Judicial misconduct involving attempts to influence appointments undermines legal integrity, justifying severe disciplinary action by the Bar's Disciplinary Board.

Lee Swee Seng JCA:

[1] Once in a while there is a massive revelation and various quarters would sensationalise and capitalise on it. However the issue before the Court, remote and far removed from the reverberations that first arose from its revelation is this: whether what was said by a lawyer in a conversation on a handphone regarding matters relating to the appointment to top positions in the Malaysian judiciary amounted to misconduct of interfering with and influencing judicial appointments.

[2] Related to that question is the issue of the admissibility of a video clip of the conversation and the event in the house of the said lawyer when the original recording is not available but the maker of it confirmed the accuracy and authenticity of the video clip.

[3] The Bar Council made its complaint vide its letter of 26 September 2007 to the Disciplinary Board ("DB") as it believed that the person captured in the video recording that was accessed through the website of an online news portal, Malaysiakini, is the appellant, a senior member of the Malaysian Bar and the subject matter of the conversation so captured was egregious enough to warrant an investigation into what the Bar Council saw as a serious misconduct.

[4] The misconduct of the appellant is said to be caught under s 94(3)(c), 94(3) (k) and specifically r 31 of the Legal Profession (Practice and Etiquette) Rules 1994, and/or s 94(3)(o) of the Legal Profession Act 1976 (" LPA "). At the end of the day the DB found the appellant guilty under s 94(3)(o) for conduct which is unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute and of r 31 which reads: "Every advocate and solicitor shall at all times uphold the dignity and high standing of the profession."

[5] The stand of the appellant all along from the very start was that he was not the person in the recording and that in any event the recording, now downloaded from the website into a compact disc (CD) is not the original and that it has been tampered with or that it is otherwise inadmissible as hearsay evidence.

[6] The expert witness called by the Bar Council testified before the Disciplinary Committee ("DC") the recording in the CD is authentic by the use of three tests of frame consistency analysis, pixel consistency analysis and light-shadow analysis whereas the expert witness of the appellant maintained that it could not be authenticated as it had been changed from a low frame rate to a faster frame rate and that it had been edited as the original recording is much longer.

[7] After a hearing that spanned over four years the DC on 20 February 2014 found the appellant guilty of misconduct and the majority recommended a suspension of 1 year and a fine of RM20,000.00 whereas the minority Mr Gurmit Singh ("Mr Singh") recommended a suspension of two years and a fine of RM50,000.00.

[8] The matter then proceeded to the Disciplinary Board ("DB") which agreed with the DC's finding of misconduct but disagreed with the punishment recommended.

[9] Prior to the making of the enhanced order, due notice had been given to the appellant pursuant to s 103D(2) and 103D(4) LPA for him to appear before the DB on 12 September 2014 to make representations, before the DB proceeded to make the order. After some three adjournments on medical grounds the DB gave a final adjournment where learned counsel for the appellant appeared and requested for a further adjournment, which was disallowed by the DB. Learned counsel then took leave on ground that he had no instruction to submit further.

[10] The DB decided that the proper punishment was an order to strike off the appellant from the Roll of Advocates and Solicitors of the High Court of Malaya.

[11] Against that decision of the DB made on 6 November 2015, the appellant appealed unsuccessfully to the High Court to set aside both the finding of misconduct and the punishment imposed. The High Court had on 22 May 2016 dismi