The court upheld the disciplinary board's decision to strike off the Plaintiff for grave misconduct, emphasizing the importance of integrity in the legal profession and the limited grounds for judicial interference in disciplinary matters.

JUDGMENT

Ahmad Kamal Md Shahid J:

Introduction

[1] The Plaintiff had on 30 June 2022 filed an application by way of Originating Summons (OS) (Encl 1) seeking inter alia the following orders:

1.1 bahawa Perintah bertarikh 16 Jun 2022 oleh Lembaga Tatatertib Peguambela & Peguamcara, yang memerintahkan supaya Plaintif dibatalkan sebagai seorang Peguambela & Peguamcara Mahkamah Tinggi Malaya dan juga untuk Plaintif membayar kembali (restitution) jumlah sebanyak RM3,076,804.00 kepada Defendan Pertama diketepikan dan dibatalkan;

1.2 bahawa perlaksanaan Perintah bertarikh 16 June 2022 yang diberikan oleh Lembaga Tatatertib Peguambela & Peguamcara menurut s 103D Akta Profession Undang-Undang 1976 digantungkan sehingga pelupusan muktamad Saman Pemula / rayuan ini didengar dan diputuskan oleh Mahkamah Yang Mulia ini atau mana-mana perintah lanjutan yang dibenarkan oleh Mahkamah Yang Mulia ini;

1.3 kos rayuan ini ditanggung oleh pihak Defendan; dan

1.4 Iain-lain perintah ynag didapati suaimanfaat, patut dan adil oleh Mahkamah Yang Mulia ini.

[2] In gist, the Plaintiff filed the OS to appeal under s 103E of the Legal Profession Act 1976 ( LPA ), against the decision of the Advocates & Solicitors Disciplinary Board (DB), dated 16 June 2022. The decision was given following a complaint by the 1st Defendant (Complaint No: DC/18/0531).

[3] The DB agreed with the recommendation of the Disciplinary Committee (DC) and ordered that the Plaintiff be struck off the rolls and restitute the sum of RM3,076,804.00 to the 1st Defendant.

[4] The grounds of the application, are as follows:

4.1 the DB erred in holding that the Plaintiff had committed misconduct and that the Plaintiff ought to restitute the sum of RM3,076,804.00 to the 1st Defendant;

4.2 the DC erred in failing to consider the evidence sufficiently;

4.3 the DB erred in accepting the recommendation of the DC which found the Plaintiff liable and recommended the punishment;

4.4 the DB erred in accepting the recommendation of the DC without taking into account or considering sufficiently the decision of the Kuala Lumpur High Court given in Suit No: WA- 22NCVC-705-10/2018 (Suit 705) which was heard together with Civil Suit No: WA-21NCVC-90-1-/2018 (Suit 90) given on 22 February 2022, which dismissed the claim of the 1st Defendant herein;

4.5 In Suit 705 which was heard together with Suit 90, the 1st Defendant had brought an action for inter alia fraud, negligent misstatement, breach of fiduciary duty, conspiracy to defraud and injure, breach of warranty and also breach of trust, against the Plaintiff which was dismissed by the High Court on 22 February 2022. The said causes of action were in respect of the same transaction and property which was the subject matter of the complaint by the 1st Defendant against the Plaintiff; and

4.6 The Plaintiff was also not given the opportunity to mitigate before the punishment was imposed by the DB.

[5] After the hearing, I dismissed the Plaintiffs OS (Encl 1). This judgment contains the full reasons for my decision.

Background Facts

[6] The background facts of this OS are predominantly undisputed. The narration of the background facts drawn from the cause papers and submissions by the parties can be encapsulated as follows:

6.1 On 2 May 2018, the 1st Defendant, ie, the Complainant has lodged a Complaint with the DB against the Plaintiff based on the grounds that the Plaintiff was dishonest or fraudulent in the discharge of his duties as the solicitor for his client, ie the vendor and registered owner (the Vendor) of a piece of land at Lot No 17, Jalan Raja Chulan, Kuala Lumpur (the Property).

6.2 The crux of the complaint made by the 1st Defendant against the Plaintiff was on the issue of breach of stakeholder duties and fraud for the sum of RM3,076,804.00 (the Deposit Sum) duly paid to the Plaintiff as stakeholder under the Sale and Purchase Agreement dated 22 February 2018 between the 1st Defendant and the Vendor (the SPA).

6.3 The Plaintiff herein is the solicitor whom rep