Section 19 — ADVOCATES ORDINANCE (SABAH) (AMENDMENT) ACT 2017

Quoted provision

Seksyen 12b

(2)

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

(a)

to be struck off the roll;

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(b)

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

(c)

to be ordered to pay a fine not exceeding fifty thousand ringgit;

(d)

to be reprimanded or censured; or

(e)

to have costs awarded against him.

(3)

For the purposes of this section, “misconduct”

means conduct or omission to act in Sabah or elsewhere by an advocate in a professional capacity or otherwise which amounts to grave impropriety in respect of any of the following causes:

(a)

if he takes instructions in any case except from the party on whose behalf he is retained, or from some person who is the recognised agent of such party, or from some servant, relation, or friend authorized by the party to give such instruction;

(b)

if he is guilty of knowingly misleading or allows the Court to be misled;

(c)

if he tenders, gives, or out of any fee paid or payable to him for his services, consents to the retention of any gratification for procuring or having procured the employment in any legal business of himself or any other advocate;

(d)

if he directly or indirectly procures or attempts to procure the employment of himself or any other advocate through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given;

(e)

if he is convicted of a criminal offence implying a defect of character which renders him unfit for his profession;

Ordinan Peguam Bela (Sabah) (Pindaan)

(f)

if he ceases to be a person entitled to be admitted as an advocate as a result of disciplinary proceedings taken against him in the country in which he qualified, or in any country in which he has practised as a legal practitioner by whatever name called;

(g)

if he does any act which if done in England would render him liable to be disbarred or struck off the roll of the Court or suspended from practice as a barrister or solicitor in

England;

(h)

if he procures his admission as an advocate by any misstatement, fraud or misrepresentation;

(i)

if he practises in Sabah without being in possession of a valid certificate to practise;

(j)

if he practises in Sabah without being in possession of an Annual Certificate;

(k)

if he is guilty of a breach of any rules made under this Ordinance;

(l)

if he commits a breach of a duty to a Court including any failure by him to comply with an undertaking given to a Court;

(m)

if he accepts employment in any legal business through a tout;

(n)

if he allows any unauthorized person to carry on legal business in his name without his direct and immediate control as principal or without proper supervision;

(o)

if he carries on, full-time by himself directly or indirectly, any profession, trade, business or calling which is incompatible with the legal profession or being employed for reward or otherwise in any such profession, trade, business or calling;

(p)

if he charges, in the absence of a written agreement in respect of professional services rendered to a client, fees or costs which are grossly excessive in all the circumstances;

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(q)

if he knowingly acts in a manner that is prejudicial to or in gross disregard of his client’s interests;

(r)

if he is guilty of any conduct which is unbefitting of an advocate or which brings or is calculated to bring the legal profession into disrepute;

(s)

if he has been dishonest or is guilty of fraudulent conduct in the discharge of his professional duties as advocate.

(4)

If an advocate—

(a)

makes a false statement in or in relation to an application made under section 7c;

(b)

is guilty of any offence involving dishonesty, misuse or misappropriation of any money or property of a client or of any other person;

(c)

is adjudged a bankrupt or a receiving order is made against him within or outside

Malaysia;

(d)

is disbarred, struck off, suspended or censured in his capacity as a legal practitioner in any other country;

(e)

is the subject of a complaint concerning any dishonest act committed by him in his capacity as an advocate;

(f)

absconds or has not attended at his office in such circumstances that the Law Society may reasonably presume that he has absconded;

or

(g)

is otherwise incapable from infirmity of body or mind or any other cause of effectively performing the functions of an advocate, and the Law Society considers that it would be in the public interest or in the interest of his clients or of the profession that such advocate be suspended from practice, the Law Society may apply to the

Disciplinary Board for an order suspending such advocate from practice until further notice.

Ordinan Peguam Bela (Sabah) (Pindaan)

(5)

Notwithstanding subsection (2), any registered foreign lawyer who has been guilty of any misconduct shall be liable to be suspended for any period not exceeding five years, or revocation of his registration or reprimanded or censured or ordered to pay a fine, as the case may be.

(6)

A pupil shall, with modification as may be necessary, be subject to the same control of the

Disciplinary Board as is by virtue of this section exercised over an advocate, but in lieu of an order striking him off the roll or suspending him, an order may be made prohibiting the pupil from proceeding with any petition for admission until after a date to be specified in the order.

(7)

For the purpose of this section, “pupil”

includes a person who has completed the prescribed period of pupillage but has yet to be admitted as an advocate.

Complaint against advocate or pupil.

Quoted provision

Seksyen 12c

(2)

Any Court including the Industrial Court and a Syariah Court, a Judge, Sessions Court Judge or

Magistrate or the State Attorney-General may at any time refer to the Disciplinary Board any complaint against an advocate or a pupil.

(3)

Nothing in this section shall be taken to preclude the Law Society from making any complaint of its own motion to the Disciplinary Board against an advocate or a pupil.

(4)

No complaint concerning the conduct of any advocate or of any pupil shall be inquired into by the Disciplinary Board after the expiration of six years from the date when the right of action to bring the complaint accrued.

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(5)

Notwithstanding subsection (4) where—

(a)

the complaint is based upon the fraud of the advocate or his agent or of any person through whom he or his agent claims; or

(b)

the right of action to bring the complaint is concealed by the fraud of the advocate or of his agent or any person through whom he or his agent claims, the period of limitation shall not begin to run until the complainant has discovered the fraud or could with reasonable diligence have discovered it.

(6)

Where a complaint is made against a legal firm, it shall be deemed to be a complaint made—

(a)

in the case of a sole proprietorship, against the advocate who was at the material time the sole proprietor of the legal firm; or

(b)

in the case of a partnership, against all the advocates who were at the material time partners of the legal firm, unless the legal firm satisfies the Disciplinary Board of the identity of the advocate in the legal firm against whom the complaint has arisen.

(7)

Where at any stage of the proceedings the

Disciplinary Board is satisfied that a complaint made against a legal firm should be directed against a particular advocate, the Disciplinary Board shall forthwith replace the name of the legal firm with the name of the advocate concerned.

(8)

For the purpose of this section, “legal firm”

includes an international partnership or a qualified foreign law firm licensed under Part VII.

Disciplinary

Board to serve application, etc., on advocate.

Quoted provision

Seksyen 12d

(a)

a copy of any written application or complaint and of any statutory declaration or affidavit that has been made in support of the written application or complaint; and

Ordinan Peguam Bela (Sabah) (Pindaan)

(b)

a notice to appear before, and be heard by, the Disciplinary Board and inviting the advocate concerned, within such period as may be specified in the notice but not being less than thirty days—

(i)

to give to the Disciplinary Board any written explanation he may wish to offer; and

(ii)

to advise the Disciplinary Board if he wishes to be heard by the

Disciplinary Board.

(2)

The Disciplinary Board shall give the advocate concerned a reasonable opportunity to be heard and shall give due consideration to any explanation he may make.

Power of

Disciplinary

Board to procure evidence, etc.

Quoted provision

Seksyen 12e

Board shall serve on the advocate concerned—

(a)

may procure and receive all evidence and examine any person as witness as the

Disciplinary Board deems necessary or desirable;

(b)

may require the evidence of any witness to be given on oath or affirmation, such oath or affirmation to be that which could be required of the witness if he was giving evidence in the High Court;

(c)

may require the production for inspection of any book, document or paper which may relate to or be connected with the matter and may require any person to give information in relation to such book, document or paper;

(d)

may require such person concerned to give all information in relation to any such book, document or paper which may be reasonably required by the Disciplinary

Board;

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(e)

may require any person whom the Disciplinary

Board considers necessary to appear before the Disciplinary Board to give oral evidence relating to or connected with the complaint;

and

(f)

may issue a subpoena to any person to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession at the request of—

(i)

the Law Society or the applicant or the person making the complaint;

and

(ii)

the advocate or pupil to whom the written application or complaint relates.

(2)

Any person giving evidence before the

Disciplinary Board shall be legally bound to tell the truth, whether or not such evidence is made wholly or partly in answer to any question.

(3)

No fees or other charges shall be payable for any subpoena issued by the Disciplinary Board under subsection (1).

(4)

The subpoena referred to in subsection (1)

shall, unless the Disciplinary Board otherwise directs, be served personally on the person concerned and may be enforced as if it is a subpoena issued in connection with a civil action in the High Court.

(5)

Any—

(a)

advocate or any other person who, without reasonable excuse refuses or fails to produce to the Disciplinary Board for inquiry any book, document or paper or fails to give any such information relating thereto under paragraph (1)(a) or (b); and

Ordinan Peguam Bela (Sabah) (Pindaan)

(b)

person who, without reasonable excuse, refuses or fails to appear to give evidence under paragraph (1)(f), commits an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding three months or to both.

Failure to attend proceedings.

Quoted provision

Seksyen 12f

(2)

If the person whose conduct is the subject of inquiry fails to attend before the Disciplinary Board, the inquiry or proceeding may be proceeded with without further notice to such person upon proof of service by affidavit or statutory declaration or in such other manner as the Disciplinary Board may direct.

Findings of the

Disciplinary

Board.

Quoted provision

Seksyen 12g

(a)

that as no cause of sufficient gravity for disciplinary action exists and that the application or complaint be dismissed;

(b)

that cause for disciplinary action exists but is not of sufficient gravity to warrant any punishment other than a reprimand or censure or that the circumstances are such that the advocate should only be reprimanded or censured;

(c)

that cause for disciplinary action exists and is of sufficient gravity to warrant the advocate to be subject to one or more of the following penalties or punishments:

(i)

reprimand or censure;

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(ii)

imposition of a fine not exceeding fifty thousand ringgit;

(iii)

suspension of the advocate from practice, or in the case of a foreign lawyer, recommendation to the Law

Society for suspension of registration, for such period not exceeding five years as the Disciplinary Board deems appropriate in the circumstances;

(iv)

striking the advocate off the roll or in the case of a foreign lawyer, revocation of the registration of the foreign lawyer.

(2)

The Disciplinary Board may in appropriate cases in addition to its order of penalty or punishment, make an order of restitution by the advocate of the complainant’s monies if it is established that such monies were or are held by the advocate in his professional capacity and the complainant is entitled to the return of such monies or part thereof.

Appeal from the final order or decision of the

Disciplinary

Board.

Quoted provision

Seksyen 12h

(2)

Any person aggrieved by the decision of the High Court may appeal to the Court of Appeal within one month from the date of the receipt of that decision.

(3)

Any person aggrieved by the decision of the

Court of Appeal may appeal to the Federal Court within one month from the date of the receipt of that decision.

(4)

There shall be no judicial review against any final order or decision of the Disciplinary Board.

(5)

The appeal shall be by way of originating motion setting out the grounds of appeal supported by affidavit.

Ordinan Peguam Bela (Sabah) (Pindaan)

(6)

The Law Society may in its discretion intervene at any stage of any appeal under this section.

(7)

The Disciplinary Board shall not be cited as a party in any appeal under this section.

(8)

The Disciplinary Board shall have the right to appear in and address any High Court, the Court of Appeal or the Federal Court hearing any appeal under this section by an advocate whether or not the advocate is a member of the Disciplinary Board or the Law Society.

(9)

The costs of and incidental to all proceedings under this section shall be at the discretion of the

Court hearing the proceedings.

(10)

Pending the hearing of an appeal, any advocate being struck off the roll or suspended shall not be entitled to practise in Sabah except if the period of suspension elapses before the hearing of the appeal, in which case he shall be at liberty to resume his practice after the period of suspension has expired.

(11)

Nothing in this section shall be construed so as to deprive an advocate of any right of appeal which he may have to the Yang di-Pertuan Agong.

Power of

Disciplinary

Board to make rules.

Quoted provision

Seksyen 12i

(2)

Any rules made under this section shall not come into operation until they have been published in the Sabah Government Gazette.

Discipline

Fund.

Quoted provision

Seksyen 12j

(2)

Every advocate shall on each occasion he applies for his Annual Certificate pay to the Law

Society a contribution to the Discipline Fund of such sum as the Law Society may from time to time determine.

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(3)

If an advocate is applying for a certificate to practise which is to be valid for a period which is less than six months in a calendar year, he shall be required to pay a contribution of only one half of the sum determined for the year.

(4)

All costs, charges and expenses for the purposes of any disciplinary proceedings under this Ordinance shall be defrayed out of the Discipline Fund.

(5)

The Law Society in consultation with the Chief

Judge and the State Attorney-General may make rules relating to the administration and maintenance of the Discipline Fund.

Payment of fees, fines, etc., into

Discipline

Fund.

Quoted provision

Seksyen 12k

(2)

Where the Disciplinary Board has ordered a fine to be paid by an advocate or has ordered a restitution to be made by an advocate, such fine shall be paid or such restitution shall be made within one month from the date of the order or such further date as the Disciplinary Board may allow and in default thereof, the Disciplinary Board may order suspension of the advocate from practice until payment of such fine or sum to be restituted or if the advocate is not currently in possession of a certificate to practise, order that no Annual

Certificate shall be issued to him until payment of the fine or sum to be restituted is made or in the case of a foreign lawyer, suspend his registration until the payment of such fine or sum to be restituted is made.

(3)

A fine payable under this section shall be deemed to be a debt outstanding to the Law Society and may be recoverable as a civil debt.

Ordinan Peguam Bela (Sabah) (Pindaan)

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Protection against suit and legal proceedings.

Quoted provision

Seksyen 12l

No action, suit, prosecution or other proceeding shall be brought, instituted or maintained in any court against any members of the Disciplinary

Board for or on account of or in respect of any act done for the purpose of carrying into effect of this

Ordinance if the act was done in good faith and in the reasonable belief that it was necessary for the purpose intended to be served by it.

Interpretation of “advocate”

in certain provisions.

Quoted provision

Seksyen 12m

For the purposes of disciplinary proceedings under this Part, “advocate” includes a foreign lawyer registered under section 14j.”.

Pemotongan seksyen 13