The disciplinary board's discretion to dismiss complaints should not be interfered with unless compelling grounds exist.

Introduction

[1] This appeal by the appellants is against the decision of the Kuala Lumpur High Court dated 14 December 2009, in allowing the Bar Council's appeal against the decision of the disciplinary board made on 9 December 2008.

[2] The disciplinary board in its decision dated 9 December 2008 had dismissed the Bar Council's complaint against the appellants for misconduct under the Legal Profession Act 1976 ("the Act").

[3] We had earlier allowed the appeal of the appellants and set aside the order of the High Court. These are the reasons for our decision.

Brief Facts

[4] The appellants were and still are advocates and solicitors practicing as partners in the name of Messrs Harun Idris, Yeoh & Partners ("the legal firm").

[5] The Bar Council had earlier made a complaint to the disciplinary board pursuant to s 99(3) of the Act against the appellants for allowing a person by the name of Ms Choo Lee Chin ("Ms Choo"), who was not an advocate & solicitor and therefore by definition an "unauthorised person" under s 36(1) of the Act, to sign a cheque for the sum of RM500,000 in favour of one Ng Siong Toke ("Mr Ng").

[6] The cheque concerned was drawn on a client account of the legal firm ("the account").

[7] The Bar Council's complaint is that by allowing Ms Choo to sign the cheque, the appellants had contravened s 82(2) of the Act and r 11(6) of the Solicitors' Account Rules 1990 ("the Rules") which prima facie would amount to a misconduct under sub-ss 94(3)(k) and (o) of the Act.

[8] For ease of reference, ss 82(2), 94(3)(k) and (o) and r 11(6) of the Rules are set out as follows:-

Section 82 (2)

No advocate and solicitor shall authorise any unauthorised person to operate any bank account in his name or in the name of his firm and maintained by him or his firm in connection with his practice as an advocate and solicitor.

Rule 11(6) of the Rules:-

Unless authorised in writing by the Bar Council, no money may be withdrawn from a bank account, being or forming part of a client account, otherwise than under the signature of a solicitor.

Subsections 94(3)(k) and (o)

(3) For the purposes of this Part, "misconduct" means conduct or omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety and includes:-

....

(k) the breach of any provision of this Act or of any rules made thereunder or any direction or ruling of the Bar Council;

....

(o) being guilty of any conduct which is unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute.

[9] The appellants through their letters to both the Bar Council and the disciplinary board gave the following explanation for their action:-

(a) the account was a trust account for the first appellant and his business partners only;

(b) the first appellant was a beneficiary of the account and no clients' money was deposited into the account;

(c) the trustees of the account were the first appellant, the late Dato' Harun ldris and Ms Choo;

(d) following the demise of Dato' Harun ldris the remaining trustees are the first appellant and Ms Choo and the first appellant was and still is a solicitor trustee of the account while Ms Choo is a co-trustee and mandated signatory of the account;

(e) the second appellant is not one of the trustees of the account and therefore was not an authorised signatory of the account;

(f) The cheque was issued by Ms Choo upon the instruction of the first appellant;

(g) The appointment of Ms Choo was as a precaution to prevent embezzlements by lawyers which were rampant at that time (in 1992) and her appointment was also consistent with the provisi