Mcelwaine (SS) CJ:

An order was made on the application of a Disciplinary Committee appointed under s. 33A of the Advocates and Solicitors Ordinance calling upon the respondent to show cause why he should not be struck off the Rolls of the Court or suspended from practice or censured or otherwise dealt with.

The facts are not in dispute. Shortly those facts are:

(a) Goh Gaik Kee by her will left $1,000 to Chung Kok Soon, the infant son of Lee Sau Yeng;

(b) Khoo Chong Yean a trustee of the will paid this $1,000 to the respondent on 28 August 1939 for payment to the beneficiary;

(c) The respondent retained this money until October 1940 when in consequence of inquiries made by the police he paid it;

(d) Messrs Presgrave & Matthews were at all material times solicitors for Lee Sau Yeng the guardian of the infant beneficiary appointed by the will of the said Goh Gaik Kee;

(e) Messrs Presgrave & Matthews made repeated applications to the respondent for payment of this $1,000;

(f) The respondent wrote letters to Messrs Presgrave & Matthews which can only be construed as denials that the trustee had as yet paid the money.

It is only necessary to refer to a few extracts from the correspondence.

On 6 September 1939 Presgrave & Matthews wrote to the respondent "Kindly send us the sum of $1,000 referred to in our letter of 12 July last," to which respondent replied on 8 September "I shall be seeing my client during the weekend." In reply to a further letter of 13 September the respondent wrote "My client has been very ill. It will have to be a few more days before payment can be made". That the "client" was Khoo Chong Yean the trustee who had paid the $1,000 is apparent from a letter of 19 September "my client died on 10th", that being the date of the death of Khoo Chong Yean. On 3 October the respondent wrote "Mdm Tan Kim Heoh (the second trustee of the will) says that she will be in a position to make payment in two or three weeks' time". This woman was a nominal trustee who had none of the assets of the estate in her hands. Finally, Messrs Presgrave & Matthews having written that they would have to commence proceedings against Mdm Tan Kim Heoh, the respondent wrote on 12 January 1940 "I shall make another effort to get in touch with my client (Mdm Tan Kim Heoh) but if I cannot succeed then I think perhaps you had better commence proceedings straight away."

That is, that the remaining trustee of the will should be sued for a legacy already paid to the respondent by the first trustee for payment to the beneficiary.

The respondent entered the sum of $1,000 in his Clients' Account Book. He did not pay it into any bank account. He kept no separate client account with a bank as required by r. 10 of the Penang Bar Committee Rules regulating the practice and etiquette of the Penang Bar (GN 3138/1936) made under s. 31 of the Advocates & Solicitors Ordinance. This is a legal and not merely a moral obligation.

At no material time until 10 a.m. on 4 October 1940, after he had issued the cheque by which he paid over this sum of $1,000, had the respondent anything but a nominal balance in his bank account.

The evidence was sufficient to sustain a conviction under s. 403 of the Penal Code.

Section 25 of the Advocates & Solicitors Ordinance enacts that an advocate shall be liable to be struck off the Roll or suspended or censured if he has (among other things) "been guilty of fraudulent or grossly improper conduct in the discharge of his professional duty or guilty of such breach of any rules of usage or conduct made by a Bar Committee ... as in the opinion of the Court amounts to improper conduct".

On behalf of the respondent we were referred to Re Sparks 17 CB (NS) 727; Guilford v. Sims 13 CB 370 in which what the Court was considering was fraud or no fraud, and in the latter case the Court held that absence of wilful deceit negatived fraud. Re a Solicitor 11 LTR 169, Wills, J said he saw no evidence of any misrepresentation