Hashim Yeop A Sani CJ (Malaya)

(delivering the judgment of the court): This was an appeal by Teoh Hooi Leong, an applicant under s 107 of the Legal Profession Act 1976 ('the Act') against the decision of the High Court refusing his application to have his name restored to the Roll of Advocates and Solicitors of the High Court, Malaya.

Under s 107 of the Act, the High Court, consisting of three judges, may if it thinks fair and reasonable so to do, restore to the roll the name of the advocate and solicitor which had been removed from or struck off the roll. Any party aggrieved by the decision of the High Court under this section has a right of appeal to this court.

The appellant was conferred the Degree of Bachelor of Laws (Hons) by the University of Singapore in 1966. He was admitted as an advocate and solicitor of the High Court Malaya on 27 June 1967 and was practising until October 1974. In 1974 he was charged with two counts of criminal breach of trust of $99,240 under s 409 of the Penal Code. He pleaded guilty to the charges and was sentenced to 18 months' imprisonment. However, on appeal, the sentence was reduced to three months' imprisonment and a fine of $2,000. He served the sentence and paid the fine.

In 1975 he was made a bankrupt. Also in 1975 he applied on his own initiative to have his name removed from the roll. However, due to some miscommunication, the appellant's name remained in the roll until 1989. From 1974 to 1987 the appellant did not practice but was employed by various companies assisting in legal advice but not in any managerial capacity. On 10 May 1989 the appellant gave notice to the Bar Council of his intention to make an application to be restored to the roll. The Bar Council wrote to him on 14 June 1989 to state that it would not object to the application.

Section 107(1) of the Act states as follows:

The High Court may, if it thinks fair and reasonable, at any time order the Registrar to restore to the Roll the name of an advocate and solicitor which has been removed from, or struck off, the Roll.

The High Court's refusal to allow the application of the appellant was grounded basically on what appeared to be its view that the appellant had not discharged the onus that he was a 'fit and proper person' and that he had not shown exceptional circumstances. The reasoning of the High Court is as expressed in paras 29, 30 and 39 of the judgment following immediately after its observations on the increasing number of allegations of fraud against lawyers in this country:

29 To be called to the Bar one has to be 'a fit and proper person.' This is not just a cliche, and persons of standing who give such testimonials to aspirants to the profession would do well to make a very careful evaluation of the characters they are assisting to let loose on the Malaysian public.

30 Where a solicitor has abused his trust by committing fraud in misappropriating client's moneys we consider that disbarment must follow as a matter of course. Such a person can only be reinstated to the Roll in the most exceptional circumstances.

...

39 In conclusion we must emphasize that the legal profession should be perceived to be an honourable one. So where a solicitor has been disbarred for dishonourable conduct it is only in the most exceptional cases that he can be restored to the Roll. The onus on him to show he is now a fit and proper person is a very heavy one.

Among its findings, material in the process of assessment by the High Court would seem to be its finding that although the appellant was earning a substantial salary at all material times from the various companies he had failed to make a proper restitution to his creditors over the years. Also material was its finding that the total sum misappropriated by the appellant was $138,791 when in fact misappropriation related only to the sum of $99,240 out of the total disclosed liability of $450,957.10.

The appellant's debts were mostly unsecured gambling debts from ind