An advocate must be given a reasonable opportunity to be heard before a Disciplinary Board imposes any adverse penalties, as mandated by the Legal Profession Act 1976.

JUDGMENT

Su Tiang Joo JC:

Should An Advocate And Solicitor Be Given A Reasonable Opportunity To Be Heard Before The Advocates And Solicitors Disciplinary Board ("DB") Makes An Order That Is Likely To Be Adverse Against Him If The DB Intends To Impose A Greater Or Lesser Penalty Or Punishment Than That Recommended By The Disciplinary Committee ("DC")?

Introduction

[1] On 3 March 2021, this Court answered the above in the affirmative and remitted the matter to the DB for the advocate and solicitor to be given a reasonable opportunity to be heard before the DB makes an order that is likely to be adverse against him. Dissatisfied, the Bar Council Malaysia by notice of appeal dated 1 April 2021 appealed to the Court of Appeal.

[2] In making the Order of 3 March 2021, this Court had upheld the decision of the DB affirming the finding of the DC on liability against the advocate and solicitor. Dissatisfied, the advocate and solicitor by notice of appeal dated 2 April 2021 appealed to the Court of Appeal.

Background

[3] The appellant, Syed Ahmad Imdadz Said Abas, is an advocate and solicitor, practising as a sole proprietor in the law firm of Messrs Syed Anuar & Associates in Ipoh, Perak.

[4] By letter dated 4 October 2016, the respondent had complained to the DB that the appellant is suspected of having acted in conflict of interest and having conspired to defraud it.

[5] In summary, the respondent complained that as a developer, it had entered into a Joint-Venture Agreement dated 1 August 2012 ("JVA") with Pintar Asiamas Sdn Bhd ("Landowner") who was to be alienated a piece of State Land measuring approximately 11 acres by the State Authority of Perak, to develop the land into a housing scheme that comprises terrace housing lots. The appellant witnesses the execution of the JVA by the Landowner as well as the Power of Attorney ("PA") given by the Landowner to the respondent and which was also dated 1 August 2012.

[6] It subsequently came to the knowledge of the respondent that during the pendency of the JVA, the Landowner who was obliged not to sell the land to any third party, had entered into a sale and purchase agreement dated 9 October 2013 ("SPA") to sell the same piece of land comprising 116 lots of vacant land to Ken Han Sdn Bhd. This SPA was prepared by Messrs Syed Anuar & Associates and the appellant had witnessed the execution of this Agreement by both the Landowner and Ken Han Sdn Bhd.

[7] The appellant denied it acted for any party to the JVA. He asserted that he was not privy to the terms and conditions of the JVA and his role was merely to witness and attest the execution of the JVA and the PA by the Landowner. And, given this limited role, there is no misconduct on his part.

[8] In reply, the respondent asserted that in any event, in drawing up the SPA, the appellant would have become appraised of the terms of the JVA and would be aware that both the JVA and the SPA were to do with the same land.

Disciplinary Committee ("DC")

[9] The complaint by the respondent was duly heard by way of a formal inquiry before a DC on 21 February 2018. The hearing was concluded on 19 March 2018. From the DC's report (encl 15 pp 81 to 138) the following findings of liability (encl 15 pp 134 to 137) and recommendations for punishment (encl 15 p 138) were made against the appellant.

Liability

[10] Premised upon inter alia the documentary evidence in the form of a bill (encl 15 p 98) found by the DC to be that of the appellant's for preparing the JVA and the PA and, three covering letters (encl 15 pp 99 to 104) on payment of compensation to squatters on the land and copied to the appellant together with the JVA and PA, the DC found that the appellant had acted for both parties to the JVA including the respondent and had collected the fees for the same.

[11] The manager of the respondent gave evidence. He testified that the respondent paid for the abovementioned bill and the compensation meant for the squatters and that the bill and the three covering letter