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2024 MarsdenLR 2311
HIGH COURT MALAYA KUALA LUMPUR
ONG KEH KEONG – Appellant
Versus
LEMBAGA TATATERTIB PEGUAM-PEGUAM & ANOR – Respondent
[Judicial Review Application No: WA-25-93-04/2023]
Judicial review applications must be based on final decisions, not interlocutory ones, and the Disciplinary Committee is not obligated to provide grounds for preliminary objections.
Headnote:(A) Legal Profession Act 1976 – Section 103EA – Judicial Review – The Applicant sought judicial review against the decisions of the Disciplinary Board and Disciplinary Committee regarding a complaint against him. The court found the application premature as it was based on interlocutory decisions, not final ones. The court emphasized that the dismissal of the striking out application does not constitute a final decision justifying judicial review. (Paras 14, 20, 36)
(B) Judicial Review – Grounds – The court reiterated that judicial review can only be pursued after the completion of disciplinary proceedings, and the Respondents are not obligated to furnish grounds for preliminary objections. (Paras 40, 46)
Facts of the case: The Applicant, a solicitor, faced a complaint from a company that had been wound up. He challenged the dismissal of his application to strike out the complaint, arguing that the complaint was invalid due to the company's status. (Paras 3, 5.1, 5.3)
Findings of Court: The court held that the complaint was valid despite the company's winding up and that the judicial review application was premature. (Paras 36, 60)
Issues: Whether the dismissal of the striking out application constituted a final decision for judicial review and the obligation of the Disciplinary Committee to provide grounds for its decision. (Paras 14, 40)
Ratio Decidendi: The court ruled that the judicial review application was premature as it was based on interlocutory decisions, and the Disciplinary Committee was not required to provide grounds for its decisions at this stage. (Paras 20, 40)
Result: Application dismissed with costs. (Para 68)
JUDGMENT
Introduction
[1] The Applicant filed an application for judicial review (Encl 9) under O 53 of the Rules of Courts 2012 (ROC).
[2] Leave was granted to the Applicant for application for judicial review against the Respondents to seek the following reliefs:-
(a) a certiorari order to quash and annul the decisions of the Respondents as follows:-
i) the decision of the 2nd Respondent in a hearing held on 28 February 2023 which dismissed the Applicant's application to strike out the Complaint No DB/13/8881 (DC Decision); and
ii) the decision of the 1st Respondent in a hearing held on 17 March 2023 affirming the DC Decision and that the 2nd Respondent is not required to provide to the Applicant, the notes of proceedings and grounds of the DC Decision (DB Decision).
(b) an injunction to restrain the Respondents from proceeding with the hearing of Complaint No DB/13/8881 until the disposal of this judicial review Application; and
(c) an injunction to direct the 1st Respondent to quash and revoke the appointment of the 2nd Respondent.
[3] In essence, in the present judicial review, the Applicant is dissatisfied with the 2nd Respondent's dismissal of the Applicant's striking out an application filed during the preliminary stage on the purported two (2) grounds such as follows:-
a) The Complainant, Pan Malaysia Enterprise Sdn Bhd has been wound up and no sanction or approval was obtained from the liquidator for the continuation of the complaint to the Disciplinary Board; and
b) The conduct of the 2nd Respondent in refusing to furnish notes of evidence and grounds of decision for the dismissal of the Applicant's preliminary objection.
[4] After the hearing, I dismissed the Applicant's application for judicial review (Encl 9). The grounds for my decision appear below.
Background Facts
[5] The narration of the background facts herein is largely undisputed and is adopted with and/or without modifications from the written submissions of both parties and can be summarized as follows:-
5.1 Previously, the Applicant acted as solicitors for Pan Malaysian Enterprise Sdn Bhd (Complainant) in a sale and purchase agreement dated 17 January 2012 in relation to the sale of a shop for RM6.2 million;
5.2 On 31 October 2013, the 1st Respondent, the Advocates and Solicitors Disciplinary Board (DB) received a complaint from the Complainant, filed by Lee Ah Lan @ Lee Keok Hooi against the Applicant. The crux of the allegation was pertaining to the Applicant's failure to release the sum of RM650,000.00 to the Complainant pursuant to a Sale and Purchase Agreement dated 17 January 2012;
5.3 A letter of request for a written explanation was issued by the DB to the Applicant on 23 December 2013. A written explanation by the Applicant was received by the DB on 25 March 2014 among others, stating that the Complainant was wound up by Malayan Banking Berhad on 3 January 2024 and applied for the DB to dismiss the complaint as the management of the Complainant has been taken over by the liquidators;
5.4 The DB then proceeded to ask for a response from the Complainant wherein the reply was issued by the Complainant on 28 April 2014;
5.5 On 12 September 2014, the DB referred the complaint to the Disciplinary Committee (DC), and DC members were appointed by the Secretariat on 7 November 2014. The DC members consisted of Mr Yahnasegaran S Govindasamy as the DC Chairman, with Ms Chap Fon Leng and Mr Yap Boh Chu. The DC hearing was conducted on 4 April 2016 and 9 October 2017 respectively in the absence of the Applicant;
5.6 On 10 January 2019, the Applicant was struck off the roll of the Advocates & Solicitors by the DB in respect of another complaint. The DB then had no further jurisdiction over the Applicant during that period. A letter was issued to the Complainant and the DC panel on 7 February 2019 informing the same;
5.7 The Applicant then filed an appeal against the DB order at the Kuala Lumpur High Court wherein his appeal was allowed on 8 May 2019 and
