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2025 MarsdenLR 6218
HIGH COURT MALAYA KUALA LUMPUR
NORDIN KASSIM – Appellant
Versus
MURALLITHARAN MUNISAMY; MAJLIS PEGUAM (INTEVENER) – Respondent
[Originating Suit No: WA-17D-22-07/2022]
An advocate must ensure proper management of client funds; failure to do so constitutes gross negligence and misconduct under the Legal Profession Act.
Headnote:(A) Legal Profession Act 1976 - Sections 94(3)(n), 94(3)(o), 103D - Misconduct of advocate and solicitor - Appellant received RM100,000 for insurance policy but failed to provide policy or refund - Disciplinary Committee found misconduct due to gross negligence and disregard for client's interests - Appellant's claim of not being the client's solicitor rejected - Disciplinary Board affirmed findings but modified punishment to a fine of RM30,000 and ordered restitution of RM95,000. (Paras 19, 22, 36, 42)
(B) Duty of Solicitor - A solicitor must ensure that funds received for a client are properly disbursed and accounted for, failing which it constitutes gross negligence. (Paras 32, 33)
Facts of the case:
The respondent paid RM100,000 to the appellant's firm for an insurance policy but did not receive the policy or a refund, leading to a complaint against the appellant. (Paras 2-10)
Findings of Court:
The Disciplinary Committee found the appellant guilty of misconduct for failing to act in the client's best interests and not providing the promised insurance policy. (Paras 19, 36)
Issues: Whether the appellant was the respondent's solicitor and whether the misconduct warranted the disciplinary action taken. (Paras 29, 36)
Ratio Decidendi: The court held that the appellant had a duty to ensure the funds were properly managed and that the respondent was indeed a client, thus affirming the misconduct findings. (Paras 36, 42)
Result: Appeal dismissed; fine imposed and restitution ordered.
JUDGMENT
[1] The appellant is a practising advocate and solicitor in the name and style of Messrs Nordin Kassim & Aziz ("the appellant's legal firm").
[2] The factual background of this Originating Summons, as narrated by the respondent, is as follows. The respondent had paid a sum of RM100,000.00 ("the insured sum") in the appellant's solicitors' client account as payment for purchasing an Amlink Insurance Policy from AmAssurance Bhd ("AmAssurance"). According to the respondent, an AmAssurance agent promised him a 5% monthly interest return for the insured sum for 30 months. There are other benefits, such as facilities for hospitalisation and medication.
[3] The agent of AmAssurance is Tanjung Trading, which was represented by one Puan Norihan Talib ("Norihan").
[4] The respondent was told to pay the insured sum to the appellant's legal firm. Acting on the instructions given by Tanjung Trading, AmAssurance's agent, the respondent deposited the insured sum to the appellant's firm on 23 September 2013.
[5] It is not in dispute that the said sum was duly credited into the appellant's solicitors' client account on 27 September 2013.
The Complaint
[6] The basis of the respondent's complaint to the Advocates & Solicitors Disciplinary Board ("DB") is that he did not receive the said Insurance Policy as promised by the representative of AmAssurance.
[7] Save for a sum of RM5,000.00 deposited in November 2013, the respondent did not receive any further payment into his account. Despite making enquiries with the appellant's legal firm, the respondent did not receive a reply.
[8] It was not until July 2014 that the respondent received a letter dated 23 July 2014 from the appellant's legal firm stating they were acting for Tanjung Trading and that only RM95,000.00 would be refunded according to a schedule for the return of the insured sum. A monthly payment of RM1,000.00 was supposed to have commenced on 15 January 2015. The letter further states as follows:
Kami juga diarahkan untuk memaklumkan kepada tuan/puan bahawa tawaran ini merupakan langkah penyelesaian terbaik yang anakguam kami tawarkan setakat ini setelah mengambil pertimbangan serta kebajikan semua rakan usahasama secara menyeluruh dan yang dapat ditunaikan mengikut kemampuan anakguam kami pada masa ini.
[9] Unfortunately, the pledge was not honoured.
[10] Dissatisfied, the respondent wrote again to the appellant's legal firm, only to be met with a reply that the firm was no longer acting for Tanjung Trading. However, the appellant's legal firm, which once acted for Tanjung Trading, added that the firm is "more than willing to assist you in whatever way we can to enable to claim that said money for breach of contract to purchase an insurance policy".
[11] As I alluded to earlier, the respondent then lodged a complaint to the DB.
[12] Upon receipt of the complaint, the DB vide a letter dated 5 July 2017 had sought a written explanation from the appellant and his partner in the appellant's legal firm, one Abdul Aziz bin Hassan ("Abdul Aziz"). The DB's letter was made under s 100(1)(b) of the Legal Profession Act 1976 ("the LPA ").
[13] The respondent and Abdul Aziz responded to the allegations and issued separate written explanations.
[14] As to the appellant, he admitted to having disbursed the insured sum to Tanjong Trading as per their instructions. The appellant's explanation was that whatever dispute was between Tanjong Trading and the respondent. The dispute, according to the appellant, had nothing to do with him.
[15] On the other hand, Abdul Aziz, in his written explanation, clarified that the alleged incident occurred when the firm was known as Messrs Nordin Kassim & Co Abdul Aziz only joined Messrs Nordin Kassim & Aziz as a partner on 1 January 2014. Therefore, the alleged misconduct had nothing to do with him.
[16] After having obtained the written explanations from both the appellant and Abdul Aziz, the DB was of the view that there was merit in the co
