An advocate's breach of fiduciary duty and misappropriation of client funds necessitates strict sanctioning to uphold public confidence in the profession.

[1] This is the Bar Councils appeal against the part of the decision of the High Court which set aside the Disciplinary Boards order that the respondent be struck off the Roll of advocates and solicitors of the High Court in Malaya and substituting it with an order that the respondent be suspended from practice as an advocate and solicitor for a period of three years.

[2] After hearing of counsel on 13 March 2018, we allowed the appeal. We set aside the order of the High Court and restored the order of the Disciplinary Board. We now set out the reasons for our decision.

The Salient Facts

[3] For convenience, we will set out the chronology of agreed facts.

(a) The Disciplinary Board (DB) received a complaint lodged by En Isnin Rahim (the complainant) dated 30 January 2015 against the respondent relating to the respondents failure to remit/release the sum of RM815,120.00 (the Monies) being the balance of the purchase price which the respondent held as stakeholder on behalf of her clients which were the complainant and Puan Norhayati Mohamed Nasir (jointly referred to as the clients) on or before 29 December 2014.

(b) On 7 May 2015, the DB wrote to the respondent requesting for a written explanation from the respondent about the complaint.

(c) Meanwhile, the DB received a letter dated 19 May 2015 from the complainant to withdraw the complaint against the respondent.

(d) The Bar Council decided to intervene in the complaint although the same was withdrawn by the complainant.

(e) On 15 January 2016, the hearing for the respondent to show cause was conducted by the DB with the attendance of the members of the DB.

(f) The hearing was dealt with summarily after the respondent had confirmed in writing that she agreed for the matter to be dealt with summarily.

(g) After listening to the respondents explanation and after balancing the respondents interest as an advocate and solicitor with the interest of the public at large as well as the interest of the legal profession the DB made the decision to strike the respondent off the Roll.

(h) Dissatisfied with the DBs decision, the respondent appealed to the High Court.

Findings Of The High Court

[4] The key findings of the learned judge may be summarised as follows:

i. there was no procedural non-compliance or breach of natural justice at the disciplinary hearing before the DB;

ii. the respondent had used up the Monies from the clients account and was unable to release such monies on the specified date;

iii. it was a conscious breach by the respondent as the undertaking was that the Monies was to be released to the clients on 29 December 2014;

iv. the respondent tried to excuse her conduct by pointing to her difficult personal circumstances at the material time and that these personal circumstances did not excuse her misconduct;

v. the breach of the undertaking and stakeholding by the respondent amounted to grave impropriety and the respondent was guilty of misconduct within the meaning of s 94(3) of the Legal Profession Act 1976 (" LPA 1976");

vi. the respondents misconduct is serious but since there was no dishonesty involved on the respondents part, her misconduct did not warrant a striking-off and would require a more severe sanction than a mere censure.

Submission Of Parties

[5] In essence, the Bar Councils main argument is that the DBs decision in striking the respondent off the Roll ought to