Abdul Malik Ishak J (now JCA) (delivering judgment of the court)::

INTRODUCTION

[1] On 26 March 2005, the Disciplinary Committee recommended that the appellant be struck off the roll of Advocates and Solicitors of the High Court in Malaya. And on 7 May 2005, the Disciplinary Board affirmed the recommendation of the Disciplinary Committee pursuant to s 103D(1)(a) of the Legal Profession Act 1976 (Act 166) (‘the Legal Profession Act’). Aggrieved by that decision, the appellant filed a notice of appeal to this court constituted under the then s 103E(2) of the Legal Profession Act.

FACTS OF THE CASE

[2] By letter dated 8 April 2004, Mr Syahrul ‘Azrin bin Ghazali (‘Syahrul’), an advocate and solicitor, forwarded a letter of complaint against the appellant to the Disciplinary Board. According to Syahrul, he was the junior partner of the law firm of Messrs Choong Yik Son & Fiona Ghaus (‘the firm’) and he was the sole managing partner of the Ipoh office of the firm from October 2003 to 18 March 2004. Two other branches of the firm were in Taiping and Kuala Kangsar, both in Perak. And on 17 March 2004, while Syahrul was at the Taiping branch office of the firm for a routine visit, one Kumar called to enquire concerning stakeholder’s money amounting to RM16,000 held by the firm which was still outstanding. Since the appellant was away and as he was the senior partner of the firm and also the sole signatory for the Taiping branch office client’s account, Syahrul assured Kumar that he would look into the matter.

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[3] After checking the current status of the client’s account in question at the Taiping branch office, Syahrul was shocked to learn that there was only RM2,500 in the client’s account. Syahrul then called for the previous month’s bank statements and was further shocked to learn that cash withdrawals had been made from the client’s account since November 2003 without his knowledge. Syahrul telephoned the appellant who was at that time away in Kuala Lumpur and the appellant verbally admitted that he had been using the client’s moneys for the past few months to cover overhead expenses of the firm’s three offices. Syahrul immediately tendered his resignation but upon the appellant’s verbal undertaking to refund the moneys, Syahrul gave the appellant until 5 April 2004 to remedy the situation. On 5 April 2004, the appellant, while assuring Syahrul that he had paid the RM16,000 to Kumar, unintentionally disclosed to Syahrul that he had used more than RM16,000 from the client’s account. Since Syahrul had no idea how much moneys had been utilised by the appellant, he then forwarded a letter of complaint against the appellant to the Disciplinary Board and at the same time enclosed copies of the bank statements for the periods between November 2003 to February 2004 as evidence of the unlawful cash withdrawals. Syahrul also affirmed a statutory declaration dated 27 May 2004 confirming the contents of his complaint as can be seen at p 6 of the appeal record. In response to the complaint, the appellant tendered a written explanation to the Disciplinary Board dated 23 July 2004.

[4] While the Disciplinary Board was processing the complaint, Syahrul sent a letter dated 15 September 2004 withdrawing the complaint against the appellant. When the Disciplinary Board received the letter of withdrawal, the matter was referred to the Bar Council and, pursuant to r 8 of the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal And Disciplinary Committee) Rules 1994, the Bar Council decided to intervene and requested the Disciplinary Board to activate an investigation pursuant to s 100 of the Legal Profession Act. That section reads as follows:

100 Investigating Tribunal

(1) Where a written application or complaint is referred to the

Disciplinary Board, the Disciplinary Board shall, if it considers

that there is merit in the application or complaint, forthwith

constitute an

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