by the solicitor which the DC had to address at the same time of preparing its report to be submitted to the DB. [50] On the contrary, we are inclined to agree with the Appellant’s argument that the case of Koh Mui Tee ought to be distinguished with the present Appeal. In Koh Mui Tee, the balance of justice might still tilt in favour of lenient reading of the statute’s stipulations of time considering the facts above. Inversely, the factum of delay and the relevant provision dealt with in the present Appeal are entirely different and distinguishable from Koh Mui Tee: a. The length of delay in Koh Mui Tee is a mere 8 months. However, the length of delay in the present Appeal is a startling 49 MONTHS (4 YEARS AND 1 MONTH). It is far too presumptuous to liken the prejudice caused against the S/N jdpda40BGkGBhNcNRvgpPw Appellant and inordinate nature of the 49 months’ delay to be the same as Koh Mui Tee’s mere 8 months’ delay; b. In Koh Mui Tee, the delay was appropriately explained by the DC that it was also occasioned by the solicitor’s own barrage of objections. Altogether different from Koh Mui Tee, the Respondents in the present Appeal did not at all provide any explanation as to the 49 months’ delay since the appointment of the DC; and c. The provision in Koh Mui Tee readily provides a mechanism for extension of time. Thus, it was within the legislator’s intent and anticipation that the time stipulation within the provision should be given a degree of flexibility. However, section 103B of the LPA does not at all provide any statutory rights for extension of time. Thus, the legislators must have specifically intended section 103B of the LPA to be applied with a higher degree of strictness and compliance. [51] We agree with the learned counsel for the Appellant that the 4 years’ long unexplained delay had put the Appellant in a long state of limbo and distress over the firm’s uncertain fate. [52] It is only fair and just that the Appellant not be put in a prolonged state of suspense and dragged through years of uncertainty. Especially considering the nature of the Appellant’s practice as a law firm, it is only just for the Appellant be given prompt opportunity to defend the firm’s reputation and integrity. S/N jdpda40BGkGBhNcNRvgpPw [53] On the same note, it is also in the best interest of the Appellant’s clients and prospective clients in the public to know with certainty the reputation and integrity of the solicitors they have appointed or intend to appoint. We are guided by the salutary words of the Supreme Court in the case of MAJLIS PEGUAM MALAYSIA & ORS v AU KONG WENG JOSEPH [1993] 2 MLJ 57: “It appears to us that a reading of the timetable provided under ss 93-103 with regard to disciplinary proceedings under Pt V of the Act, the expeditious disposal of complaints is what is sought to be enforced by the Act in providing for safeguards against delay, in order to ensure that an innocent advocate and solicitor, clears himself of any stain or suspicion of misconduct as soon as possible or conversely, that a guilty advocate and solicitor, is dealt with, as soon as possible, in the public interest. The very object of expeditious disposal of complaints under the Act would be defeated if the steps to be taken consequent thereto could be treated casually and lightly. This is the first impression we get on reading the provisions concerned and we are thus reminded of the well-known dictum of Denning MR in Sheffield City Council v Grangers Wines Ltd 13 at p 1122 that whether a particular provision is to be treated as mandatory (or imperative) or directory 'is always a matter of impression'. On general principle, where a statute regulates the exercise of a right or power, or the use of a prescribed procedure, express reference to time being made, there is a marked inclination on the part of the court to regard the relevant provision as one S/N jdpda40BGkGBhNcNRvgpPw which must be strictly and meticulously followed out.”(Emphasis added.) [54] Considering the nature of the complaint involved and the years’ worth of inexplicable delays by the DC, we are also inclined to refer to the Court of Appeal decision in the case of Sundarajan a/l Sokalingam v Fredrick Indran a/l X A Nicholas O/B Perak Bar Committee (Badan Peguam Malaysia, intervener) [2015] MLJU 2327 in which the High Court dealt with a delay of 2 years and 7 months (31 months) [15] Section 103B of the LPA (“section 103B”) effective 03/06/2014 provides: “(1) The Disciplinary Committee shall, WITHIN ONE MONTH of ITS APPOINTMENT, COMMENCE ITS INQUIRY into the written application or complaint and shall make its findings expeditiously.

The Disciplinary Committee shall keep a note of the proceedings of the inquiry and submit the findings and the notes of the proceedings to the Disciplinary Board.” [16] Although prior to 03/06/2014 the section did not impose a requirement that the DC submits its findings and recommendations expeditiously, we make the following observations: S/N jdpda40BGkGBhNcNRvgpPw

The nature of the Appellant’s conduct demanded that action be taken quickly and firmly while the event was fresh in the minds of everyone, so that there is no uncertainty as to the rejection and condemnation of such conduct. With the delay of 2 years and 7 months, the event had begun to recede into the pale mists of time. In the meantime, except for the period of 6 months when the Appellant served a sentence of imprisonment, the Appellant continued to practice. The delay was very much longer than the period of suspension recommended by the DC, and the period of suspension imposed by the Respondent. The reduction, upon appeal, to 6 months’ suspension added to the impression that the conduct was only mildly disapproved.

Had the findings and recommendations been made within a reasonable time considering the gravity of the incident, and even assuming that the DB imposed punishment of 12 months’ suspension from practice, it is arguable that the 6 months’ suspension by the High Court, his term of imprisonment from 22/2/2011 could have coincided with at least part of the period of suspension. Delayed, the Appellant faced the prospect of suffering 6 month’s suspension in addition to the period he was unable to practice when serving his sentence of imprisonment. This alone would not be sufficient in our view to set aside the suspension of 6 months imposed by the High Court. More to the point S/N jdpda40BGkGBhNcNRvgpPw was the lack of an acceptable explanation for the delay of almost 2 years 7 months. [17] It was submitted by the Intervener that the delay was technical, since at all times, except during his period of imprisonment, the Appellant had continued to practice, he had suffered no prejudice whatsoever. We find no merit in this submission which originates from procedural time limits (see Order 1A of the Rules of Court 2012). It cannot be applied to ignore or override time periods set down by statutory provisions. Although the section did not and still does not set down any fixed time, it requires explanation when on the face of it there was a delay and the matter was one that required a firm and timely response.” (Emphasis added.) [55] We are minded that the Learned Judge had already found that the DC’s delay was inordinate and inexplicable and that it would be a cogent ground for the Appellant to contend on the time lapse under section 103B of the LPA. Limited to this extent, we are in agreement with the Learned Judge. [56] However, despite the above finding, the Learned Judge still refused to allow any injunctive or even declaratory relief to the Appellant on the same ground of premature action (which we already have expressed our disagreement against in our answer to issue 1 above). Thus, the Learned Judge still unfortunately fell into error in failing to outright declare the clear breach of section 103B of the LPA by the DC and the unlawfulness of the DC Inquiry for being 4 years and 1 month out of time. We hereby answer issue 3 in the NEGATIVE. The Learned S/N jdpda40BGkGBhNcNRvgpPw Judge had erred when he refused to grant declarations despite his finding of the DC’s breach of section 103B of the LPA. G. OUR DECISION [57] Considering all of the above deliberations, we hereby allow the present Appeal to the extent of the following. We firstly set aside the entirety of the Learned Judge’s decision to dismiss the Appellant’s OS. The Appellant’s OS is hereby allowed specifically for and limited to the Declarations under prayers 1 (g) and (j) of the OS. We hereby declare the following: a. That the act of convening an inquiry by the Third Defendant on the appointment by the Second at this juncture is illegal, void, and of no effect as there has been a breach of mandatory provision of section 103B (1) of the LPA; and b. That the disciplinary proceedings instituted by the Second Defendant against the Plaintiff were therefore illegal, null, and void. [58] Considering the mutual agreement between the learned counsels of the Appellant and Respondents during the Hearing before us, there is no order as to costs. S/N jdpda40BGkGBhNcNRvgpPw Dated 29th March 2023 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL For the Appellant - Scivetti & Associates

Tan Sri Muhammad Shafee

Abdullah

Effa Azuin binti Aidrul Hisham

Alaistair Brandah Norman Hartrisha Kaur Sandhu For the 1st Respondent - Ringo Low & Associates

Datuk Ringo Low Kim Leng

Melvin Chonh Jia Shern

For the 2nd & 3rd Respondents - Gunaseelan & Associates Keshvinjeet Singh S/N jdpda40BGkGBhNcNRvgpPw