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2023 MarsdenLR 258
HIGH COURT MALAYA KUALA LUMPUR
ONG KEH KEONG – Appellant
Versus
BAR COUNCIL – Respondent
[Motion No: WA-17D-4-02/2020]
The failure to include essential documents in a Disciplinary Committee report invalidates the findings, constituting an error of law that necessitates appellate intervention.
Headnote:(A) Legal Profession Act 1976 - Sections 12(1), 12(2), 94(3)(k), 94(3)(o), 103D, and 103E - Disciplinary proceedings against advocate for imposing unfair terms on pupils - Bar Council found appellant in breach of statutory obligations regarding pupillage terms - (Paras 8, 10, 11, 34)
(B) Natural Justice - Failure to include essential documents in Disciplinary Committee report - Non-compliance with mandatory procedural requirements invalidating the decision - (Paras 19, 31, 34)
Facts of the case:
The appellant, an advocate, faced complaints from pupils regarding unfair terms in their pupillage agreements. The Bar Council concluded that the terms were in breach of the Legal Profession Act and initiated disciplinary action.
Findings of Court:
The court found that the Disciplinary Committee's failure to include essential documents in its report compromised the decision-making process, leading to an invalid determination.
Issues: The main issues were whether the terms imposed by the appellant constituted a breach of the Legal Profession Act and whether the lack of documentation affected the validity of the Disciplinary Committee's findings.
Ratio Decidendi: The court held that the absence of critical documents in the Disciplinary Committee's report constituted an error of law, undermining the Disciplinary Board's decision and necessitating appellate intervention.
Result: Appeal allowed; findings of the Disciplinary Committee and Board set aside.
| Table of Content |
|---|
| 1. details of the appellant's pupillage terms. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. bar council's complaint and findings. (Para 9 , 10 , 11) |
| 3. appellant's grounds for appeal. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19) |
| 4. legal precedents on disciplinary proceedings. (Para 20 , 21 , 22 , 23) |
| 5. analysis of compliance with procedural rules. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 6. court's decision on the appeal. (Para 34 , 35 , 36) |
| 7. conclusion and order of the court. (Para 37) |
[1] The appellant is a practising advocate and solicitor.
[2] On 15 March 2017, the Malaysian Bar Council issued a letter to the appellant concerning complaints made by a few individuals against the appellant. The individuals, who were qualified persons under the Legal Profession Act 1976 , applied to the appellant's firm, Messrs Ong Partnership, to undergo and complete their pupillage period with a view to be admitted to the Malaysian Bar.
[3] According to the letter, the terms and conditions imposed by the appellant to undergo the pupillage might have prejudiced the rights of the said individuals.
[4] The individuals are Nurhani binti Mohammad Shukri "(Nurhani"), Vishnu Shan ("Vishnu"), Wan Hilmi Wan Hamdi ("Hilmi") and Sharifah Dyana Baizura binti Syed Azmi Ahmad ("Sharifah").
[5] The appellant issued separate letters of appointment to the said individuals, which contain similar terms and conditions. They were duly agreed upon and acknowledged by the said individuals. One of the terms of the letter of appointment states that:
In addition, the Firm reserves the right to compensation from you for breach of this letter of appointment.
[6] The impugned term in the letter of appointment, which the Bar Council took umbrage of, is:
Your pupillage may be terminated by either party serving the other, two (2) month's notice of such intention or paying two (2) month's allowance in lieu of notice.
[7] In the said letter to the appellant, the Bar Council said it had been alerted to them that the appellant had demanded payment of two months' salary in lieu of two months' notice from the individuals. The appellant had also proceeded with civil claims against Vishnu and Hilmi.
[8] After having referred to s 12(1) and (2) of the Legal Profession Act 1976 (" LPA "), the Bar Council informed the appellant that it was of the view that pupillage does not serve as an "employment". The Bar Council then proceeded to state:
Such onerous and unfair terms in the letter of appointments are acts that may be in breach of s 94(3)(o) of the Legal Profession Act 1976 .
There was no response from the appellant arising from the said letter.
The Complaint
[9] On 9 January 2018, the Bar Council, now the complainant, issued a Letter of Complaint to the Director of the Disciplinary Board. The letter of complaint reiterated the factual background as contained in the letter to the appellant dated 15 March 2017. It concluded that the Bar Council was of the view that the appellant might be guilty of:
(a) Section 94(3)(k) of the LPA, specifically r 14.01 (2) of the Rules and Rulings of the Bar Council due to failure to reply to the Bar Councils' letter dated 15 March 2017; and
(b) Section 94(3)(o) of the LPA for imposing terms of contract upon the appellant's pupil(s) in serving their pupillage.
[10] On 15 October 2018, a Disciplinary Committee ("DC"), chaired by Mr Jacob Rabindranath, was appointed to investigate the Complaint. At the conclusion of the hearing of the complaint, where the appellant was present and testified, the DC made the following finding on 28 December 2018:
The committee is unanimous in its findings that the respondent has breached both the complaints as stated therein. The respondent was questioned vigorously by the committee, and was unable to provide a reasonable and/or plausible explanation for his actions. The DC believes the gravity of the respondent's actions [have] tarnished the BC, and corollary the punity (sic) ought t
