Legal professionals are not liable for client instructions lacking evidence of knowledge regarding falsehoods, highlighting the importance of due process in disciplinary proceedings.

JUDGMENT

Noorin Badaruddin J:

[1] This is the Plaintiff's appeal against the decision made by the Advocates and Solicitors Disciplinary Board ("DB") on 18 July 2020 under s 103D of the Legal Profession Act 1976 .

[2] In this appeal, the Plaintiff seek for the following orders and reliefs:

2.1. A declaration that the Plaintiff had not been notified by the DB of its decision and the time to lodge the appeal is at large;

2.2. In the alternative, an order that leave be granted to enlarge time to appeal against the decision of the DB;

2.3. An order to reverse the decision of the DB;

2.4. An order that:

2.4.1 The Plaintiff's Complaint No DC/16/9038 be allowed;

2.4.2 There is finding of liability against the Defendant;

2.4.3 The Defendant be struck off the Roll of Advocates and Solicitors; and

2.4.4 In the alternative, penalties, or punishments under s 103C of the Legal Profession Act 1976 be ordered as this Court deems fit and proper;

2.4.5 Costs of the Appeal be paid by the Defendant to the Plaintiff

Background Facts

[3] The Plaintiff was a founder and shareholder of Euroceramic Technologies Company Limited, a private limited company incorporated in Thailand ("ECT").

[4] On or about 6 November 2006, the Plaintiff transferred his shares in ECT to one Kamal YP Tan ("Kamal") via a tripartite agreement between Kamal, one Roger Yue ("Roger") and the Plaintiff. Kamal was said to have signed a document called "Acknowledgement of Debt", acknowledging that the sum of RM8,018,225.00 was due and owing to the Plaintiff pursuant to the transfer of shares, and that the sum was due on or before 31 March 2007. However Kamal was said to have continuously failed, ignored and/or refused to pay the sum due and owing to the Plaintiff.

[5] On 19 November 2007, the Plaintiff commenced Kuala Lumpur High Court Civil Suit No: S5-22-1333/2007 ("Suit 1333") against Kamal for the recovery of the sum of RM8,018,225.00.

[6] The Defendant represented Kamal in Suit 1333.

[7] The High Court dismissed the Plaintiff's claim and had allowed Kamal's counterclaim.

[8] On appeal, the Court of Appeal had set aside the High Court's decision. Kamal's leave to appeal and also for review were dismissed by the Federal Court.

[9] On or about 5 December 2016 the Plaintiff together with three others namely Mr Kong Ah Choo ("Kong"), Law Swee Haw ("Law") and the late Edward Mosses a/l Julius Josephath ("Edward") jointly lodged a complaint against the Defendant with the Disciplinary Committee ("DC").

[10] The complaints against the Defendant in summary are as follows:

(a) The Defendant had drafted the affidavits for Kong, Edward and Law without interviewing and checking with them as to the truth and accuracy of the contents thereof and coercing them to affirm the affidavit without explaining the contents of the affidavits to them.

(b) The Defendant had drafted false affidavits so as to deliberately mislead, confuse and deceive the Court. The deception was also practiced during cross-examination during trial.

(c) The Defendant also fabricated a letter of irrevocable instruction dated 18 July 2008 ("LII") and tricked Law into signing the LII. The Defendant subsequently misappropriated a large part of the proceeds of sale of ECT shares from Kong, Edward and Law and paid the monies to a stranger, Lee Siw Kim.

Summary Of The DC's Findings

[11] In summary, the DC found no liability on the part of the Defendant and held that:

i. The Plaintiff's complaint was time barred;

ii. There is no evidence that the Defendant knew the contents of Kong's, Edward's and Law's affidavits were wrong or untrue at the time of drafting their affidavits;

iii. The Defendant was not liable for drafting and using false affidavits in Court proceedings without verifying the contents of the same; and

iv. The Defendant was not liable for misappropriating of monies and fabrication, forging documents and/or using false evidence in an attempt to legitimise the misappropriation of monies.

[12] On 18 July 2020, the DB affirmed the DC's decision.

Sum