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2011 MarsdenLR 240
FEDERAL COURT PUTRAJAYA
LAU KEEN FAI – Appellant
Versus
LIM BAN KAY & ANOR – Respondent
[Civil Appeal No: 02( )-31-2011 (W)]
The appeal against disciplinary decisions under the Legal Profession Act does not require leave to be sought from the Federal Court, emphasizing legislative intent for multiple appeal tiers.
Headnote:(A) Legal Profession Act 1976 - Section 93 and Section 103E - Courts of Judicature Act 1964 - Section 96 - Disciplinary action against solicitor - Appeal against suspension from legal practice is permissible without requiring leave from the Federal Court as per Section 103E. (Paras 1-16)
(B) Jurisdiction of courts - Clear legislative intent is to grant right to appeal against decisions of Disciplinary Board without the need for leave by virtue of Section 103E. (Paras 9-12)
Facts of the case:
The appellant was suspended from practice as an advocate and solicitor for three years due to fraudulent conduct involving a loan transaction. After a series of appeals and dismissals, the current appeal questions the necessity of leave for Federal Court proceedings.
Findings of Court:
The appeal to the Federal Court does not require prior leave based on the definitive wording of Section 103E.
Issues: The primary issue was whether the appellant's right to appeal to the Federal Court necessitates leave under the CJA.
Ratio Decidendi: The court held that Section 103E explicitly allows appeals against the Disciplinary Board's decisions without needing leave and is reflective of legislative intent to facilitate access to judicial review.
Result: The preliminary objection is dismissed.
[1] The appellant was admitted as an advocate and solicitor of the High Court of Malaya in 1989. By an order dated 15. 1. 2010 the Disciplinary Board established under s 93 of the Legal Profession Act 1976 [" LPA "] suspended the appellant from practice as an advocate and solicitor for a period of three years upon a complaint made by the first respondent against the appellant. The appellant was found guilty by the Disciplinary Board for fraudulent conduct in the discharge of his duties as a solicitor over a loan transaction involving the first respondent. The appellant's appeal to the High Court was dismissed on 24 June 2010. He appealed to the Court of Appeal. The Court of Appeal dismissed his appeal on 13 May 2011. This is his appeal to this Court against the decision of the Court of Appeal pursuant to s 103E of the .
Preliminary Objection
[2] At the outset of the hearing of the appeal before this Court the second respondent, the Malaysian Bar Council raised a preliminary objection based on the appellant's Notice of Appeal dated 19 May 2011. It is the contention of the second respondent that the appellant's Notice of Appeal filed is irregular and/or misconceived as leave of the Federal Court was not sought first. By virtue of s 96(a) of the Courts of Judicature Act 1964 ["CJA"], the Court of Appeal's decision is not appealable without leave. It was further contended by the second respondent that the s 103E appeal under the LPA by the appellant was not decided by the High Court in the exercise of its original jurisdiction but rather in its supervisory jurisdiction being an appeal from the Disciplinary Board of a statutory body.
Decision
[3] The question for determination before this Court is whether leave of the Federal Court is required in an appeal to the Federal Court pursuant to s 103E of the LPA . For ease of reference, s 103E of the is reproduced as follows:
"103E. Appeal from the decision of the Disciplinary Board
(1) Any party aggrieved by any decision or order made by the Disciplinary Board under subsection 100(5), (8) or (9) or s 103D shall have the right to appeal to the High Court within one month of the receipt of the notification of the decision or order complained against; and no appeal shall lie against any other decision or order made by the Disciplinary Board.
(2) There shall be no judicial review against any decision or order made by the Disciplinary Board.
(3) The appeal shall be fixed for hearing before a single Judge of the High Court.
(4) The appeal shall be by way of an originating motion setting out the ground of appeal supported by affidavit.
(5) Any appeal against the decision of the High Court shall lie to the Court of Appeal and thereafter to the Federal Court.
(6) The Bar Council may in its discretion intervene at any stage of any appeal under this section.
(7) The Disciplinary Board shall not be cited as a party in any appeal under this section.
(8) The Disciplinary Board shall have the right to appear in and address any High Court, the Court of Appeal or the Federal Court hearing an appeal under this section by an advocate and solicitor whether or not the advocate and solicitor is a member of the Disciplinary Board or the Bar Council. "
[4] It is to be noted the new s 103E of the LPA was enacted pursuant to Amendment Act A1269 which came into force from 2 October 2006. The previous s 103E of the before the Amendment Act A1269 provides as follows:
"103E. Appeal from the decision of the Disciplinary Board
(1) Any party aggrieved by any decision or order made by a Disciplinary Board shall have the right to appeal to the High Court within one month of notification of the decision or order complained against.
(2) The appeal shall be fixed for hearing before three Judges of the High Court.
(3) Any party aggrieved by the decision of the High Court shall have the right to appeal to the Supreme Court within one month of the decision of the High Court.
(4) The Bar Council may in its discretion intervene at any stage of any
